Sources of Islamic Laws

(Legal thinking/ Sharia)

There are four main sources

1. The Quran
2. The Hadith/Sunnah
3. Ijma (consensus of opinions)
4. Qiyas (analogy/comparison in between two situation)

There are four main sources of Islamic law. The first two, Quran and Hadith are known
as primary sources and the other two, Ijma and Qiyas are known as secondary sources.
Allah says, “O you who have believed, obey Allah and obey the messenger and those in
authority among you. And if you disagree over anything, refer it to Allah and the
messenger, if you should believe in Allah and the Last Day. That is the best (way) and
best in result”.

Rules to answer the questions about law making:

 Introduction of the Source,

 Rules to make laws,
 Rules for the one who makes laws,
 Quotation for approval,
 At least four/five examples of the laws. (each example in different para)
The Quran
Quran is the primary source of Islamic Law and the most authentic book. Allah (Subhanahu
wa-ta’ala) Himself orders to use the Quran as the book of law. He said, “It is a book,
there is no doubt in it, it is guidance for the pious.” It must be kept in mind that
the law should be made from the verse which clearly indicates any rule. The Quran
covers every aspect of life; social, economic, religious and political. The Quran gives
basis to Hadith, Ijma and Qiyas in law making.

Use of the Quran in law making alone

Quran is the primary source of Islamic Law and the most authentic book. Allah (Subhanahu
wa-ta’ala) Himself orders to use the Quran as the book of law. He said, “It is a book,
there is no doubt in it, it is guidance for the pious.” It is necessary that in order
to make laws from Quran one should be expert of Quran, Hadith, Arabic language, Islamic
history and other modern sciences. It must be kept in mind that the law should be made
from the verse which clearly indicates any rule. The Quran covers every aspect of life;
social, economic, religious and political.
Regarding social aspect Allah (Subhanahu wa-ta’ala) said, “Help one another in
righteousness and piety but help not one another in sin and transgression.” Hence this
verse gives a law that we should not support a wrong cause rather advise our friends
for virtue. “and those who accuse free women then do not bring four witnesses, flog
them, (giving) eighty lashes, and do not admit evidence from them ever.” Al-Quran.
This verse clearly orders that every one of the false accusation must be lashed eighty
times (provided four just witnesses are not available simultaneously). Allah (Subhanahu
wa-ta’ala) forbade any one to favor anyone above the truth. “…Do not let the hatred of
a people prevent you from being just. Be just, for that is nearer to righteousness.
Fear Allah, for verily, Allah is aware of what you do.” The Quran forbids to mock
others. “O you who have believed, let not a people ridicule [another] people; perhaps
they may be better than them; nor let women ridicule [other] women; perhaps they may
be better than them.” The Quran condemns Hiraba i.e. robbery with violence etc. It is
stated in the Quran, “Those who make war on Allah (Subhanahu wa-ta’ala) and His
Messenger and seek to spread harm and corruption in the land.” The Quran gives it the
harshest punishment in Islam: crucifixion and/or amputating hands and feet.
For political aspect of life Allah (Subhanahu wa-ta’ala) says, “and obey Allah
(Subhanahu wa-ta’ala) and His Messenger and the leaders appointed over you.” From this
verse the law is made that we should obey our leaders and the rules and regulations
set by them as long as they obey Allah (Subhanahu wa-ta’ala) and His Prophet “Rasool
Allah Khatam-un-Nabiyyin SallAllahu Alaihi Wasallam”. Similarly the Quran is used in
law making for the Economic aspect of life too. The Quran says, “Give full measure
when you measure.” From this verse, we understand that cheating and stealing are Haram
in Islam. The Quran also orders to write the contract in dealings. It is stated in the
Quran, “Allah will deprive usury of all blessing, but will give increase for deeds of
charity.” The Quran gives clear directives to the business partners to uphold the
rights each other; stating, “Do not devour another’s property wrongfully – unless it
be by trade based on mutual consent.”
Concerning the religious matters the Quarn says, “He is Allah, the One; Allah, the
self Subsisting; He did not produce, nor was He produced; and there is none equal or
comparable to Him.” These verses give clear laws about the Oneness of Allah (Subhanahu
wa-ta’ala) and condemn the sense of making partner with Him. For rulings about the
Pilgrimage (hajj) the Quran gives clear orders, it states, “Hajj is [during] well-
known months, so whoever has made Hajj obligatory upon himself therein [by entering
the state of ihram], there is [to be for him] no marital relations and no disobedience
and no disputing during Hajj. And whatever good you do - Allah knows it. And take
provisions, but indeed, the best provision is fear of Allah. And fear Me, O you of
understanding.”

Use of the Quran in law making

Outline of the answer

 A few examples of Quran alone

 One with the Hadith
 One with Ijma
 One with Qiyas

Quran is the primary source of Islamic Law and the most authentic book. Allah (Subhanahu
wa-ta’ala) Himself orders to use the Quran as the book of law. He said, “It is a book,
there is no doubt in it, it is guidance for the pious.” It is necessary that in order
to make laws from Quran one should be expert of Quran, Hadith, Arabic language, Islamic
history and other modern sciences. It must be kept in mind that the law should be made
from the verse which clearly indicates any rule. The Quran covers every aspect of life;
social, economic, religious and political.
Regarding social aspect Allah (Subhanahu wa-ta’ala) said, “Help one another in
righteousness and piety but help not one another in sin and transgression.” Hence this
verse gives a law that we should not support a wrong cause rather advise our friends
for virtue. “And those who accuse free women then do not bring four witnesses, flog
them, (giving) eighty lashes, and do not admit evidence from them ever.” Al-Quran.
This verse clearly orders that every one of the false accusation must be lashed eighty
times (provided four just witnesses are not available simultaneously). For political
aspect of life Allah (Subhanahu wa-ta’ala) says, “And obey Allah (Subhanahu wa-ta’ala)
and His Messenger and the leaders appointed over you.” From this verse the law is made
that we should obey our leaders and the rules and regulations set by them as long as
they obey Allah (Subhanahu wa-ta’ala) and His Prophet “Rasool Allah Khatam-un-Nabiyyin
SallAllahu Alaihi Wasallam”. Similarly the Quran is used in law making for the economic
aspect of life too. The Quran says, “Give full measure when you measure.” From this
verse, we understand that cheating and stealing are Haram in Islam.
The Quran is not only used alone in law making but it also provides basis to Hadith,
Ijma and Qiyas to address the modern issues. Sometimes the Quran gives a basic rule
for any order but does not give any clear methodology, then Hadith is referred, to
make a law e.g. regarding the law of heredity, the Quran just prescribed the heredity
for children saying, “Allah commands you as regards your children's (inheritance); to
the male, a portion equal to that of two females;…” But the Messenger of Allah “Rasool
Allah Khatam-un-Nabiyyin SallAllahu Alaihi Wasallam” restricted to heir of the victim,
he said, “The killer shall not inherit.” If he was to inherit, killing would become
widespread and thus lead to universal chaos therefore, the Holy Prophet “Rasool Allah
Khatam-un-Nabiyyin SallAllahu Alaihi Wasallam” gave this verdict.
The Quran is not only used in law making with Hadith but it also provides basis to
Ijma, when Haith is not available, as the part in one’s property for the grandfather
is not mentioned in Quran, nor in Hadith but scholars through Ijma gave share in the
property to grandfather when no other relative is alive. They made this Ijma in the
light of this verse from the Quran: “It is prescribed that when death approaches any
of you, and if he leaves some goods, he should make a bequest to the nearest of kins.”
Scholars added grandfather in the heredity of grandson keeping the words, “the nearest
of kins” in their minds.
The Quran is not only used in law making with Hadith and Ijma but it also provides
roots to the use of Qiyas, as nowadays use of cocaine and other drugs is a new issue,
they Quran, Hadith and Ijma do not address them. So the scholars compared it with a
verse of the Holy Quran which says, “O, you who believe, intoxicants, and gambling,
and the altars of idols, and the games of chance are abominations of the devil; you
shall avoid them that you may succeed.” From this verse, the problem is resolved as
the scholar compared wine with cocaine. As both of them intoxicate therefore, cocaine
is also haram as wine is haram.

The use of Quran in law making with Hadith/Sunnah

Examples of laws with Hadith:

 The law of heredity for the killer

 Detail of Riba
 Punishment of wine
 Distribution of Zakat
 Amount of theft to charge the punishment

The Quran is the primary source of Islamic Law and the most authentic book. Allah
(Subhanahu wa-ta’ala) Himself orders to use the Quran as the book of law. He said, “It
is a book, there is no doubt in it, it is guidance for the pious.” It is necessary
that in order to make laws from Quran one should be expert of Quran, Hadith, Arabic
language, Islamic history and other modern sciences. Though the Quran gives laws for
every issue but when we are unable to find any clear law from its verses then Hadith
is referred for the explanation to make laws.
The Quran is used with the Hadith in law making in many cases for example regarding
the law of heredity for the killer, the Quran just prescribed the heredity for children
saying, “Allah commands you as regards your children's (inheritance); to the male, a
portion equal to that of two females;…” But the Messenger of Allah “Rasool Allah
Khatam-un-Nabiyyin SallAllahu Alaihi Wasallam” restricted to heir of the victim, he
said, “The killer shall not inherit.” If he was to inherit, killing would become
widespread and thus lead to universal chaos therefore, the Holy Prophet “Rasool Allah
Khatam-un-Nabiyyin SallAllahu Alaihi Wasallam” gave this verdict.
Allah (Subhanahu wa-ta’ala) just forbids the use of Riba, but does not mention the
detail of its area in the Quran. He says, “O you who believe! Be afraid of Allah and
give up what remains (due to you) from Riba (usury) (from now onwards), if you are
(really) believers.” So in order to make a detailed law Hadith is referred. The Holy
Prophet “Rasool Allah Khatam-un-Nabiyyin SallAllahu Alaihi Wasallam” said, “Gold in
exchange for gold, silver in exchange for silver, wheat in exchange for wheat, barley
in exchange for barley, dates in exchange for dates, salt in exchange for salt must be
in the same category and (should be exchanged) hand to hand, so whoever adds or demands
increase, he has practised usury. The giver and taker are the same.”
The Holy Quran regards wine as haram but it did not set any punishment for the one who
drinks it. Allah (Subhanahu wa-ta’ala) said, “O, you who believe, intoxicants, and
gambling, and the altars of idols, and the games of chance are abominations of the
devil; you shall avoid them that you may succeed.” So in order to make a detailed law
Hadith is referred. Anas bin Malik reported that a person who had drunk wine was
brought to Allah's Apostle “Rasool Allah Khatam-un-Nabiyyin SallAllahu Alaihi
Wasallam”. He gave him forty stripes with two lashes. Abu Bakr also did that, but when
Umar assumed the responsibilities of the Caliphate, he consulted people and Abd al-
Rahman said, “The mildest punishment (for drinking) is eighty (stripes) and Umar
prescribed this punishment.”
Quran says, “And offer Prayers (salat) and pay Poor Due (zakat).” This verse and even
the whole Quran does not tell how much Zakaat is to be paid, so to make law for Zakaat,
Sunnah of the Holy Prophet “Rasool Allah Khatam-un-Nabiyyin SallAllahu Alaihi Wasallam”
must also be consulted which tells that if anyone has 7.5 tola gold or more, then he
will pay Zakaat at the ratio of 2.5 percent annually. The Hadith gives detail of the
rate of Zakaat for silver, cattle, crops and animals too.
Regarding theft Allah (Subhanahu wa-ta’ala) says, “and (as for) the male thief and the
female thief, cut off (from the wrist joint) their (right) hands as a recompense for
that which they committed, a punishment by way of example from Allah. And Allah is All
Powerful, All Wise.” Theft is haram according to the Quran and the punishment for it,
is to cut off the hand of thief but what to steal and how much is not mentioned in the
Quran, therefore, for further detail we need to refer to Hadith. The Holy Prophet
“Rasool Allah Khatam-un-Nabiyyin SallAllahu Alaihi Wasallam” said, “The hand should be
cut off for (the theft of) a quarter of a dinar or more.”

Expected questions

1) Briefly describe the four main sources of legal thinking in Islam.

2) Give one example in each to show how the third and fourth of these legal sources
are used.
3) How are the Quran and Hadith employed in working out the Islamic Law?
4) How are the Quran and other sources employed in working out the Islamic Law?
5) How are the Quran and Ijma employed in working out the Islamic Law?
6) How has the Quran been used as a source of guidance by the Muslims?
 7) How do the Muslims use Holy Quran in their daily living?
8) How is the Quran used with Qiyas in law making?

Ijma
Ijma is the best example of democratic principle in Islam. It means a uniform opinion
of scholars on any issue which is not present in the Quran and Hadith, but it is
important that the decision made by Ijma should not be against the Quran, Hadith, must
not be against the spirit of Islam and must not be against Muslim Ummah. Those who
make Ijma, should have be expert of the Quran, Hadith, Arabic language, Islamic history
and other relevant modern sciences. Allah (Subhanahu wa-ta’ala) approves the use of
Ijma saying, “O you who have believed, obey Allah and obey the messenger and those in
authority among you…” The Holy Prophet “Rasool Allah Khatam-un-Nabiyyin SallAllahu
Alaihi Wasallam” also approved Ijma by saying, “My community does not agree on error.”

Recognition of Ijma

All major schools of fiqh are recognized by Ijma and each school follows it. Hanafi,
Shafi, Maliki and Hanbali follow all kinds of Ijma. Whereas Shia school believes in
Ijma, done by Ahal-i-Bayt only.

Kinds of Ijma according to its categories.

1. Ijma of Sahaba.
2. Ijma of Mujtahideen (scholars and jurists) of the time after Sahaba till the
day of judgement.
3. Ijma of public on any belief.

Kinds of Ijma according to its acceptance.

1. Definitive: It is well known and well established, such as consensus that the
five daily Prayers (salat) are obligatory. No one can deny this type of ijma, as
it is proven and established, and the one who rejects it becomes a kaafir, unless
he is ignorant.
 2. Presumptive: It can only be known by means of research and study, where the
scholars may differ as to whether to do Ijma on a particular issue or not.
3. Explicit: Where jurists clearly express their views regarding an issue under
discussion.
4. Tacit: Where a jurists is quiet regarding the Ijma upon a rule, his consent is
considered to be with the majority.
5. Regular: Where the Muslim jurists express their views regarding a question of
law and all agreed to it.
6. Irregular: Where jurists resolve an issue and all remains silent is irregular
Ijma.
7. Al-Rukhsah: There is no consensus or agreement between the Mujitahids but the
community as a whole accepts the decision given by some Mujtahids.
8. Al-Fail: Where jurist does some thing and one or more jurists question him on
the act.

Qualifications of Mujtahids (law maker)

 Sound knowledge of Quran, Sunnah, Ijma, Qiyas, of Maqasid-al-Shariah, of Islamic

Jurisprudence, must be trustworthy, must be an adult, should be a Muslim, should
be able to interpret Quran and Sunnah, must have knowledge of Arabic language,
should be able to differentiate between false and authentic Hadith, should be
wise and pious person, should have enough and relevant knowledge of the modern
sciences and discoveries.
 There is a difference of opinion amongst legal experts about who makes up this
second group of Muslims. According to some it is agreement amongst the residents
of Madinah, others think it is the Prophet’s “Rasool Allah Khatam-un-Nabiyyin
SallAllahu Alaihi Wasallam” Companions whose ijma’ is valid as they were the
most knowledgeable in matters of Islamic law. Yet others believe it should be
the Rightly Guided Caliphs. According to Shi’a Muslims ijma’ of jurists of the
same period as the Prophet “Rasool Allah Khatam-un-Nabiyyin SallAllahu Alaihi
Wasallam” or the Shi’a Imams is binding, another opinion is that ijma’ should be
done by jurists who are experts on legal matters whilst yet another view is that
the agreement of the Muslim community at large constitutes ijma’.

Ijma alone and in the modern time:

  Enlargement of the Satanic Pillars at Mina due to the over crowdedness inorder
to save people from stampede.
 Matrimonial alliance (nikah) on Skype or video call with the help of court or
scholars, if male and female cannot assemble at one place due to any valid reason.
 Moon sighting committee.
 2nd Azan of Friday Prayers (salat) in the time of Uthman (radi Allahu anho) due
to the increase in population.
 Body (organ) transplant to save any human life but not for the sale and
business.
 Duration to wait for the missing husband
 Test tube baby( but it should be from legal husband and wife)

The use of Ijma (Consensus of Opinions) and the Quran in law making

Examples of the laws of Ijma with the Quran

 Share in the property for grandfather in the light of the verse of kin regarding
property.
 No marriage with grand-daughters or grandmother in the light of the verse of no
marriage with the close relatives.
 Banning of YouTube for some time in the light of verse of respect of the Holy
Prophet “Rasool Allah Khatam-un-Nabiyyin SallAllahu Alaihi Wasallam”.
 Those who do not believe in Muhammad “Rasool Allah Khatam-un-Nabiyyin SallAllahu
Alaihi Wasallam” as the last Prophet, were declared as non-Muslims.

Details

Ijma means a uniform opinion of scholars on any issue which is not clearly mentioned
in the Quran and Hadith, but it is important that the decision made by Ijma should not
be against the Quran and Islamic norms. Those who make it, they should have sound
knowledge of Islam and modern sciences. Allah (Subhanahu wa-ta’ala) Himself orders to
use Ijma. He says, “And obey Allah and His Messenger and the leaders appointed over
you.”
Ijma has two major types; one is of the Sahaba and the other is of the scholars of a
certain time. There are other kinds too such as Ijma of Jurists and Ijma of public but
the Ijma of public will be regarding the worldly matters, not of Islamic.
There are various examples in which Ijma was made in the light of the Quran. According
to the Quran and Hadith, there is no fixed share in the property for grandfather (as
by the time he is too old to inherit the property of grandson) but scholars through
Ijma gave him the share, when no other relative is alive. They made this Ijma in the
light of this verse, “It is prescribed that when death approaches any of you, and if
he leaves some goods, he should make a Bequest to the nearest of kins.” Scholars added
grandfather in the heredity of grandson keeping the words, “the nearest of kins” in
their minds.
Marriage between a man and any of his grand-daughters is forbidden through Ijma, though
it is not stated in the Quran and Hadith. But this decision of Ijma is based on this
verse of the Quran in which Allah (Subhanahu wa-ta’ala) says, “Prohibited to you are:
your mothers, daughters, sisters, father’s sisters, mother’s sisters, brother’s
daughters, sister’s daughters, foster mothers, foster sisters; your wives’ mothers,
your step-daughters under your guardianship, born of your wives.” According to this
verse a person cannot marry with his grand-daughter because she is as sacred as certain
other blood and close relations.
When some non Muslims showed blasphemous cartoons of the Holy Prophet “Rasool Allah
Khatam-un-Nabiyyin SallAllahu Alaihi Wasallam” on the Internet, the Muslim scholars
through Ijma decided to boycott their products, as the respect of Prophets is the basic
belief of Muslims. Allah (Subhanahu wa-ta’ala) says, “If you ask them (about this),
they declare: ‘We were only talking idly and joking.’ Say: ‘Was it at Allah, and His
Ayaat (proofs, evidences, verses, lessons, signs, revelations, etc.) and His Messenger
that you were mocking? Make no excuse; you disbelieved after you had believed.” This
verse clearly states that mocking Allah, His verses and His Messenger constitutes kufr,
so that applies even more to insulting. The verse also indicates that whoever belittles
the Messenger of Allah (Subhanahu wa-ta’ala) is also a kaafir, whether he was serious
or joking.
The government and scholars of Pakistan in particular and the Muslims all around the
world in general have declared those people as non Muslims who do not believe in
Muhammad “Rasool Allah Khatam-un-Nabiyyin SallAllahu Alaihi Wasallam” as the last
Prophet. This decision of Ijma can be certified in the light of Quran which states:
“Muhammad is not the father of any male among you, but he is the messenger of Allah
and the seal of the Prophets….”
“Whosoever saves a life, it would be as if he saved the life of all mankind.” In the
light of this verse of the Quran, some scholars allow donation of body parts to save
the life of human provided that it should not be for sale purpose.
Possibility of Ijma in Islamic legal in this modern time

Ijma is the consensus of the majority opinion of Muslim jurists it is thus binding on
Muslims and leaves no room for controversy. It is the best form of democratic system
of Islam as it respects all valid opinions. It unites the Muslims around the world as
the companions agreed on the caliphate of Abu Bakr. In ancient time conduction of Ijma
was harder as it was difficult to take all the scholars on board. Now it is easy to
perform Ijma as the scholars can be taken on board at one place through video calls,
on radio and television and they can come to the conclusion in a very short span of
time.

Expected questions

1) ‘My community will never agree upon an error’. The Holy Prophet’s Hadith
encourages the use of consensus of opinion (ijma’). Outline: • what consensus
of opinion (ijma’) is, and how many kinds of ijma’ there are; • who is
qualified to practise it; • give examples of how the Holy Prophet and the
Rightly Guided Caliphs practised ijma’.
2) What is the importance of consensus (Ijma) in Islam?
3) How easy is it to use Ijma in Islamic legal thinking today?
4) How is the use of Ijma (consensus) important to Muslims today?
5) Give one example in each to show how the third and the fourth of these legal
sources are used.
6) ‘My community will never agree upon an error’. In your opinion why is this
Hadith important for the practice of consensus (ijma)?
7) How useful is Ijma when dealing with modern issues?
Qiyas (Analogy)

Qiyas means to compare a new issue with an already existing teaching, provided that
both the new and old issues must have the same effect. Qiyas is used in law making
when the Quran, Hadith and Ijma are silent on any issue. The Qiyas takes roots either
from the Quran or Hadith inorder to make the law for a new problem. The law which is
made must not be against the other three sources, must not be against the spirit of
Islam, and must not be against Muslim Ummah. To make laws of Qiyas it is important
that the person should be scholar of Islam and other modern sciences. Quran itself
orders to use Qiyas, Allah (Subhanahu wa-ta’ala) says, “…..if you differ among yourself
on anything then refer it to Allah and the Prophet.” The Holy Prophet “Rasool Allah
Khatam-un-Nabiyyin SallAllahu Alaihi Wasallam” also approved the use of Qiyas he said,
“I decide those disputes, with my own opinion, which have not clearly been explained
by the revelation.”

There are two main types Of Qiyas

1. Definitive: - When 2 conditions are met and Mujtahid is fully convinced about
the illah he has found in asl and fer.
2. Probable: - When the mujtahid is not certain about illah in either or both cases,
qiyas is said to be probable.

Qiyas contains four elements (pillars):

1. Fer (New issue about which law has to be made).

2. Asl (Old/already existing teaching which works as a law)
3. Illa (Common effect between both the fer and asl).
4. Hukm (Order to be made).

(Qiyas) is the fourth source of Islamic law that is used when the

Permission to use Qiyas

The Quran and Hadith are the primary sources of Shariah. When they are silent the
consensus of believers is allowed but when Consensus is also silent then individual
analogy can be used. The person who engages in deriving a ruling through Qiyas must
have the qualifications to engage in independent juristic reasoning. The scholars of
Ahl al-Sunnah are also in agreement that Qiyas cannot be applied to certain matters.
It cannot be used to answer essential questions of belief or to investigate matters
relating to Allah’s nature. Qiyas would only be a valid source of evidence for matters
of Islamic Law in cases of necessity.
There should be four elements of Qiyas and should be properly linked with one another:
 Fer (New issue about which law has to be made)
 Asl (Old/already existing teaching which works as a law)
 Illa (Common effect between both the fer and asl)
 Hukm (Order to be made).
Sunni Muslims think that Allah (Subhanahu wa-ta’ala) and the Holy Prophet “Rasool Allah
Khatam-un-Nabiyyin SallAllahu Alaihi Wasallam” have allowed the use of Qiyas. It comes
in the Quran, “….and obey Allah and His Messenger and the leaders appointed over you,
if you differ among yourself on anything then refer it to Allah and the Prophet.” The
Holy Prophet “Rasool Allah Khatam-un-Nabiyyin SallAllahu Alaihi Wasallam” also compared
vowed Hajj with loan. Once a person asked from the Holy Prophet “Rasool Allah Khatam-
un-Nabiyyin SallAllahu Alaihi Wasallam” that his father vowed (promised) to perform
Hajj but he died without performing it so what should he do? The Holy Prophet “Rasool
Allah Khatam-un-Nabiyyin SallAllahu Alaihi Wasallam” asked him if his father had loan
to pay and he had died without paying it, what he would do. The man replied that he
would pay it. Then the Holy Prophet “Rasool Allah Khatam-un-Nabiyyin SallAllahu Alaihi
Wasallam” said that he could perform Hajj on behalf of his father just like he was
supposed to pay his father’s loan. In this example the Holy Prophet “Rasool Allah
Khatam-un-Nabiyyin SallAllahu Alaihi Wasallam” compared vowed Hajj with loan i.e. loan
is due for human being and vowed Hajj is due for Allah (Subhanahu wa-ta’ala).
Among Sunnis, the Hanafi school of thought very strongly supports Qiyas. Imam Abu
Hanifa, an important practitioner of Qiyas, elevated Qiyas to a position of great
significance in Islamic law. But, he also considered the “spirit” of Islamic teachings,
as well as the whether the ruling would be in the interest of the objectives of Islam.
Imam Malik accepted Qiyas as a valid source of legislation. For him, if a parallel
could be established between the effective cause of a law in the primary sources and
a new case, then analogical deduction could be viable tool. The Shafi'i school of
thought accepts Qiyas as a valid source. Imam Shafi'i, however, considered it as a
weak source, and tried to limit the cases where jurists would need to resort to Qiyas.
He criticized and rejected analogical deductions that were not firmly rooted in the
Quran and Sunnah. The Hanbalites have traditionally been reluctant to accept analogy.

Rejection of Qiyas

Analogy primary sources are silent about a newly appeared issue. However, some scholars
reject its use on the following basis. There is detailed description of everything in
the Quran so there is no need to follow another source, as Allah (Subhanahu wa-ta’ala)
says, “...and We have sent down to you the Book the Quran) as an exposition of
everything...” Resolution of issues through Qiyas takes precedence over Allah and His
Messenger which is forbidden in the Quran as it says, “O you who believe! Do not put
(yourselves) forward before Allah and His Messenger...” Some Muslims distrust it
because it involves a lot of individual opinion that might have errors or doubts. The
Holy Prophet “Rasool Allah Khatam-un-Nabiyyin SallAllahu Alaihi Wasallam” said, “Leave
what makes you doubtful for what does not.” Some scholars preferred the alternative
Ijma as it is the decision of majority and has less chances of error as the Holy
Prophet “Rasool Allah Khatam-un-Nabiyyin SallAllahu Alaihi Wasallam” said, “My
community does not agree on error.” As Qiyas is a single minded opinion therefore, the
public does not agree on the same point for example, the scholars of Pakistan regard
smoking cigarette as a disliked act through Qiyas, while the scholars of Egypt regard
it as Haram.
Shia Muslims reject the use of Qiyas as their Imams support the use of Aql. They
believe that reason (aql) helps Muslims apply a teaching in new circumstances instead
of Qiyas. According to the Shia Islamic Jurisprudence, a Faqeeh is allowed to use
Quran, intellect, Hadith from Imam, action of Imam or silence of Imam when an action
is taking place in front of him, whereas using logic, aql, would have been to think,
my Lord, the All-Knowing has demanded something from me, I may not understand why but
surely he knows best, so I will do it. That is the difference between two.
Even a Sunni Imam, Imam Shafi'i, considered it a weak source, and tried to limit the
cases where jurists would need to resort to Qiyas. He criticized and rejected analogical
deductions that were not firmly rooted in the Quran and Sunnah, while Imam Hanbal have
traditionally been reluctant to accept analogy.
The scholars of Ahl al-Sunnah are also in agreement that Qiyas cannot be applied to
certain matters. It cannot be used to answer essential questions of belief or to
investigate matters relating to Allah’s nature and attributes if it leads to comparing
Allah to His creation.
Use of Aql by Shia

Reasoning (use of Aql - Brains) is one of the four sources of jurisprudence. According
to the Shia Islamic Jurisprudence a Faqih is allowed to use Quran, intellect, Hadith
from a Masoum (Imam), action of a Masoum or silence of a Masoum when an action is
taking place in front of him, and intellect (aql). While Qiyas is based on comparing
one thing with another to decide on an action, whereas, Aql is to use logic and
reasoning to decide.
Using Aql in Fiqh means that Aql judges that if an action is good or evil. As Allah
(Subhanahu wa-ta’ala) commanded to veracity because it is originally good and
prohibited lie because it is originally evil. As an example the Aql says veracity is
good and lie is evil. There is a Hadith saying: anything is commanded by Islam is
commanded by Aql and anything commanded by Aql is commanded by Islam. Use of Aql can
be understood by the following example. If any Muslim is living in a non Muslim country
and he is presented with meat, now using Aql he should avoid it and prefer pulses and
vegetable as he is not sure that the meat which he is going te eat is slaughtered
legally or not.

The use of Qiyas (Analogy) with the Quran in law making

Examples of the laws with Quran

 Cocaine compared with wine

 Dry ablution compared with ablution (wudu)
 Modern business compared with Friday time business
 Smoking compared with suicide
 Choice of marriage compared with verse of marriage
 No marriage with aunt and niece simultaneously.

Details

Qiyas means to compare a new issue with already existing teaching, provided that both
the new and old issues should have the same effect. When the Quran doesn’t give any
clear law for the modern issue, and even Hadith and Ijma do not address it then Qiyas
seeks guidance from the Quran to make a law for the modern problem. The rule which is
made from Qiyas through the Quran shouldn’t be against the teachings of the Quran,
Hadith and Islamic principles. Quran itself orders to use Qiyas, Allah (Subhanahu wa-
ta’ala) says, “…..if you differ among yourself on anything then refer it to Allah and
the Prophet.” A common person cannot make laws through Qiyas, however the law maker
must have sound knowledge of Islam and other modern sciences.
There are four elements (pillars) of Qiyas and they should be properly linked with one
another:
 Fer (New issue about which law has to be made)
 Asl (Old/already existing teaching which works as a law)
 Illa (Common effect between both the fer and asl)
 Hukm (Order to be made)
Nowadays use of cocaine and other intoxicating drugs is a new issue. There is no clear
restriction about them in the Quran, Hadith and Ijma. So the scholars compared them
with a verse of the Holy Quran which says, “O, you who believe, intoxicants, and
gambling, and the altars of idols, and the games of chance are abominations of the
devil; you shall avoid them, which you may succeed.” From this verse the problem is
resolved as the scholar compared wine with cocaine. As both of them intoxicate
therefore, cocaine and other intoxicating drugs are also haram as wine is haram.
It is the Islamic law which prescribed that body parts must be washed properly for the
Prayers (salat) but if there is no water, then what to do? This issue was resolved by
Allah (Subhanahu wa-ta’ala) in the Holy Quran through a comparison between sand and
water. He says, “…And if you are ill or on a journey or one of you comes from the place
of relieving himself or you have contacted women [i.e., had marital relations] and
find no water, then seek clean earth and wipe over your faces and your hands [with
it]. Indeed, Allah is ever Pardoning and Forgiving.” This verse clearly indicates and
permits us that dry ablution is allowed if we don’t have water in our reach. In this
example sand and water are compared as they are commonly available, pure and are used
for purity.
“O ye who believe! When the call is proclaimed to Prayers (salat) on Friday (the day
of assembly), hasten earnestly to the remembrance of Allah, and leave off business
(and traffic) that is best for you if ye but knew!” In this verse, business transaction
is not allowed at the time of Friday Prayers (salat). So in the light of this verse
every kind of transaction is forbidden at the time of Friday Prayers (salat) such as,
school, office, academy, business, meetings, stock exchange etc.
Smoking is also a common issue of our time. There is no clear prohibition in the Quran,
Hadith or Ijma regarding it. If we compare it with the verse of Quran in which Allah
(Subhanahu wa-ta’ala) says, “And cast not yourselves to destruction with your own
hands, and do good (to others). Surely, Allah loves the doers of good.” According to
this verse suicide is haram, similarly smoking is also haram as it slowly kills a
person by damaging his lungs and throat.
The Quran says: “marry women of your choice, two or three of four; but if you fear you
shall not be able to do justice then only one.” Here the second clause (but if you
fear…) allows for humans to compare the number of his wives with his resources in order
to treat them equally in providing home, food, clothing, time and other necessities of
life accordingly.
The Holy Quran forbids a man to marry two sisters simultaneously. “You are prohibited
to marry… wives of your sons, and two sisters at the same time except for what has
been done in the past.” Keeping this issue in a view the Holy Prophet “Rasool Allah
Khatam-un-Nabiyyin SallAllahu Alaihi Wasallam” forbade combining aunt and niece in the
mirage with a man as they are also in close blood tie to each other.

Expected questions

1) How are the Qiyas (Analogy) and Quran employed in working out the Islamic law?
2) How do the scholars use Qiyas in working out the Islamic law?
3) In what circumstances do Sunni Muslims allow the use of Qiyas (analogy)?
4) Why do some people reject the use of Qiays?
5) Why do Shia Muslims attach importance to the use of Aql/reasons in establishing
the Islamic laws?
6) How useful is Qiyas when dealing with modern issues?
7) Why do you think the Prophet “Rasool Allah Khatam-un-Nabiyyin SallAllahu Alaihi
Wasallam” encouraged the exercise of personal reasoning amongst his Companions?