Sources of Islamic Law:

The study of any legal system requires considering the sources.

The science of Islamic Law (Fiqh) is the knowledge of ones rights
and obligations derived from the Quran, Sunna, Ijmaa and Qyas.
There is a Hadith of the prophet which is usually invoked in this
connection, the prophet sent Muadh, one of his companions as
governor of Yemen and also as distributor of Justice. No trained
lawyer existed at that time and the prophet asked:
Prophet: ‘On what shalt thou base thy decision?’
Muadh: ‘On the Quran – The scripture of Allah.’
Prophet: ‘If the Quran does not give guidance to the purpose?’
Muadh: ‘Then upon the tradition of the prophet.’
Prophet: ‘But if that also fails?’
Muadh: ‘Then I shall strive to interpret with my reason.’
And then the Prophet said:-
“Praise be to Allah who has favored the messenger of his
messenger with what his messenger is willing to approve.”
 1. The Quran:

The Quran is the fundamental base of Islam. Its importance is

religious and spiritual, no less than legal, as it is in Muslim belief,
the word of Allah.

The Quran is al-farqan i.e. one showing truth from falsehood and
right from wrong. The holy book, divine in origin is believed to
have been revealed to the prophet Mohammad (pbh) by the holy
spirit (Gabriel) over 22 years. It contains about 6666 sentences
(Ayats) and 114 verses- Suras (parts) in 30 Paras or chapters.
But not more than 200 sentences (Ayats) deal with legal
principles and there are about 80 sentences (Ayats) more or less
which deal with the law of personal status.

The verses of the Quran although only a few of them deal

specifically with legal questions, are held to be of paramount
authority. As the Holy Quran is sacred and divine no court can
change it.

The prophet was ordained to preach the Quran and thus

established Islam. Anything contrary to Quran is not Islamic law.
The Quran was officially completed after the prophet’s death at
the time of the first Caliph Abu Baker.
 2. Sunna:
The second source of Islamic Law is the Sunna which means the
practices of the prophet, his model behaviour. The Sunna
comprises of:
a. Sunnat-ul-Qual:- All words, counsels of the prophet.
b. Sunnat-ul-Fail:- All actions, works and daily practices
of the prophet.
c. Sunnat-ul-Taqrir:- His silence implying or tacit
approval on his part of any individual act committed by
his disciple.

The word Sunna should be distinguished from the term Hadith

otherwise confusion of thought will arise. The misconception is
Hadith is the story of a particular occurrence and Sunna is the
rule of law deduced from it. Actually Hadith is the written form of
Sunna which was made 150 years after Sunna.

Sunna glorified the prophet and his spiritual deeds. The Quran
and Sunna are often called “Nass” (Binding Ordinance) and
represent direct and indirect revelation. The principles which were
stated in the Quran found their application in the hands of the
prophet. The Quran and Sunna are also called Usl Al Usl or
roots of the base. Thus Sunna is also divine in origin as it
contains the indirect words of Allah.
The prophet Mohammad once said, “I am leaving behind two
weighty things i.e. the Quran and my personal experience. If you
hold fast to these you will never go astray.”

The relative authority of Quran and Sunna has been ascertained

by the prophet himself. He said, “My words (meaning Sunna) are
not contrary to the words of God (the Quran), but the words of
God can contradict mine.” Sunnah was compiled into Hadith.
Among the compilations six are recognised as reliable:
a. Shahi Bukhari:- Compiled by Md. Bin Ismail Al Bukhari
(194-256 Hijri))
b. Shahi Muslim:- Compiled by Muslim Bin Al Hejaj (204-
291 Hijri)
c. Jameya Tirmiji:- Compiled by Abu Isha Md. Tirmiji (209-
279 Hijri)
d. Sunan-e-Abu Daud:- Compiled by Abu Daud Al Sijistani
(204-275 Hijri)
e. Sunan Nasaee:- Compiled by Abdur Rahman Al-Nasaee
(215-305 Hijri)
f. Sunan Ibne Maja:- Compiled by Abu Abdullah Md. Ibne
Maja (209-275 Hijri)
More over Imam Malik’s compilation known as ‘Al-Muwatta’ and
other schools complications are also regarded as authenticated.
3. Ijmaa:
The third source of Islamic Law after exhausting Quran and
Sunna
consists of the consensus of opinion of the companions of the
prophet, specially the four Caliphs- Abu Baker, Omar, Osman and
Ali on theological, civil and criminal matters.
Ijmaa is of various kinds:
i. The consensus of opinion of the companions of the
Prophet (as suggested by Imam Ahmad Ibn Hanbal)
ii. The consensus of opinion of the companions of the
jurists
iii. The consensus of opinion of the citizens of Medina (as
suggested by Imam Malik)

According to Sir Abdur Rahim ‘Ijmaa’ is “The agreemant of the

jurists among the followers of Mohammad in a particular age on a
particular question”. According to Saksena ‘Ijmaa’ of one age may
be reversed or modified by the ‘Ijmaa’ of the same or subsequent
age. But it can not be questioned or challenged by any individual
jurists. The validity of ‘Ijmaa’ is based upon a hadith of the
Prophet which says that Allah will not allow his people to agree on
an error.
e.g. Hefzur Rahman case.

4. Qiyas:

The fourth and last source of law is Qiyas or analogical

deduction. Literally means measurement or judging, by comparing
a thing or analogy. Qiyas or analogical deduction consists in
applying old established principles to new circumstances. But
“Ray” means
individual reasoning or opinion. Qiyas or analogical deduction is
the reasoning by analogy from the Quran, Sunna and Ijmaa.,
Qiyas is thus defined as an extension of law from the original text
by means of a common cause. It is a process of deduction which
is not to change the law of the text. It is applicable in cases not
covered by the language of the text, but may fall under the reason
of the text. Therefore in importance Qiyas occupies the place
next to Quran, Sunna and Ijmaa. e.g. Strong drink is explicitly
prohibited for its intoxicating effect, say wine is not explicitly
prohibited but as the cause for the prohibition is the effect of
intoxication to which both give rise, wine is also prohibited. But
grape juice because it does not effect intoxication is not
prohibited. So, we have dealt upon the four basic primary sources
of Islamic law namely the Quran, Sunna, Ijmaa and Qiyas. There
are also material sources of custom, legislation and decisions of
Supreme Court which are infiltrated in Islamic law.

Apart from these four primary sources certain other equitable

sources of law were contemplated by different jurists. These
sources are not generally recognised and appear in the works of
jurists propounding term.
1. Istihsan or Juristic preference:
Imam Abu Hanifa is the architect of these source. Istihsan means
that a rule of law analogically deduced (Qiyas) is not preferred for
the exigencies of a particular case. There is no direct abrogation
of the law but a slight modification to meet the demands of the
society.
e.g. Under Muslim law the subject matter must be present at the
time of contract of sale or goods supplied in future is invalid. But
on the ground of necessity and universal practice it is valid.

According to Tyabji: This term was used by the great jurist (Abu
Hanifa) to express the liberty that he assumed, of laying down
such a rule of law, as, in the opinion of the exponent, the special
circumstances required, rather than the rule that analogy
indicated.
2. Muslahat or Public Welfare:
Imam Malik recognised this as a deduction where the basis is for
public welfare. Analogy of law can be disregarded only if it is
harmful to the public. It considers a thing to be good.

3. Istadlal:
Imam Malik is the architect of this source. Istadlal is described as
striving after the basis for a rule.
4. Istishab /Deduction by Presumption:
Imam Ash-Shafi and Ahmad Ibn Hanbal were the founder of this
source. Its means the things whose existence or non-existence is
proven in the past should be presumed to have remained as
such.

Conclusion:
These equitable sources play an insignificant role in shaping
Islamic law.
 Schools of Muslim Law and
Reasons for their Development

The history of Muslim law and jurisprudence are divisible into five distinct
periods:

1. The first period commenced (A.H 1-10) with the Hijrat or

retirement of the prophet to Medina from Mecca (A.D. 622 and
ended with his death on A.D 632). This period is the legislative
period of Islam when laws were enacted by the divine legislator
(Allah) and promulgated in the words of the Quran or by the
precepts of Muhammad – the prophet of Islam.
2. The second period extends from the date of the prophet’s death
(AD 632) to the time of the companions of the prophet (Ashab)
and their successors (Tabiun). Abu Baker has elected the first
Caliph, then Umar, Osman and Ali (Sunnis for elections Shias for
successor) then Umaiyad’s and Abbasides. It was a period mainly
of collection of laws.
3. The third period was marked by a theoretical and scientific study of
the law and religion and it was then that the schools of Muslim
jurisprudence were established (from A.H. 40 to third century of
the Hijra). Also collection of traditions took place in the third period
and collections of Bukhari and Muslim came to be recognised as
authoritative.
4. The fourth period (3rd century of Hijra till 1929 the abolition of
Caliphate in Turkey) in the history of Muslim law were Ijtihad or
power of independent interpretation has been restricted and taqlid
or following or imitation within the limits of each school was
developed.
  Ijtihad: Exerting one’s self to the utmost degree to attain an
object or form an opinion or a rule of law. Independent
interpretation of law-considered opinion of the Mujtahids or
specialists becomes law. The exercise of the independent
judgment was not permitted after some time. This is known
as, “The closer of the gate of interpretation during the 4th
century /10th century”.

 Taqlid: Imitation or following the opinion of another person

without knowledge of the authority for such opinion. (Layman
blindly following).

Whether the gates of Ijtihad or independent exposition or

interpretation are open or not controversies are still
prevalent. Islamic law is not a corpus of legislative activity
but a science developed by juristic thought. However, there
is hardly any chance of anybody to have the rank of
Mujtahid at present. Unless a bold step is taken as
suggested by thinker Iqbal1 and the power of Ijtihad is
resided in the body of learned Muslim scholars its door will
not open.

5. The fifth period is a period wherein great inroads have been made
by the secular law in all Muslim countries. This tendency is likely to
prevent unless we prevent it. Otherwise Islamic law will be largely

1
Iqbal: Reconstruction of of Islam. Lahore 1930.
 secularised and it will be death to family law as was done by Turkey
and Albania.
 Flight from Mecca -622 (beginning of Muslim era)
 Mohammad (PBH) dies in AD 632 (10 A.H)

The first Caliphs were his disciples and early companions:

Abu Bakr (A.D 632)
Umar (A.D 634)
Osman (A.D 644)
Ali (A.D 656)
Hussain (A.D 680) in Karbala

The death of Hussain at Karbala made the breach between the Sunnis and
the Shias. Yazid was in the throne. Muavia was founder of the Omeyads
thou Abbasides succeed in the capital at Baghdad (for 5 centuries). Then
the Othmans (Turks) who ruled in Constantinople in 1538 A.D the Sultan of
Turkey assumed the title of Caliph. The Caliphate was abolished by
Mustafa Kamal Pasha in 1924.