The Nature and Sources of Islamic Law (Shari’ah)

Jashim A. AbdulRahman, Sh.L.

Regular Lecturer, Shari’ah Training Seminar, NCMF
Shari’ah Bar Reviewer
KFCIAAS Research Coordinator
Former Chairperson, Islamic Studies Department, KFCIAAS
September 9, 2018
Shari’ah Center, MSUCampus, Marawi City.
Shari’ah Review Program

Shari’ah

Shari’ah literally means a “waterhole where animals gather daily to drink”, “the
road to watering place” or “the straight path or way” and “the path which the believer
has to tread in order to obtain guidance in this world and deliverance in the next. It
refers to commands, prohibitions, guidance and principles that Allah has addressed to
mankind pertaining to their conduct in this world and salvation in the next (Kamali,
Shari’ah: An Introduction, p.14).

Shari’ah is the name given to the totality of God’s commandments. In its legal
terminology, Shari’ah is defined as “that which would not be known had there not been
a Divine revelation. It is also defined as the sum total of Islamic laws which were
revealed to the Prophet Muhammad (‫)ﷺ‬, and which are recorded in the
Qur’an as well as deducible-guided lifestyle called Sunnah (Philips, p. 1).

Qur’anic basis:

Allah said:

َ ‫ك َع َلى َش ِري َع ٍة م َِّن االٌّم ِْر َفا َّت ِبعْ َها َوالَ َت َّت ِبعْ أَهْ َوآ َء الَّذ‬
(‫ِين الَ َيعْ َلم ُْون‬ ُ
َ ‫)ث َّم َج َع ْل َنـا‬
“Then we put you on a straight path (Shari’ah) in your affairs, so follow it and do not
follow the desires of those who have no knowledge.” Surah Al-Jathiyah (45):18

Barra (1988) claimed that the Shari’ah is a comprehensive legal system

encompassing all spheres of human existence, individual and collective. It does not only
regulate man’s relationship with God but also governs his dealings with other men.
Essentially, the Shari’ah gives preferential emphasis and concern for duties rather than
rights. By constantly reminding every individual or being held accountable and
responsible for his actions and deed, the Shari’ah is able to instil moral and religious
consciousness among the Muslims.

Fiqh

Fiqh is used in the literal sense to mean “understanding” and “discernment”. In this
sense the words fiqh and fahm are synonymous. It implies an understanding of Islam in
general way. It may also mean what a prudent person is likely to conclude from obvious
evidences (Nyazee, Islamic Jurisprudence, pp. 18-19). The word has been used in the
Qur’an, in this sense, on several occasions:

ً ‫ُون َحد‬
78:‫ِيثا﴾ سورة النساء‬ َ ‫ال ٰ َهؤُ اَل ِء ْال َق ْو ِم اَل َي َكا ُد‬
َ ‫ون َي ْف َقه‬ ِ ‫﴿ َف َم‬
“So what is (the matter) with those people that can hardly understand a simple
statement?” Surah An-Nisa’ (4):78

In other ayah, Allah said:

َ ‫﴿ َل ُه ْم ُقلُوبٌ اَّل َي ْف َقه‬

179:‫ُون ِب َها﴾ سورة األعراف‬
“They have hearts with which they do not understand..” Surah Al-A’raf (7):179

The same meaning is reflected in the words of the Prophet Muhammad (

‫)ﷺ‬: “If Allah wants to do good for a person, He makes him understand the
religion.” Hence, the fiqh literally means “true understanding of what is intended”

The term ‘Ilm (knowledge) also has the same literal meaning as Fiqh. During the
time of the Prophet (‫ )ﷺ‬there appears to be no difference in the two terms.
Later, the term ‘ilm came to be applied in a narrow sense to mean knowledge that
comes through reports, that is, traditions: Ahadith and athar. The term Fiqh, on the other
hand, come to be used exclusively for a knowledge of law (ibid, p.19). Thus, Ulama
refers to a person who is knowledgeable to Islamic studies, then faqih refers only to
jurist who are well-versed in Islamic Law.

In older theological language, the word fiqh is applied to the independent

exercise of the intelligence, the decision of legal points by one’s own judgment in the
absence or ignorance of traditions bearing on the case in question (‘Abd al ’Ati, The
Family Structure in Islam pp.13-14).

In other words it simply means a scientific study and elucidation on Shari’ah.

Shari’ah and Fiqh may be distinguished as follows:

A. Shari’ah is the body of revealed laws found both in the Qur’an and in the Sunnah.
While fiqh is a body of laws deduced from Shari’ah to cover specific situations
not directly treated in Shari’ah Law.
B. Shari’ah is fixed and unchangeable. But fiqh changes according to the
circumstances under which it is applied.
C. The laws of Shari’ah are, for the most part general: they lay down basic
principles. In contrast, the laws of fiqh tend to be specific: they demonstrate how
the basic principles of Shari’ah should be applied in given circumstances.
D. Shari’ah covers all human action. However, fiqh deals only with what are
commonly understood as legal acts.
 E. The path of Shari’ah is laid down by God and His Messenger. Conversely, the
edifice of fiqh is erected by human endeavor.
F. In fiqh, an action is legal or illegal, permissible or not permissible. Whereas, in
Shari’ah, there are various grades of approval or disapproval (Philips, Evolution
of Fiqh, p. 1; Alauya, Fundamentals of Islamic Jurisprudence, p.2).

The Muslim jurists divided the stages of development of the Shari’ah legal system.
These stages occur respectively in the following historical periods:

1. “The Period of Divine Legislation” (610CE-632CE), this is the era of Prophet

Muhammad (‫ )ﷺ‬which started when he received the first revelation,
i.e. 13 years before Hijra throughout his life until his death on 10 th year after Hijra.
It may refer to the “Foundation of Muslim Law”.

2. “The Period of Four Rightly Guided Caliphs (Khulafa-ur-Rashidun)” (632

CE-661CE), this is the era of Caliphs Abu Bakr RA, Umar RA, Uthman RA and
Ali. It commenced from the death of Prophet or Caliphate of Abu Bakr up to the
death of Caliph Ali Ibn Abu Talib. The Establishment of Muslim Law has been
realized in this period.

3. “The Period of the Umayyad Caliphate” (661CE- 750CE), from the founding of
the Umayyad dynasty until its decline in the middle of the 8th century CE. This
period results to the Building of Muslim Law.

4. “The Period of the Abbasid Caliphate” which is also known as “The Period of
the Founders of the Four Sunni Schools of Muslim Laws (Madhahib)” (750CE-
961CE) from the rise of the Abbasid dynasty in the middle of the 8th century CE
to the beginning of its decline around the middle of the 10th century CE.
Flowering of the Muslim law is at its pick on this era.

5. “The Period of the Mustawjihun Jurists” (962CE-1258CE), this is the

Consolidation of Muslim Law. This started from the decline of the Abbasid
dynasty to the murder of the last Abbasid Caliph at the hands of the Mongols or
falls of Baghdad. The Jurists of this time made an infamous decision of “Closing
the Door of Ijtihad”.

6. “The Period of Muqallidun Jurists” (1258CE-1922CE), the Muslim Law is in

the stage of Stagnation and Declination. This is the time of some reformer and of
Ottoman Empire up to the Abolition of the Caliphate in 1922. Some of the
Reformer Jurists started to reinterpret the Law and practice “Neo-Ijtihad”.

7. “The Period of Commentators and Annotators” (1922CE-present), begun

from 1922 after the abolition of the Caliphate and the Sultanate of Turkey in
1924, and which have not yet come to an end (Philips, p.3; Arabani, pp. 6-7 cit.
Ahmad Ibrahim, Sources and Development of Muslim Law).
Sources of Shari’ah

According to Kamali (2008) the revealed sources of Shari’ah are two, namely
the Glorious Qur’an and the Sunnah. There are a number of other sources or proofs
which are founded in human reasoning and ijtihad. Ijtihad occurs in variety of forms
such as analogical reasoning (Qiyas), juristic preference (istihsan), presumption of
continuity (istishab), and even general consensus or ‘ijma which basically originates in
ijtihad. Analogy and consensus have been recognized by the vast majority of Ulama,
but there is disagreement among schools and jurists over the validity and scope of
many of the rational proofs that originate in ijtihad.

The main sources of Islamic Law which are recognized in Muslim Code are:
1. Qur’an;
2. Sunnah/ Hadith;
3. Ijma’; and
4. Qiyas

Furthermore, the jurists added the following principles such as Istihsan, Maslaha Al-
Mursalah or Istislah, Istishab, Sadd al-Dharai and ‘Urf as supplementary sources.
Some added the Qawl As-sahabi.

Qur’an

Qur’an literally means reading or recitation. It is the direct utterance of the Almighty
communicated in his actual words by Angel Jibreel (AS).

Thus, it is the speech of Allah sent down upon the last Messenger Muhammad (
‫)ﷺ‬, through Angel Jibreel (AS), in its precise wording and precise meaning
transmitted (Tawatur) to us by numerous persons both verbally and in writing (Denffer,
An Introduction to the Sciences of the Qur’an, p.9).

In legal terminology, Qur’an is the primary source of the Islamic law. The revelation to
the Holy Prophet (‫ )ﷺ‬is the Shari’ah par excellence. It implies that it is only
what is stated in the Divine messages (in Qur’an) or inferred from them that come
properly under the Shari’ah (Qadri, p.15).

The Qur’an and Sunnah is applied as a primary source of the Construction and
interpretation of the Muslim Code.

Article 4. Construction and interpretation.

1. In the construction and interpretation of this Code and other Muslim laws, the
court shall take consideration the primary sources of Muslim law.

The legal or practical contents of the Qur’an, often referred to as the ayat al
ahkam (legal verses), constitute the basis of what is known as jurisprudence of the
Qur’an (fiqh al-Qur’an). There are about 350 legal verses in the Qur’an, most of which
were revealed in response to problems that were actually encountered. This might
explain why these verses are also known as practical rulings (al ahkam al-‘amaliyyah),
pertaining to the conduct of the individual (Kamali, 2008).

As a source of legislation, no sect, madhhab or school of law, no jurist or judge

had ever denied the superiority of the Qur’an over the other sources. Divergence and
disagreements in opinion relating to the Qur’an stem only from matters of exegesis and
interpretation (Barra, 1998).

The categories or divisions of legal rule (ahkam) in the Qur’an are the following:

1. Al Ahkam I’tiqadiyyah- those pertaining to faith and belief;

2. Al Ahkam Al-khuluqiyah or Adab- those concerning morality and ethics
(Wijdaniyyah);
3. Al Ahkam Al-Amaliyyah- those relating to laws of practical life governing man’s
deeds and actions in relation to Allah and to his fellow human being.
a. Religious Rituals (Al Ahkam Ibadah)
b. Civil transactions (Al Ahkam-Muamalah)
 Laws relating to the protection of Islamic Faith
 Laws dealing with family life such as marriage, divorce, paternity, etc.
 Laws of transactions such as contracts, sales, etc.
 and (Uqubat) Penal Law, Constitutional Law, International Law,
Economic and Social Order (AbdulRahman, p.12).

The Stages of the Descent of the Qur’an

1. From the Lauh Al Mahfuz, the well-preserved tablet, to the lowest of the heavens
(Baittal Izza/ house of honor), of the world, all together, in Lailatul Qadr.

2. From the heavens to earth in stages throughout the twenty three years of
Muhammad’s Prophethood, and the first revelation happened in Lailatul Qadr
(Denffer, ibid, p.14).

The Themes of the Makkan and Madinan Surah

Makkan Surahs/ Suwar (Makki) were short and concise and dealt mainly in three
themes:

1. The Unity of God/Oneness of Allah (Tawhid);

2. The Moral duties of Mankind; and
3. The Retribution in the next World

Madinan Surahs/ Suwar (Madani) were long dealing with Islamic legislation on:
 1. Civil and Criminal Law;
2. Fiscal and Military Laws; and
3. The Pillars of Islam.

Stages of the compilation of the Qur’an:

1. During the lifetime of the Messenger Muhammad (‫( )ﷺ‬-570

632AD)

Two things were taken for the gathering and codification of the ayat of Qur’an.

A. Compilation of the Qur’an in the chests or heart of Messenger Muhammad (

‫ )ﷺ‬and the Muslim by memorizing and reciting it before the public.
The Messenger (‫ )ﷺ‬used to recite the Qur’an before Angel Jibreel
(AS) once every Ramadhan, but he recited it twice in the last Ramadhan before
his death. The Muslim also engaged themselves in memorizing the Qur’an. Each
ayah received was recited by the Messenger (‫)ﷺ‬, and its location
relative to other ayat and Surahs/ Suwar were identified. Hundreds of
companions memorized the Qur’an by heart.

B. Compilation of the Qur’an by writing them in pages. The ayat were written by
scribes, selected by the Messenger, on any suitable object- the leaves of trees,
pieces of wood, parchment, or leather and flat stones. Among those who wrote
the Qur’an in scribes included Ali bin Abu Talib (RA), Mu’awiyah bin Abu Sufyan
(RA), Ubay bin Kaab (RA) and Zayd bin Thabit (RA). Some of the companions
wrote the Qur’an for their personal use.

2. During the Caliphate of Abu Bakr (RA) (632-634AD)

Umar bin Khattab (RA) urged Abu Bakr (RA) to preserve and compile the Qur’an. This
was prompted after the Battle of Yamamah, where heavy casualties were suffered
among the memorizers of the Qur’an (Huffaz). Abu Bakr (RA) entrusted Zayd bin Thabit
(RA) with the task of collecting the Qur’an. Zayd (RA), with the help of the companions
who memorized and wrote ayat of the Qur’an, accomplished the task and handed Abu
Bakr (RA) the first authenticated copy of the Qur’an. The copy was kept in the residence
of Hafsa (RA), daughter of Umar (RA) and wife of Messenger (‫)ﷺ‬.

3. During the Caliphate of Uthman (RA) (644-656AD)

Uthman ordered Zayd bin Thabit (RA), Abdullah bin Zubair (RA), Said bin ‘As (RA) and
AbdurRahman bin Harith (RA) to make several copies out of the authenticated copy
kept by Hafsa (RA). This was due to the rapid expansion of the Islamic state and
concern about differences in recitation. It was incited in war to conquer Armenia and
Azerbaijan, the Muslim read the Qur’an with various modes. Hudhaifa (RA) was afraid
of their differences in the recitation of the Qur’an, so he said to Uthman, “Save this
nation before they differ about the Book (Qur’an), as Jews and the Christians did before.
Copies were sent to various places in the Muslim world. The original copy was returned
to Hafsa (RA) and a copy was kept in Madinah.

Naskh

Naskh (Abrogation) literally means obliteration, transcription or transfer. It is also

defined as the suspension or replacement of one Shari’ah ruling by another, provided
the latter is of subsequent origin, and the two are in conflict with one another and it is
not possible to reconcile them or when the later law expressly repealed the former
(Kamali,p.190).

Nasikh and Mansukh

The Arabic words 'nasikh' and 'mansukh' are both derived from the same root word
'nasakha' which carries meanings such as 'to abolish, to replace, to withdraw, and to
abrogate'. The word nasikh (an active participle) means 'the abrogating', while mansukh
(passive) means 'the abrogated'. In technical language, these terms refer to certain
parts of the Qur'anic revelation, which have been 'abrogated' by others. Naturally the
abrogated passage is the one called 'mansukh' while the abrogating one is called
'nasikh'.

The following are the ways of abrogation and its example:

1. The repeal of the Qur’anic text by another.

Example: Ayat that deals with (Khamr) intoxicant. (2: 219; 4: 43; 5: 90-91)

ِ ‫ك َع ِن اخْلَ ْم ِر َوالْ َمْي ِس ِر قُ ْل فِي ِه َمآ إِمْثٌ َكبِريٌ َو َمنَـافِ ُع لِلن‬

﴿‫َّاس َوإِمْثُُه َمآ أَ ْكَب ُر ِمن نَّ ْفعِ ِه َما‬ َ َ‫)يَ ْس َـئلُون‬
“They ask you concerning intoxicants and games of chance. Say, In both of them is a
great sin and both are harmful too, and they have some uses for people, but the sin
inherent in them is even more serious than their usefulness.” Surah Al-Baqarah (2):219

ِ َّ
َ ‫﴿يَـأَيُّ َها الذ‬
﴾ ‫ين ءَ َامنُواْ الَ َت ْقَربُواْ الصَّاَل َة َوأَنتُ ْم ُس َك َـارى َحىَّت َت ْعلَ ُموا َما َت ُق ْولُْو َن‬
"O you who believe! Do not go near Prayer when you are not in full possession of your
senses, until you understand all that you say (in your Prayers)” Surah An-Nisa’ (4):43

‫اجتَنِبُوهُ لَ َعلَّ ُك ْم‬ ِ

ْ َ‫س ِّم ْن َع َم ِل الشَّْيطَـان ف‬ ِ
ٌ ‫اب َواالٌّْزالَ ُم ر ْج‬
ُ ‫نص‬
ِ
َ ٌّ‫﴿إِمَّنَا اخْلَ ْم ُر َوالْ َمْيس ُر َواال‬
﴾‫ُت ْفلِ ُحو َن‬
"Intoxicants and games of chance, and alters set up for false deities and divining arrows
are only abominations, some of satan’s handiworks, therefore shun each one (of these
abominations) so that you may attain your goal." Surah Al-Maidah (5):90

‫ص َّد ُك ْم َعن ِذ ْك ِر اللَّ ِه‬ ِ ِ

ُ َ‫ضآءَ ىِف اخْلَ ْم ِر َوالْ َمْيس ِر َوي‬ ُ ‫(إِمَّنَا يُِر‬
َ ‫يد الشَّْيطَـا ُن أَن يُوق َع َبْينَ ُك ُم الْ َع َد َاوةَ َوالَْب ْغ‬
﴾ ‫َو َع ِن الصَّاَل ِة َف َه ْل أَْنتُ ْم ُّم َنت ُهو َن‬
"Satan only intends to precipitate enmity and hatred between you by means of
intoxicants and games of chance and to stop you from the remembrance of Allah and
from (observing your) Prayer. Will you not then be the abstainer (therefrom)?" Surah Al-
Maidah (5):91

In the first ayah, the Qur’an declared its evilness and in second ayah, it prevents the
Muslim to approach their prayer when they are intoxicated. Then, finally Allah prohibited
the drinking of intoxicants in Surah Al-Maidah ayat 90 and 91.

2. The repeal of Hadith by another hadith

Example: Visiting the graves

“I had forbidden you from visiting the graveyards; however, permission has been given
to me to visit the grave of my mother. So, visit them, for they do remind one of the next
life.”

3. The repeal of the Hadith by Qur’anic Text

Example: The Change of Qiblah

During the Makkan period and early period of Madinah of Prophethood of Muhammad (
‫ )ﷺ‬they offered their prayer facing Masjidul Aqsa at Jerusalem.

However, Allah revealed the ayah 144 of Surah Al-Baqarah commanding the Muslim to
face at Masjidil Haram at Makkah as their new Qiblah.

(‫ك َشطَْر الْ َم ْس ِج ِد احْلََر ِام َو َحْيثُ َما‬ ِ ‫آء َفلَنولِّين‬ ِ َّ ‫قَ ْد َنرى َت َقلُّب وج ِهك يِف‬
َ ‫اها َف َو ِّل َو ْج َه‬ َ‫ض‬ َ ‫َّك قْبلَةً َت ْر‬
َ َ َ ُ ‫الس َم‬ َ َْ َ َ
‫اب لََي ْعلَ ُم ْو َن أَنَهُ احْلَ ُّق ِمن َّرهِبِ ْم َو َما اهللُ بِغَافِ ٍل َع َّما‬ ِ ِ
َ َ‫ُكْنتُ ْم َف َولُّْوا ُو ُج َه ُك ْم َشطَْرهُ َوإِ َّن الَّذيْ َن أ ُْوتُوا الْكت‬
‫)ي ْع َملُ ْو َن‬
َ
"Indeed We see the turning of your face to heaven, so We shall surely turn you to a
Qiblah which you shall like; turn then your face towards the Sacred mosque, and
wherever you are, turn your face towards it, and those who have been given the Book
most surely know that it is the truth from their Lord; and Allah is not at all heedless of
what they do." Surah Al-Baqarah (2):144.
 4. The repeal of Qur’anic text by Hadith
Example: Will to an heir

( َ ‫ت إِ ْن َتَر َك َخْيًرا الْ َو ِصيَّةُ لِْل َوالِ َديْ ِن َواأْل َ ْقَربِنْي‬ ُ ‫أح َد ُك ْم الْ َم ْو‬ َ ‫ب َعلَْي ُك ْم إِذَا َح‬
َ ‫ضَر‬
ِ
َ ‫ُكت‬
ِ ِ
َ ‫)بِالْ َم ْع ُر ْوف َح ًقا َعلَى الْ ُمتَّقنْي‬
“It is prescribed that when death approaches any of you, if he leaves behind any goods.
That he make a bequest to parents and next of kin, according to what is reasonable.
This is due from the pious.” Surah Baqarah (2):180

The said ayah above has been abrogated by this succeeding hadith:
“Surely Allah has given everyone with a right (to inheritance) his right, so there should
be no bequest for inheritors”.

Sunnah

Sunnah literally means a path, way or habit or a manner of life. In the

Muhaddithun’s usage, it means, “Prophet’s words, deeds, tacit approvals, his physical
features and moral characteristics. Some scholars included the words and deeds of the
companions (Sahabah) and successors (Tabi’in). However, according to the scholars of
Islamic Jurisprudence, Sunnah refers to the sayings, deeds or tacit approvals of the
Prophet. This excludes the description of his physical features and characteristics
(Abdullah and Manas, pp. 14-15).

It is the actual explanation and practical demonstration of the Qur’an. In pre-

Islamic Arabia, the Arabs used the word “Sunnah” in reference to the ancient and
continuous practice of the community which they inherited from their forefathers. Thus it
is said that the pre-Islamic tribes of Arabia had their own Sunnah which they considered
as a basis of their identity and pride (Kamali, p.55).

The Sunnah is of two kinds, they are Sunnah Tashri’i (Legal Sunnah) and Sunnah
Ghayr Tashri’i (Non-legal Sunnah).

1. Sunnah Tashri’i (Legal Sunnah) consists of the exemplary conduct of the

Prophet Muhammad (‫ )ﷺ‬be it an act, saying, or a tacit approval,
which incorporate the rules and principles of Shari’ah (Kamali, p.66). In other
words, it refers to the Sunnah of Messenger Muhammad (‫ )ﷺ‬that
deals with his ways as being a Messenger of Allah (Rasul), Head of State
(Ameer), Spiritual leader (Imam) or being a Judge (Qadi). Hence, there is a
legislative effect of this type of Sunnah. This is obligatory to be followed by a
 Muslim and whose omission is evil and improper. Mostly all the actions under
this Sunnah are Fardh, Sunnah Mu’akkadah or Ghayr Mu’akkadah.

2. Sunnah Ghayr Tashri’i (Non-legal Sunnah) mainly consist of the natural

activities of the Prophet (al-af’al al-jibliyyah) such as the manner he ate, slept,
clothed and such other activities which do not seek to constitute a part of the
Shari’ah (see, Principles of Islamic Jurisprudence, Kamali pp.64-67). It may
refer to the Sunnah of Messenger (‫)ﷺ‬, such as his personal ways
of dressing, walking and sitting, the omission of which is not improper. This
type of Sunnah is not a directive from Prophet (‫ )ﷺ‬to the Muslim
and not of primary importance to the Prophetic mission, thus do not constitute
legal norms or legislative effect. The Shari’ah value of Ghayr Tashri’i is
Sunnah Zawaid.

There are certain matters which are peculiar to the person of the Prophet and his
example concerning them does not constitute general law. For instance, polygamy
above the limit of four, marriage without dower, prohibition of remarriage for the widows
of the Prophet, connected or continuous fasting, and the fact that the Prophet admitted
the testimony of Khuzaimah Bin Thabit as legal proof. Hence, it is questionable if it is
Sunnah Tashri’i or Sunnah Ghayr Tashri’i.

Other activities of the Prophet (‫ )ﷺ‬may fall between the two categories of
legal and non-legal Sunnah as they combine the attributes of both. For instance, the
Prophet (‫ )ﷺ‬kept his beard at a certain length and trimmed his moustache.
Similarly, it is known that the Prophet (‫ )ﷺ‬used to go to Eid prayers by one
route and return from the Masjid by a different route, and that the Prophet (
‫ )ﷺ‬at times performed the hajj while riding a camel. The Shafi’i considered
these actions as Mandub but Mubah for the Hanafi (ibid, pp.65-66).

Hadith

Hadith (pl. Ahadith) literally means “new” or “recent”, the opposite of old. Hadith may
refer to narrative, communication or news consisting of the factual account of an event;
the word “hadith” occurs frequently in the Qur’an (23 times to be precise) and in all
cases, it carries the meaning of a narrative or communication (Kamali, p.58). It is used
for all kinds of conversations, stories, speeches and communications.

Technically, the word hadith means “what was transmitted on the authority of the
Prophet (‫)ﷺ‬, his deeds, sayings, tacit approvals, or description of his
physical features and moral behavior (Abdullah and Manas, pp.4-5) along with his
biography before or after the beginning of his prophethood (Philips, Usol Hadeeth). In
other words, it is the reports (verbal and written) about the Sunnah of the Messenger (
‫)ﷺ‬.

Is the Sunnah of the Messenger (‫ )ﷺ‬an inspiration from Allah?

Suggested Answer:
Yes, the Sunnah of the Messenger Muhammad (‫ )ﷺ‬is an inspiration from
Allah. The Glorious Qur’an explicitly provides that the Messenger (‫)ﷺ‬
neither said nor did anything of his own accord; whatever he said and did emanate from
Allah. Allah said:

5-3:‫النجم‬ ُ ‫وح ٰى * َعلَّ َمهُ َش ِد‬

‫يد الْ ُق َو ٰى﴾ سورة‬ ِ ِ ِ
َ ُ‫﴿و َما يَنط ُق َع ِن اهْلََو ٰى * إ ْن ُه َو إاَّل َو ْح ٌي ي‬
َ

“Nor he does speak from his own desire. It is not but an inspiration revealed. He was
taught by one Mighty in power.” Surah An-Najm (53): 3-5
Allah further said:

203:‫األعراف‬ ‫وح ٰى إِيَلَّ ِمن َّريِّب ﴾ سورة‬ ِ

َ ُ‫﴿قُ ْل إمَّنَا أَتَّبِ ُع َما ي‬

“…Say: “I only follow what is revealed to me from my Lord..” Surah Al-A’raf (7):203
Therefore, all utterances and deeds of the Messenger Muhammad (‫ )ﷺ‬are
thus divinely inspired and in them alone can we find the true meaning and real
significance of the Will of Allah.
Moreover, Ai’sha (RA) narrated that Sunnah of Prophet Muhammad (‫ )ﷺ‬is
the actual demonstration of the Qur’an. Henceforth, he is the human specimen of living
Qur’an.
Allah said:

‫َنز َل ِمن َقْب ُل َو َمن‬ ِ ِ ‫اب الَّ ِذي َنَّز َل علَى رسولِِه والْ ِكت‬ ِ َ‫﴿يا أَيُّها الَّ ِذين آمنُوا ِآمنُوا بِاللَّ ِه ورسولِِه والْ ِكت‬
َ ‫اب الَّذي أ‬َ َ َُ ٰ َ َ ُ ََ َ َ َ َ
ِ ِ ِ ِ ِ ِ ِ ِ ِ ِ
136:‫يدا﴾ سورة النساء‬ ً ‫ضاَل اًل بَع‬ َ ‫يَ ْك ُف ْر بِاللَّه َو َماَل ئ َكته َو ُكتُبِه َو ُر ُسله َوالَْي ْوم اآْل خ ِر َف َق ْد‬
َ ‫ض َّل‬

“O ye who believe! Believe in Allah and His Messenger, and the scripture which He
hath sent to His Messenger and the scripture which He sent to those before (him).
Anyone who denieth Allah, His angels, His books, His Messenger, and the Day of
Judgment, hath gone far, far astray”. Surah An-Nisa’ (4):136
The Qur’anic ayah shows that the role of the Prophet is to explain and interpret the
Qur’an and to practically demonstrate the Qur’an to his Ummah (Abdullah and Manas,
p.33).
Alternative Answer:
It depends. If the Sunnah of Prophet Muhammad (‫ )ﷺ‬refers to his Sunnah
Tashri’i then it is an inspiration from Allah because the latter deals with the Sunnah of
Messenger (‫ )ﷺ‬for religious purposes and with legislative colors like his
actions and sayings as a Messenger (Rasul), Head of State (Ameer) , Judge (Qadi),
military commander, as spiritual leader (Imam), etc. Messenger (‫ )ﷺ‬does
not speak against Allah.

However, if the Sunnah is Ghayr Tashri’i, it is not an inspiration from Allah but merely a
personal opinion of Messenger Muhammad (‫)ﷺ‬. Sunnah Ghayr Tashri’i
refers to his personal habits as a normal human being and no legislative purposes, and
its Shari’ah value does not fall to obligatory but merely recommended. Raafi’ ibn
Khadeej (RA) reported that Allah’s Messenger (‫ )ﷺ‬came to Madinah and
found the people grafting their date-palm trees. He (‫ )ﷺ‬asked them what
they were doing and they informed him that they were artificially pollinating the trees. He
(‫ )ﷺ‬then said ”Perhaps it would be better if you did not do that.” When they
abandoned the practice, the yields of the date palms become less. So they inform him
and he said: “I am a human being. So when I tell you to do something pertaining to the
religion accept it, but when I tell you something from my personal opinion, keep in mind
that I am a human being.” Anas reported that he (‫ )ﷺ‬added, “you have
better knowledge (of technical skills) in the affairs of this world. (Philips p. 34 cit. Sahih
Muslim (English Trans). Vol 4, p1259 no. 5831 and 5832.
The Hadith demonstrates that religious rulings are inspiration from Allah but Sunnah
that signifies personal habits and the customs of the Messenger is not an inspiration.
And Messenger Muhammad (‫ )ﷺ‬does not instruct his followers for
mandatory compliance. Instead, he gives him a choice either to follow or not.

Role or functions of Sunnah

Sunnah helps to understand the meaning of Qur’an and to apply the ayah of the Qur’an
by explaining them, by giving details of general rules, by specifically applying the rules
when they are general, by providing exceptions to their applications or by defining them
when they are capable of several interpretations. It also lays down rules of conduct and
of laws in some matters not dealt with in the Holy Qur’an.

This relationship takes place in the following tasks:

1. Sunnah’s confirmation and support to the Qur’anic principles and laws;
2. Sunnah’s interpretation and elaboration to the Qur’anic concise and ambivalent
phrase;
a. To detail the concise or ambivalent (Mujmal).
b. To clarify the obscure and ambiguous.
c. To limit the absolute.
d. To specify the general statements of the Qur’an.
e. To enact new branch of teachings from the Qur’an’s original foundation.
3. Sunnah’s additional dogmatic and legal issues about which the Qur’an is silent.
This is known as the “Independent legislation of Sunnah” or “Sunnah
Mu’assisah”. (See, Introduction to the Sciences of Hadith of Abdullah and Manas,
pp. 41-51).

Conditions that make Sunnah as Source of Law

Tradition (Sunnah) is accepted only as the basis of law when any of the following
requisites are complied with:

1. It is not contradicted by some other legal evidence, that is by the Qur’an or

another tradition, or
2. Even if contradicted by another hadith, it can be reconciled; or
3. If it contradicts another tradition but is subsequent in time to it, it can be said to
have abrogated the previous tradition.
4. If it contradicts another tradition, it can be shown that it is superior of it.

All the Four Schools of Law set conditions for the acceptance of the Sunnah as a
source of Islamic Law:

a. The Hanafi Madh-hab stipulated that the Hadith must be widely known
(Mashhur).
b. The Maliki Madh-hab required that the Hadith must not contradict the Ijma’ of the
Madinites.
c. The Shafi’i Madh-hab insisted that the Hadith must be authentic (Sahih).
d. The Hanbali Madh-hab required that the Hadith must be attributed to the Prophet
Muhammad (‫( )ﷺ‬Marfu) and not fabricated (Mawdu). Thus Hadith of
doubtful authenticity (Da’if) were considered a part of the Sunnah (see Philips,
Evolution of Fiqh, p.90).

The classifications of Sunnah according to the manner they came from the Messenger (
‫ )ﷺ‬may be:

1. Sunnah Qauliya, or those that consist of the sayings of the Messenger (

‫ )ﷺ‬on certain questions.
2. Sunnah Fi’liyah, or those traditions based from the deeds of the Messenger (
‫ )ﷺ‬as manifested by his actions.
3. Sunnah Taqririyah, or those traditions based from his (‫ )ﷺ‬tacit
approval of the act or practice of the people.

As to the manner of transmission (Isnad), hadith are classified in the following ways:

1. Hadith Mutawatir (Recurrent/ Continuous) is the hadith that has been narrated
by an indefinite number of people in such a way that it precludes the possibility of
their agreement to perpetuate a lie upon the Prophet Muhammad (‫)ﷺ‬
narrating from those before them, from the beginning to the end, while showing
sensible evidence. It is called recurrent hadith, because of the involvement of
many people in its narration (Abdullah and Manas, pp. 77-78). Since these
traditions were narrated by numerous people (companions, successors and
students) then it is impossible that they should have agreed upon false narration.
2. Hadith Ahad (Solitary/ Isolated), is the hadith whereby only a single reporter is
found relating it at some stage of the Isnad. Imam Shafi’i refers to it as Khabar
al-Khassah, which applies to every report narrated by one, two or more persons
from the Messenger (‫ )ﷺ‬but which fails to fulfil the requirements of
either the Mutawatir or the Mashhur (Kamali).

The Hadith Ahad is divided into Gharib, ‘Aziz and Mashhur. (However, the Hanafi
considered Mashhur as third classification of Hadith not a subdivision of Ahad
hadith.)

a. Gharîb (Strange) linguistically means strange or singled out. It is the hadith that
was narrated by one narrator at any stage of its chain. It is called “strange”
because of its isolation or being solitary in chain. Example of it is the hadith that
“Acts are to be judged or evaluated according to their intentions.” Despite of
being a well-known hadith in the lower level of its chain, it was reported from the
Prophet (‫ )ﷺ‬by Umar Ibn Khattab (RA) only.

b. ‘Aziz linguistically means precious, rare, and strong. It is the hadith in which at
least one link of its chain (isnad) has two narrators. It is termed ‘Aziz because of
its infrequent narration or being strengthened by other narrators. Its example is
the hadith narrated by Bukhari and Muslim from Anas bin Malik (RA) and Bukhari
alone narrated from Abu Hurayrah (RA), the Messenger of Allah Muhammad (
‫ )ﷺ‬has said: By Allah in whose power is my life; none of you would
be a true believer unless he loves me more than his father and son.”

This hadith was narrated by two companions, Anas (RA) and Abu Hurayrah (RA),
who heard it from Prophet. Meanwhile it was heard and narrated from Anas (RA),
by Qatadah and ‘Abdul-Aziz bin Suhayb; from Qatadah: Shu’bah and Husayn
and two narrators from ‘Abdul-Aziz: Ismail Ibn Uliyah and ‘Abdul-Warith Ibn Said,
followed by a group of narrators from each of these two (ibid, pp. 84-85).

c. Hadith Mashhur (Well known), or one reported by minimum of three or more

companions from the Messenger (‫ )ﷺ‬or from another companions
but has later became well-known and transmitted by an indefinite number of
people but does not reach the level of Mutawatir. For example: Narrated by
‘Abdullah bin ‘Amr bin ‘As (RA): I heard Allah’s Apostle (‫ )ﷺ‬says,
Allah does not take away the knowledge by taking it away from (the hearts of) the
people. Rather, He takes it away by the death of the religious scholars; till when
none of the (religious learned men) remains, people will take as their leaders
ignorant persons who when consulted will give their verdict without knowledge.
So they will go astray and will lead the people astray.” (Bukhari, in the Book of
Knowledge, hadith no. 100).
 When the narrators in every generation of Hadith Mashhur are the same it is
called by some scholars as Mustafid.

The Six Authentic Collections of Ahadith are as follows:

1. Sahih Bukhari compiled by Abu Abdullah Muhammad Ibn Ismael al-Bukhari;

2. Sahih Muslim compiled by Muslim bin Hajjaj of Nishapur;
3. Sunan Abu Daud by Abu Daud Solaiman;
4. Jami’ al-Tirmidhi by Abu Isa Muhammad Al Tirmidhi;
5. Sunan al-Nasa’i by Abu AbdulRahman of Nasa’i in Khurasan and
6. Sunan Ibn Majah by Muhammad ibn Yazeed al-Rab’i al-Qazwayni.

Ijtihad

Ijtihad is a derivative of the Arabic Ijtihada or Jahd which literally means to exert oneself
to the utmost or to the best of one’s ability. Ijtihad is a jurist’s exerting of the faculties of
mind for the purpose of formulating an opinion on any point of law. The effort of the
jurist to derive the law on an issue by expending all the available means of interpretation
at his disposal and by taking into account all the legal proofs related to the issue.
(Nyazee, Theories. p. 319) It is a method for making deductions in matters of law in
cases to which no express text or rule is applicable.

In its widest sense, it means the use of human reason in the elaboration and
explanation of the Shari’ah Law. Thus, Ijtihad is an exercise of one’s reasoning to arrive
at a logical conclusion on a legal issue done by the Jurists to deduce a conclusion as to
the effectiveness of a legal precept in Islam (Doi, Shari’ah, p.78).

In practicing Ijtihad, the contemporary jurists differ:

1. One view is that there is a closure of the gate of Ijtihad and for precedents;
people should use the Fatwa which contains different applicable situations.
2. Others say that it should be in a body of Muslim Scholars having progressive
knowledge and refined ideas to interpret the law in accordance with social
changes.
3. Some others say that it should be vested in an Assembly.

In the light of recent developments in the Muslim world, there has been an exercise of
Ijtihad by many Muslim countries according to their own political views (Ajijola, p. 90).

The basis of Ijtihad

The validity of Ijtihad and its relevance in the contemporary context may be indicated by
the following scenarios:
(1) Mu'adh ibn Jabal (RA) states that when the Messenger (‫ )ﷺ‬sent him to
Yemen, he asked: "What will you do if a matter is referred to you for judgement?"
Mu'adh (RA) said: "I will judge according to the Book of Allah (Qur’an)." The Messenger
(‫ )ﷺ‬asked: "what if you find no solution in the Book of Allah?" Mu'adh (RA)
said: "Then I will judge by the Sunnah of the Messenger (‫)ﷺ‬." The
Messenger (‫ )ﷺ‬asked: "And what if you do not find it in the Sunnah of the
Messenger?" Mu'adh (RA) said: "Then I will make Ijtihad to formulate my own
judgement." The Messenger (‫ )ﷺ‬patted Mu'adh's chest and said "Praise be
to Allah who has guided the messenger of His Messenger to that which pleases Him
and His Messenger.

This implies that Prophet Muhammad (‫ )ﷺ‬urged his Companions to exercise

Ijtihad if there is an opportunity to do it and if it is needed.

(2) Imam Shafi’i has supported the idea of Ijtihad by quoting a verse of the Qur’an to
substantiate his conviction over the issue. Almighty Allah said:

“Wherever you go, face the Masjid Haram, and wherever you are, turn your face
towards it.”

Imam Shafi’i maintains that if one does not exercise his intellect, he would not be able to
know where Masjid Haram is. Therefore, Allah himself indirectly encourages us to
exercise our faculty of reasoning, a great gift to mankind to derive a logical conclusion
on certain matters (Doi, Shari’ah, p.78).

Mujtahid is an independent jurist, who is qualified to derive the law and is under an
obligation to follow his own opinion. Thus, it refers to the person exercising Ijtihad. In
English, it is referred to as Muslim jurist.

The qualifications and characters of a qualified Mujtahid are:

1. He must have thorough knowledge of the Qur’an, he must be able to interpret it,
and he must know the reasons why the verses and chapters of the Qur’an were
revealed and the time they were revealed. Knowledge in Arabic is also a
prerequisite;
2. He must be well versed in Hadith or in the tradition of the Messenger (
‫)ﷺ‬, that is, he must know the distinction of authentic from weak or
fabricated hadith;
3. He must know the principles of Ijma’ and Qiyas;
4. He must be fully acquainted with the theory of repeal; he should be able to judge
the repealed and the repealing texts and the circumstances leading to repeal;
5. He must be well versed in the science of Islamic Jurisprudence;
6. He must be a good Muslim, not merely a nominal Muslim but a practicing one;
7. He must be very pious and law-abiding to all the injunctions of the Qur’an;
 8. He must not be influenced by an heretical influences;
9. He must be a man of sound mind, just, reliable, trustworthy and pure from
iniquitous practices (Doi, Shari’ah, p.79, AbdulRazak, Introduction to Islamic Law
and Jurisprudence, p.90).

Modes of Ijtihad

The jurists in general, practice three types of modes of Ijtihad. In reality, the activity of
the jurist cannot be split up into separate modes.

In the first mode, the jurist focuses on the literal meaning of the texts, that is, he
follows the plain meaning rule. He will find an explanation for the difficult or
unelaborated words from the texts themselves or other sources like the meaning in
literature. This also depends on whether the words used is in its literal sense or used as
figurative.

When the jurist has exhausted the first mode, he will turn to syllogism, which is called
Qiyas. This mode is confined to strict types of analogy. The reason why only the strict
methods of Qiyas are approved is the desire of the jurist to stay close to the intention of
the lawgiver.

The second mode of ijtihad is confined to the extension of the law from the individual
texts, while the third mode relied on all the texts considered collectively. This means
that legal reasoning is undertaken more in line with the spirit of the law and its purposes
rather than the confines of individual texts. The principles are used by methods like
Istihsan and Maslaha al Mursalah. The third mode of ijtihad offers the jurist with the
opportunity to generate new principles provided he observes a prescribed methodology
and fulfills the conditions imposed for such legal reasoning.

Fields or subjects where Ijtihad cannot be exercised

The jurists have laid down certain conditions under which Ijtihad must not be exercised:

1. Ijtihad must not be exercised as the existence of Allah. It is certain that Allah
does exist and any attempt to think in His existence or not would lead to disbelief.

2. Ijtihad must not be exercised as to the truism of the Prophets of Allah who were
sent by Allah Himself and any attempt to ponder over the idea of their
Prophethood is tantamount to disbelief.

3. Ijtihad must not be exercised on the authenticity of the Qur’an (Doi, Shari’ah,
p.78).

The role of Ijtihad to Ijma’

The essence of Ijma’ lies in the natural growth of ideas. It begins with the personal
ijtihad of individual jurists and culminates in universal acceptance of a particular opinion
over a period of time. Differences of opinion are tolerated until consensus emerges and
in the process, there is no room for compulsion or imposition of ideas upon the
community.

Since Ijma’ originates from Ijtihad, it follows that Ijma’ has also been closed when the
the door of the former was closed (Kamali, p.215).

Qawl Al-Sahabih literally means the Companion’s Opinion. It may refer to the opinion
of the companion of particular Sahabih to specific rulings or issues concerning legal
actions. It may also refer to “Fatwa al-Sahabih” which means an opinion that the
Companion has arrived at by way of Ijtihad. It may be a saying, a considered opinion
(fatwa), or a judicial decision that the Companion has taken on a matter in the absence
of a ruling in the Qur’an, Sunnah and Ijma’. After the death of Messenger Muhammad (
‫)ﷺ‬, the companions were the ones who interpreted the law and developed it
when needed. They undertook Ijtihad, issued rulings, settled cases and became a
source of guidance for later generations.

The Ulama of Usul have differed as to whether the ruling of a Companion constitutes a
proof. There are three views on this which may be summarized as follows:

1. The fatwa of Companion is absolutely a proof and takes priority over Qiyas
regardless as to whether it is in agreement with the Qiyas in question or
otherwise. The proponents of this view have referred to the Qur’anic text below
which refers to the Companions:

ٍ ‫اج ِرين واأْل َنصا ِر والَّ ِذين اتَّبعوهم بِِإحس‬

ِ ِ
ُ ‫ان َّر ِض َي اللَّهُ َعْن ُه ْم َو َر‬
100:‫ضوا َعْنهُ﴾ سورة التوبة‬ ِ َّ ‫﴿و‬
َ ْ ُ ُ َ َ َ َ َ َ ‫الساب ُقو َن اأْل ََّولُو َن م َن الْ ُم َه‬ َ

“The first and foremost among the Emigrants and Helpers and those who
followed them in good deeds, God is well-pleased with them as they are with
Him” Surah al-Tawbah (9):100

In this text, Allah has praised “those who followed the Companions”. It is
suggested that this manner of praise for those who followed the opinion and
judgment of the Companion warrants the conclusion that everyone should do the
same. The fatwa or qawl of sahabih, in other words, is a proof of Shari’ah.

2. The ijtihad of a Companion is not a proof and it does not bind the succeeding
generations of Mujtahidun or anyone else. The proponents of this view have
quoted the Qur’anic Ayah (Surah al-Hashr (59):2) which provides: “Consider O
you who have vision.” It is argued that this ayah makes Ijtihad the obligation of
everyone who is competent for it and it makes no distinction whether the
Mujtahid is a Companion or anyone else. What is obligatory is the ijtihad itself,
not the adherence to the Ijtihad of any particular person. This ayah also indicates
 that the Mujtahid must rely directly on the sources and not imitate anyone,
including the Companion.

3. The ruling of the Companion is a proof when it is in conflict with the Qiyas but not
so when it agrees with Qiyas. The explanation of this being that when the ruling
of sahabih conflicts with Qiyas, it is usually for a reason and the fact that the
Companion has given a ruling against it is an indication of the weakness of
Qiyas; hence, the view of the Companion is to be preferred over Qiyas. In the
event where the ruling of the Companion agrees with Qiyas, it merely concurs
with a proof on which the Qiyas is founded in the first place. The ruling of the
Companion is therefore not a separate authority (see, Kamali, Principles of
Islamic Jurisprudence, pp. 300-304).

Ijma’

The word Ijma’ is derived from the word Jama’ meaning “to add”, “to agree”, or “to
resolve”. Hence, it means unanimity of opinion or agreement upon matter (Alauya, p.64;
AbdulRazak, p.31). Other said that Ijma’ is the verbal noun of the Arabic word Ajma’a
which has two meanings, to determine or to decide and to agree upon something
(Kamali, p.213). To decide, as in the verse in which Allah says:

71:‫﴿فَأَمْجِ ُعوا أ َْمَر ُك ْم﴾ سورة يونس‬

“So decide upon your course of action [fa ajmi’u]” Surah Yunus 10:71. To agree, as it is
said Ajmaa’at al-jama’ah ‘ala kadha [the group agreed upon such and such].

Traditionally, Ijma’ refers to consensus of opinion of the companions (Sahabah) of the

Prophet on various Islamic matters (Doi, p.64). It is the consensus of the Muslim jurists
of any particular period concerning a Shari’ah value (Qadri, p.199). Accordingly, Ijma’ is
defined as the unanimous agreement of the Mujtahidun of the Muslim community of any
period following the demise of the Prophet (‫ )ﷺ‬on any matter (theological
and legal matters) (Kamali, p.213, Ajijola, p.73).

Bar Question:
A toothpaste product is suspected to contain a haram ingredient. Can the Ulama
by themselves declare that such product is forbidden for Muslims to use? Please
explain.

Suggested Answer:
Yes, the Ulama can declare that such product is forbidden for Muslim to use provided
that it conforms to the conditions of a valid Ijma’. In the case at bar, the Ulama,
however, should consult a Muslim Chemist or Scientist that can examine thoroughly the
ingredients of the toothpaste if contains haram. If after the test, the Muslim Chemist
proved that it contains a haram ingredient, he will report the said findings to the group of
Ulama. Then the Ulama will decide based on the sources of Islamic law (i.e. Qur’an and
Sunnah) that the toothpaste is Haram. After the unanimity of opinion, the Mufti will be
the one who will declare that the toothpaste is Haram in order to be binding to the
Muslim community.

Ulama alone without consultation to the Chemist cannot declare a product as haram
due to the need of the expertise of the latter. At the same time, the Muslim Chemist has
no authority to declare a product without the authority of the Ulama.

Bar Question:
Discuss the validity of using the concept of Ijma’ during our time in arriving at a
consensus pertaining to cases or situation where expert opinion is required as in
the case above.

Suggested Answer:
The Hanafi School of Law allows every Muslim generation to observe Ijma’ whenever
they are confronted by legal or religious issues. To observe Ijma’ on legal issue only,
those Mujtahidun are allowed to participate in the process of Shura and the laymen are
excluded. It means the Mujtahid is among the Ulama who are well-versed in Qur’an,
Sunnah, and Fiqh. It implies that other professionals are excluded because they are
presumed to be laymen. Thus, in our time we cannot find a single person that qualifies
the quality and qualification of a Mujtahid if we based on the view of the traditional
Ulama.

However in present day, some reformers Ulama propose the need of other professional
or expert in other fields to participate or at least be consulted whenever there is Ijma’.
Like in the case above, that the Ulama cannot solely declared the toothpaste as haram
due to the fact that they have no knowledge on how to detect and prove the haram
ingredients. Only those chemists have the scientific knowledge or expertise to the case
involve.

Thus, the Mujtahidun (i.e. well-versed in Qur’an, Sunnah and Fiqh) should consult the
specialists of the scientific, technical and other fields about which the former don’t have
sufficient knowledge to judge.

Qiyas

The word Qiyas means measuring or estimating one thing in terms of another. It also
applies to making two things equal that is, comparing. Thus Qiyas refers to analogical
deduction.

In the technical sense, as defined by the jurists, it applies to “the assignment of the
shari’ah value (hukm) of an existing case found in the texts of the Qur’an, the Sunnah,
or Ijma’ to a new case which hukm is not found in these sources on the basis of a
common underlying attribute called the ‘illah of the hukm” (Nyazee, Islamic
Jurisprudence, p.214).
Another definition: the process of deduction by which the law of a text is applied to
cases which, though uncovered by language, are covered by reason of the text
(AbdulRazak, Introduction to Islamic Law and Jurisprudence, p.41).

Bar Question:
Is Shabu (methamphetamine hydrochloride) haram? Explain your answer, stating
the source/s or principles of Muslim law that you should use, the ground/s upon
which you should base your judgment and/or the procedure that you should
apply to arrive at such a judgment.

Suggested Answer:
Yes, Shabu is Haram based on the principle of Qiyas. Both the Qur’an and Hadith
prohibit Khamr due to its intoxicant effect. Allah said:

‫يد الش َّْيطَا ُن أَن يُوقِ َع َبْينَ ُك ُم‬

ُ ‫اجتَنِبُوهُ لَ َعلَّ ُك ْم تُ ْفلِ ُحو َن * إِمَّنَا يُِر‬ ِ
ْ َ‫س ِّم ْن َع َم ِل الشَّْيطَان ف‬ ِ
ٌ ‫اب َواأْل َْزاَل ُم ر ْج‬
ِ
َ ‫ين َآمنُوا إِمَّنَا اخْلَ ْم ُر َوالْ َمْيس ُر َواأْل‬
ُ ‫َنص‬
ِ َّ
َ ‫﴿يَا أَيُّ َها الذ‬
91-90:‫ص َّد ُك ْم َعن ِذ ْك ِر اللَّ ِه َو َع ِن الصَّاَل ِة َف َه ْل أَنتُم ُّم َنت ُهو َن﴾ سورة املائدة‬ ِ
ُ َ‫ضاءَ يِف اخْلَ ْم ِر َوالْ َمْيس ِر َوي‬ َ ‫الْ َع َد َاو َة َوالَْب ْغ‬

“ Oh you who believe! Intoxicants and gambling, (dedication) of stones, and (divination
by) arrows, are abomination of Satan’s handiwork: eschew such (abomination), that you
may prosper. Satan’s plan is but to excite enmity and hatred between you, with
intoxicants and gambling, and hinder you from remembrance of Allah, and from prayer;
will you not abstain? Surah al-Ma’idah (5):90-91

Furthermore, Prophet Muhammad (‫ )ﷺ‬said: “All drinks that intoxicate are

unlawful (to drink) (Sahih Bukhari, Book 69, Number 491, Book of Drinks).

The above mentioned Ayah and Hadith prohibit khamr and state the reason for its
prohibition, i.e. intoxicant effect. The Khamr is an intoxicant and Shabu has intoxicant
effect. It means the effective cause (‘illah) of Khamr is present to the Shabu. In Qiyas
the Shari’ah value is extended to the new case when the effective cause is present
though uncovered by language.

It means the hukm of Asl should be extended to the Far’. Thus, Shabu is haram
because the rule for Khamr is haram. Although the word Shabu is not found in the Ayah
but due to the present of its ‘illah, i.e. intoxicant effect, it became haram by reason of
Qiyas. To elaborate:

Asl: Khamr
Far’: Shabu
‘Illah: the intoxicant effect,
Original Hukm: Prohibition of Khamr
Branch Hukm: Prohibition of Shabu

Istihsan
 Istihsan is rendered in English as Juristic preference. The literal meaning of
Istihsan is “preferring” or “considering a thing to be good or equitable”. It is also applied
to mean something towards which one is inclined or which one prefers; even it is not
approved by others.

Technically, it has been defined in several ways:

Al-Bazdawi defines it as “moving away from the implications of analogy to an analogy

that is stronger than it, or it is the restriction of analogy to evidence that is stronger than
it. This may involve the preference of a Hadith which is specific over a general one, or it
may involve the preference of a more suitable law over the one deduced by Qiyas

Al-Halwani defines it as “the giving up of analogy for stronger evidence from the Book,
the Sunnah or Ijma’. The Maliki jurist, Ibn al-‘Arabi defines it as “sacrificing some of the
implications of an evidence by way of exception insofar as the exception opposes some
of these implications (ibid).

It is a method of exercising personal opinion in order to avoid rigidity and unfairness that
might result from the literal (meaning) enforcement of the existing law. It means the
Mujtahid will exercise his private judgment, not on the basis of analogy, but on that of
public good or in the interest of justice (Ajijola, p. 81). This method of interpretation may
be employed for various reasons including hardship.

It is introduced by Abu Hanifah Nu’man ibn Thabit of Hanafi School of Law.

Examples:

1. It is said that the subject of Waqf (Trust) must be of a perpetual nature. The
analogy, therefore suggests that the trust of movable property in general is
unlawful. Contrary to analogy, the Waqf of Horses, and arms is recognized by
Istihsan as there is a utility in such arrangements which is kept in view.
2. Islam attaches a great importance to the proper dress of a woman (satral-awrah).
No man except her husband can see certain parts of her body. But, on account
of necessity, a physician may be allowed to medically examine and diagnose a
woman in the interest of saving her life (Doi, Shari’ah, p.82).

Maslaha al Mursalah or Istislah

Maslaha Al Mursalah is consideration of public interest or welfare. The Arabic word

mursal literally means to set loose from the texts and masalih means welfare. It is a
method of deduction of law based on general consideration of the public good. More
technically, it is defined as consideration which is proper and harmonious to the
objectives of the Lawgiver; it secures a benefit or prevents harm; and the Shari’ah
provides no indication as to its validity or otherwise (Alauya, p.118; Badran, Usul, p.210;
Al Sabuni, Al Madhkal, p.131). It was first used by Imam Malik, the founder of the Maliki
School. It is synonymous to Istislah of Hanbali School.
The authority of Maslaha al Mursalah or Istislah is derived from the norm that the basic
objective of legislation in Islam is to secure the welfare of the people by promoting
benefits in their favor or by preventing harm. After all, Allah’s purpose in revealing the
Shari’ah is to promote man’s welfare and to prevent corruption in the earth (Alauya,
Fundamentals of Islamic Jurisprudence, p.119).

Istislah means a deduction of the law based on consideration of public good and welfare
such as the maintenance of religion, life, property, etc. (Ajijola, p. 81). As distinguished
from the broader principle of maslaha, it is a principle that permits a more flexible type
of analogy as compared to Qiyas. The term Istislah is used by Imam Ahmad ibn Hanbal
which has the same implications with the principle of Istihsan of Imam Abu Hanifah and
Maslaha al Mursalah of Imam Malik.

Example

1. The imposition of Taxes on the rich in order to meet the costs of the army and to
protect the realm.
2. The punishment of the criminal by depriving him of property if his crime was
perpetrated over that property or its equivalent.

Bar Question:
Dawood, who claims to be a qualified jurist, issued a fatwa to the effect that busy
Muslim businessmen, because they are a good source of Zakat and Sadaqah, and
that they are important contributors to the economic prosperity of the Ummah in
general, are excused from observing the fast during the month of Ramadhan as it
makes them less productive. He cited Istislah or Masalih al Mursalah (deduction
of law based on general consideration of public good) as a basis of his fatwa. Is
Dawood’s fatwa a lawful exercise of Istislah or Masalih al Mursalah under Islamic
jurisprudence? Please explain your answer.

Suggested Answer:
Dawood’s fatwa is not lawful exercise of Istislah or Masalih al Mursalah. One of the
conditions to be fulfilled for the valid exercise of Istislah or Masalih al Mursalah is that
the masalih should not violate the principle or value laid down by the Nass (i.e. Qur’an
and Sunnah) or Ijma’. The Masalih which is for the economic prosperity cannot override
the commandment of Allah to observe fasting during the Ramadhan.

Allah says in Surah al-Baqarah verse 183:

183:‫ين ِمن َقْبلِ ُك ْم لَ َعلَّ ُك ْم َتَّت ُقو َن﴾ سورة البقرة‬ ِ َّ

َ ‫ب َعلَى الذ‬
ِ
َ ‫الصيَ ُام َك َما ُكت‬
ِّ ‫ب َعلَْي ُك ُم‬ ِ ِ َّ
َ ‫﴿يَا أَيُّ َها الذ‬
َ ‫ين َآمنُوا ُكت‬

“O you who have believed, decreed upon you is fasting as it was decreed upon those
before you that you may become righteous.”
The fatwa is a clear violation of the above quoted Qur’anic Ayah, then, if we allow this
kind of fatwa it would negate the whole concept of Maslaha. Remember that the first
value or maqasid to be preserved is religion or Dini and it is Dharuriyat. After all we are
created by Allah to worship him and economic progress is merely incidental to our
purpose. Thus, the fatwa is not valid because it contravenes clear commands from
nass.

Istishab

Istishab or deduction by presumption of continuity is a rational source which may be

resorted to in the absence of any other source. Literally it means association, escorting,
companionship or permanency. Technically, it is used to denote that things whose
existence or non-existence had been proven in the past should be presumed to have
remained as such for lack of establishing any change (AbdulRazak, p.61; Alauya,
p.142).

It is a principle within the Shafi’i system, which in general terms means: the status quo
shall be maintained. It means that the original rule governing an issue shall remain
operative. The previous rule is accepted, unless a new rule is found that goes against it
(Nyazee, Islamic Jurisprudence, p.236).

It is validated by the Shafi’i school, the Hanbali, the Zahiris and the Shi’ah Imamiyah.
However, the Hanafis, Malikis do not consider it a proof in its own right; it applies only
when no other evidence is available. When it runs in conflict with other proof, the latter
takes priority (Alauya, p.142). According to Nyazee, Istishab al-hal is not a source of law
nor is it a source for establishing new rules; it is merely a set of presumptions.

Example of Istishab.

Suggested Answer:
An example of Istishab is the case of a man who had been absent and whose
whereabouts are unknown. The Shafi’i would treat such a man as living for all purposes
of the law until his death is proven, so his estate cannot be distributed among his heirs,
and he will be allotted his share in the estate of a person from whom he can inherit who
happen to die during his absence.

Sadd ad-Dhara’i

Sadd literally means `blocking' while dhari'ah (pl. dhara'i') is a word synonymous with
wasilah, which signifies the means to obtaining a certain end. Sadd al-dhara'i` thus
implies blocking the means to an expected end which is likely to materialise if the
means towards it is not obstructed. In other words “blocking the lawful means to an
unlawful end” (Nyazee, p.248) Blocking the means must necessarily be understood to
imply blocking the means to evil, not to something good.
The whole concept of Sadd al-dhara’i is founded in the idea of preventing an evil before
it actually materialises. Dhari’ah may also consist of the omission of a certain conduct
such as trade and commercial transactions during the time of the Friday congregational
prayer (Kamali, p.393).

1. Khalwah or illicit privacy between members of the opposite sexes is unlawful

because it constitutes a means to zina whether or not it actually leads to it. All
sexual overtures which are expected to lead to zina are similarly forbidden by
virtue of the certainty or likelihood that the conduct in question would lead to zina.
2. The leading Companions are also known to have entitled to inheritance the
divorced woman whom her husband had irrevocably divorced her during his
death illness in order to exclude her from inheritance. This was forbidden by the
Companions so that a divorce of this kind would not become a means to abuse
(ibid, 396).
‘Urf

‘Urf literally means that which is known. It means that which a people or a section
thereof have become accustomed to doing. ‘Urf is defined as recurring practices, which
are acceptable to the people of sound nature. It is considered as a silent Ijma’ of the
community, being dependent for validity upon the principles of consensus of opinion
(Ajijola, p.83).

‘Urf and Adat are synonymous and majority of the jurists have used them as such.
However, some observers have distinguished the two in the sense that Adat means
repetition or recurrent practice and it can be used with regard to both individual and
community. We mean, the individual habit as their personal ada, ‘Urf means the practice
of a large number of people. Custom or Adat means the customary laws and practices
that are observed or having the rules of laws in the community or usages that has been
long accepted.

The ‘Urf has been recognized by Hanafi Madh-hab and Maliki Madh-hab as a source of
Islamic Law.

Example of ‘Urf that has been recognized in Islamic Law.

Suggested Answer:
There is a law/ rule found in the Qur’an on which the ‘Urf is used to interpret its
application. For instance, the determination of the amount of Maintenance:

Allah says:

7:‫﴿لِيُ ِنف ْق ذُو َس َع ٍة ِّمن َس َعتِ ِه َو َمن قُ ِد َر َعلَْي ِه ِر ْزقُهُ َف ْليُ ِنف ْق مِم َّا آتَاهُ اللَّهُ﴾ سورة الطالق‬
“Let a man of wealth spend from his wealth, and he whose provision is restricted --- let
him spend from what Allah has given him”. Surah at-Talaq (65):7

ِ
ِ ‫ود لَه ِر ْز ُقه َّن وكِسو ُته َّن بِالْمعر‬
233:‫وف﴾ سورة البقرة‬ ُ ْ َ ُ َ ْ َ ُ ُ ُ‫﴿و َعلَى الْ َم ْول‬ َ
“Upon the father is their provision and their clothing according to what is acceptable”.
Surah al-Baqarah (2):233

In the above verses, the Qur’an does not specify the exact amount of maintenance to
the wife or to the children, which the jurists believe that it is to be determined according
to the local custom (adat).

State the rule in the proof of Muslim law and Adat under the Muslim Code (P.D.
1083).

Suggested Answer:
Muslim law and adah not embodied in this Code shall be proven in evidence as a fact.
No adah which is contrary to the Constitution of the Philippines, this Code, Muslim law,
public order, public policy or public interest shall be given any legal effect (Art 5 of
CMPL)

Bar Question:
In general, how should adah or adat not embodied in the Code of Muslim
Personal Laws be proven in evidence as a fact so that the Shari’ah Court may use
it in its decision? What are the limitations imposed by the law on the use of adah
or adat?

Suggested Answer:
The Adat which is not embodied in the Muslim Code should be presented as evidence
before the court must use it as a basis in its decision. “Proving in evidence as a fact”
means presenting evidence whether documentary or by way of testimony that such
adat has been continuously used since time immemorial as part of community custom
or practice of a particular people, in this case, the Muslim in the Philippines (Sadain,
Reviewer in Persons and Family Relations, p.6).

The burden of proof is on the party who will present the local adat that such custom is
acceptable by sound men and frequently practice by the Muslim community. The
limitation is that the adat must not be contrary to the Constitution of the Philippines, this
Code, Muslim law, public order, public policy or public interest.

According to the Code of Muslim Personal Laws, how should customary

contracts for the delivery of any real estate, plantation, orchard or any fruit-
bearing property is construed? Please explain the reason for this rule.
Suggested Answer:
Any transaction whereby one person delivers to another any real estate, plantation,
orchard or any fruit-bearing property by virtue of sanda, sanla, arindao, or similar
customary contract, shall be construed as mortgage in accordance with Muslim law.

By customary contracts under the above mentioned provision are those contracts which
Muslims are accustomed or used to enter into involving real estate or properties such as
what is known in their localities as sanda or sanla and arindao which are customary
contracts of Indo-Malay influence (Arabani, p.939).

The Code opines that these shall be construed as a mortgage in accordance with
Muslim law mortgage or rihan. It is regarded as Rihan because the Muslim adhere the
principles of Shari’ah in their contracts. Then the following customary contracts have the
same effect with the Rihan in Islamic law though the terminology might be different.

Four Orthodox School of Law

The four Islamic Schools of Law are:

1. The Hanafi Madh-hab- Abu Hanifah An-Nu’man ibn Thabit
2. The Maliki Madh-hab- Malik ibn Anas
3. The Shafi’i Madh-hab- Abu Abdullah Muhammad ibn Idris Ash-Shafi’i
4. The Hanbali Madh-hab- Abu Abdullah Ahmad ibn Hanbal

Article 6 of CMPL provides that

1. Should there be any conflict among the orthodox (Sunni) Muslim schools of law
(Madhahib), that which is in consonance with the Constitution of the Philippines,
this Code, public order, public policy and public interest shall be given effect.
2. The Muslim schools of law, for purposes of this Code, be the Hanafi, the Hanbali,
the Maliki and the Shafi’i.

The provision connotes that the jurisprudence followed in the Philippines is any of the
Sunni Muslim and the Shi’a should be governed under the Sunni school of law. While
the enumeration made in paragraph 2 is in alphabetical order and not chronological
order.

Except in Law of Succession on which the Shafi’i is given preference over others when
the decedent’s madhhab is not known.

Article 134. Governing school of law.

 1. In every petition for probate of will or for the settlement of the estate of a
decedent, all matters relating to the appointment of administrator , powers and
duties of administrator or executor, the court shall take into consideration the
school of law (madhhab) of the decedent.
2. If the decedent’s madhhab is not known, the Shafi’i school of law may be given
preference together with the special rules of procedure adopted pursuant to this
Code.

Sources of Law used by the Hanafi 8. Istislah

Madh-hab 9. Urf

1. Qur’an Sources of Law used by the Shafi’i

2. Sunnah Madh-hab
3. Ijma’ of the Sahabah
4. Individual opinion of the Sahabah 1. Qur’an
5. Qiyas 2. Sunnah
6. Istihsan 3. Ijma’
7. Urf 4. Individual Opinion of the Sahabah
5. Qiyas
Sources of Law used by the Maliki 6. Istishab
Madh-hab
Sources of Law used by the Hanbali
1. Qur’an Madh-hab
2. Sunnah
3. ‘Amal (practices) of the Madinites 1. Qur’an
4. Ijma’ of the Sahabah 2. Sunnah
5. Individual Opinion of the Sahabah 3. Ijma’ of the Sahabah
6. Qiyas 4. Individual opinion of the Sahabah
7. Customs 5. Hadith Da’eef (Weak Hadith
6. Qiyas