Sources of Islamic Law

Shariah

 Meaning is ------- clear, open, enlightened; clear path to be followed

 In religious sense it is meant for those laws and orders which present code for
obedience to one God, one prophet.

 Divine law of Islam is Called Shariah

SO, Shariah is a Divine code revealed to humanity through the Prophet (PBUH) for
determination of articles of faith, deeds ordained by religion, cultivation of morality,
establishment of family and social life and for politics of state.

Quran

 For each one of you, we have ordained a shariah

And for every community, we have sent a guide (shariah).

 P.K. Hitti in his book “History of the Arabs” says:

Shariah is the totality of Allah’s commandment as revealed in Quran elaborated in Hadith

related to rituals and worship, civil and legal obligations, punishments and teachings.

 Prof. Khursheed Ahmed says:

The purpose of Shariah is to follow Amar bil-Maroof and abstain from Nahi-Anil-Munkir;

1. Maroofat

2. Munkirat

Fiqah

The interpretative and investigative science of shariah is called fiqah. It is the scientific method
of solving new questions and problems of daily activities on the basis of Divine Law

Sources of Islamic Law (shariah)

 Dr. Mustafa Ahmed Zarqa, An Egyptian scholar classified into two categories:

1. Primary sources
  The Quran

 Primary source of law

 It contains commandments, injunctions, rules and everything related to man and

universe

 Muhammad Hamidullah says,“ the Quran seeks to guide man in all walks of life:
spiritual, temporal individual and collective”

Sunnah of Prophet (PBUH)

 2nd most important source

 Sunnah means-------- path or way of life

 In Fiqah-------- lifestyle, sayings, actions, silent approvals, physical and moral attributes

 Legislative authority
 (six Authentic books of Ahadis)

2- Secondary Sources

 Ijma (consensus)

 Ijtihad (independent reasoning)

 Qiyas (analogy)

 Istislah (Public good)

 Istihsan (public welfare)

 Masalih Marsalah (Public weal)

 Urf (local culture)

 IJMAH:

General agreement or consensus among Muslims in the light of Quran and Sunnah

Hadis
My ummat will never be united on error

1. jma' al-Sahabah (Consensus of the Companions): This refers to the unanimous

agreement of the Prophet Muhammad's companions on a particular issue. It holds
significant authority in Islamic law as it reflects the understanding and practice of those
closest to the Prophet.

2. Ijma' al-Ummah (Consensus of the Muslim Community): This type of consensus refers
to the agreement of the broader Muslim community, scholars, and jurists across
different times and places on a particular issue. It serves as a source of authority in
Islamic law when there is agreement among these scholars.

Both types of Ijma are important in Islamic jurisprudence as they help establish legal rulings and
interpretations based on the collective wisdom and understanding of the early companions and
the broader Muslim community.

Example:

1. Collection of Holy Quran

2. Recitation of Holy Quran in Hashmi dialect

IJTIHAD

Literal meaning is searching, to strive for

2. means strive to interpret the teachings of Quran and sunnah in a new condition but with
in the precedents of earlier mujtahids, fuqaha, especially four schools of Fiqah

3. Makes islamic legal system dynamic

4. Sort of academic research and intellectual effort.

To quote Prof.N.J. Coulson ' Ijethad is the general process of juristic endeavour to
ascertain the tenents of Shariah law.."

How it is valid source?

PROOFS FROM QURAN AND SUNNAH:

Both supported ijtihad. The quran has recognized the necessity of independent
judgment to arrive at decessions.
The arabic word in the Quranic verse for search out is from word istnbat which signifies
the search for hidden meaning by the use of judgment and reason.

There is also a famous hadith of Prohpet which is generally considered to be an

authentiv source of ijtihad. Prophet asked govner of yemen MU'AD BIN JABAL how will
he adjucate..pg 606 in hafiz karim dad book.

History of ijtihad in islam:

Though common belief is it started with formation of fiqh under four school of thoughts
but actually earliest days of islam learned companions did practice independent
judgment in matter where theres in no evidence from quran and sunnah. There are
various examples ohazrat abu bakar, ali, umar, ayesha ibn umar etc of doing aijetahd.

Holy Prophet and Muaz bin jabal , Hazrat Abu Bakar and zakat

Hazrat umar and Ijtihad .Hazrat Ali and Ijtihad

Scope of ijetad

Potientally scope of ijithad is unlimited, it is used in two main areas

 IN UNDERSATANDING THE WORDING , MEANING OF TEXT IN DETEREMINING

THE GENERALITIES AND PARTICULARITIES OF TEXT IN DECIDIDINF WETHER THE
APPLICATION OF TEXT IS RESTRICTED OR UNRESRTICTED AND WHAT POSSUBLE
MEANINGS ARE.
 WHEN QURAN AND SUNNAH ARE SILENT ON CERTAIN ISSUE AND THERE IS IJMA
AMONG JURITS

Scholars approach /opionion throughout the time

 Shah wali ullah was the first muslim thinker to profound a theory of cautious of
ijethad.Thus became the first one who advocated for reopenining the doors of
ijtehad.
 Allama iqbal, the greatest thinker of modern islam, asserted that ijtehad can be
undertaken not only by an individual jurits but also by an assebmly.
 Mulana MAUDIDI and Taqi Amin come under modern jurits asserted
COLLECTIVE IJTIHAD, which is more relevant in the modern world.

Importance of Ijtehad:
 Back in times One of the most significant errors made was the closing of the doors of
ijtihad, limiting legal interpretation to only four prominent scholars: Malik Ibn Anas, Abu
Hanifa al-No'man, Muhammad Ibn Idris al-Shafi'i, and Ahmad Ibn Hambal—the founders
of the Maliki, Hanafi, Shafi'i, and Hanbali schools of thought.

The closure of the doors of ijtihad has had profoundly detrimental consequences for the
Muslim world. According to Qazwini, this decision led to chronic intellectual stagnation,
as it prevented thousands of potential mujtahids (independent Islamic jurists) and
scholars from offering practical solutions to emerging issues. Muslim thinkers became
constrained by rules established long ago, leaving little room for progressive or
innovative thought.

two School of thoughts

There are two schools of interpretation: one favors ijtihad muqaiyyid (limited ijtihad),
while the other supports ijtehad mutlaq (independent ijtihad) not bound by the
opinions of earlier mujtahideen, especially those from the middle ages. The second
school contends that the doors of ijtihad remain open and that innovations in Islamic
law are possible but must be grounded in the Quran and Sunnah (Prophet's traditions).
They argue that ijtihad has become crucial in modern times due to changes in nearly
every aspect of life, requiring Islamic jurisprudence to adapt to contemporary challenges
and contexts.

Mujtahid" is a highly knowledgeable and qualified Islamic scholar who possesses the
ability to interpret and derive Islamic laws and rulings directly from the Quran and
Hadith (sayings and actions of the Prophet Muhammad) using a process known as
"ijtihad."

KINDS OF MUJTAHID

1. Mujtahid fil Shara:are founder of specific school of thought. Also called abolute
mujtahid and These mujtahideen are experts in deriving legal rulings and
interpretations based on the evidence on the methodology laid down by them through
their extensive undertanding.

Examples are imam abu hanifa founder of hanafi school of fiqh and so on.

2. Mujtahid fil Mazhab: This category of mujtahideen specializes in interpreting and

deriving legal rulings within the context of a his following a specific Islamic school of
thought or madhab, such as Hanafi, Maliki, Shafi'i, or Hanbali.
3. Mujtahid fil Masail: These scholars focus on ijtihad in specific legal and religious matters
or issues (masail) on which there is no report from mujtahideen from that particular
school of thought.

4. Mujtahid Muqayyad:( restricted jurists)These mujtahideen are qualified to perform

ijtihad bonly within the confines of specific boundaries or guidelines, often defined by a
religious authority or a particular school of thought.

5. Ashab Tarjeeh: These scholars have the ability to prioritize or choose between
conflicting opinions within Islamic jurisprudence based on their understanding and
reasoning, striving to find the most suitable solution in particular school of thought.

6. Ashab Tamiz: Ashab Tamiz are experts in distinguishing between the authenticity and
reliability of various hadith (sayings and actions of the Prophet Muhammad) and other
sources of Islamic law, ensuring that only trustworthy sources are used in legal rulings in
their school.

7. Muqaldeen e Mhez: simple followers. These scholars do not posses all above
mentioned capabilities rather they simply memorize rulings , problems and their
solutions presented by their school of thought. also known as imams.

The qualifications of a mujtahid

1. Deep Knowledge: A mujtahid must possess extensive knowledge of Islamic sciences,

including jurisprudence, Quranic , and hadith.

2. Mastery of Arabic: Proficiency in the Arabic language is essential for interpreting

Quranic and hadith texts accurately.

3. Legal Methodologies: They should be familiar with the methods of ijtihad, such as qiyas
and istihsan, to derive legal rulings.

4. Moral Character: Exemplary moral and ethical conduct is necessary, as they are role
models for the community.

5. Recognition by Peers: Some traditions require recognition and acceptance by other

scholars.

Need for Establishment of institutions for ijthad

As humanity has been ,and will be, facing problems, the importance of ijtehad will never
reduce..Today, its importance is being felt as strongly as never before because of some
 problems that came with new inventions like test tube baby, banking system and organ
transplant etc.

Some of suggestions in this regard are as follows

1- Establishing institutions like council of islamic ideology:

There are currently several national and international fiqh councils (councils of
jurisprudence and interpretation of sharia), but they need to be better organized and
they should work together collaboratively.

2-Establishment of institutions for ijtehad in madaris federation:

There are already five boards working under the federation of ITTHAD MADARIS -E-E
DEENIYA. Besides these five boards, there are two institutions aswell whom degrees are
recognized by HEC. It includes Dar-ul- uloom Muhammadia Ghousia behra sharif and
Minhaj univeristy. It is hoped that in near future, instutions for purpose ijehaad may
emerge from these boards.

3-Ijtihad by scholars of various universities Law departments from joiint platform:

The government should provide the scholar and professors who have expertise in
constitition of pakistan as well as islamic law, with platform where they could reasearch
on modern day problems and give their views on them. There recommendations there
upon should be sent to the council of Islamic ideology sp members there could
contemplate throughly on issue at hand

Instutions which can do ijtehad or are doing it?

INSTITUTES

1. The Islamic Ideology Council in Pakistan played a significant role in Ijtehad by addressing many
issues related to triple divorce.
2. The Organization of Islamic Cooperation (OIC) has contributed to Ijtehad by fostering
collaboration among Muslim nations on various Islamic matters.
3. Jamia Al-Azhar in Egypt has a rich tradition of scholarly research and interpretation, making it a
key institution for Ijtehad in the Muslim world.
4. The Islamic Research Institute (IRI) has been at the forefront of Ijtehad efforts by conducting
rigorous research and analysis on Islamic jurisprudence.
5. Fiqhi Academy in India has made notable contributions to Ijtehad by offering scholarly insights
and interpretations of Islamic law.
6. Fiqhi Academy in Jeddah has provided a platform for Ijtehad discussions, contributing to the
evolution of Islamic jurisprudence.
7. Dar ul Iftah has been a source of guidance in Ijtehad by issuing religious edicts and
interpretations.
8. The Federal Shariah Court in Pakistan has played a pivotal role in Ijtehad by adjudicating
matters related to Islamic law.
9. The Al-Mawrid Institute has made significant scholarly contributions to Ijtehad through
research and education on Islamic jurisprudence.

1. DNA as Witness: Recent Ijtehad efforts have focused on whether DNA evidence can be
accepted as a valid witness in Islamic jurisprudence. Scholars are debating the reliability and
admissibility of DNA evidence in legal proceedings, considering its implications for justice and
fairness.
2. Transplantation and Organ Donation: Ijtehad in this area addresses the permissibility of organ
transplantation and donation in Islam. Scholars are working to reconcile Islamic principles with
modern medical advancements to develop guidelines for ethical and legal organ
transplantation.
3. Banking System: Islamic finance scholars have been engaged in Ijtehad to develop Sharia-
compliant banking systems, addressing issues related to interest (riba) and ensuring financial
transactions align with Islamic principles.
4. Adopted Son: Recent Ijtehad efforts have sought to clarify the status of adopted children in
Islamic inheritance laws, attempting to strike a balance between traditional Islamic inheritance
rules and contemporary adoption practices.
5. Milk Bank: Ijtehad discussions involve determining whether the establishment and operation of
milk banks align with Islamic principles and ethics, particularly regarding issues of breastfeeding
and donor anonymity.
6. Test Tube Baby and Cloning: Contemporary debates within Ijtehad explore the permissibility of
assisted reproductive technologies like test tube babies and the ethical implications of human
cloning in the context of Islamic ethics and principles.
7. Law of Evidence and Video: Ijtehad is addressing the validity of video evidence in Islamic law,
considering issues related to authenticity, admissibility, and the reliability of digital evidence in
legal proceedings.
8. COVID-19: Scholars are engaging in Ijtehad to provide guidance on issues such as vaccination,
lockdowns, and funeral rituals during the COVID-19 pandemic, considering public health, safety,
and Islamic teachings.
9. Space Traveling and Prayer: Recent discussions on Ijtehad examine how Muslims can perform
daily prayers and observe religious obligations while in space, addressing the challenges posed
by zero gravity and the changing positions of celestial bodies.
10. Moon Sighting: Ijtehad efforts continue to focus on the sighting of the moon to determine the
start and end of Islamic months, seeking to reconcile traditional moon sighting methods with
modern astronomical calculations.
11. Women in Sports: Ijtehad discussions are evolving to accommodate women's participation in
sports, addressing issues of modesty, gender segregation, and ensuring that sports activities
align with Islamic values and principles

MODES/PRICIPLES/KINDS/PROCEDURES/METHODOLOGY OF DOING IJTEHAD

 Qiyas : literally means “comparing with” or “judging by comparing with a thing.”

It is a term u sed when determining the root-cause of the process to do Ijtehaad .

It has four elements. IRKAAN QIYAS

1-Asal (Original text)which is mentioned in Quran and Sunnah (Wine)

2- Hukam (Ruling/judgment)

3- FAR ( New case)

Quran and hadees doesnt categorically mentions it so ijthad is done for its status i-e
smoking.

4- ILLAH (Reason) why is wine haram? Because it effects senses but smoking doesnt so
aint haram.

 qiyas is the ruling of all intoxicants being haraam. In the Holy Quran, Allah Ta’ala orders
us to refrain from khamar (wine, alcoholic drinks). So it would clearly appear that the
reason for the prohibition is because of the intoxicating effect. Therefore, although not
particularly mentioned in the Qura’an and Hadith, all other things which have an
intoxicating effect (such as drugs etc.) will be deemed haraam as well due to the verse
which prohibits khamar.

 There are conditions for Qiyas laid down by Jurists:

1) Qiyas can only be applied when there is no solution to the matter in the
Qur’an or Hadith
2) Qiyas must not go against the principles of Islam
3) Qiyas must not go against the contents of the Quran nor should it go against the
teachings of the Prophet

Istishan (Juristic Reasoning): Istishan involves deriving legal rulings by considering the
overall welfare and benefits of society when there is no explicit guidance in the Quran
or Hadith, emphasizing the spirit of Islamic law.
Masaleh Mursalah (Public Interest): This method allows jurists to consider public
interest and welfare when making legal decisions, especially in cases where the specific
text is not available, prioritizing the greater good of the community. For instance, in the
context of healthcare, Masaleh Mursalah may be used to justify the distribution of
vaccines during a pandemic to protect the health of the community.

Urf (Custom): Urf involves examining established customs and practices within a society
to determine legal rulings when no specific religious texts address a particular issue. An
example is the acceptance of local marriage customs as long as they do not contradict
Islamic principles, like regional wedding traditions that are culturally significant.

Sharai Min Qablina (Earlier Scriptures): This methodology involves referencing earlier
scriptures or divine revelations before Islam, such as the Bible or Torah, to extract
principles that align with Islamic law and ethics. For instance, the prohibition of murder
is a shared principle among these earlier scriptures and Islam.

Istishab Haal (Preassumption of Continuity): Istishab Haal assumes the continuity of an

existing legal state until proven otherwise, ensuring that established legal principles
remain in effect unless there is a compelling reason for change.

Saad Zarai (Blocking Means): Saad Zarai focuses on blocking any means that could lead
to harm or forbidden actions, allowing jurists to prohibit activities or practices that may
indirectly violate Islamic principles or morals. For example, the prohibition of alcohol in
Islam is not limited to consumption but also extends to the sale, production, and
transportation of alcohol to block the means that may enable its consumption and the
associated harm.

Establisment of research institutes for Ijtehaad

Thereare are hardly many ins for purpose of ijethad exclusively in Pakistan the gov
should establish and patronize such institutes. Sharia experts, both men and women,
should be members of these councils. Membership should not be limited to sharia
scholars; experts from the fields of medicine, astronomy, economics, social and political
sciences, and law should also be included as consultants and adviser.

Significance of ijthad in making a modern state an islamic one

The significance of Ijtehad in making a modern state an Islamic one lies in its ability to
adapt Islamic principles to the evolving needs and challenges of a contemporary society.
Ijtehad allows Islamic scholars and jurists to reinterpret and apply the teachings of Islam
in a way that aligns with the values of justice, equality, and progress. In a modern
Islamic state, Ijtehad helps in formulating laws and policies that address issues like
human rights, technology, economics, and governance while remaining faithful to the
core principles of Islam. It enables the state to harmonize religious values with the
demands of a rapidly changing world, fostering a society where Islamic ethics and
principles guide its development and governance.

Ijtehad is needed significane in Islam because it allows scholars to adapt Islamic

teachings to modern times.:

Relevance: Ijtehad helps Islamic teachings stay relevant by addressing new issues and
challenges that didn't exist in the past.

Adaptation: It allows for the application of Islamic principles to contemporary issues,

ensuring that the state's laws and policies align with Islamic values.

Flexibility: Ijtehad provides flexibility in interpreting Islamic law, promoting a balance

between tradition and modernity.

Progress: It enables a modern Islamic state to progress economically, socially, and

technologically while remaining true to Islamic ethics.

In simple terms, Ijtehad helps Islam evolve with the times, making it easier for an Islamic
state to keep up with the modern world while following its core principles.

does a learned muslim can do ijtehad?

no, because of Lack of Expertise: Ijtehad requires deep knowledge of Islamic law and
its sources. just like doctor etc