MOHD GHADAFI BIN SHARI

3.0 SOURCES OF SHARIAH

It is reported that when Muaz bin Jabal was sent as the Prophet’s delegate to Yemen, he was asked how he would decide matters referred to him. He replied: I would refer to the Holy Quran. The Prophet then asked him: What would you do if you cannot find a definite ruling in the Quran? Muaz replied: I will look into the Sunnah of the Prophet. Once again the Prophet asked: How if you do not get a definite ruling therefrom? Muaz replied: I will then use my reasoning to arrive at a solution. The Prophet was pleased with this answer and gave praise to Allah for giving him such a worthy representative.

Prime sources of Islamic law:1) The Holy Quran2) The Sunnah

Secondary sources:1) Ijma’. Allah says: ‘Obey God and obey the Prophet and those amongst you who have authority’2) Qiyas (Analogical reasoning/

deduction)

Istihsan (Juristic Preference) Maslahah Mursalah (Consideration of

public interest) Istishab (Presumption of continuity) Urf (Custom) Qawl al-Sahabi (Opinions of companions) Sad al-Zara’i (Blocking the means) Shar’u qablana shar’u lana (Revealed

laws of the previous prophets of Islam)

O you who have believed, obey Allah and obey the Messenger and those in authority among you. And if you disagree over anything, refer it to Allah and the Messenger, if you should believe in Allah and the Last Day. That is the best [way] and best in result. (An-Nisa’ : 59)

3.1 Identify the sources of Shariah 3.1.1 Describe the primary and secondary sources of Shariah

a. Primary sources i. Al-Quran ii. As-Sunnah

AL-QURAN

The 1st and main source of Islamic law.

The word Quran is derived from the root word of qa ra ‘a.

From literal meaning; Al-Qur’an means reading or recitation.

From technical meaning; Al-Qur’an can be defined as the Book containing the words of Allah revealed to Prophet Muhammad s.a.w. in Arabic & transmitted to us by continuous testimony, @ tawatur.

Features of Al-Qur’an1. It is the actual Word of Allah; the wording &

meaning of Al-Qur’an were revealed for the benefit of all mankind.

2. The Qur’an was revealed in Arabic, the language that was chosen by Allah for His revelation.

3. The Qur’an was transmitted with continuous testament (mutawatir). This means that the Qur’an was transmitted from the Prophet s.a.w. to the next generation.

4. The Qur’an is Allah’s eternal miracle revealed to Prophet Muhammad s.a.w. for all succeeding generations.

5. It is complete & comprehensive.

The Makkah Revelations• 19 out of the total 30 parts was revealed

during the 1st 12 & a half years of the Prophet’s residence in Makkah

• Emphasizes on the topics related to belief, the Oneness of Allah (Tawhid), the necessity of the Prophethood of Muhammad s.a.w., the hereafter, arguments with unbelievers & their invitations to Islam.

The Madinah Revelations• 11 remainders parts of the Quran were revealed

after the Prophet’s migration to Madinah over a period of just about 9 and half years.

• Comprised legal rules & regulations of the various aspects of life in the new environment of Madinah.

• Emphasis to principles of regulation of the political, legal, social, organization of the family & economic life of the new community.

• Addressed the need for rules to regulate matters of war & peace, status & rights of conquered people, as well as the principles of government.

Classification of the Verses of the Qur’an

a)Verses related to the Islamic belief system (‘Aqidah)- which include the belief in Allah, His Prophet s.a.w., belief in the Day of Judgment & other related theme.

b)Verses related to the moral & ethics (Akhlaq) – which include the good ethical system that must be upheld & evil deeds, which must be avoided

c)Verses related to the stories of the earlier Prophets of Allah a.s. & the previous people (al-qasas al-Qur’an) which can be taken as a lesson for everyone

d)Verses related to the sayings & doings of the individuals & his relations with others which are also called ayat al-ahkam @ the legal verses of the Qur’an

Classification of ayat al-ahkam @ the legal verses of the Qur’an 1.The concise injunction (al-ahkam almujmalah)

• Injunctions concerning prayers & Zakah• Injunctions related to qisas (the law of equality in

punishment)• Injunctions related to commercial transactions & the

prohibition of usury (riba’) 2.The concise and detail injunctions (al-ahkam al-mujmalah wa al-mufassalah)

• Contains verses mentioned the commandments in brief, while others are mentioned them in detail. These injunctions are clarified by the Sunnah of the Prophet s.a.w.

• E.g. injunctions on war, peace, jihad, prisoners of war, booty & relations with non-Muslims. These details are not merely left to the Sunnah alone but Ijtihad can also be a method to find suitable solutions to unexpected problems

3.The detailed injunctions (al-ahkam al-mufassalah)• Injunctions which give complete details of the

commandments, leaving no room for ijtihad.• E.g. hadd punishments, qisas, unintentional

homicide, murder, theft, robbery, adultery, defamation and distribution of inheritance.

a)Verse related to the penalty for unintentional killing

b)Verse related to the distribution of inheritance

c)Verse related to the punishment for adultery

Fundamental Principles of Guidance Derived from the Injunctions of the Qur’an (al-Qawaid wa al-Mabadi al-ammah fi al-Qur’an)a)Principle of justiceb)Principle of individual accountabilityc)Principle of consultationd)Principle of acquiring propertye)Principle of equalityf)Principle of flexibilityg)Principle that necessity renders prohibited

things permissible (al-darurah tubih al-mahzurat)

AS - SUNNAH

Literal; means a clear path or a beaten trackIn pre Islamic Arabia; the Arabs used the

word Sunnah in reference to the ancient & continuous practice of the community, which they inherited from their ancestors.

The scholars of Hadith; Sunnah refers to all that is narrated from the Prophet s.a.w. including his actions, sayings & whatever he has tacitly approved.

Sunnah includes the sayings, doings & tacit approvals of the Prophet s.a.w.

Hadith is a narration of the sayings of the Prophet s.a.w.

Authority of Sunnah1.In the following verse, Allah clarified the fact that

whatever originated from the Prophet s.a.w. does not come out of his own desire, but it is an inspiration from Allah. This fact indicates the role of Sunnah as the second source of Islamic law;

“Nor does he say (ought) of his own desire. It is no less than inspiration sent down to him”

(Al-Najm ; 3-4)

2.The Qur’an commands the believers to follow the instructions and injunctions of the Prophet s.a.w. :

“ And whatever the Messenger gives you, take (observe) it & whatever he forbids you,

abstain from it” (Al-Hasyr; 59:7)

3. Islam also emphasizes the need to refer the judgment to Allah, which means resourcing to the Qur’an & referring it to the messenger means resourcing to the Sunnah whenever there is a dispute or problem;“Obey Allah & obey the Messenger & those who are

in charge of affairs among you. Should you happen to dispute over some matter, then refer it

to Allah & to the Messenger” (Al-Nisa’: 59)

4.The Qur’an also orders the believers to be pleased with the judgment of the Prophet s.a.w. & not to dispute about them:

“But no, by your Lord, they can have no Faith, until they make you (Muhammad s.a.w.) judge in all

disputes between them, & find in themselves no resistance against your decisions, & accept (them) with full submission” (Al-Nisa’;65)

Role of the Sunnah with regards to the Qur’an

1.The Sunnah reemphasizes & reiterates the injunctions of the Qur’an

2.The Sunnah explains & elaborates the concise injunctions of the Qur’an.

3.The Sunnah qualified (muqayyadah) the unqualified (mutlaq) verses of the Qur’an & specified (takhsis) the general (‘amm) injunctions of the Qur’an.

4.The Sunnah may enact rulings on which the Qur’an is silent.

Types of Sunnah

1.Verbal Sunnah (Qawli) – consists of the sayings of the Prophet s.a.w. on any subject. E.g. hadith which states that livestock is liable to zakah

2.Actual Sunnah (Fi’li) – consists of the Prophet s.a.w. deeds & actual instructions. E.g. the way he performed the solat, fasting, rituals of the hajj, @ transactions that he concluded such as sales & loan giving.

3.Tacitly approved (Taqriri) – inferred from his silence @ lack of disposal, @ from his expressed approval & verbal confirmation.

Do you have any questions?

b. Secondary sources i. Ijma’ ii. Qiyasiii. Istishab iv. Istihsan v. Masalih Mursalah vi. ‘Uruf

IJMA’

• Literally; Ijma’ is the verbal noun of the Arabic word ajma’ that has 2 meaning:Determination =>possible from 1 personAgreement upon a matter =>requires 2 or

more person

• Technically; the consensus of mujtahids from the ummah of Muhammad s.a.w, after the death, in a determined period upon a rule of Islamic law

Condition for the validity of ijma’

1.The agreement @ consensus must take place among mujtahids that is those who have attained the status of ijtihad.

2.The agreement must be unanimous, that is among all the mujtahids.

3.All the jurists participating in ijma’ must be from the ummah of Muhammad s.a.w.

4.The agreement @ consensus must have taken place after the death of the Prohet s.a.w.

5.The agreement must be among the mujtahids of a single determined period, even if some of the jurist of the following @ subsequent period opposed them.

6.The agreement must be upon a rule of law the hukm shar’i.

7.That the mujtahids should have relied upon a sanad for deriving their opinion.

8.The death of those jurists who participated in the ijma’, either explicitly @ by silence, is not a condition for the validity of ijma’ according to the majority of the jurists.

9.That the ijma’ should have been transmitted to the later jurists by way of tawatur.

Types of ijma’

1.Explicit ijma’ @ ijma’ qawli legal opinions of all the jurists of 1 period

converge in relation to a legal issue & each 1 of them states his opinion explicitly

2.Tacit ijma’ @ ijma’ sukuti Some mujtahids, 1 @ more issue a verdict on

a legal issue & the rest of the mujtahids come to know of it during the same period but they keep silent; they neither acknowledge it nor refute it expressly

QIYAS

• Literally; measuring @ estimating 1 thing in term of another.

• Technically; the hukm of an existing case found in the texts of the Quran, the Sunnah @ ijma’ to a new case whose hukm is not found in these sources on the basis of a common underlying attribute called the ‘illah of the hukm

The pillars of qiyas

1.asl =>the case ( set of facts ) mentioned in the text 2.hukm =>the set of facts mentioned in the text3.‘illah =>the underlying cause that has led to the

hukm4.far’ =>the new case for which the hukm has mot

been explicitly mentioned & which needs a hukm

Examples of qiyasThe prohibition of khamr is laid down in the Quran. The

text prohibits khamr along with a statement of the disaster it leads to, that is, enmity & hatred among people. Now khamr, according to some jurist, is the name of an intoxicating liquor made from grape juice, called wine. The Arabic term khamr in their view does not include other intoxicating liquors like whiskey & beer that are made from other substances. The other intoxicants according to the Hanafis are prohibited separately by the texts of the Sunnah.

Explanation

asl @ maqis ‘alayh => khamr hukm al – asl => prohibition of khamr‘illah => intoxicating far’ @ maqis => each 1 of the intoxicants other than

khamrhukm al – far’ => prohibition of whiskey @ related

• 'Umar ibn al-Khattab said to the Messenger, may Allah bless him and grant him peace, "Messenger of Allah, I did something terrible. I kissed while I was fasting." The Messenger of Allah said, "Do you think that you can rinse your mouth with water while you are fasting?" He replied, "There is no harm in it." The Messenger of Allah said, "So fast." Do you not see that the Messenger of Allah made a connection between rinsing the mouth with water while fasting and kissing while fasting? He pointed out the similarity between them since both of them could lead to something which would break the fast or not. It does not in itself break the fast. Breaking the fast is possible if it leads to that. Because of the similarity between them they are equal in judgement. As rinsing does not break the fast - and that was known to 'Umar - and so the kiss does not break it.

Al-Muzani, the companion of ash-Shafi'i, summarises the idea of analogy and the action of the Companions in it excellently:

"The fuqaha' from the time of the Messenger of Allah, may Allah bless him and grant him peace, until today have used analogies in all judgements in their deen and they agreed that the like of what is true is true and the like of what is false is the false, and no one is permitted to deny analogy because it is the resemblance and similarity of things."

• Malik used to make analogies based on judgements derived directly from texts in the Qur'an and judgements derived directly from hadiths of the Prophet. 

• He also drew analogies based on the consensus of the people of Madina because, as we have seen, he considered that to be the Sunnah. 

• Malik also used to utilise the fatwas of the Companions as a basis for analogy, as we saw in the case of the wife of the missing husband in which he followed the fatwa of 'Umar about the divorced woman who was not aware of having been taken back by her husband, which was confirmed by the agreement of the people of Madina on similar cases.

• The benefit in this is clear and evident in three ways. Or it might be said that its fruits appear in these three aspects:1. Malik based analogy on questions which the Companions had deduced and used them for analogy. So he used them as a basis for analogy in similar questions, relying on the Companions' fatwas .

2. Comparing the secondary ruling to a principle known by analogy expands the area of analogy because in this case the cause by which the first analogy was established has been forgotten, and a new comparison is formed between this secondary ruling and the other which is considered as its principle. So the cause of the judgement in defined in it and established in the secondary ruling since they share in this quality. Indeed, the case will end in linking the new cause with the old cause. Analogy is the same, but the mujtahid is not burdened with the effort of investigation into the basis of the first analogy. Rather he considers the established secondary ruling to be a confirmed principle on which to base analogy.

3. This subject expands deduction in a school of one of the mutjahidun because he considers the secondary rulings in which the principles were deduced which he does not use for comparison and by that the scope of fiqh is expanded and ijtihad in it and deduction based on it grows and fatwas are not constricted or difficult. Indeed, the area of deduction is open and the path is improved.

ISTISHAB

Presumption of Continuity• Literally; continuance of companionship • Technically; presumption of continuance of an

earlier rule or its continued absence• Ibn al-Qayyim defined it as being the continuation

of what is established or the negation of what does not exist, i.e. it is the judgement, negative or positive, continues until there is evidence of a change of state. This continuance is not proved by positive evidence, but by the absence of the existence of new evidence.

• Al-Qarafi defined it: "Istishab means the belief that the past or present matter must be assumed to remain as it is in the present or future."

• This means that the past judgement and the knowledge of it makes one assume that it will continue in the future, like the one for whom ownership is affirmed by something like purchase or inheritance.

• So ownership continues until there exists something to negate it. It is also like someone who is known to be alive at a specific time. It remains probable that he is still alive until evidence is established to the contrary and something establishes his death. So an absent person is judged to be alive until there is something to indicate he has died and then the qadi judges him to be dead.

• Al-Qarafi said: "Istishab was considered a proof by Malik as well as the Shafi'i, al-Muzani." He mentioned that he differed from the Hanafis in that. Then he mentioned that the evidence that it is a proof is that it probable that an existing state will continue to exists until there is something to negate it. Such probability is evidence in action: like testimony. It is a binding proof for all. If it were ignored or not acted upon, rights would be lost since there would be no means to establish them.

• According to this, istishab was considered proof by Malik as long as there was no evidence to contradict it. When a person is absent and it is not known whether he is alive or dead, he is considered to be alive until the Qadi judges that he is dead and he is deemed to be alive in the period between the absence and being judged to be dead.

• Al-Qarafi mentioned that the Hanafis differ from the Malikis in that and some of them do not consider istishab to be a proof in its own right. However presumption of innocence is a firm principle which is relied on. It is like that when ownership is affirmed. It only ceases by a eliminating cause. All of this is involves the presumption of the continuation of the state. So most Hanafis who disagree with them say that continuation of the state is a defensive proof and not evidence of affirmation. That is why they permit a settlement after denial even though the claimant takes a reimbursement when the right has not been established.

• If istishab had been a proof which obliged rejection and affirmation, that settlement would not have been permitted as long as there was no evidence. So the evidence of the ownership of one against whom the claim is made would be affirmed by the principle of the continuation of the state, but the Hanafis, who permit the settlement, said that denial interferes with the principle of innocence. As they both have a right, each of them makes a settlement for a right permissible in respect of him.

The principles

1.The original rule for all things is permissibility, that is, the presumption is that all things are permitted, unless prohibited by the shariah

2.Bara’ah asliyyah; there is no presumption of liability against anyone & all liability has to be proved

3.Certainty does not give way to doubt; once a thing is established beyond doubt, it can only be set aside through an equally certain evidence

Some scholars divided istishab into two categories:

1. Presumption of innocence. It is the continuance of inviolability until there is evidence which establishes a right, like the state of the one who denies a claim. His state is that of presumption of innocence. Ibn al-Qayyim mentions the dispute of the fuqaha' in it, saying that the Hanafis apply it to denial rather than affirmation. Malik, ash-Shafi'i and Ibn Hanbal accept it as absolute proof.

2. The continuity of the attribute. A judgement continues until its opposite is affirmed. Ibn al-Qayyim said that it is a proof about which the fuqaha' do not argue, but we disagree with Ibn al-Qayyim. The Hanafis said that the continuity of the attribute is a negative rather than affirmative proof of denial, i.e. that the attribute affirms the continuity of the condition, but it does not affirm a new right by it.

ISTIHSAN

• Literally; to consider something good• Technically; moving away from the implications

of analogy to an analogy that is stronger than it, @ it is the restriction of analogy by an evidence that is stronger than it

ExampleAnalogy requires that ritually pure water should

be used for ablution. In the case of wells in which dirt @ carcasses of animals have fallen, following strict analogy would mean the non – use of these wells, & this would cause hardship to the people. The principle of necessity requires that use of these wells be permitted. This is done after observing formal cleaning methods.

• There are many sources which state that Malik used to employ istihsan.

• Al-Qarafi mentioned that sometimes he used to give fatwa on the basis of istihsan and he said about it, "Malik says it in a number of questions about artisans who work on objects giving an guarantee of their work and those who transport food and condiments giving a guarantee as opposed to others.“

• Malik used analogy but made it subject to general and partial benefit, so he only applied it when he was sure that there was no harm in its application; otherwise he left it. For Malik it was a basic rule that analogy is subject to benefit. That is why the underlying principle of Maliki fiqh is benefit, as we will explain.

• Judgements based on istihsan or which make it the deciding factor when weighing up different proofs are numerous in the Maliki school, as ash-Shatibi says in al-Muwafaqat.

• One example of this is loans. A loan might be considered to be usury because a dirham is exchanged for a dirham for a period of time but it is permissible under the principle of istihsanbecause of the way people are helped by it. If loans had remained forbidden they might have suffered great hardship.

• Another example is looking at the private parts of people in medical treatment. The general rule is that it is unlawful to look at private parts, but it is recommended to avert harm.

• Another is sharecropping. The general principle obliges that it is forbidden since the recompense is unknown, but it is completely recommended.

• Another is ignoring usury in smalls amount since it is insignificant and so it is permitted to have a small disparity in a long delay.

• Another is what we mentioned before of the lack of making good character a precondition for witnessing when the qadi is in a place in which witnesses of good character are rare. The same applies to granting trusteeship to someone without good character in order to avert hardship as was made clear under analogy.

1. Istihsan is used for fatwa in questions, not on the basis of its being a rule, but rather on the basis of its being an exception to the rule or according to the Maliki definition of consideration: relaxation of the rule is a temporary principle as distinct from a universal principle. We saw an example of this in the fatwa about accepting witnesses who do not have good character in a land in which no witnesses of good character can be found and as mentioned above when a loan is permitted to avert distress and hardship. In these matters and those like them, istihsan is a relaxation of the general rule which, if followed in the particular instance in question, would lead to harm. Istihsan averts that harm.

Two things are evident from examining the questions in which judgements are based on istihsan.

2. Istihsan is most often used when the application of strict analogy would necessarily entail distress. So istihsan in the Maliki school, as in the Hanafi school, is equivalent to analogy, even though the methods of the two schools in reaching it are different. Each of them proceeds according to its legal logic, and istihsan in the Maliki school aims to avert any distress arising from following analogy through to its logical conclusion. Asbagh, who was probably the most prolific exponent of istihsan, said, 'People who go to extremes in making analogy are in danger of abandoning the Sunna. Istihsan is the foundation of knowledge.'

• Ash-Shatibi says about istihsan: 'It entails giving priority to empowered deduction over analogy. Whoever uses istihsan does not refer to only his inclination and desire. He refers to what he knows of the intention of the Lawgiver in those kinds of theoretical matters, like the questions in which the people would give a certain judgement were it not that that matter would lead to the loss of benefit from a different aspect or would bring about evil in the same way... In some case, analogy without restriction would lead to distress and hardship in some cases, and so there is an exception for the place of distress."

• An example of istihsan is when someone dies leaving a husband, and two siblings by the mother and two full siblings. The application of analogy to this question would demand that the husband inherits a half, the mother a sixth and the brothers have a third, and there is nothing for the full siblings although they are the children of the mother. So it is strange that they do not take anything while the maternal half-siblings alone receive a third. That is why 'Umar made them share in the third by the consideration that they are the sons of the mother. That is an excellent istihsan on his part. That establishes the sunna of istihsan to establish justice which averts distress.

• Like the Malikis, the Hanafis say that istihsan is adopted when the analogy is offensive or when the analogy will lead to excess in judgement. When Abu Hanifa used analogy, his companions argued with him about the criteria, but when he said he used istihsan, no one added to it, as was stated by one his pupils, ash-Shaybani.

• That which is clear to us is that istihsan in the Maliki fiqh is deals with excess in analogy by referring to three matters: 1) the prevailing custom, 2) the predominant benefit, and 3) avoidance of distress and hardship, and mindfulness of pressing necessities.

• The Hanafi school used to avoid extreme analogy by observing another cause different from the evident cause in the analogy. So they consider istihsan when there is a conflict between two analogies, one with a hidden cause and strong effect, which is what is called istihsan, and the other with an apparent cause and weak effect.

The meaning of this is that istihsan is a partial exception instead of a universal proof which differs in some parts. As for masalih mursala, it is used when there is no evidence except it. It is used in two cases:

First Case: When there is no analogy in the subject which can be applied to a  text.  In  this case, Malik considered this  to be a separate principle We will clarify that later.Second Case: When there is analogy and carrying that analogy through would cause hardship or constriction, or loss of benefit: then there  is  relaxation  in abandoning analogy for this use and by that harm is avoided. When this is used instead of analogy is called istihsan.

"He has not placed any constraint on you in the deen." (22:78)

"Allah desires ease for you; He does not desire difficulty for you." (2:185) 

The Messenger, peace and blessings be upon him, said, "No harm and no causing injury." A critical examination of

any legal judgement will reveal that the benefit and averting of harm are both observed in it and are intended

by it.

Masalih Mursalah

• Literally; the acquisition of manfa’ah @ the repulsion of madarrah

• Technically; the preservation of the purposes of Islamic law in settlement of legal issues

Examples

1.Al – Ghazali has stated that on the basis of masalih mursalah it is permitted to the ruler to impose taxes if the coffers are empty & he needs $ for jihad @ for preserving the security of the Muslim Ummah.

• Al-Ghazali thought that only using benefit which has no testimony from the Lawgiver in a text or several indications was judging by whim. Al-Juwayni also objected to using benefits without searching for testimony and said that it is allowing the people to judge according to their whims and they avoid what they are averse to and that judgements would then differ with different individuals.

Muslim fuqaha' state that Muslim responsibilities fall into two categories;

• The first is acts of worship, which is the system of the connection between man and his Lord, and they affirm that the basis in this category is devotion. So the texts about it are not causal in their whole, or to be more precise, a person cannot find in acts of worship the motives and ends for which they exist and on which their likes could be based. Someone does not impose on himself an act of worship which the Lawgiver did not impose whatever the logic. In addition to this prohibition, it is obligatory for the Muslims to believe that these responsibilities in worship are for the benefit of man, even if he cannot legislate the like of them by wisdom, benefit, or motives. He must stop at what the texts state and what they indicate and what it connected to them without adding to them.

• As for the second category of responsibilities, which are connected to the social transactions of the human race with one another. This is what the usage of the fuqaha' terms 'customs'. The basis in that category is turning to the reasons and motives for which the judgements were legislated by the agreement of the fuqaha'. Responsibility in these matters is for the sake of forming a virtuous Islamic polity based on justice and virtue.

Ash-Shatibi affirmed that principle in al-Muwafaqat. It is any attention given to customs is for one of three reasons;

1. If we investigate, we find that the Lawgiver intended the welfare of people. In customary judgements you may see something forbidden in one case in which there is no benefit, and then permitted when there is benefit, as dirham for dirham on credit is forbidden in the sale but permitted in the loan. Selling fresh dates for dry is forbidden when it is simple risk and usury without benefit, but permitted when there is predominant benefit in it. The Almighty says, "There is life for you in retaliation, people of intelligence," (2:179) and He says, "Do not swallow up one another's property by false means." (2:188) In hadith, "The judge does not give judgement while he is angry." The Prophet, may Allah bless him and grant him peace, said, "No harm and no causing injury." He also said, "The killer does not inherit," and he forbade the sale with uncertainty. He also said, "Every intoxicant is unlawful."

2. The Lawgiver was flexible in clarifying causes and wisdoms in the rules of social relations between people and customary matters between them. Most of the causes are logically connected to welfare. We understand from that that the Lawgiver meant for people to follow the reasons in them, not to merely stop with the texts – which is not the case with acts of worship. Worship is only established by a text.

3. Addressing the causal factors, which are benefits, exists at times when there are no Messengers, i.e. so that their welfare can exist and their livelihoods will be in in order. The Shari'a comes to perfect good character and customs. This is why the Shari'a confirms a group of judgements which occurred in the Jahiliyya, like blood money, the group oath, the commenda and the like of that which were praised among the the people of the Jahiliyya and whatever good customs and noble character which intellects accept: and they are many.

Scholars of usul divide preservation of action into three grades and base restitution on the basis of their order:

necessities, needs and recommendations.

NECESSITIES• Necessities are those things which are necessary for

the establishment of the welfare of the deen and this world, and when they are lacking, the benefits of the deen are not in order resulting in disorder and loss of life. The preservation of these necessities is by establishing them, making their rules firm, and by averting disorder, actual or probable. This is why foods, drinks, clothes, behaviour and their organisation is permitted. They are those things which society must have if it is to function. This is why such crimes are fought with retaliation, blood money, ensuring the value of property, the cutting off of hands, flogging, and other things which are intended to avert actual and likely disorder. So the basis of necessities is to establish those five matters

NEEDS• As for needs, they are connected to what is less than

those five, but their absence entails constriction. Thus needs are prescribed for expansion and to remove the constriction which usually results in distress and hardship. When needs are not cared for, people experience distress and hardship. This is like permitting hunting and enjoying good things which a man can dispense with, albeit with constriction, but when they are allowed there is expansion

RECOMMENDATIONS• As for recommendations, their omission does not lead

to constriction, but they are part of good character and good customs. So then they consist of adopting what is proper and avoiding what is not proper of dishonourable things which superior intellects disdain, like manners in eating and drinking, and being free of prodigality and niggardliness, and so forth. We do not want to go into detail about that.

Ibn al-Qayyim divided things into five categories according to logical hypothesis without looking at its realisation in existence.

The first category is that which is pure benefit; the second is what is predominantly benefit; the third is what is pure harm; the fourth is what is mostly harm; and the fifth is that in which harm and utility are equal.

‘URUF

Literally; to know

Technically; it is what the shariah considers to be good, & not what human reason @ the prevalent practices consider to be good

***** REFER CHAPTER 2 ; AL’ADAH MUHAKKAMAH

VERBAL (QAWLI) & PRACTICAL ( ‘AMALI) ‘URF

Types of ‘uruf

1.‘uruf amm & ‘uruf khass ‘uruf amm =>the common custom , which

is prevalent everywhere among all people in a matter, regardless of the passage of time

‘uruf khass =>particular custom, prevalent in a particular locality, profession @ trade. This type of ‘uruf is accepted by the people in a particular place & not in all places

GENERAL (‘AMM) & PARTICULAR (KHASS) ‘URF

VALID(SAHIH) AND INVALID (FASID) ‘URF

“Keep to forgiveness, enjoin urf and turn away from the ignorant” (al-A’raf :199)

Reported by ‘Aishah r.a: “Hind, the daughter of ‘Utbah, wife of Abu Sufyan, came to Allah’s Messenger and said

“Abu Sufyan is a miserly person. He does not give adequate maintenance for me and my children, but if I

take from his wealth (some part of it), without his knowledge. Is there any sin for me?” thereupon, Prophet

(SAW) said, “take from his property what is customary which may suffice you and your children”.

ROLES OF ‘URUF• Referring to the above sources, 

earlier and more recent scholars of Islamic law have agreed that custom is an important source of Islamic law. 

They have not objected to the role of custom in solving the problem that arise in Islamic law. 

Imam Malik bin Anas for instance has considered the practice of Madinah people (‘amal ahl al-Madinah) as a source of Islamic law. 

Similarly, Al-Syafii has made many ijtihad on issues that arose when he was in Iraq, but when he moved to Egypt he changed some of his earlier opinions because of the different circumstances and customs in Egypt.

• This is obvious in the past and present literature of fiqh in which custom has been utilized by the jurists to solve many issues of fiqh.

Do you have any questions?

3.2 Explain Ijtihad 3.2.1 Define Ijtihad and Mujtahid 3.2.2 Recognize qualification of Mujtahid 3.2.3 Describe the roles of Mujtahid

• Ijtihad (Arabic) is the term used to designate innovations in Islam  & Sha'aria (Muslim law). The word comes from "struggle" - the same root as "Jihad." The "t" is added because it is a reflexive grammatical construction.

• Ijtihad in Sunni Islam is arrived at by independent interpretation of existing law (the Quran & the Sunnah). 

• A person who is qualified by extensive training to devise Ijtihad is called a Mujtahid.

• Ijtihad was extremely necessary as the new Muslim religion met very changed conditions of society during its rapid expansion from the Arabian peninsula, & caliphs were generally known for their innovation.

• However by the 11th @ 12th century, following the Asharite commentator Al-Ghazali, most Sunni authorities had declared that the "doors of Ijtihad are closed."

• ijtihad is a technical term of the Islamic law and means the process of making a legal decision by independent interpretation of the sources of the law, the Quran and the Sunna. The opposite of ijtihad is taqleed, imitation. The person who applies ijtihad, the mujtahid, must be a scholar of Islamic law. 

• The word derives from the Arabic verbal root jahada "struggle", the same root as that of jihad. 

• Literal/Lexical: “Tremendous exertion; great striving; strenuous endeavour; expending maximum effort”

• Technical: “Applying maximum effort, with due process, to ascertain the law of Shari’ah by one who is competent to do so”

• Common usage: “Issuing a sound judgment or considered opinion”

• Figurative meaning: ‘Ijtihad’ of a Faqih – referred to as ‘Takhrij’

• Ijtihad is the ability to interpret Divine Text by inferring new rulings, in order to relate it to changing conditions, and to thereby make the Shari’ah relevant for all times and eras

• Endeavour of qualified jurist to ascertain Shariah ruling on a legal issue through utmost intellectual exertion

• At all times must be in harmony with letter & spirit of Shariáh

• Creates harmony between revelation & reason• Involves the analytical study of texts with a view to infer principles, rules & precedents for application to new situations

• Entails element of speculation & probability (zann) as outcome could be erroneous, yet rewarding (Hadith)

• Must be consistent and constant throughout its application  

• Mujtahid (Arabic) is a Muslim jurist who is qualified to interpret the law & thus to generate Ijtihad.

• The qualifications for a mujtahid were set out in the 11th century by Abul Husayn al-Basri  in “al Mu’tamad fi Usul al-Fiqh” & accepted by later Sunni scholars, including al-Ghazali

• Though al-Ghazali himself believed that innovation had ended, as there was nobody qualified to be a Mujtahid

• The closure of the doors of Ijtihad is often blamed for stagnation of Muslim societies, but this argument can be turned on its head: the end of innovation may have been due to the stagnation.

• In European societies that were in ferment, religious objections never sufficed for long to stop the progress of science @ changes in government. Religion adapted itself to society. 

• A mujtahid is someone qualified to exercise ijtihad, which literally means striving and technically means juridical endeavor and competence to infer expert legal rulings from foundational proofs within or without a particular school of law.A mujtahid mutlaq or "absolute mujtahid" is one that attained the rank of the Four Imams Abu Hanifa, Malik, al-Shafi`i, and Ahmad in knowledge of Arabic, qualification to apply legal reasoning, draw analogies, and infer rulings from the evidence independently of the methodology and findings of the Sunni Schools, through his own linguistic and juridical perspicuity and extensive knowledge of the texts. Examples: several of the Companions and Tabi`in, al-Awza`i, al-Tabari, Dawud al-Zahiri, and others. An additional qualification sine qua non is agreed-upon, superlative taqwa. There is no mujtahid mutlaq today nor even a claimant to that title. 

• The term ijtihad as used in the writings of scholars of different Islamic sects conveys 2 different meanings, each of which gives rise to different viewpoints regarding the sources of Shar'i ahkam.

• In the 1st conception ijtihad means derivation of Shar`i hukm through personal judgement & ray for an issue for which the mujtahid does not find any express text in the Quran @ the Sunnah.

• It means that in the same manner as a mujtahid relies on sources like the Quran, the Sunnah, `aql & ijma` for deriving ahkam, he can also rely on ray & subjective opinion by taking recourse to instruments of presumption (like qiyas, istihsan, masalih mursalah, istislah, madhhab al‑Sahabi, fath al‑dhara'i`, sadd al‑dhara'i`, etc.) for issues on which there is no express text in the Quran & the Sunnah.

• In the 2nd conception ijtihad means deduction of the fari ahkam from the reliable sources (the Quran, the Sunnah, ijma` & `aql).

• According to this conception, the activity of the mujtahid involves deduction of the laws of the Shari'ah for emergent issues & new phenomena of life by employing general principles & rules.

• Thereby the mujtahid refers new secondary issues to the general principles & applies the general laws to their particular instances in external reality, thus obtaining the ahkam governing them.

• According to this conception, ijtihad is not counted as an independent source of law parallel to the Quran & the Sunnah, but merely as a means for deriving & determining the ahkam from the sources.

Qualifications require proficiency in Sha'aria law & its interpretation. Specifically:

• Fluency in the relatively obscure classical literary Arabic of the Quran and the Sunnah.

• Proficiency in the laws (ayat al Ahkam) of the Qu'ran

• An adequate knowledge of the Sunnah, • Understanding of the Hadiths and of the

relative reliability of the narrators and the priority between conflicting rulings, some of which were abrogated.

• An ability to verify the consensus of the companions of the Prophet and leading authorities, as well as ability to identify unresolved issues.

• A thorough knowledge of the methodology and logical system of reasoning by analogy (qiyas) making to possible to apply revealed law to an unprecedented case.

• Understanding of the revealed purposes of Sha'aria, including "considerations of public interest"  - protection of life, religion, intellect, lineage and property.

• Understand the general maxims for the interpretation of Sha'aria: "removal of hardship", that "certainty must prevail over doubt", and the achievement of a balance between unnecessary rigidity and overly liberal interpretation.

• An upright life and a judgment that can be trusted.

QUALIFICATIONS FOR MUJTAHID:• Arabic language – complete mastery• Quran – detailed knowledge• Sunnah – in-depth learning• Qiyas capability – analytical, razor-sharp mind• Maqasid-Shariáh knowledge• Piety, righteousness & compliance• Inherent aptitude for Ijtihad – God-given ability• Popular acclaim & wide public acceptance

• Mujtahid must be a Muslim and a person of sound mind and intellectual competence. 

      Requirements of a mujtahid :        *Knowledge of Arabic such than he can understand the Qur'an and Hadith

         correctly. • *Knowledge of the Qur'an which includes Makki/Madani;          Occasions of Revelation; Incidences of Abrogation; LEGAL TEXTS       (aayaatul ahkaam). (In short all the requisites of Tafsir) 

• *Knowledge of the Sunnah specifically the legal texts (ahaadeethal    ahkaam) 

• He most know where to find the Hadiths and be able to distinguish the reliable narrations from the weak.*Knowledge of the substance of the Furu` works and the points on which there is Ijma`. 

• *Knowledge of Qiyas (Analogical Deduction)*Knowledge of the Maqasid (objectives) of the Shari`ah 

• *Knowledge of the General Maxims of Fiqh. eg. Certainty prevails          over Doubt. 

• The Mujtahid is he who possesses, together with complete soundness of mind and of Religion, three necessary traits: 

• 1. Knowledge of the Arabic language and the ways in which its signifies meanings. This knowledge does not come except to one who has frequented its various disciplines and read much of the works of its masters of eloquence until he knows how to differentiate between the specific and the general, the literal and the figurative, the explicit and the ambiguous, and other aspects upon knowing which depends his ability to infer rulings. He does not have to reach the mastery of language of a Khalil or a Sibawayh or al-Asma`i and others of the Imams of Arabic. It suffices that he attains the rank necessary to understand texts in the right way. 

• 2. Knowledge of Qur'an and Sunna and whatever is in them of rulings, those that were abrogated and those that were not, together with the linking up of the universal with its particulars, the absolute with its restricted sense, and the general with the specific. He does not, in this, have to have memorized all that is related. It suffices that he has to be able to gather up all that is connected with the topic he is investigating and to know what the experts of hadith have said concerning sound or weak gradings as well as what they said concerning the narrators with regard to discreditation and commendation. 

• 3. Knowledge of the objectives of the Law and of the living contexts of people as well as the customs they share and whatever harms or benefits them, and the ability to know the minute defects of legal rulings and to compare and contrast their similarities so as to better understand facts and infer the rulings that most precisely correspond to the objectives of the Lawgiver and implement the welfare of those under consideration.

DUTIES/TASKS OF A MUJTAHID:• Discover law through literal interpretation (‘reading in’) of texts – dalaalat

• Extend law to new cases similar to existing cases in texts through Qiyas based on Illah

• Extend law to new cases not found in texts at all through Istihsan/Masalih based on Hikma

• All of this is practiced as a seamless activity• Deep knowledge of Nasikh-Mansookh (Discipline of Abrogation)

• Ability to exercise Tarjeeh (preference) and Jam’ (reconciliation of texts)

• Competency to comprehend aspects of Bayan in Divine texts

ROLE & DUTIES OF A FAQIH/MUFTI:• Implement & extend Principles of law (Usool) in new situations

• Implement & extend Maxims of law (Qawaid-Kulliah) in contemporary situations

• Develop 3rd mode of Ijtihad – value-oriented Fiqh – theory of values & interests – Maqasid-as-Shariáh

• All of the above must be consistent within existing schools

CONTEMPORARY APPLICATION OF IJTIHAD:• Urgent need for ‘Ijtihad’ in current age to solve political, economical, medical, social, educational problems  

• Due to complexities and specialisation, need for collective ‘Ijtihad’ through association of jurists

• Establishment of Fiqh Councils to exercise ‘Ijtihad’• Endeavours of Fiqh Councils & Jurists 

CONTEMPORARY IJTIHADI RULINGS:• Islamic banking & finance – • Bio-medical issues –• Ibadah-based problems –• Political issues –  

Do you have any questions?

جزاكم الله خير الجزاء

THANK YOU