ISLAMIC SOURCES OF LEGAL THINKING (COMBINED QUESTION)

1.
2.
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the Quran;
the sunna or tradition of the Prophet;
ijma or unanimous agreement;
qiyas or analogies;

Throughout history these sources were used in descending order by Muslim jurists in determining the legality of an
issue. If the legality was not based on an explicit command in the Quran, then the jurists turned to look for explicit
commands in the hadith, and so on. Unfortunately, as we shall discover, not all aspects of the methodology were
unanimously agreed upon; the Quran could be interpreted differently, some traditions of the Prophet were questioned
for their authenticity and to what extent they were religiously imperative, the use of analogies was greatly debated
and there was little unanimous agreement among scholars in Islamic history about inexplicit issues.
1-The Holy Quran:
The Qur'an Being the verbal noun of the root word qara'a (to read), 'Quran' literally means 'reading' or 'recitation'. It
may be defined as 'the book containing the speech of God revealed to the Prophet Muhammad in Arabic and
transmitted to us by continuous testimony, or tawatur'. [The Quran also calls itself by alternative names, such as
kitab, huda, furqan, and dhikr (book, guide, distinguisher, and remembrance respectively). When the definite article,
al, is prefixed to the Quran, it refers to the whole of the Book; but without this prefix, the Quran can mean either the
whole or a part of the Book. Thus one may refer to a singular sura or ayah thereof as the Quran, but not as alQur'an.] It is a proof of the prophecy of Muhammad, the most authoritative guide for Muslims, and the first source of
the Shariah. The ulema are unanimous on this, and some even say that it is the only source and that all other
sources are explanatory to the Quran. The revelation of the Quran began with the Sura al-'Alaq (96:1) starting with
the words 'Read in the name of your Lord' and ending with the ayah in sura al-Maidah (5:3): 'Today I have perfected
your religion for you and completed my favour toward you, and chosen Islam as your religion.
There are a total of 200 verses related to legal rulings in the
Quran and these may be classified as follows:
1. 70 verses on family and inheritance law
2. 70 verses on obligations and contracts
3. 30 verses on criminal law
4. 20 verses on procedure.
The Quranic legislation concerning matters which touched the lives of the people was therefore not imposed
all at once. It was revealed piecemeal so as to avoid hardship to the believers.
The ban on the consumption of alcohol affords an interesting example of the Quranic method of graduality in
legislation, and throws light on the attitude of the Quran to the nature and function of legislation itself.
Consumption of alcohol was apparently, subject to no restriction in the early years. Later, the following
Quranic passage was revealed in the form of a moral advice: 'They ask you about alcohol and gambling, say:
in these there is great harm and also benefit for the people, but their harm far outweighs their benefit' (alBaqarah; 2:219). Then offering prayers while under the influence of alcohol was prohibited (al-Nisa', 4:43).
Finally a total ban on wine drinking was imposed (al-Maidah, 5:93) and both alcohol and gambling were
declared to be 'works of the devil ... the devil wants to sow enmity and rancour among you'. This shows the
gradual tackling of problems as and when they arose.
The Definitive (qati) and the Speculative (zanni) A ruling of the Quran may be conveyed in a text which is
either unequivocal and clear, or in language that is open to different interpretations. A definitive text is one
which is clear and specific; it has only one meaning and admits of no other interpretations. An example of this
is the text on the entitlement of the husband in the estate of his deceased wife, as follows: 'In what your wives
leave, your share is a half, if they leave no child" (al-Nisa', 4:12). Other examples are 'The adulterer, whether a
man or a woman, flog them each a hundred stripes' (al-Baqarah, 2:196), and those who accuse chaste
women of adultery and fail to bring four witnesses [to prove it], flog them eighty stripes' (al-Nur, 24:4). The

quantitative aspects of these rulings, namely one half, one hundred, and eighty are self-evident and therefore
not open to interpretation.
An example of the zanni in the Quran is the text which reads, 'Prohibited to you are your mothers and your
daughters' (al-Nisa 4:23). The text is definitive in regard to the prohibition of marriage with ones mother and
daughter and there is no disagreement on this point. However, the word banatukum ('your daughters') could
be taken for its literal meaning, which would be a female child born to a person either through marriage or
through zina, or for its juridical meaning. In the latter sense 'banatukum' can only mean a legitimate daughter.
Q. HOW IS HOLY QURAN USED IN ESTABLISHMENT OF ISLAMIC LAW?
The Holy Quran, last revealed book by God on Muhammad (P.B.U.H), is the foundation of our religion and the
fountain of Islamic law. It is a complete book for the guidance of mankind. It is addressed to the entire humanity
without any limitation of race, religion or time. It guides the man in all spheres of life-spiritual, temporal, individual and
collective.It is the first source of Islamic law.It is said, O you who believe Obey Allah 1 And obey the Messenger 2
And those charged with authority among you 3 If you differ in any thing among yourselves Refer it to Allah and His
Messenger4(Al -Nisa4.59)
This verse confirms the validity of Quran as a first source of Islamic Law.The Quran gives the basic principles and
fundamental rules of Islamic
beliefs and practices
.
For beliefs, it is said,It is righteous to believe in Allah and the last day and the ang
els and the book and the messengers (2:177)The Quran gives a set of Islamic practices. It commands to establish
worship (prayer) and to pay the poor due after faith in one God. The Quran frequently says:
And establish prayer and pay the poor due commandments about the fasting and pilgrimage to the House of God
are prescribed in the holy Quran
.
It is said,O you who believe! Fasting is prescribed to you (2:183)
Complete Hajj and Umrah in the service of God (2:196)
Ahadith of the Holy Prophet provides
further detail of these practices
.
The Quran becomes basis of Ijma and Qiyas.
According to Qiyas
based on Quran, all intoxicants are haram (forbidden)as Quran has declared
Wine as haram.
It is said.O you who believe, intoxicants and gambling, sacrificing to stones and
arrows are an abomination of Satans handiwork: shun you may prosper. (Al Maida 5.90)
The Quran makes distinction between Halal (lawful) and
Haram (unlawful) by providing clear and unambiguous instructions.
It says:O you people! Eat of what is on earth lawful and good; and do not follow the footsteps of Satan for he is your
avowed enemy (2:168)
It enjoins upon us to establish justice, observe patience and perseverance and taking care of the rights of fellowbeings. It also prescribes punishments for serious and major crimes like theft (cutting off hand)It is said As to the
thief, male or female, cutting of his or her hand (5:38)
For punishment of Zina or fornication (100 lashes).It is said,The woman and man guilty of adultery or fornication, flog
each of them with a hundred stripes.( 24:2)1
For the heinous crime of murder it recommends the simple rule of an eye for an eye; by saying: O you who believe!
The law of equality is prescribed to you in case of murder: the free for free, the slave for slave, the women for
women (2:178)
The Qurans superiority in deciding the matters of daily life including

the judicial issues is an established fact because the Quran says: We have sent down to you the Book in truth so
that you may judge between men as guided by God (4:105)For division of inheritance, the Quran says,Allah directs
you concerning your children: to the a portion equal to;
that of two females
.
( Al Nisa 4.11)
It means double share of male as compared to female is mentioned.
In legal mat
ters, the Quran gives some instructions less straightforward.
These instructions require reflection and systematic applications of
interpretational method to the text. This science of tafseer includes
interpretation of Quran with Quran, interpretation of Quran with Hadith, asbab al nuzul and nasikh-o-mansukh.Thus it
can be seen that the Quran serves as the fountainhead of Islamic
law encompassing all aspects of life though not in fine details. For details we use others sources in the light of the
Holy Quran for example the details of prayer, fasting and matters of marriage, divorce and inheritance are to be
found in Ahadith literature and the scholarly works. The Quran mentions the fundamental rulings regarding all these
matters and has left to its followers to
apply its basic principles to counter the matters of coming time.
Here is a plain statement to mankind, a guidance and instruction to those who fear God (3:138) God revealed the
Quran in Arabic through the Angel Gabriel to Prophet Muhammad over a period of 23 years. For ten years in Mecca
and 13 years in Medina the Quran taught the oneness of God and guided believers to the path of morality and
justice. As the Muslim community grew and its needs became more complex, the Quran addressed those issues
and tried to replace old tribal customs with more just reforms. For example, the Quran outlawed prevalent customs
such as idolatry, gambling, liquor, promiscuity, unbridled polygamy, usury, etc. It also improved the status of women
by proclaiming women's equality to men and providing women with decreed rights in the areas of marriage, divorce
and inheritance.
The shari'a, foundations of Islamic law, are derived from verses from the Quran. "The bulk of Quranic matter
consists mainly of broad, general moral directives as to what the aims and aspirations of Muslims should be, the
'ought' of the Islamic religious ethic." 4 Because many of the directives in the Quran are so broad, interpretation
takes on such a significant role. There have been so many different interpretations of the Quran, claims widely read
and revered Islamic thinker Abul A'ala Maududi, that "there is hardly to be found any command with an agreed
interpretation." 5 And that doesn't just refer to modern scholars, but also includes the founding schools of thought
and even the companions of the Prophet, who "did not all agree in every detail in regard to Commands and
Prohibitions."6 Nevertheless, the authenticity of the Quran has never been questioned by any Muslim scholar or
institution.
Sunna of the Prophet
You have indeed in the Apostle of God a beautiful pattern of conduct for anyone whose hope is in God and the Final
Day (33:21). As the last messenger of God, Muhammad (570-632) brought the Quranic teachings to life through his
interpretation and implementation as leader of the Muslim community. The sunna of the Prophet generally means
"tradition" and includes the following three categories: sayings of the Prophet; his deeds; and his silent or tacit
approval of certain acts which he had knowledge of. The record of the Prophet's words and deeds were recorded in
narrative ahadith, reports that were transmitted before finally being compiled in authoritative collections decades after
the death of the Prophet. (For more discussion about hadith, see next section, "The Role of Hadith.") In the first
centuries of Islam, "it should finally be stressed that there was no suggestion, at this stage, that the Prophet was
other than a human interpreter of the divine revelation; his authority lay in the fact that he was the closest, in time and
spirit, to the Quran and as such was the ultimate starting-point of the Islamic sunna."

3-Ijma or unanimous agreement

Ijma constitutes the unanimous agreement of a group of jurists of a particular age on a specific issue and constitutes
the third source of law in hanafi methodology. If questions arose about a Quranic interpretation or an issue where no
there no guidance from either the Quran or sunna, jurists applied their own reasoning (ijtihad) to come to an
interpretation. Through time, "one interpretation would be accepted by more and more doctors of law. Looking back
in time at the evolved consensus of the scholars, it could be concluded that an ijma of scholars had been reached on
this issue." Unfortunately, unanimous agreement rarely happened among intellectual elite and since there were
always diverse opinions, one could always find several scholars of the day who concurred on an issue. Also, the
definition of ijma and which ijma would be considered valid was a point of contention, because ijma is not simply the
consensus of all past jurists. Besides, using the concept of ijma poses the problem of having to look to the past to
solve the problems of the future, and scholars of yesteryear didn't wrestle the same issues that are challenging
Muslims today.
4-Qiyas or analogy
The forth source of law, qiyas, is reasoning by analogy. In order to apply qiyas to similar cases, the reason or cause
of the Islamic rule must be clear. For example, because the Quran clearly explains the reason that consumption of
alcohol is prohibited (because it makes the user lose control of his actions), an analogy can be drawn to drugs which
induce the same affect. But because the Quran does not specifically state the reason why pork is prohibited, Muslims
cannot justify banning another meat product with a similar cholesterol level, etc. The use of analogies greatly varied
among scholars; for example, Spain's Ibn Hazm (10th century) who was formidable proponent of the Zahiri school,
rejected the use of qiyas, whereas Imam Abu Hanifa of the Hanafi school (8th century) applied them extensively.

Why do some legal scholars reject the use of analogy (qiyas)? [4]
Analogy (qiyas) is the fourth source of Islamic law that is used when the primary sources are silent about a newly
appeared issue. However some scholars reject its use on the following basis.
1. There is detailed description of everything in the Quran so there is no need to follow another source. "...And We
have sent down to you the Book (the Qur'an) as an exposition of everything..." (Nahl: 89).
2. Resolution of issues through Qiyas takes precedence over Allah and His Messenger which is forbidden in the
Quran. "O you who believe! Do not put (yourselves) forward before Allah and His Messenger..." (Hujuraat: 1)
3. Qiyas is conjecture which gives no benefit against the truth. "And most of them follow nothing but conjecture.
Certainly, conjecture can be of no avail against the truth..." (Yunus: 36)
4. We are bound to decide among the people with what Allah has revealed and solutions through qiyas are not
revealed by Allah. "And so judge (you O Muhammad ) between them by what Allah has revealed and follow
not their vain desires..." (Ma'idah: 49).

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