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Sources of Islamic Shraih

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Outline

Difference between Religion and Shraih

Shraih is the moral code and religious law of Islam.

Sharia deals with many topics addressed by secular law, including crime, politics and economics,
as well as personal matters such as Marriage, Foods, prayer, and fasting

The sharia is characterized as a discussion on the duties of Muslims based on both the opinion of
the Muslim community and extensive literature

Sources of Islamic Shraih


Primary sources of Islamic law:
o The principles set forth in the Quran,
o The example set by the Holy prophet Muhammad in the Sunnah.
o Ijma if any principle is agreed upon
Secondary Sources
o Ijma ,Qyais,Ijtehad,Istidlal,Istehsan,Taqleed
o Islamic jurisprudence interprets and extends the application of sharia to questions not
directly addressed in the primary sources by including secondary sources.
o These secondary sources usually include the consensus of the religious scholars
embodied in ijma, and analogy from the Quran and Sunnah through Qiyas.Istehsan,
Istedlal, Ijtehad,Masalih Mursala
o

Shaitee jurists prefer to apply reasoning ('aql) rather than

Characteristic of Primary Sources


They are permanent
Revealed
For all time and ages to come
For all mankind
Major source of Islamic Shraih is Ijtehad
Ijtehad

Concept

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Literal meaning and In Fiqah

o "Ijtihad" constitutes and effort to opt for one of two or more possible solutions in a given
situation and to provide legal justification for that solution with legal justification

Possibility of Ijtehad from Quran,Caliphat and Fiqah

In Quran,Ijtehad literally means to exert. In the Islamic terminology it means to exert with a view to
form an independent judgement on a legal question. It has its origin in the well-known verse of the
Quran And to those who exert we show our path. Ijtehad + consensus = IJMA

Hazrat Ali, when consulted by Caliph Uthman on the punishment which should be meted out to
those who drank wine, he advised;
o We apply the punishment for calumny, namely eighty lashes of the whip, because if a
person becomes intoxicated, he knows not what he says, and in such a condition he
commits calumny. Thus, through this analogy, drinking of wine was linked to calumny.

Caliph Umar , observed the principle of sound analogy (Tawil) in the interpretation of the Quranic
verse:Alms are only for the poor and the needy, and those who collect them and for those whose
hearts are to be reconciled, and to free the captives and the debtors, and for the cause of Allah and
the wayfarer, a duty imposed by God. (9:60)

Imam Abu Hanifa and Abu Yusuf are reported by Ibn Qyyaim al-Jawziah to have said, It is not
legitimate for anyone to follow our view until he has learned the source where from we derived
those views

Imam Mohammad, and Imam Yusuf both students of Imam Hanifa, rejected eighty percent of
Ijtehad of their teacher Abu Hanifa in the light of new sources and changed conditions

The Fiqh Hanafi as it exists today is based on the Ijtehad of both these students, that is, Imam
Yusuf and Imam Mohammad

Ahmad Ibn Hanbal, reputed the most meticulous adherent to the traditions said, Do not imitate me,
Malik, AlShafii or al-Thawri but learn from the source from which they learned.

Needs and limitations

Cant be invoke in :

Creation of universe

Oneness of Allah

Faiths

5 Pillars of Islam

o By Individuals and By Institutions

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Practice of Ijtehad

FIQ

FORMATION OF IJMA'

RATIONALE

Hanafi

through public agreement of Islamic


jurists

the jurists are experts on legal matters

Shafi'i

through agreement of the entire


community and public at large

the people cannot agree on anything


erroneous

Maliki

through agreement amongst the


residents of Medina, the first Islamic
capital

Islamic tradition says "Medina expels


bad people like the furnace expels
impurities from iron"

Hanbali

through agreement and practice of


Muhammad's Companions

they were the most knowledgeable on


religious matters and rightly guided

Usuli

only the consensus of the ulama of


the same period as the Prophet or
Shia Imams is binding.

consensus is not genuinely binding in its


own right, rather it is binding in as much
as it is a means of discovering the
Sunnah.

Why we need Ijtehad

Two basic elements of Law


Dignity
Flexible according to need

Gap b/w message and meaning

Issues of Language

Rapidly Changing Culture and ideas

Revival of Religion

A return to traditional views of Sharia

The Islamist movement-neo-Sharism, Political Islam

The Fundamentalist movement-Hadood Laws

Extremism-justifying terrorism

Law itself is developing

Law is there but situation is new

Law and cause both are developing

Law is there but cause is developing

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Issues of Modern Life /Problems faced by Ummah


Cloning,Organ transplantation,Blood Transformation,Riba Free Banking,Lewis Brown/test
tube baby,Share Trade,Concept of Islamic State,Globalization and its challenges like Jet
Lag and Geographical lag
Who can envoke Ijtehad

Individual_Mujtahid Characteristics
Concept developed by Shah Wali Ullah_Ulema

Muslim ,Sane,Intelligent,Expert in Arabic language,Uloomul quran ,Uloomul hadeeth , Ilmul


ijtihaad wal taqleed ,Practitioner Muslim,Punctual in Shraih ,
Any Possibility ???????
Sir syed Ahmed Khan_ Intellectuals
Institutional Ijtehad

Institutional

Collective wisdom of Parliament _Iqbal

Selective wisdom of Cabinet_ Molana Azad

Courts_ Justice Javid

National Institutions _ Courts, Council of Islamic Ideology, Federal Shariat Court,


Research Institutions

International Ijtehad

Organization of Islamic Cooperation

Jamaiya Azhar

Bait ulqum

Islamic Research Foundation

Dar ul Uloom Deoband

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Epilogue_Doors open or closed ?

In the fourth century of Hijrah a person called al-Qaffal issued a Fatwa closing the door of Ijtihad,
thus he was called al-Qaffal which means the one who closes something

Imam Ghazali_ freezing Islamic thinking in time

During the Mogul invasion. Rulers feared that under pressure of occupation by non-Muslim forces
that Ijtihad may lead to misinterpretations

Only with security can one tolerate differences. If the self is threatened it clutches to certainties,
wants to keep them and builds on them.

In times of crises multiplicity of opinion is not encouraged and Ijtihad is endangered.

Iqbal_ worldly matters (muamalaat) relate to the rights of the people and are subject to change and
modification

King Hussein _(Jordan),

"When Ijtihad-the possibility of reconciling faith and present-day life-stopped a long time ago, We
need to do whatever we can to repair that mistake."

We must be clear that

The doors of Ijtihad are closed or open ?

Individual ijtehad Possible ?

The scope includes definitive matters such as the prohibition of Riba (usury)

It is the reasoning of an individual and therefore cannot be a shariah rule

Ijtehad possible where Islamic evidences have not discussed directly i.e. upon new issues

Ijtehad is an individual obligation and therefore Taqleed is prohibited

Some Terms

Consensus = Ijma

Analogical deduction = Qiyas

Preference = Istehsan

al-maslaha al-mursalah, which means social benefit

Common practice

Taqlid =

Sharia can be divided into five main branches:

Ibadah (ritual worship)

Mu'amalat (transactions and contracts)

Adab (morals and manners),

I'tiqadat (beliefs)

Uqubat (punishments)

urf

as was said before

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The Shariah regulates all human actions and puts them into five categories:
o Obligatory,Recommended,Permitted ,Disliked ,Forbidden
Obligatory actions must be performed and when performed with good intentions are
rewarded. Its opposite is the forbidden.
o Recommended action is that which should be done. Its opposite is the disliked.
o Permitted action is that which is neither encouraged nor discouraged. Most human actions
fall in this last category