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Unanimously Accepted Sources

Table of Contents

INTRODUCTION ............................................................................................................................2
AL-QURAN .....................................................................................................................................3
Definition of the Quran................................................................................................................3
Authority of The Quran ..............................................................................................................4
Comparing between Law in the Quran and Man-made Laws ...................................................4
Application of The Quran in Modern Times ..............................................................................5
Perception of Muslim & Non-Muslim Towards the Quran ........................................................6
SUNNAH .............................................................................................................................................7
Al-Sunnah al-Qawliyyah ...............................................................................................................7
Al-Sunnah al-filiyyah ...................................................................................................................8
Al-Sunnah al-taqriyyah ................................................................................................................8
Issue 1: Hadith Maudhu .......................................................................................................9
Issue 2 : Anti-Hadith ................................................................................................................ 11
Issue 3: Bidah ....................................................................................................................... 12
IJMA ................................................................................................................................................ 13
Authority of Ijma .......................................................................................................................... 14
Subject Matter of Ijma ................................................................................................................. 15
Time as a condition of Ijma ......................................................................................................... 15
A short history of Ijma in Muslim society ..................................................................................... 16
Ijma and Islamic Finance ............................................................................................................. 17
QIYAS ............................................................................................................................................... 18
Definition of Qiyas........................................................................................................................ 18
The Pillars of Qiyas ....................................................................................................................... 18
Application of Qiyas ..................................................................................................................... 18
Types Of Qiyas.............................................................................................................................. 20
Arguments Against Qiyas ............................................................................................................. 21
The Application of Qiyas in the Malaysian Legislation and Fatwa ................................................ 22
Feasibility of Qiyas ....................................................................................................................... 23
CONCLUSION .................................................................................................................................... 24
REFERENCES ..................................................................................................................................... 25

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INTRODUCTION
The newest buzzword these days is Shariah. As several states scramble to pass
legislation to outlaw Shariah, a hyped fear and persistent confusion surrounds this loaded term.
Most people who speak passionately against Shariah do not, in reality, understand it and often
reduce it to merely a penal code. This introduction describes the universal principles of Shariah
and its holistic approach. It further highlights misconceptions about Shariah in order to address
the concerns currently surrounding this topic.

Shariah is an integral part of Islam. It is often defined as Islamic law, causing one to assume
that it consists mostly of criminal rulings and penalties. However, Shariah encompasses much
more than the conventional understanding of law. While Shariah provides the legal framework
for the foundation and functioning of a society, it also details moral, ethical, social and political
codes of conduct for Muslims at an individual and collective level.

The rulings in Shariah Law are basically derived from several sources. In general, and more
practical sense, the sources of Shariah can be divided into two types; unanimously accepted
sources and controversial sources. There are four sources fall under the unanimously accepted
sources. Quran is the first law for Muslims who seek guidance. While Sunnah is
complementary source of Quran for one to find his answers. Ijma (consensus) can be used if
the required knowledge is not obtained from Quran and Sunnah. Last but not least, if the
desired information is still not available, one must finally turn to qiyas (analogy)

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AL-QURAN
Definition of the Quran
Kayadibi (2017) mentioned in his book that when theologians discussing the attributes of Allah,
they define Quran as the essence of Allah but conveyed in utterances or words. However, Quran is
considered as a connection of utterances from which ahkam (practical rules) may be derived. In literal
sense, according to jurist the meaning of Quran can be derived from four root words and each of them
bring the individual meanings;

a. Qaraa

The literal meaning is to collect or to compile which means Quran is a holy book that collected
and codified under Allahs protection. The jurist state that the collection of Quranic verses will
remain unchanged and still in its actual state until the Judgement Day according to the Allah s
record in the surah Al-Qiyamah.

Indeed, upon Us is its collection (in your heart) and (to make possible) its recitation

(Surah Al-Qiyamah 75:17)

b. Qarana

The meaning is a union or conjunction, which is refer to literal physical existence of the Quran
and its properties. So, the Quran actually given a special name caused of the combination of its
letters that join to form verses, then form surah and produce a Quran. Some jurists said that the
word Qarana of the Quran is because the combination of guidance which inseparable based to
surah Al-Baqarah, verse 2 which state that the Quran is actually a guidance without doubt.

c. Qiraathun

It means to read or to recite. It is the basis features to the Quran self because it owns special
character which support the function of Quran that reads by Muslims 24 hours over the world
especially during the prayers and the readers also increase during the Ramadan because Muslims
recite it every day even fasting including in special tharawih. prayers. It is
also read by everyone who want to know about the law, science, economy regarding to its function
to reference the humankind.

d. Qirain

Actually, Qirain is the plural of Qarina. It means evidence, argument or symbol which how one
verse will be interprets and give arguments.

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In addition of that, the complete meaning of Quran as defined by scholars is the Arabic
utterance or words indicating or explaining the meaning of the speech of Allah sent down to the
prophet (s), conveyed by the Angel Jibrail and written in the book, transmitted to us by tawatur
(continuous testimony) starts with surah al-fatihah and concludes with surah an-nas (Kayadibi,
2017)1. All things considered, Quran is a proof of the prophecy of Muhammad and it is the most
authoritative guide for Muslims also the first source of Shariah. As a Muslim, our beliefs towards
Quran as the words of Allah as the most prominent source of Islamic law must be placed in the
highest consideration along with own logics and explanation.

Authority of The Quran


Most Muslims all over the world are following Islamic law as their code of conduct and this
Islamic law has its own basis or authority in the Quran. In addition, the Islamic law had prescribed a
complete code of laws to guide mankind towards establishing good and removing the evil from society.
Generally, the basis or authority of Islamic law are mentioned in the Quran. In the book there are 14
verses of unequal length. The contents of the Quran not classified subject wise. The Quran consists of
manifest revelation which is Wahy Zahir or a direct communication in the words of Allah. Actually,
the larger part of the Quran was revealed in Mecca and rest in Madinah. The Mecca revelations mostly
deal with beliefs, disputation with unbelievers and their invitation to Islam. But for the Madinan verses,
apart from the foresaid, deal with legal rules regarding family, society, politics, economics, etc. The
verses are considered Mecca if its revelation started in Mecca, even if it contains Madinah period verses.
The information regarding which one is Makki or Madani are based on the sayings of the sahabat or the
following generation.

The legal material of the Quran is contained in about 500 verses, according to various estimates.
This injunction was revealed with the aim of repealing objectionable customs such as infanticide, usury,
gambling, unlimited polygamy; prescribing penalties and core Ibadah life prayer, zakat and also hajj.
Other legal verses deal with charities, oaths, marriage, divorce, Iddah, revocation of divorced wife
(rijah), dower, maintenance, custody of children, fosterage, paternity, inheritance, bequest: rules
regarding commercial transaction such as sale, lease, loan, mortgage, relations between rich and poor,
justice, evidence, consultation, war and peace.

Comparing between Law in the Quran and Man-made Laws


Verses in the Quran not only mentioned about historical stories, advices, but also laws
applicable by humankinds. There are great differences of the Quran and man-made laws because of its
religious qualities and that its legislator is Allah, Who the souls greatly revere and towards Whom they

1
Kayadibi, S. (2017). Principles of Islamic Law; The Methods of Interpretation of the Texts (Usul Fiqh). Kuala
Lumpur: Islamic Book Trust.

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bow in absolute submission. Prominently, laws in the Quran suit all nations and peoples of different
natures, habitats, races and languages because its coming from their Creator and Legislator, Allah. He
has full Knowledge of what was and what will come to be of human beings and their natural disposition,
instincts, temperament and everything related to mankind. While man-made laws are legislated by
human with limited knowledge. If they knew what might happen today and tonight, they would never
be able to tell you what might happen tomorrow. Moreover, if they were to know some of the various
natures of human beings, they would still never be able to know all the natures of all humans. Hence,
the laws they legislate do not suit all natures or all environments. Even though these laws are suitable
for some people, they are not suitable for everyone.

Furthermore, Quran corresponds with rectitude, truth and justice, so as not to lead to the
possibility of errors, mistakes, oppression, and injustice in the legislation or to the submission to any
whims or personal desires when drafting any law. Allah says; And the Word of your Lord has been
fulfilled in truth and in justice. None can change His Words. And He is the All-Hearer, the All-Knower
(Al-Anaam:115). He only commands them that which leads to their well-being and only forbids them
that which is harmful to them. Man-made laws on the other hand are prone to error, mistakes, and
omissions, and the laws to follow the desire of those who legislated it. Therefore, those laws are never
free of errors and faults, and are always being annulled, changed and altered.

Application of The Quran in Modern Times


Quran is not just a holy book where Muslims read to gain rewards from Allah but it is a perfect
reference to the mankind. Quran is a universal guidance which not only relevant during the Prophet
Muhammad (s) time, but the issues contain in it still comprehensive to be applied in this modern world.

The first principal in modern times that stated in the Quran is about the prohibition of usury or
Riba. Many verses in the Quran repeat about the prohibition of usury that is unlawful in Shariah and
is a serious crime in Islam. O those who belie/e do not eat up Riba doubled and redoubled (Ali Imran:
130). In this verse that was revealed sometime in the second Hijrah was shown a clear prohibition of
Riba until the day of judgement. Some commentators pointed out that this verse was revealed in the time
of war of Uhud and the command is valid until today. The history stated the invaders of Mecca had
financed their army by taking usurious loans and had in this way arranged a lot of arms against Muslims.
It was apprehended that it may include the Muslims to arrange for arms on the same pattern by taking
usurious loans from the people. So, to prevent them from this approach the verse was revealed a clear
prohibition of Riba. By way of the argument, Riba of course can increase individual assets but
consequences of this economy system will yield so many disaster including reduce public wealth.

The second principal in the Quran is about practicing of the circulation of wealth as the duty to
the mankind. In the globalisation world today, the Islamic jurists agreed that the duty of spreading or
distribute the wealth must be concern by all Muslims. Whatsoever Allah may restore unto His

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Messenger- is due unto Allah and unto His Messenger- the orphans and the needy. So that it may not be
confined to the rich amongst you (Al-Hashr: 7). Based to this verse, Islam is different fundamentally
from communism and capitalism in combating the economy problem. The exciding of profit in economy
means the increasing of zakat. The richers will distribute their income and richness by paying the zakat
to the needy people. It means Quran already mentions to Muslims the basis principal in economy is not
only to achieve the profitability without care of the labours, poorest, or doing suppression in economy
but the main objective is to get blessing from Allah by following the Shariah.

Perception of Muslim & Non-Muslim Towards the Quran


From perspective of a Muslim, Quran should be treated as a highest source of law where they
could refer to in living their life ethically. Thus Muslims generally belief that the existence of Quran as
a primary source of Islam along with Sunnah, Ijma and Qiyas. However, there are Muslims who
consider Quran as the ancient scripture and has to be rode during special occasions only. To make it
worse, they are Muslims who dont believe in Quran as they perceived that Quran is not relevant
anymore in this current time. They believe at the Quran was written for Muslims at the time, but now
societies don't function the same way they used to which is contradict with the nature of Quran that
supposed to be timeless. To answer the concerns, we must know that Quran is a book of universal
values. Values do not change with time. It has some historical record of events that happened but they
are mentioned to give a moral out of the example or the story. The interpretation can adapt to new
realities and different cultures but overall the book was not written for the time but was revealed for all
times.

Astonishingly, when asking to Non-Muslims about their perception towards Quran, some of
them giving good responses. Below are the quotes from some western scholars on Quran;

The Koran admittedly occupies an important position among the great religious books of the world.
Though the youngest of the epoch-making works belonging to this class of literature, it yields to hardly
any in the wonderful effect which it has produced on large masses of men. It has created an all but new
phase of human thought and a fresh type of character. It first transformed a number of heterogeneous
desert tribes of the Arabian Peninsula into a nation of heroes, and then proceeded to create the vast
politico-religious organizations of the Muhammadan world which are one of the great forces with which
Europe and the East have to reckon today." (Goethe, p.52)

A work, then, which calls forth so powerful and seemingly incompatible emotions even in the distant
reader - distant as to time, and still more so as a mental development - a work which not only conquers
the repugnance which he may begin its perusal, but changes this adverse feeling into astonishment and
admiration, such a work must be a wonderful production of the human mind indeed and a problem of
the highest interest to every thoughtful observer of the destinies of mankind." (Margoliouth, 1977, p. 7)

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However, some Non-believers also believe that Quran promotes terrorism and keep using the
permission given in verse 40 and 41 of Surah Al-Haj to justify their accusations. Yet with attacks in
Egypt, London and Syria, critics default to blaming the Quran, citing its allegedly violent verses.
Misconceptions about Islam creep in because people learn about the faith from headline news rather
than from the Quran and the Prophet.

SUNNAH
Sunnah is the second source of Islamic Law (Shariah). The Sunnah of the Prophet ()
is a proof of Islamic Law and attests to the Qurans authority. As the Quran indicates the
Prophets teaching are also divinely inspired therefore, the Prophets words are hujjah (dalil,
evidence, proof) for Muslims, and may have powers like that of the Quran. As a legislative
term, the Sunnah is used to imply the practical reality of Islamic Shariah and its concept,
whether it came from the Quran, hadith or was deduced from these two sources.

There are 3 perceptions, the Muhaddithin and the ulama of fiqh and usul al-fiqh,
towards Sunnah. The Muhaddithin refer to the Sunnah as all the narrated from the Prophet (),
his acts, his sayings and whatever has tacitly approved. Where else for the ulama of fiqh and
usul al-fiqh has their own main concern towards Sunnah. The main concern for ulama of fiqh,
these scholars is to search for the hukm of Shariah with regards to the acts of an individual or
group. Basically the mainly refer to the legal value, which falls under the category of mandub.
Regarding the ulama of usul al-fiqh, their main concern is to search for a dalil SharI (legal
proof) with regards to the juristic ruling. Basically they refer to a source of the Shariah where
legal proofs accompany the Quran.

Sunnah can be classified into two types. The classification of the Sunnah based on its
nature and also the classification of the Sunnah based on its written record also known as the
hadith. The word Sunnah is more comprehensive than hadiths thus, the word hadith has a
meaning narrower than that of Sunnah. Hadith is reported from the Prophet ( )in terms of
words, acts and approvals.

Sunnah Based on its nature or also known as the Sunnah which thahkam is derived has
three types: Al-Sunnah al-Qawliyyah, Al-Sunnah al-filiyyah and Al-Sunnah al-taqriyyah.

Al-Sunnah al-Qawliyyah
It is the saying or narration of the prophet (Peace Be Upon Him) through which he
intended the laying down of the law or the explanation of the Ahkam.
Example:

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(i) La darar Wa-la dirar


(No injury is to be caused and none is to borne)

Al-Sunnah al-filiyyah
It is defined as the deeds and practices of the Prophet (Peace Be Upon Him) having a
legal content like his prayers, fasts etc. For example: The saying of Aisha, may Allah be pleased
with her, when she described the Ghusl (ritual bath) of the Prophet: "Whenever the Messenger
of Allah (PBUH) intended to take a bath (Ghusl) because of Janabah (sexual defilement), he
started by washing his hands and then performed ablution (Wudhu') as is done
for Salaah (prayer). After that he would put his fingers in water and run them through the roots
of his hair, and then pour water over his head with his hand three times, and then pour water all
over his body. And this after making Istinjaa (cleaning the outlets of impurity)." [Ar-
Rabee#138]

Al-Sunnah al-taqriyyah
Leaving out what the Prophet ( )refrained from is also from Sunnah, which is called
Sunnah Taqririyyah. For example, he did not wash his neck while making wudu - there is no
authentic hadeeth of this in any the books - hence we should not do this since he did not. No
matter how logical it may sound we should not do it. It is taught to us to place the right hand on
top of the left in Salah in such a way that we tuck the little finger and thumb underneath left;
this was also not done by the Prophet ( )specifically. It is not authentically reported from him.

The matters which are his personal choices and other mundane activates are not for us
to do. He wore a particular sandal of two straps; this does not mean it is Sunnah because if an
Eskimo were to do this, his feet would freeze. The deen is universal and does not make it
impractical to follow. He did not like the dessert Lizard but some Arabs ate it and it is
permissible. We have to love the Prophet ( )because Allah loves him. If we do not love those
whom Allah loved, we are headed for Hell. And our love for Prophet ( )should be expressed
by doing what he instructed us to do as much as we can. We have to start with compulsory
things and the little things can be accomplished. Start small and then we can move on to
implement the bigger things.

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Issue 1: Hadith Maudhu

I heard the Prophet ( )saying, "Ascribing false things to me is not like ascribing false things
to anyone else. Whosoever tells a lie against me intentionally then surely let him occupy his
seat in Hell-Fire." I heard the Prophet ( )saying, "The deceased who is wailed over is tortured
for that wailing."2

The hadith mentioned above is a mutawatir hadith that is well known among Muslims
and the authenticity would never be questioned. Muslims need be careful on anything that is
claimed to be out from Prophet Muhammad ( )should be verified from him as the sunnah is
primary source of Islam. A preacher/motivator and even common people who do not have basic
understanding and knowledge would make this mistake. These people should study on anything
that they learnt or heard before spreading it out. It is not a common mistake because most of
these peoples intention is want to share good thing. Muslims should learn on verify anything
that they heard before spreading it out due to the hadith;

"It's enough that someone is munafik, if he tells everything he hears."3

Maybe a false hadith reader feels they are innocent, because they are just quoting from
their read books that contain false traditions. So they feel they're just spreading, so it's not to
blame. They forget the spread of the hadith either through speech or writing, he at the same
time actually deceiving others when backing something to the Prophet without valid proof. The
listener will be deceived then practicing what he considers from the Prophet, it is not what he
thinks.

The creator of false hadith may do it with a good intention of bringing people to worship
Allah with creating any benefits on doing any ibadah and creating an ibadah with benefits so
people will get closer to Allah. But this thing is totally wrong. Syeikh Muhammad bin
Muhammad Abu Syahbah said It is prohibited to say a false hadith in any matter, but with a
description of its falsehood. This is either related to halal and haram, or fadail (the advantages

2
Sahih al-Bukhari 1291
3
Muslim, no. 5

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of practice), or al-tarhib (fear of the people against vices) and al-targhib (to promote worship),
or stories, or history or otherwise.4

Syeikh Muhammad bin Muhammad Abu Syahbah also mentioned on his book about
how strict scholars on this type of person. Imam al-Bukhari when received a letter asking about
the status of a false hadith, he replied Whoever calls this hadith must be beaten and imprisoned
for a long time. Even among the scholars there are those who legalize their blood. So, when
mentioned hadith (false) Suwaid al-Anbari: Whoever falls in love, then he refrains and conceal
it, then dies, then he died martyr), then Yahya bin Ma'in said: "The blood of this person is
halal."

Why lie using the name of the Holy Prophet is strictly prohibited even with good
intentions? There are several reasons to be concluded. Among them, if the misuse of the use of
the name of ordinary people is prohibited, let alone use the name of an apostle. A false hadith
likened its design to the revelation, or the Messengers value to the Prophet Muhammad. The
rejection of this type also affected the greatness and originality of religion. Religion lost its
authenticity, no value again. It causes the revelation of Islam to be the same as the fictitious
religion derived from human thought and imagination.

Additionally, this lie means fraudulent Islamic lover who may be deceived and trust the
deceased. They will practice such a lie with the conviction that it is a religious claim, but it is
falsehood while they want authenticity in the religion. In fact, the lie is a betrayal of the revealed
Shari'ah.

In history, it is not a bit of a bad influence on the hadith that is being exchanged for this
sacred Islam. For example, the false hadith: "The white rooster is my friend, he is also my
friend. White male enemy is my enemy and enemy to my enemy." This false hadith appears to
be very frustrating and insulting to the Prophet. It is impossible to get out of the mouth of a
prophet such a thing. Maybe it's designed by a white cock fan. Actually, all the hadith related
to the excess of white chickens are not true at all. 5

Another example that is fabricated is, He who gets married before he performs Hajj
has indeed started (his life) by committing a great wrong. This is graded fabricated by ibn
Jawzee. Another example that has been brought up in Muslims community in Malaysia is

4
Abu Syahbah, al- Wasit fi Ulum wa al-Mustalah al-Hadis, pg 321-322
5
al-Jarahi, Kasyf al-Khafa, 2/422

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Child from prohibited relationship would never enter paradise. This is a total contradict with
Allahs words in the Holy Quran And no bearer of burdens will bear the burden of another.6

Therefore, common people should check the authenticity of the hadith before believe
and spread it to others.

Issue 2 : Anti-Hadith
Rejecting hadith of Prophet Muhammad ( )means refuting the affirmation of the
Quran:

But no, by your Lord, they will not [truly] believe until they make you, [O Muhammad], judge
concerning that over which they dispute among themselves and then find within themselves no
discomfort from what you have judged and submit in [full, willing] submission. 7

There is no doubt that there is authentic hadith that is the word or deed or confession or the
propriety attributed to the Prophet ( )illegally. But to decide it shall be on the scientific
argument as outlined by the hadith scholars in the hadith classification. It is not made in any
easy and lenient way and based on lust. Rejecting the invalid hadith is supported, but rejecting
the authentic without any basis is a mistake. An individual could be out of Islam by denying
the authentic hadith as a source of Islamic law in a sane state and consciously. This is what been
said by Imam as-Sayuti, Anyone who argues that the Prophet's hadith, his words or deeds, with
the terms known in the knowledge of Usul (which is outlined in Ulum al-Hadith and Usul al-
Fiqh) as an argument he became infidel. He is out of the Muslim lands and is gathered together
with Jews and Christians, or with whomever God wants from the infidels."8

Back in the 80s, there was a guy named Dr. Kassim Ahmad has started a movement on
anti-hadith where they assume Hadith arent a primary source of Islam. They dont want to
admit the hadith as Islams source to be used for reference. The assumption of Al-Quran has
already been given to Prophet Muhammad ( )through Jibril with perfection so there isnt a
need of hadith to explain it in detail. These group of anti- hadith also said that with the existence
of hadith, it makes Muslim sway away from the true teaching of Islam.

6
Al Isra verse 15
7
An- Nisa verse 65
8
Al-Sayuti Miftah al-Jannah fi Ihtijaj bi al-Sunnah, pg 140. Egypt: Dar as-Salam

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Even though these has occurred in the past, but it still has given an impact to the present
time since there are still people who are influenced by this action because theoretically, these
ideas look more logic.

Issue 3: Bidah
Bidah is the opposite of Sunnah. According to Imam asy-Syatibi, bidah means a
religious order that is created and resembled a Shariah. It is done with the intention of
exaggerating in worshiping God.9 This means anything that is not referred to specifically in
Shariah, and for which there is no evidence (dalil) in the Quran or Sunnah, and which was not
known at the time of the Prophet ( )and his Companions. At the same time, it is quite obvious
that this definition of religious inventions or innovations, which are condemned, does not
include worldly inventions [such as cars and washing machines, etc.] and also Al-Masalihul
Mursalah.

Prophet Muhammad ( )once said; whoever does a practice that does not come from
us, then the practice is rejected.10Therefore, why should we practice something that is invented
while there are many other authentic sunnah can be practiced and the rewards are guaranteed
while bidah promise nothing good. Bidah causes the consequences of blasphemy on the word
of God (which means), "Today I have perfected your religion for you." (QS Al-Ma'idah: 3)
because if one comes with the bid'ah and is considered to belong to religion, then that means
religion is not perfect!

Syeikh al-Utsaimin in his book mentioned that the emergence of bidah is the reason
for the disunity and the Muslims. This is because the bid'ah defenders will say that they are on
the truth while the other groups are wrong and vice versa so there are the diversions among
Muslims. 11 The matter of bidah has been spoken out since Companions day where Abdullah
ibn Masud radhiyallahuanhu said, Follow the guidance and do not set up a bid'ah because
you have indeed been sustained. And every bid'ah is astray.12

There are some scholars are supporting some bidah due to urf, maslahah and bidah
hasanah (good bidah) reasons. This topic has been so controversial since day one and the
differences among scholars need to be respect and their reasons to defending some bidah are
with restriction on people should not have any believe that the rituals are from Prophet

9
al-Arbauna Haditsan fi Minhaj ad-Dawah, matter 70 & al-Itisham, [1/50]
10
Muslim no. 1718
11
Syarh al-Aqidah al-Wasithiyah by Syaikh al-Utsaimin [2/316-317]
12
al-Arbauna Haditsan fi Minhaj ad-Dawah, matter. 68)

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Muhammad ( )and expecting special reward for the action. As example in Malaysia,
celebration of Mawleedul Rasul has become a norm in every year. Scholars who are defending
it with a valid reason of this are one of the ways to manifest the love to Prophet Muhammad
( )on his birthday (although the date itself is an issue among scholars).

The previous Malay community believed that the month of Safar had a misfortune
especially on the last Wednesday of the month. It is believed that every year 12,000 damn things
and all of them are released on the last Wednesday of the Safar month. To reject this, they
believed that a lot of charity and read the prayer of minus reinforcements with certain cautions
need to be done. This led to Safar bath which had been practiced in Malaysia before 1970s and
the bidah practice has been rejected and never seen again.

Another rejected bidah that being practiced among Malay communities is hiring some
people to wait for the deceaseds grave for few nights. The length of the waiting period depends
on the ability of the deceased's family. Usually in odd numbers that is yesterday, three nights,
five nights, seven nights and so on. A small house is built near the grave for the purpose of
reading al-Quran, zikirullah and so on for the deceased. The waiters earn a fair amount of
wages. The hukm of hiring and taking wages of reciting the Quran to the deceased, the jumhur
of scholars declare it as haram. This is because there is no reward for those who read al-Quran
for wages. In 1917, Sheikh Muhammad Bakhit issued a fatwa concerning the wage rate that
occurred between the giver and the recipient of the wages; he decided to take the recital of the
Quran for the dead were illegal. The same fatwa was also issued by the Egyptian Mufti Abdul
Majid Sulaim in 1942 and the Dawah Study and Fatwa Body of Saudi Arabia Government. 13

Muslims should ask Allah for the right path and acceptance of their ibadah as all
Muslims wants the Paradise.

IJMA
Ijma is one of the accepted sources of Islamic law among all jurists regardless of region,
demographic and race. In fact, Ijma is actually in the third option of Islamic law after the
reference of Quran and Sunnah. The nature of Ijma as one of the sources of Islamic law
maintained that its ability to provide a mujtahid with assertive rulings could not be discounted.
Hassan (1978) discussed in his book titled The Doctrine of Ijma in Islam that Ijma is in fact one
of the subsidiary principles that can be used as a reference to prove a legal ruling. 14 (Ahmad

13
Fattawa Islamiyah, page 23
14
Ahmad Hassan. (1991). The Doctrine of Ijma in Islam. Islamabad, Pakistan: Islamic Research Institute.

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Hassan, 1991) After the exhaustion of effort in the use of Quran and Sunnah, Ijma can be used
to apply the human intellect and cooperation among jurists in order to provide a legal ruling
that are both in line with Shariah and beneficial towards the Ummah. However, there are
certain issues pertaining to Ijma that we may discuss upon in order to fully understand the full
ability of Ijma in order to comprehend its application in the past and in the contemporary times.

Comprehensive understanding towards Ijma in contemporary times

Authority of Ijma
The authority of rulings derived from Ijma is the first topic we would like to discuss in
the context of sources of Islamic law. In the recognition of those its views or opinions on a
certain subject matter to be considered as a part of Ijma. Hassan (1978) listed down the criteria
to be eligible in providing opinion for Ijma. However, due to its nature as a subsidiary principle
towards sources of Islam, therefore, the list includes:

I. An expert in law and Islamic Law (mujatihidun)

II. A successor who is responsible and not corrupt in his actions

III. Persons who are legally responsible for themselves

IV. No muqallid are considered for decision in Ijma

In fact, opinions from non-Muslim in determining the acceptance of a subject matter from the
avenue of Ijma are also rejected due to their beliefs and their beliefs which are contradicting
with Shariah. Al Ghazali put forth some questions regarding Ijma towards its inclusivity
towards the masses. A layman opinion in determining the ruling of Ijma will never be accepted
due to the fact that a layman is actually lacking in the prerequisite to allow them to consider
their opinion as valid in the determining a ruling of Ijma.

Plus, in the event of Ijma from the masses an Ijma from the Scholars, there exist some opinion
that a ruling from Ijma that constitutes the ruling from both the masses and mujtahid to be
acceptable and if there exclude the mujtahid then the ruling will not be accepted. (Ahmad
Hassan, 1991)15

15
Ahmad Hassan. (1991). The Doctrine of Ijma in Islam. Islamabad, Pakistan: Islamic Research
Institute.

14
Unanimously Accepted Sources

Subject Matter of Ijma


Ijma is actually has a broad application. The jurisdiction that Ijma has are vast and its
ability to cover many grounds in context of religious laws establishes it as one of the core
sources of Islamic law after Quran and Sunnah. In fact, Hassan (1978) talks about how the
jurisdiction of Ijma are divided in six elements. 16

I. Shari

II. Dunyawi

III. Aqli

IV. Common sense

V. Urf

VI. Ethymological

Ijmas applicability are broad in a sense it is represented as one of the sources of Islamic
Law. Due to its applicability, it can be said that Ijma reasserts that the religion of Islams
characteristics of Syumul is fairly shown in the wide application of Ijma in the lives of Man.

Although there were some opinions that contradicts the view that Ijma is applicable in
multiple areas of human lives, the majority accepts the ability of Ijma to solve problems and to
unite Ummah in the event of lack of sources from Quran and Sunnah.

Time as a condition of Ijma


The condition of time in the acceptance of Ijma has been widely discussed among jurists
and scholars in order to obtain an applicable standard pertaining time frame of the acceptance
of a ruling of Ijma. In this case, the book from Hassan (1978) talks about how the lapse of time
in the application of Ijma is actually not the prerequisite of the acceptance of Ijma. 17

Several arguments were brought up in order to counter the argument of lapse of time to
not be the prerequisite of the validity of rulings from Ijma. First, Ijma is the main authority and
not lapse of time. Thus, it is not applicable to put an authority on an authority. Second, if lapse
of time and death of whole generation is source of validity of Ijma then it shall be noted that it

16
Ahmad Hassan. (1991). The Doctrine of Ijma in Islam. Islamabad, Pakistan: Islamic Research
Institute.

17
Ahmad Hassan. (1991). The Doctrine of Ijma in Islam. Islamabad, Pakistan: Islamic Research Institute.

15
Unanimously Accepted Sources

is the death of the Prophet is not a validity of Sunnah to be valid, how can Ijma not be
implemented the same manner. Third, it has never been mentioned in other sources that is above
Ijma such as Quran and Sunnah regarding the validity of Ijma that is dependent on the time
lapse. Four, similar to other sources of Islamic law which contain authority by itself, Ijma is
also an authority that does not stipulated by the condition of time in its acceptance, Fifth, the
what Ijma really represent is actually a universal agreement among jurists, scholars or the
masses and not about the time lapse or death of a generation of any other elements that can be
regarded as a time lapse in the acceptance of Ijma. Sixth, in an event that Ijma is stipulated to
include time lapse in its acceptance to the universal Muslim Ummah, then its rulings will never
be accepted as a source of Islamic law and therefore, it will create a constant cycle of
disagreements due to the fact that some agreements require the acceptance of jurists and
scholars that are from different timeline and different generations. In common sense, the views
and the ability of Ijma to be applied in the current times will be impossible due to inability of
consensus among jurist that lives different lives of environment, culture and time. Seventh, if
time lapse is the source of validity of Ijma, then Ijma from the Companions will never be
accepted as there are disputes that arises after the death of the companions. Thus, lapse of time
is not the source of validity of Ijma.

A short history of Ijma in Muslim society


The application of Ijma was used since the event of the demise of Prophet Muhammad,
whereas the Muslim society in Madinah were in disarray and lost after the Prophets death,
there were searching for someone who is worthy successor to the continue the Prophets
teachings. As much as we like to value Ijma as one of the sources of Islamic Law, however
there are certain opinions regarding Ijma that made it to a source that require a particular
attention from those that apply it. The issue that were driven by the application of Ijma since
the period of the four great Imams are first, the difficulty to obtain the agreement among jurists
and scholars regarding an opinion of an issue in the similar time period and let alone jurists and
scholars of different time periods to agree in an issue of the same category. Second, some argued
that there were no evidences through text that is reliable and conclusive in the application of
Ijma. Third, a definitive argument in the term of Ummah. As a matter of fact, the application
of Ijma to provide a clear ruling towards a certain issue has a grey area which is whether the
opinion of this generation of jurists and scholars are applicable for jurists and scholars of other
generation. If the current generations views and opinions rejects the opinions and views of

16
Unanimously Accepted Sources

previous generations of scholars and jurists, then the definition of Ummah is restricted to the
people of the current generation and therefore difficult to maintain. (Khanani, 2015)18

The lack of standards that govern the application of Ijma, the informality of Ijma in the
application in the administration of a government and the inability to provide a conclusive
evidence that Ijma is a consistently dependable way of source of Islamic Law gave towards the
inability of jurists and scholars to maintain the Ijma as a sources of Islamic Law in
contemporary times. Plus, with current time of issues expanding and new issue rises from
multiple region and demographic that require ample time to be taken into account made Ijma
to be thought as highly unrealistic as of now. Therefor we will see its application towards
contemporary times and to ponder whether Ijma is a valuable way of interpreting issues.

Ijma and Islamic Finance


During the regime of four Caliphs the practice of Ijma was observed not only in
religious matters but also in legal rulings and matters related to muamalat. This went on for
generations (Tabiin and then Tabi al Tabiin). Ijma is observed in matters related to ibadat and
schools of law do not vary a great deal in their treatment of ibadat related subjects but juristic
differences among schools occur mainly in the area of muamalat (Md. Hashim Kamali, 2006).
Thus, unquestionably it is hard to discover rulings which are collectively agreed by Mujtahids
in Islamic finance. Hence, there is a scope to utilize Ijma' in the case of Islamic Finance ruling
to assemble a competent Islamic financial system. In contemporary Islamic world, Fatwa are
produced based on collective Ijtihad which is viewed as a level beneath Ijma'. Furthermore,
Fatwa created by collective Ijtihad is non-binding and can be changed. Regardless of the
contrasts between the meanings of Ijma' and collective Ijtihad, when AAOIFI incorporates
resolutions after long hectic process, which are made mandatory or binding to all Islamic
financial institutions, it can be guaranteed that those resolutions are result of Ijma' of
contemporary researchers (scholars). Again, the finding of unanimous agreements of scholars
on Shariah compliant contract of Musharaakah Mutanaquisah, Asset Securitization, Takaful
operation based on mutual cooperation and benefit as well as declaration of conventional
insurance as non-Shariah compliant, non-use of Lard index, non-use of Hibah along with
Mudarabah contracts prove that Ijma prevails in this current Islamic world and it is also

18
Khanani, N. (2015). The Historical Development of Ijma and its Role in Contemporary Societies.
Term Paper.

17
Unanimously Accepted Sources

possible to use this source of Shariah for harmonizing and standardizing Shariah rulings for
the flourishing of Islamic financial system and for the betterment of current ummah. 19

QIYAS
Definition of Qiyas
Qiyas can be defined literally as to measure or ascertain such as the weight, length or
quality of something. For example, the cloth was measured by the yardstick and scales are
called miqyas in Arabic language. Qiyas also means comparison which can be categorised as
equality or similarity between two things in example like Ahmad compares with Haikal in terms
of their intelligent level.

Technically, qiyas is an extension of a Shariah value from an original case (asl) to a


new case, because the latter has the same effective cause (illah) as the former. The original case
is ruled by the Quran or Sunnah and qiyas aims to extend the same ruling to the new case based
on the same illah.

The Pillars of Qiyas


The original case (asl) is in which analogy seeks to extend the ruling given in the text to a new
case. The new case (far) is on which a ruling is needed. The effective cause (illah) is when an
attribute (wasf) of the original case found to be in common with the new case. The rule (hukm),
governing the original case which is to be extended to the new case. It can be illustrated with
the example of prohibition of drugs taken from prohibition of wine drinking based on the
Quranic verse 90 in Surah Al- Maidah:

Asl wine drinking

Far taking drug

Illah intoxicating effect

Hukm - prohibition

Application of Qiyas
Conditions of the Asl

Asl has TWO meanings in Arabic:

19
T. Julia & Zainab. (2017). Application of Ijma in Modern Islamic Finance Rulings: Does Ijma Really Exist?
A Literature Review. Bangladesh Journal Of Islamic Thought, 13(19).

18
Unanimously Accepted Sources

(i) Sources or specific sources of Islamic law such as Quran and Sunnah.

(ii) Subject matter of a ruling.

Muslim jurists unanimously agreed that the sources of qiyas are Quran and Sunnah.
Majority of jurists said that qiyas may also be founded on a rule that is established by ijma.
For example, ijma validates guardianship over the property of minors, a rule which has been
extended by analogy to authorize the guardianship of minors in marriage. However, there is
disagreement as to whether ijma constitutes a valid asl for qiyas on the basis that the rule of
consensus does not require that there should be a basis (sanad) for ijma. Another opinion of
the majority of jurists said that one qiyas may not constitute the asl of another qiyas. But, Ibn
Rushd (Malikis) and some Hanafis jurists opined otherwise.

Conditions of the Hukm

It must be a practical Shariah ruling as qiyas does not operate in the area of belief. The
hukm must be operative, which means that it has not been abrogated. The hukm must be rational
in the sense that human intellect is capable of understanding the cause of its enactments. The
hukm must not be limited to exceptional situation. The law of the text must not represent a
departure from the general rule of qiyas in the first place.

Conditions of the Far

The new case must not be covered by the text or ijma. The illah of analogy must be applicable
to the new case in the same way as to the original case. The application of qiyas to a new case
must not result in altering the law of the text, which is equivalent to overruling the text by means
of qiyas.

Conditions of the Effective Cause

It is the subject of disagreement among the Muslim jurists. 5 most important conditions are:

1. The illah must be zahir (evident) and not khafi (hidden).

2. The illah must be mundabit (a constant attribute) which is applicable to all cases without
being affected by differences of persons, times, place and circumstances.

3. lt must be a proper attribute (Al-wasf al-munasib) or bear a proper and reasonable relationship
to the ruling. The relationship is munasib when it serves to achieve the objective of the lawgiver.

19
Unanimously Accepted Sources

4. Illah must be transient (mutaaddi) that is an objective quality which is transferable to other
cases.

5. Illah must not be an attribute which seeks to alter or counter the textual authorities or the
ruling of the text.

Types of Qiyas
It is based on the strength or weakness of illah (effective cause)

(i)Analogy of the superior (Qiyas al- awla)

(ii) Analogy of equals (Qiyas al-musawat)

(iii) Analogy of the inferior (Qiyas al- adna)

1.Qiyas Al-Awla

It is when the illah is more evident in the new case than the original case.

Example: Surah Al-Isra verse 23

Say not to them (parents) a word of disrespect, nor shout at them but address them in terms of
honour.

Rebuking or beating them is prohibited too, and in fact is even more obvious than verbal abuse.
This shows the effective cause in parallel case more evident than original case.

2. Qiyas Al-Musawat

Illah in this type of qiyas is equally effective in both the new and the original case.

(i) An-Nisa verse 25: If they commit illegal sexual intercourse, their punishment
is half that of free women. The text prescribed half punishment for slave
woman if they are guilty of adultery and by analogy this rule applied to male
slave as well if they commit the same thing.

(ii) In case of a container which is licked by a dog it must be washed 7 times. This
rule is applicable to a container being licked by a swine.

3. Qiyas Al-Adna

It is when illah is less clearly effective in the new case than the original case. For example,
Riba prohibits the exchange of wheat and other specified commodities unless they are equal

20
Unanimously Accepted Sources

and delivery is immediate. By analogy the rule of riba is applied to apples since both are edible
(Shafiis) and measurable (Hanafis). Though the apples unlike wheat are not a staple food
(illah)

Additional Type

Hanafis classify analogy into:

(i) Qiyas Jali (Manifest analogy)

It is when the underlying cause can be discovered without much difficulty and jurist does not
have to ponder too much over the attributes of the illah.

(ii) Qiyas Khafi (Concealed analogy - Istihsan)

When the illah is less obvious and the jurist has to use considerable effort to discover it.

Arguments Against Qiyas


Mainly the Zahiri school (Ibn Hazm) and some Mutazilah, Ibn Hazm argued:

(i) The rules of Shariah are conveyed in the form of command, prohibition and permissibility.
Should there be no clear text in respect of any matter, it would fall under permissibility. Thus
there is no room for analogy in the determination of the ahkam.

(ii) Al-Anam 6:89

We have neglected nothing in the Book.

Al-Nahl 16:89

We reveal the Book as an explanation for everything.

Al-Maidah 5:4

This day, I perfected your religion for you, and completed My favor upon you.

(iii) Identifying the illah in qiyas is an exercise in speculation, therefore qiyas rests on
conjecture which must not be allowed to form the basis of a legal ruling.

Al-Najm 53:28

Conjecture avails nothing against the truth

(iv) Qiyas is forbidden by the Quran.

21
Unanimously Accepted Sources

Al-Hujurat 49:1

Do not press forward before God and his Messenger, and fear God

It means that the believers must avoid legislating on matters on which the lawgiver has chosen
to remain silent.

The Prophet said in a hadith:

Ask me not about matters which I have not raised. Nations before you were faced with their
destruction because of excessive questioning and disputation with their prophets. When I
command you to do something, do it to the extent that you can, and avoid what I have
forbidden.

Majority vs Ibn Hazm

Majority validates qiyas in the light of general objectives of the Shariah. They opined
that qiyas is not an addition or a superimposition on the nusus but their logical extension. Thus
the Zahiri argument that qiyas violates the integrity of nusus is devoid of substance.

The Application of Qiyas in the Malaysian Legislation and Fatwa


In Malaysia, there is no express provision in the law that allows the application of qiyas.
Neither the laws prohibit such application. However, by virtue of Article 3 and item 1 of State
List of the Ninth Schedule of the Federal Constitution, it can be inferring that qiyas is allowed
to be applied in Malaysia. This is because apart from recognizing Islam as the religion of
Federation, such constitutional provisions also allow Hukm Shari to be practiced, regulated
and implemented by the Muslims in this country. Since qiyas is a matter that falls under Hukm
SharI, constitutionally qiyas can be referred to and can become one source to deduce hukum
or ruling in Malaysia. In fact, by way of inference, the principle of qiyas has already been widely
accepted and applicable in enacting or deducing some laws, offences, hukum and fatwa in
Malaysia. The example of it is as follows:

Drugs Dangerous Drugs Act

Asl wine drinking

Far taking drug

Illah intoxicating effect and damaging humans intellectual

22
Unanimously Accepted Sources

Hukm prohibition/haram

Rape Section 376 Penal Code

Asl zina

Far rape

Illah destroy the lineage and dignity

Hukm - prohibition/haram

Smoking in mosque Fatwa by Selangor Fatwa Committee

Asl eating onion in mosque

Far smoking in mosque

Illah causing bad smell to the mouth

Hukm - prohibition/haram

Feasibility of Qiyas
The application of qiyas is still applicable in present time; where one cannot stop new
issues from arising with new developments. If two incidents are similar, and one of them is
covered by a clear legal rule but not the other so the application of the principles of qiyas could
be one of the best solutions in this situation as there is no revelation to find hukm anymore.

New case happens all over the world especially with the rapid growth globalization.
This happen irrespective of geographical boundary; therefore, it needs solution. The express
textual obligation in the Quran and Sunnah are limited in numbers while the incidents and
problems of life are unlimited and unending. Hence it would be illogical to assert that all the
problems and exigencies of life will be covered by the textual injunctions. Qiyas therefore is a
mode of reasoning to legislate for novel questions, to reveal the divine rule of law, and to
harmonize between divine legislation and human interest.

Al-Quran provides a complete ruling and a basic general rule for all events which can
accommodate human being and provide solution for all. It is our duty to derive the hukm or
solution for a new case through the application of qiyas.

23
Unanimously Accepted Sources

CONCLUSION
The goal of Islam is for the human to become a true servant of Allah. Therefore, his
source of guidance and the foundations for his actions must be rooted in the revelation from
God. Islam aspires to the highest level of behaviour at the individual, family and community
levels. The Prophet brought different rules in order to accommodate the culture of each nation
and tribe. Allah said:

If Allah so willed, He could make you all one people

It is from this vantage point that the scholars speak about the sources of law in Islam.
Islamic law is founded on the principle that individuals rely on other individuals. A single
person cannot carry out every aspect of Shariah by himself, but needs other individuals that
act as well, and from whose combined actions the society benefits as a whole. It is impossible
for a person to reach perfection, but Islamic Shariah shows that one can reach perfection. How?
By bringing all the people together. The society as a whole produces perfection which the
individual by himself or herself cannot do. Through individuals striving for perfection and their
interactions with each other under the Shariah, the entire society is refined.

Progress never comes without the pain that is caused by new ideas, new interpretations,
new constructions, new paradigms, new theories, and new stocktaking of the situation. Of the
tens of hundreds and thousands who participate in intellectual discourse, debate, and creative
work only a very few turn out to have been right, and they too not entirely. But everyone,
including even those who get it all wrong, contributes. What is crucial is that even those who
turn out to be wrong in retrospect need freedom of speech and publication. To demand that
everyone say only the things said before or look at things in accordance with the established
opinions and the decisions of the organized groups or the government of the day is to foreclose
all possibilities of any conceptual breakthroughs and thereby the enrichment of the conceptual
resources of the community.

24
Unanimously Accepted Sources

REFERENCES

Ahmad Hassan. (1991). The Doctrine of Ijma in Islam. Islamabad, Pakistan: Islamic Research Institute.

Amanda, N. (2014). Al-Quran As A Major Source of Islamic Law. Retrieved from academia.eu.com:
https://www.academia.edu/10099921/AL-
QURAN_AS_A_MAJOR_SOURCE_OF_ISLAMIC_LAW

Golongan Anti hadith dan Liberalisme. (2016 February, 14). Retrieved from pum.org.my:
https://pum.org.my/golongan-antihadith-dan-liberalisme/

Hadith, C. (n.d.). Faktor-Faktor Penolakan Hadith. Retrieved from cintahadith.blogspot.my:


http://cintahadith.blogspot.my/2014/10/faktor-faktor-penolakan-hadis.html

Kayadibi, S. (2017). Principles of Islamic Law; The Methods of Interpretation of The Texts (Usul Fiqh).
Kuala Lumpur: Islamic Book Trust.

Khanani, N. (2015). The Historical Development of Ijma and its Role in Contemporary Societies. Term
Paper.

LLMAOIL. (28 February, 2008). THE RULE OF QIYAS: ITS MEANING, JUSTIFICATION, TYPES, SCOPE,
APPLICATION, FEASIBILITY AND REFORM PROPOSALS. Retrieved from ufaoil.blogspot.oil:
http://ufaoil.blogspot.my/2008/02/rule-of-qiyas-its-meaning-justification_09.html

Mohamad, I. (27 August, 2015). Anti-hadiths In Malaysia. Retrieved from prezi.com:


https://prezi.com/hs9tzetovejt/anti-hadiths-in-malaysia/

Senarai Amalan Bidaah Masyarakat Malaysia. (31 December, 2014). Retrieved from
tafsirsunnah.me: https://tafsirsunnah.me/2014/12/31/amalan-bidaah-masyarakat-malaysia/

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