Other sources of Islamic Law

1. Istihsan (Juristic Preference) - literal meaning is prefering or considering a

thing to be good. If a rule deduced by the application of Quiyas to text of the
Qur'an or Traditions appears to the jurist to be harsh, inconvenient and
inequitable, according to the Hanafis, the jurist is at liberty to disregard it and
adopt one that seems fair and just.

Itihsan is Equity by Sir Abdur Rahim, he states that Qur'an and Sunnah are
legislations, and if Analogy is common law Istihsan is its equity.

Examples:

a. A contract of the nature of sales requires the subject-matter existence at the

time of the deal in order to be valid. An artist to deliver an art after at an
agreed price would be invalid. But it is validated on the basis of necessity and
general practice of transaction.

b. A man with a property dies leaving a minor child. The appointment of a minor for
property is invalid but minor is recognized as Trustee and Qazi should appoint a
competent person to act as guardian to administor the minor for transaction.

c. Waqf (Trust) must be of a perpetual nature. From analogy, the rust of movable
property in general is unlawful but the Waqf of horses and arms is recognized by
Istihsan

2. Al-Masalih Al-Mursalah (Public Interest)

Based on general consideration of the public good; introduced by Imam Malik. From
Imam Ghazzali, it is the consideration for what is aimed at for mankind in the law.

Condition of Masalih Mursalah

First - That the case under review should be one pertaining to matters of
transactions so that interest involved in it may be construed upon grounds of
reason and should not be one relating to religious observances.

Second - That the interest should be in harmony with the spirit of the shari'ah an
not be in conflict with any one of its sources.

Third - That the intersest should be essential and necessary, not of perfectionist
(luxury) type.

Examples of Masalih Maursalah

a. Imposition of taxes on rich for the army nd protect the realm.

b. Punishment of criminal by depriving of over property on which crime he commit on

a property or equivalent.

c. Killing of prisoners of war if essential to protect interest of Muslim people.

3. Istidlal and Istishab

Istidlal or deduction is the striving after a basis for a rule; derived from reason
and logic.

Istishab or deduction by presumption of continuity is a rational source which may

be resorted to in the absence of any other source. Literally means manency.
4. The Ancient Laws

The dominant opinion amongst the doctors of the science of sources. "The laws of
our predecessors are laws unto us".

"The things which have been in existence from the time immemorial shall be left as
they were" (Majallah, Art 6)

5. Customs and Usages

i. Customs in General - which a people or a section thereof have become accustumed

to doing.

customs are in two factors: (1) The nature of a country and (2) the national
spirit.

Customs differ with different territories and time.

ii. The Influence of Customs in Islamic Jurisprudence

The force of customs and usage in establishing rules of law.

This infiltrated into the Shari'ah by several ways, the most important of which
were:

First - A number of text particularly of traditions were base upon usage.

Second - That part of sunnah based upon the tacit approval of the Prophet comprises
many of the Arab customs.

Third - The opinion of Imam Malik about the customary conduct of the citizen of
Medina was regarded as a sufficient consensus of opinion to be a source of law in
the absence of an explicit text.

Fourth - When custms came into being under exigencies of necessity, such customs
made inroads into Shari'ah by means of consensus of jurist or other laws such as
preference (Istihsan) or public interest.

iii. Example of Customary Rules

"Those recurring practices which are acceptable to people of sound nature." Customs
are either general and of universal acceptance or belong to a particular country,
or a particular generation.

Legal Maxims = "Custom is authoritative".

Al-Qadi Hussayn (al-Mawarrudi d 462 AH) describe custom as one of the four pillars
upon which jurisprudence rest.

Maxims taken over by Majallah are precised, well-defined and eloquent and includes:

(1) "Public usage is conclusive and action must be taken in accordance therewith"
(Art 37)
(2) "A Matter recognized as by a custom is regarded as if stipulated by agreement"
(Art 43)
(3) "A matter recognized as customary amongst merchants is regarded as if agreed
upon between them" (Art 44)
(4) "A matter established by custom is like a matter established by a legal text"
(Art 45)

iv. Conditions of a Binding Custom

A custom to be regarded as legally binding must satisfy a number of conditions:

First - It should be "acceptable to the people of sound nature". Must be reasonable

and compatible with good sense and public sentiment.

Second - A custom must be frequent and common recurrence. Art 41 of Majallah says:
"Effect is only given to custom where it is regular occurence when universally
prevailing." Art 42 explains " Effect is given to what is of common occurence not
to what happens infrequently". Example is currency in general used of a territory.

Third - Effect isgiven to customs prevalent at the time of the transaction or

previous thereto but not to the latter customs.

Fourth - No effect is given to a custom in the face of a contractual provision to

the contrary, because a custom is only equivalent of an implied condition.

Fifth - Al-Majami provides that "a custom is valid only if it is not in conflict
with a text". No effect when it has conflict with Shariah Texts.

v. The Statements of the Companions of the Prophet

Companions are closest associates of the Prophet and had the most intemate
knowledge and understanding of his sunnah.

"My companions are like stars: whomever of them you seek for guidance will lead you
to the right path".

Schools of Law

The Hanafi School

The Hanafi School is the oldest surviving school of Islamic law, and the one with
the largest following.

It originated in Kufa, present day Iraq, but its influence spread to both the
Mughal and Ottoman empires and can now be found from Turkey to Central Asia, the
Balkans, Iraq, Afghanistan, Pakistan, India, Bangladesh, and as far as Western
Europe and North America.

The school's founder, Abu Hanifa, was a trader as a young man. However, it seems he
was not well suited to this career - he once demanded to pay five times the asking
price from a woman selling silk at the market.

In 763 CE he was imprisoned for refusing to collaborate with a judiciary he

considered corrupt. He died in prison four years later.

As well as using the Quran and the Prophet�s (pbuh) life as sources of guidance,
this group also relied heavily on using logical arguments to find answers to social
problems that also fitted in with their understanding of Islam.

The Shafi'i School

The Shafi'i School also has a wide influence in Egypt, Indonesia, the Philippines,
Brunei, Singapore, Thailand, Sri Lanka and the Maldives.

This school of thought is named after Muhammad ibn Idris al-Shafi�i, a precocious
student, who is described by historians as the master architect of Islamic law.

Perhaps his greatest achievement, with the aid of his peers, was to lay down the
roots of a common framework for all schools of Islamic thought to follow when
producing legal judgements on issues of faith and how it should be practised.

The Maliki School

This school is named after Imam Anas bin Malik, 715 CE, who, to support his
studies, sold the ceiling beams of his home to buy the necessary books.

He was an unwavering defender of personal freedom, famously issuing a fatwa that

stated that no person should be forced to pledge allegiance to the ruling
government in Medina, and was heavily flogged for doing so (although the
authorities later apologised for their actions).

The Maliki School has its main following in Egypt, as well as having smaller groups
of followers in Algeria, Tunis, Morocco, Mauritania, Libya, Kuwait, Bahrain, Dubai
and Abu Dhabi, although it originated in Saudi Arabia in the city of Medina. When
the Maliki School was formed the word Sunnah did not yet mean the �traditions' or
�practice' of the Prophet (pbuh) specifically but also referred to the actions of
the people of Medina at the time.

The Hanbali School

The Hanbali School was developed in Baghdad, although today the followers of the
school are concentrated mainly in Saudi Arabia and the United Arab Emirates.

The founder of the school, Imam Ahmad Ibn Hanbal, was taught by Muhammad ibn Idris
al-Shafi'i, the founder of the Shafi'i School. There is therefore a direct link
between the Shafi'i and the Hanbali school.

The Hanbali school derives its rulings almost solely from the Quran and Sunnah,
which proves to be popular with groups of people wishing to return to a �purer'
Islam (the Wahabi movement, for instance, emerged out of the Hanbali school). Other
influential figures in the school were al-Kiraqi (d. 946), Ibn Qudama (d. 1223).
[3], Ibn Taymiyya (d. 1328) and al-Qayyim al-Jawziyya (d. 1350).

Basic Principles and Legal Maxims of Islamic Law

1) Matters shall be judged by their objectives. (Al-Umur bi-maqasidiha)

The First Principle: Matters are to be considered in light of their objectives

"There is evidence for this principle in the Prophet's statement: �Actions are but
by intention, and a man will have only what he intended.� This hadith is of
paramount importance. Indeed, some scholars have claimed that it has implications
for at least seventy different branches of knowledge. Others have said about this
hadith that it comprises a third of all knowledge."

2) Certainty shall be removed by doubt. (Al-Yaqin la yazulu bi-al-shakk)

The Second Principle: That which is established with certainty is not removed by
doubt
"This important principle is applied in every area of Islamic Law. It is estimated
that the questions that are derived on its basis comprise three-fourths of all
legal rulings. [Al-Suy�t�, al-Ashb wa al-Naz�'ir (51). See also: al-B�rn�, al-Waj�z
f� al-Qaw�'id al-Fiqhiyyah al-Kulliyah (169)]

There is evidence for this principle in the Prophet's statement: �If one of you
feels something in his stomach that makes him wonder if anything had passed from
him, he should not leave the mosque until he either hears or smells something.�
[ Sah�h Muslim ]

Al-Nawaw� comments:
This had�th sets forth a principle of Islam and a major axiom of Islamic Law, which
is that things are legally assumed to remain as they are unless and until it is
established with certainty that they are otherwise. Extraneous doubts are of no
consequence. [ Sharh Sah�h Muslim (4/49)]"

3) Hardship shall bring alleviation. (Al-Mashaqqah tajlibu al-taysir)

The Third Principle: The presence of difficulty requires that allowances be made to
effect ease

"This principle embodies the fact that Islamic Law is built upon achieving ease and
not upon imposing hardships. Whenever difficulties present themselves, the Law
makes provisions to facilitate matters. The condition for such measures to be taken
is that the difficulties are real and not imagined.

Allah says: �Allah intends for you ease and does not intend for you hardship.�
[ S�rah al-Baqarah : 185]

The Prophet (peace be upon him) said: �You have been sent forth to make things
easy, not to impose difficulties.� [ Sah�h al-Bukh�r� ]

`�'ishah said: �The prophet (peace be upon him) had never been given the choice
between two things except that he would choose the easiest of the two, so long as
there was no sin in it.� [ Sah�h al-Bukh�r� ]"

4) Harm shall be removed. (Al-Darar yuzalu)

The Fourth Principle: Harm should be removed

"Islamic Law completely forbids that which causes harm. That which is harmful must
be completely avoided whenever possible. When it is not possible, then the lesser
of two evils should be perpetrated to avoid the greater. That which brings harm on
a smaller scale is to be preferred to that which visits general harm to society.
Likewise, the avoidance of harm takes priority over the attainment of some benefit.

Evidence for this principle can be found in the Prophet's statement: �There must be
neither harm nor the imposition of harm.� [ Sunan al-Daraqutn� (3/77), al-Mustadrak
(2/57), and Sunan al-Bayhaq� (6/69)]"

5) Cultural usage shall have the weight of law. (Al-' Adah muhakkamah)

The Fifth Principle: Customary usage is the determining factor

"Custom refers to the prevailing practices of society with respect to their choice
of words and their mode of action.
The principle that customary usage is the determining factor basically means that
the customs of the people are recognized and acknowledged by Islamic Law as long as
certain conditions are met. The most important of these conditions is that the
custom in question does not violate the dictates of the sacred texts. Another is
that the custom is indeed the prevailing practice in society and is applied in that
society on a consistent basis. The third condition is that the custom must have
been in effect at the time when a given activity was initially entered into without
there having been any clear expression on the part of the concerned parties
indicating something to the contrary. Finally, the custom must be of a nature that
its application can be considered binding on the parties concerned.

Among the evidence for the recognition of custom in Islamic Law is the following
hadith related by `�'ishah:
Hind, the mother of Mu`�wiyah, said to the Prophet (peace be upon him): �Ab� Sufy�n
(Hind's husband) is a tight-fisted man. Is there anything wrong if I take money
from him secretly?�

The Prophet (peace be upon him) said: �Take for yourself and your children to
suffice your needs according to what is customary.� [ Sah�h al-Bukh�r� ]
Ibn Hajar al-`Asqal�n�, in his commentary on Sah�h al-Bukh�r� , observes: �He
referred her to customary usage in a matter that was not precisely defined in
Islamic Law.� [ Fath al-B�r� (4/407)]

Ibn Mas`�d, the eminent Companion, said: �What the Muslims determine to be good is
good with Allah.�
[ Musnad Ahmad ]

Ibn al-Qayyim writes:

On this basis, Islamic rulings are given throughout the ages. Whenever you find a
custom in practice, you must take it into consideration, and whenever you find a
custom has been abandoned, you must cease to consider it. You must not become
unyielding all your life in adhering to what is recorded in the books. If someone
comes to you from outside of your own region seeking a legal ruling, do not hold
him to the customs of your land. Ask him about the customs of his own land and hold
him to those and give your legal ruling accordingly. Do not apply the customs of
your country that you find in your books. { I`l�m al-Muwaqqi`�n (3/78)]"

Rules of Abrogation

Naskh (???) is an Arabic word usually translated as "abrogation"; It refers to the

theory in Islamic legal exegesis whereby seemingly contradictory material within,
or between, the two primary sources of Islamic law � the Quran and the Sunnah � are
resolved by superseding or canceling the earlier revelation.

Several Qur'anic verses state that some revelations have been abrogated and
superseded by later revelations, which are understood by many Muslim scholars as
pertaining to the verses of the Quran itself.[citation needed] Some examples
include a gradual ban on consumption of alcohol and a change in qibla (the
direction someone praying salat should face) from Jerusalem to Mecca.

Ijtihad and Taqlid (Interpretation and Limitation)

Al-Ijtihad is a derivative of Arabic verb "Ijtihada" which literaly means "to

exert oneself to the outmost or to the best of one's ability".

Another word for Ijtihad is Jihad which means a fight to exert the outmost;
idiomitically to find out some solution.

As jurisprudence term, Ijtihad is a lawyer's exerting of the faculties of mind for

the purpose of formulating an opinion on any law.

"A method for making deduction in matters of law in cases to which no express text
or rule, determined by Ijma' is applicable.

Who can exercise Ijtihad is a - Mujtahid, one who is autorized to expound the law
of Qur'an, Sunnah or Ijma by Ijtahid.

Types of Verse in Qur'an

(1) Decisive
(2) Allegorical

Qualification of Mujtahid

(1) Has thorough knowledge and can interpret the Qur'an. Arabic is pre-req.
(2) Master of traditions.
(3) Acquinted with theory of repeal.
(4) Well versed in science of Islamic Jurisprudence.
(5) Man of sound judgement and piety.

Grade of Mujtahids

(a) First Grade - Supreme jurist -consults of Islamic Law; the founders of four
Sunni Schools or section of religious sects like Imam Jaffar Sadiq.

(b) Second Grade - Jurist-consults of the schools of Islamic law. Not the founders
but the disciplines like Imam Yusuf.

(c) Third Grade - Those who deduced law on points not touched by the Jurist of the
first and second grade.

Doctor of Inferior Ranks:

(d) Four Grade - Ashab-uth Takbrij. Those well-versed in law laid in first to third
grade.

(e) Fifth Grade - Asha-uth Tarjih. Those who have autority to show preference if
there is difference of opinions between the higher grade jurist of their own
school.

(f) Sixth Grade - Ashab-uth Tashih. Those who have authority to say whether a
particular version of law is strong or weak.

Dr. Iqbal defined Ijtihad as principle of movement in the structure of Islam. Its
significance in legal terms, an intellectual effort, with a view to form an
independent judgement on legal questions.

Taqlid negates the concept of concept of Ijtahid, thus it is the reverse. Taqlid
means the following of the opinion of the learned. It is a discussion on the
historical development of Islamic jurisprudence.

Following the opinion of another person without knowledge of the authority for such
an opinion is Taqlid.

Origin of the Doctrine of Taqlid

Excercise of Ijtihad almost ended in the last days of Abbasid period. Muslim
authors on Islamic religion and jurisprudence have attributed to the downfall of
Ijtihad or the beginning of Taqlid to various reasons.

Reasons are reproduced:

(i) The period of Taqlid had to come in sooner or later.

(ii) None could have exercised Ijtihad so well, so the idea of Taqlid slowly and
steadily gained to the ground.
(iii) It was acknowledge that a time comes when the precedents and tradition begin
to command respect and sanctity.
(iv) Taqlid received impetus when the administration gradually becaome loose.
(v) Halaku Khan, a Mongol, ended Ijtihad and followed four Sunni schools. This is
called "The Period of Renausence in Islam.
(vi) An orthodox view of Taqlid that it is a logical corollary to the growing
intellectual poverty as they thought that the present Ulama are not up to the mark
compared to their predecessors.

Adopted Principles for the Basis of Legislation in Qur'an

1. The Removal of Difficulty

The system of Islam has been revealed for man's benefit. It provides him with
guidance in all walks of life in order to ensure him a righteous lifestyle within a
just society committed to service of God. Islamic laws are not meant to be a
burden, these are diesnged to facilitate mankind's individual and societal needs.

2. The Reduction of Religious Obligations

These are obligations that involves prohibitions and permissions. In case of

permissions, a general allowance is given due to a great number of categories
included it.

e.g. Woman with marraige is forbidden.

3. The Realization of Public welfare

The laws of Islam were primarily enacted for the general good of all mankind. Human
welfare was considered b the legislative after the era of Prophethood and found to
give of precedence to general welfare over individual benefit.

Allah, "We have not sent you but as a universal messenger to mankind, giving them
glad tidings and warning against them (sins), but most people do not realize it."
(Sura Saba 34:28

4. The Realization of Universal Justice

Legislation considered humans the same in terms with obligation to submit to divine
laws and responsibility. The laws are general, thus no distinction between one
group or another.

"Allah has enjoined justice and righteousness." Surah an Nahl: 90