Sources of Shari'Ah

2.
SOURCES OF
SHARI’AH
Dr. Hafas Furqani

Researcher, ISRA
‫أ‬
‫ال كاديمية العالمية للبحوث الشرعية‬
1 ISRA International Shari’ah Research Academy for Islamic Finance
Sources of Shari’ah
PRIMARY SOURCES
• Al-Quran
• Sunnah
• Ijma’
• Qiyas
SECONDARY SOURCES
• Istihsan (juristic preference of the stronger principles)
• Istishab(Presumption of continuity)
• Maslahah Mursalah (extended analogy/ consideration of
public interest)
• Sadd al-Zarai’ (blocking unlawful means to an unlawful end)
• ‘Urf ‫أ‬
2
ISRA International Shari’ah Research Academy for Islamic Finance
Al-Shari’ah
PRIMARY SECONDARY
public interest Companion’s opinion

Qur’an
Resumption of continuity
(al-istislah), (qawl al-sahabi).
(al-istishab) ‫االستصحاب‬
‫لمصلحة المرسلة‬ ‫قول الصحابي‬
Sunnah Juristic preference Saad Al-dariah Shar’ Man Qablana (earlier

‫سد الذرائع‬ scriptures). ‫شرع من‬
(al-istihsan) ‫االستحسان‬
‫قبلنا‬
Ijma’ Practices of Peoples of

Medina
General customary practices
(amal ahl al-madinah) (al-’adah)
Qiyas ‫العرف أو العادة‬
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Agenda
Istihsan
Istishhab
Mashalih Mursalah
‘Urf
‘Urf
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‫الشرعية‬
‫للبحوثالشرعية‬
‫العالميةللبحوث‬
‫كاديميةالعالمية‬
‫الالكاديمية‬
ISRA
ISRA International
InternationalShari’ah
Shari’ahResearch
ResearchAcademy
Academyfor
forIslamic
IslamicFinance
Finance
AL-QUR’AN
 The fundamental and main sources of Islamic Law from which all other
sources derive their authority
 Meaning: ْ‫ قرا‬: Reading or Recitation
 Definition:
 The book containing the speech of Allah (kalam Allah), revealed to Prophet
Muhammad in Arabic and transmitted to us by continuous testimony, or tawatur.
 Consists of the word of Allah SWT revealed on Prophet Muhammad saw in
23 years – divine origin
 Qur’an: 30 Sections/114 Surahs
 Address to all humanity, without distinction of race, region or time
 It seeks to guide human beings in all aspect of life
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5
Cont.
1: The Quran is the actual word of Allah, the prophet takes only to convey the massage
from Allah to mankind.
192 :‫ الشعراء‬.‫وإنهْلتنزيلْمنْربْالعالمين‬ 
(And truly this is a revelation from the lord of the alamin (mankind).
2: The Quran was revealed in Arabic language.
.195 :‫ الشعراء‬.‫بلسانْعربيْمبين‬ 
(the Quran was revealed in the plain Arabic language).
3: The Quran is miracle revealed to the prophet for all generation.
 Allah has challenged the most articulate Arabs to produce something similar to al Quran.
.‫لئنْاجتمعتْاإلنسْوالجنْعلىْأنْيأتواْبمثلْهذاْالقرآنْالْيأتونْبمثلهْولوْكانْبعضهمْلبعضْظهيرا‬ 
(Say if the whole of mankind and jinns were together to produce the like of this Quran
they could not produce the like thereof, even they backed-up each other with help and
support). Al-Isra’: 88
4: It is very complete comprehensive book.
.89 :‫ النحل‬.‫ونزلناْعليكمْالكتابْتبياناْلكلْشيءْوهدىْورحمةْوبشرىْللمؤمنين‬ 
 And we have sent down to you the book as an exposition of everything, a guidance, a mercy, and glad
tidings for those who have submitted themselves (to Allah as Muslims). ‫أ‬
THE SUNNAH
 Sunnah
 Literally: a way, rule or manner of acting
 Technically: What has been (authentically) related to us on behalf of
the Prophet }‫ {صلىْهللاْعليهْوْسلم‬from his sayings, actions, and tacit
approvals.
 Hadith
 Literally: communication, story, conversation
 Technically: What was transmitted on the authority of the
Prophet}‫{صلىْهللاْعليهْوْسلم‬,his deeds, sayings, and tacit approvals, or
description of his sifaat (features).”
 Both cover the same ground: practice, sayings and tacit
approvals(taqrir)
 Quran generally deals with the broad principles or essential of
religion. The details are supplied by Prophet saw through
hadith
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 “He who obeys the Messenger has obeyed Allah.” (An- Nlsaa: 80)
What the Messenger has given you then take It, and what he prohibits
then abstain from it. (Al-Hashr: 7)
He does not speak of his own desires and whims, Indeed he Is

inspired by Wahy (revelation). (An-Najm: 3)
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The function of Sunnah
 Bayan Tafsir: to explain the ayat of the Qur’an which are
general (‘am and mujmal) or has many possible meaning
(mushtarak).
 E.g: “Shallu kamaa ra-aitumuni ushalli”
 It is a tafsir to the general ayat of Al-Qur’an : “Aqimush-shalah”
 Bayan Taqrir: to support and strengthen the statement of the
Qur’an.
 E.g: “Shumu liru’yatihi wa afthiru liru’yatihi”
 To strengthen the ayat Al-Qur’an in Al-Baqarah : 185.
 Tashri’: To establish rules which has not established by the
Qur’an
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Allah
Hadith Qudsi Normal Hadith

Quran Meaning by God & Meaning & words
words by Prophet by Prophet
Prophethood Prophet
First Generation Companions
Second Generation Successors
Third Generation Successors to the

successors
The Authentic collection of sunnah

Al Bukhari, Muslim, Al Nasai, Abu Daud, AL Tirmizi, Ibn Majah
Compliers:
Bukhari, Muslim ‫أ‬
ISRA and others
International Shari’ah Research Academy for Islamic Finance
Classification
of Hadiths
According to the Numbers of Reliability and

The reference to
links of Isnad (chain reporters involved in memory of the
particular authority
of reporters) each stage reporters (Thiqah)
1: Mutawatir/ Sahih – sound

1: Marfu – elevated
consecutive (>5) Hasan – good 1: Qudsi – sacred
2: Mauquf – stopped
2: Ahad/ Isolated (<5) Daif – weak 2: Normal hadith
3: Maqtu - severed
3: Mashur/ famous Maudu – fabricated
• Hadith Qudsi: sacred or divine: it is a revelation from Allah relayed with the words of the Prophet.
• Hadith marfu: elevated: the chain of the hadith ends at the Prophet. e.g: I heard the Prophet saying …
• Hadith mauquf: stopped: the chain of the hadith ends at the companion. e.g. we were commanded to ..
• Hadith maqtu: severed: the chain of the hadith ends at the successor of the companion
• Hadith mutawatir: consecutive: the hadith which is reported by such a large number of people that they cannot to be expected to
agree upon a lie, all of them together.
• Hadith ahad: Isolated: is a hadith which is narrated by people whose number does not reach that of mutawatir.
• Hadith mashur: famous: it is a hadith reported by more than two narrators at any stage in the isnad.
• Sahih: sound: it is authentic and sound hadith which fulfill some requirement. Accepted in Ahkam
• Hasan: good: less than sahih, but has fulfils the conditions of sahih except that the narrators have less ability in their
memorization.
• Hadith daif: a weak which is not very reliable. It does not fulfill any one or more of the sahih or hasan criteria.
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Classification of sunnah
SUNNAH AL-QAWLIYYAH
It is defined as the sayings of the Prophet (peace be on him)
through which he intended the laying down of the law
or the explanation of the ahkãm.
Some well known examples are:

(The nature of acts is dependent upon the underlying intentions) ‫األعمالْبالنيات‬
No injury is to be caused and none is to be borne) ‫الْضرروالْضرار‬
It is to be noted that not every saying of the Prophet (peace be on him)
is a source of law. Only the saying which is related to the Ahkam Shariah
Word: Abu Hurairah reported: I heard Messenger Of Allah saying: By Allah I seek Allah’s
Forgiveness and repent to him more than Seventy times a day. Al Bukhari
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Al-Sunnah al- fi‘liyyah
- The acts of his prayer, after his
These acts or the method of their It is defined as saying, “Pray as you see me
performance that he adopted are to the acts of praying,” as well as his acts
be followed in the same way as his the Prophet concerning the rites of hajj based
sayings. (peace be on him) on his saying, “Take (the
The acts that do not have a legal knowledge of) your rites from me,”
content do not become a source of
having a legal
are examples.
law. content,
like his prayer, - The persuasive force of such
fasts, hajj. explanations is the same as that
of the text being elaborated.
Different acts of the prophet - The explanation of a mujmal
(unelaborated) word will take the
force of the mujmal on which it is
based.
Acts that are specific

Acts that are intended
to the Prophet
Ordinary physical acts to be explanations of
(peace be on him)
performed by every unelaborated rules Acts that establish
and the rest of the
human being, in the texts. New laws obviously
ummah is not to
like eating, drinking, All such explanations have the force of law.
follow him in such
walking and sitting. have the status of law
acts. number of his
(Hadith Ahkam)
marriages
Act: The Prophet says:“Pray as you see me praying”. The way he performed salah, fasting, ‫أ‬
‫الشرعية‬ ‫للبحوث‬ ‫العالمية‬ ‫كاديمية‬ ‫ال‬
ISRA
rituals of hajj, transaction concluded by him (mortgage).International Shari’ah Research Academy for Islamic Finance
Sunnah taqririyyah
It is defined as the commission of

certain acts, by word or deed,
by some companions and the
maintenance of silence by the
Prophet without expressing disapproval.
Implication Implication
An example
His silence in such a case is of this type is the statement of
called taqrir or tacit approval Mu’ãdh ibn Jabal when he was
and is considered a sunnah that sent to Yemen and the Prophet asked
becomes a source for the permissibility him how he will decide cases.
of an act or a statement. This approval was a little
more emphatic than mere silence.
Tacit: Amr ibn al As said: I had a wet dream on cold night during the battle of Zat al salasil, I was worried that if I perform
the obligatory bath (to purify from the major impurities) it may lead to my destruction (death) and decide to perform
tayyamum (dry ablution) instead. I then prayed fajr with the companions and later they mentioned this incident to the
Prophet (s.a.w). The Prophet asked me: O Umar you prayed with your companions in the state of impurity? I explained to
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the Prophet the reason for not performing the obligatory bath and mentioned that I heard Allah said (in the Quran) do not
ISRA
kill yourself, verily Allah is ever Merciful onto you) the Prophet (s.a.w) laughed but said nothing.
 Six great collections regarded as authoritative by the
Sunni Schools of Islamic Law are :
(i) Jami’ As-Sahih Al-Bukhari (d. 869 A.D)
(ii) Jami’ As-Sahih Muslim (d. 874 A.D)
(iii) Jami’ At-Tirmizi (d. 892 A.D)
(iv) Sunan Abu Daud (d. 888 A.D)
(v) Sunan An-Nasai (d. 915 A.D)
(vi) Sunan Ibn Majah (d. 886 A.D)
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IJMA’
 Ijma’ – Consensus of opinion among the jurist on certain
issues and ruling
 Literally:
 Ijma is the verbal noun of the Arabic word Ajma’a which has two
meanings:
 To determine
 To agree upon something
 Technically
 Consensus of mujtahids (jurist) from the ummah oh Muhammad
(saw), after his death in a determined period upon a rule of Islamic
law
 Consensus of opinion among the jurist of a particular period
on a question of law
 Ijma’ maybe based on Quran, hadith or analogy
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Ijma
It is used in two senses.
1: The first is determination and resolution. the words of the Prophet
(peace be on him). The person who has not resolved to fast prior to dawn
has no fast, convey the meaning of deciding and resolving.
2: The second way in which the word is used is agreement upon a matter.
The difference between the two literal meanings is that ijma, in the first meaning,
is possible from one person, but in the second sense, it requires two or more persons.
Literally Technical
meaning meaning
ijma’ is defined as the consensus of mujtahidun (independent jurists)

from the Ummah of Muhammad (peace be on him),
after his death, in a determined period upon a rule
of Islamic law (hukm Shar’i).
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Foundations of Ijma
There are two types of ijma:

1: Ijma Qawli, unanimous consent expressed
in declaration of opinion.
2: Ijma Sukuti, when the majority of the
Mujtahidun signified their tacit assent to the
opinions of the minority by “silence” or
non-interference.
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Conditions for Validity of Ijma’
• In order for ijma’ to be valid, several conditions which are imposed

by the majority of jurists that must be met which are:
1. The consensus must take place among mujtahids, who have attained the status of
ijtihad.
2. Unanimity is a prerequisite of ijma’. The agreement must be undisputed, that is among
all the mujtahids.
3. All the jurists participating in ijma’ must be from the ummah of Muhammad (PBUH).
4. The agreement must have taken place after the death of the Prophet (PBUH).
5. The agreement of the mujtahidun must be demonstrated by their expressed opinion
on a particular issue.
6. Ijma’ must be upon a rule of law, the hukm shari’.
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QIYAS
 Qiyas – analogical deduction
 Literal
 Measuring or estimating on thing in terms of another
 Technical
 The extension of Shar’iah ruling from an original case (Asl) to a new
case (far’) because the new case has the same effective cause (‘illah)
as the original case.
 Qiyas or analogy is resorted to in respect of problems about
which there is no specific provision in the Quran or the
Sunnah of the Prophet
 Analogical deduction of new issues on existing evidence from
the Quran and Sunnah
 Process by which a rule of law is deduced from original text in
views of common effective cause (illah)
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 The application of qiyas is based on the Quran and Sunah because new
rulings are based on the ‘Illah (causes) discovered in the legislation of the
Quran and Sunnah.
 Qiyas is a rationalist doctrine (because intellect is largely used to find out
the Illah).
 In Qiyas personal opinion (Ra'y) is kept subservient to divine revelation (in
that Illah is discovered from the text of the Quran and the Sunnah).
 Personal opinion (Ra'y) is guided by the shariah rules of Qiyas.
 Qiyas does not change any law of the text (Quran or Sunnah).
 Qiyas as a methodology means that the jurists accept that the rules of
Shariah follow certain objectives (Maqasid) which are in harmony with
reason.
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The Pillars of Qiyas
 The essential requirement of Qiyas are:

1. Asl (original case, set of facts, on which a ruling has been given)
2. Hukm (ruling on the original case)
3. ‘Illah (underlying cause of ruling in the original case)
4. Far' (new case on which ruling is to be given).
The new case or the
The ‘Illah or Set of facts for which
The case (set of facts) The hukm of the set
the underlying The hukm has not
Mentioned in the text of facts mentioned
cause that had Been explicitly
With its hukm in the text
led to the hukm Mentioned
‫األصل‬ ‫حكمْاألصل‬ ‫العلة‬ and which
needs a hukm
‫الفرع‬
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Pillar of Qiyas
Asl Hukm Illah Far'
ruling on the underlying

original case new case
original case cause
The intoxicating Consumption of

Wine drinking Prohibition
effect new drink
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Derivation of a Juridical
Decision (hukm or fatwa)
Search for ASL = “paradigm case”

(Universal major premise
taken as “known” for purposes
of the present case)
Compare the ‘Illah = “Underlying

cause” of both the Asl & Far’
New Case = FAR`
(Particular minor premise
specifying present instance)
HUKM = juridical
decision, also fatwa
(Necessary conclusion
about present case)
SOURCES OF SHARI’AH:
SECONDARY
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Public interest
(al-istislah),
Maslahah al-Mursalah
Conditions of maslahah mursalah:

Type of maslahah
1. Should be true/real (Haqiqi)
1: Maslahah that is acknowledged by the 2. Should be general/public/objective not subjective
Lawgiver (Maslahah Mu’tabarah). 3. Should not clash with the text or alter the
2: Maslahah that is not acknowledged by implication of a text, the existing principles and
the lawgiver (Maslahah Mulghah/rejected) Propositions of Islamic law,
4: Make sure that the new principle to be
3: Maslahah is neither acknowledged by
Among the purposes of Islamic law
shariah or rejected (Maslahah Mursalah) Recognised by the Shariah
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Juristic
preference
Literal meaning: ( AL-ISTIHSAN)
to consider
something good.
Technical
meaning
Means following the

Creation of an exception
The giving up of analogy requirement of a
to a general principle due
for a stronger evidence stronger general
to stronger evidence when
from the book, the principle that requires
the general is based upon
sunnah or ijma something different
analogy
from strict analogy
Examples
Qiyas prohibits salam because The general principle of sale require

it involves delay in the thing that does not exist cannot
Be sold.
Exchange of food items listed
In ijarah the benefits that are
in The tradition of riba,
Being paid for do not exist at the time of
however the Prophet
made an Exemption
Contract. The contract has been
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in the case of salam ISRA
Permitted on the basis of necessity.
With other Supporting evidence. International Shari’ah Research Academy for Islamic Finance
ISTIHSAN (‫)إستحسان‬
 Istihsan from the word ‫ إستحسن – يستحسن – إستحسانا‬which means “to
consider something good”. Istihsan also means “something which is
good”, taken from the word al-husnu (good).
 Technical meaning of Istihsan:
 Imam Abu Hasan al-Karkhi istihsan: “departure from established ruling to
different rulings on similar issues/cases due to strong preference”
 Ibn ‘Arabi, Istihsan: Abandon what is required by the law because of (1)
difficulties or (2) the need to departure from its own objective
 Istihsan is based on:Al-Zumar,17-18 :
* ‫شرْ ِعبَادِي‬ َِّْ ‫وت أَنْ يَعبُدُو َها َوأَْنَابُوا ِإلَى‬
ِّ ِ َ‫َللا لَ ُه ُْم البُش َرى ْفَب‬ َْ ‫غ‬ َّ ‫َوالَّذِينَْ اجتَنَبُوا‬
ُ ‫الطا‬ 
‫ك ُهمْ أُولُو‬
َْ ‫َللاُ َْوأُولَ ِئ‬ َْ ‫سنَ ْهُ أُولَ ِئ‬
َّْ ‫ك الَّذِينَْ َه َدا ُه ُْم‬ َْ ‫الَّذِينَْ يَست َ ِمعُونَْ القَو‬
َ ْ‫ل فَيَت َّ ِبعُونَْ ْأ َح‬
ِْ ‫األلبَا‬
‫ب‬
 Rasulullah Saw says: ‫مارءاه المسلمون حسناْ فهو عند هللا حسن‬
‫أ‬
Types of Istihsan
 Istihsan Qiyas: departure from Qiyas Jali to Qiyas Khafi
 Istihsan Istithna’I (Exception Istihsan):
 Istihsan al-Nas: e.g Exception of bay’ al-salam, forgetful to eat
or drink during fasting
 Istihsan al-Maslahah: e.g. Mahjur’s spending for his or public
benefit (waqf), compensation for leased property so that the
lessor is more careful to the property.
 Istihsan al-’urf: e.g., waqf only on permanent goods? Moveable,
e.g., books etc. By Istihsan, it is allowed: acceptance by popular
customs.
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Ikhtilaf on Istihsan
 Mazhab Hanafi, Maliki and Hanbali consider istihsan as one of the sources
of law.
 Imam Shafi’i reject Istihsan to be the source of law.
 His basis: Al-Maidah: 49.
َّ ‫ضْ َماْأَنْزَ َل‬
ْ‫َْللاُْ ِإلَي َك‬ ِ ْ‫وكْ َعنْبَع‬َ ُ‫ْواح َذر ُهمْأَنْيَفتِن‬ َ ‫ْوالْتَت َّ ِبعْأَهْ َوا َء ُهم‬ َّ ‫َوأ َ ِنْاح ُكمْبَينَ ُهمْ ِب َماْأَنزَ َل‬
َ ُ‫َْللا‬ 
َْ‫سقُون‬ِْ ‫اسْلَفَا‬ِ َّ‫اْمنَ ْالن‬ َ ‫ضْذُنُو ِب ِهم‬
ِ ‫ْو ِإ َّنْ َك ِثير‬ ِ ‫صيبَ ُْهمْ ِببَع‬ ِ ُ‫َُْللاُْأَنْي‬
َّ ‫فَإِنْت َ َولَّواْفَاعلَمْأَنَّ َماْيُ ِريد‬
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Presumption
of continuity
(Al-Istishab)
The principles that form the basis of istishab

1: Word istishab means ‫ اليقين ال يزول بالشك‬،‫ األصل براءة الذمة‬،‫األصل في األشياء اإلباحة‬
the continuance of companionship 1: The original rule for all things is permissibility.
2: Technically it means the presumption the presumption is that all things is permitted
unless prohibited by shariah.
of the continuance of an earlier
2: there is no presumption of liability against anyone
rule or status and all liability has to be proved.
3: the previous rule is accepted unless 3: certainty does not give way to doubt.
a new rule is found that goes against it This means that once a thing is established beyond
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Doubt, it can only be set aside through an equality
ISRA
Certain evidence.
Types of Istishab
 Istishhab al-ibahah al-ashliyah (presumes continuity of the
principle of permissibility):
 e.g. in many aspects of mu’amalah.
 Istishhab al-baraah al-ashliyah (presumes continuity of the
principle of freedom from liability/responsibility, taklif):
 e.g., in ‘ibadah.
 Istishhab al-hukm, (presumes continuity of the orginal
established rulings):
 Presume original presence, unless proven otherwise
 Presume original absence, unless proven otherwise
 Istishhab al-washf, (presumes continuity of original attributes).
 E.g., missing person. Istishab: he is still alive, unless there is evidence which
proves otherrwise
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Saad
Al-dariah
(Blocking the lawful
Means to an unlawful end
1: those that rarely lead to

harmful result.
2: those that usually lead to
harmful result.
3: those in which there is an
Type of lawful acts equal probability of harm and benefit.
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Companion’s
opinion
(Qawl al-Sahabi)
The companion is someone who saw

The prophet (peace be on him) Hanafis maintain it is binding to follow
believed in him, Supported him, The opinion of a companion where is
and was in association with him Talking about the quantities,
for some time so that he numbers and Periods.
could understand Something Rate of zakat, period menstruation,
of the ways of the shariah gestation period ect…
from him
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‘Urf: Meaning & Classification
َ ْ‫ف َوأَع ِرض‬
ْ‫ع ِن‬ ِ ‫ُخذِْال َعف َوْ َوأْ ُم ْر ِبا ْلعُ ْر‬
َْ‫ال َجا ِه ِلين‬
‫العرف‬ “Be tolerant and enjoin what is
right (al-urf); pay no attention to
foolish people” al-A’raf (9):199
‫العرف العام‬ ‫العرف الخاص‬ ِ ‫ضعنَ ْأَوال َْد ُه َّنْ َحولَي ِنْ َك‬
ْ‫امْلَي ِن‬ ِ ‫َوال َوا ِل َداتُ ْيُر‬
ُْ‫علَىْال َمولُودِْْلَه‬ َ َ ‫عة‬
َ ‫ْو‬ َْ ‫ضا‬ َّ ‫ِل َمنْأَ َرا َدْأَنْيُتِ َّم‬
َ ‫ْالر‬
ْ‫سْ ِإ َّال‬ ٌ ‫فْنَف‬ ُ َّ‫وف الْت ُ َكل‬ َ ‫ِرزقُ ُه َّن‬
ِ ‫ْو ِكس َوت ُ ُه َّنْ ِبا ْل َم ْع ُر‬
‫ُوس َع َها‬
‫العرف‬ “Mothers suckle their children for
two whole years, if they wish to
complete the term, and the father
shall bear the cost of their food and
clothing in a fair manner. No one
‫العرف الصحيح‬ ‫العرف الفاسد‬ should be burdened with more than
they can bear.” al-Baqarah (2):233.
‫أأ‬
‫الشرعية‬
‫للبحوثالشرعية‬
‫العالميةللبحوث‬
‫كاديميةالعالمية‬
‫الالكاديمية‬
ISRA
ISRA International
InternationalShari’ah
Shari’ahResearch
ResearchAcademy
Academyfor
forIslamic
IslamicFinance
Finance
 ‘Adah is a noun derived from the verb ada/ya’udu, which means to return, to
come back.
 ‘Adah is used to denote custom because a custom is a practice that keeps
coming back; i.e., the people who practice it keep repeating it.
 A related term is ‘urf, a noun derived from the verb ‘arifa/ya’rifu: to know,
recognize.
 It also means custom because a custom is a standard practice that is widely or
universally recognized as fitting and proper in a given society.
 Ùrf is a very important term in fiqh as many of the rulings (fatwas) issued
by a mujtahid on different issues are based on ùrf.
 It is considered as ‘adat jamaìyyah (customs that are collectively
acceptable) and can be used as a legal basis so long as it does not
contradict the Syara’.
 In the context of the Islamic market, ùrf tijari refers to customary practices
in businesses that are considered a basis for guidance and hukm.
‫أ‬
Role of ‘Urf
 The role of ‘urf is in providing parameters for laws not
entirely determined by the texts and in renewing laws as
times change
 Interpreting unrestricted texts (al-nusus al-mutlaqah) when
the linguistic meaning of a text is not precisely
determined. Al-Sayuti (al-Ashbah wa al-Naza’ir, 3:180):
 ْ‫ْيرجعْفيهْإلى‬،‫ْوالْفيْاللغة‬،‫ْوالْضابطْلهْفيه‬،‫إنْكلْماْوردْبهْالشرعْمطلقا‬
‫العرف‬
 “Anything mentioned in a Shari’ah [text] without qualifications,
when there are no parameters for it in the Shari’ah or the
[Arabic] language, should be referred to custom.”
‫أ‬
 Establishing Shari’ah rulings for issues that are not explicitly
mentioned in the Shari’ah texts. (e.g., mudarabah)
 Amending Shari’ah rulings that are based on people’s standard
practice. Whenever the custom changes, the Shari’ah ruling
should change accordingly.
 ْ،‫إنْإجراءْاألحكامْالتيْمدركهاْالعوائدْمعْتغيرْتلكْالعوائدْخالفْاإلجماعْوجهالةْفيْالدين‬
‫بلْكلْماْهوْفيْالشريعةْيتبعْالعوائدْيتغيرْفيهْعندْتغيرْالعادةْإلىْماْتقتضيهْالعادةْالمتجددة‬
 To keep applying the Shari’ah rulings derived from customs after the
customs have changed conflicts with consensus and is [a manifestation
of] ignorance of the religion. In fact, any aspect of the SharÊÑah that
follows customs changes as the customs change, to the extent dictated
by the evolving custom
‫أ‬
Conditions:
1. What is commonly practiced should not be in conflict with the sacred texts of the
Qur’an and Sunnah or definitive principles of the Shariah such as justice, cooperation
and benevolence. Otherwise it is considered an invalid custom (‘urf batil). (example:
charging interest on loan)
2. The custom must be broadly prevalent and continuously operational in all or most
cases. (e.g. food measurement, etc) (Ibn Nujaym):
 “‫”إنماْتعتبرْالعادةْإذاْاطردتْأوْغلبت‬
 “Custom is given legal consideration only when it is recurrent and prevalent.” (e.g. gold,
silver vs fiat money)
3. The custom should be existent at the beginning of the action, which effectively
means that it should have preceded it and become established by the time of the
action. (Al-Sayuti):
 ‫العرفْالذيْتحملْعليهْاأللفاظْإنماْهوْالمقارنْالسابقْدونْالمتأخر‬
 “The custom by which words can be construed is a current/preexisting [custom], not one
that came later.”
‫أ‬
4. Credence is to be given to that which is publicly and generally operative, and not to
what is rare.
5. The custom does not conflict with a contractual stipulation agreed to by the
contracting parties.
 For example, a person rents a house in a place where the custom is to pay the rental fee
at the beginning of the month. However, the lessor and the lessee agree that the house
rental is to be paid at the end of the month. Contract fees borne by buyer/seller
‫أ‬
 There are five levels of the rank of Mujtahid according to the
Shafi’i madhhab.
 Mujtahid Mutlaq (absolute), e.g. Imam al-Shafi’i, Imam Malik, Imam Abu Hanifah
and Imam Ahmad ibn Hanbal rahimahumuLlah ta’ala.
 Mujtahid Muntasib (affiliated jurist), e.g. Ibn Khuzaimah, Ibn Mundhir, Muhammad
Ibn Jarir and Muhammad ibn Nasr, (Tabaqat al-Shafi’iyyah al-Kubra).
 Mujtahid Al-madhhab, e.g. al-Buwaiti, al-Rabi’, al-Anmati, al-Istikhri , Ibn Abi
Hurairah, and al-Sairafi.
 Mujtahid Al-fatwa wa Al-tarjih, e.g. al-Mawardi, Abu Tayyib, al-Tabari, Imam al-
Haramayn, Abu Ishaq al-Shirazi, al-Ruyani, al-Rafi’i and An-Nawawi.
 Al-Hafiz li l-Madhhab and the Mufti.
‫أ‬
‫أ‬

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2.

Dr. Hafas Furqani

public interest Companion’s opinion

Sunnah Juristic preference Saad Al-dariah Shar’ Man Qablana (earlier

Ijma’ Practices of Peoples of

He does not speak of his own desires and whims, Indeed he Is

Hadith Qudsi Normal Hadith

First Generation Companions

Second Generation Successors

Third Generation Successors to the

The Authentic collection of sunnah

According to the Numbers of Reliability and

1: Mutawatir/ Sahih – sound

Some well known examples are:

Acts that are specific

It is defined as the commission of

ijma’ is defined as the consensus of mujtahidun (independent jurists)

There are two types of ijma:

• In order for ijma’ to be valid, several conditions which are imposed

 The essential requirement of Qiyas are:

Asl Hukm Illah Far'

ruling on the underlying

The intoxicating Consumption of

Search for ASL = “paradigm case”

Compare the ‘Illah = “Underlying

Conditions of maslahah mursalah:

Means following the

Qiyas prohibits salam because The general principle of sale require

The principles that form the basis of istishab

1: those that rarely lead to

The companion is someone who saw

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