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SOURCES OF
SHARI’AH
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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
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Al-Shari’ah
PRIMARY SECONDARY
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Agenda
Istihsan
Istishhab
Mashalih Mursalah
‘Urf
‘Urf
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الشرعية
للبحوثالشرعية
العالميةللبحوث
كاديميةالعالمية
الالكاديمية
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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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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
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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)
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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
Prophethood Prophet
• 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.
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.
Act: The Prophet says:“Pray as you see me praying”. The way he performed salah, fasting, أ
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Sunnah taqririyyah
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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kill yourself, verily Allah is ever Merciful onto you) the Prophet (s.a.w) laughed but said nothing.
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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
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Conditions for Validity of Ijma’
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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
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Pillar of Qiyas
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Derivation of a Juridical
Decision (hukm or fatwa)
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
Examples
Rasulullah Saw says: مارءاه المسلمون حسناْ فهو عند هللا حسن
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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)
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Saad
Al-dariah
(Blocking the lawful
Means to an unlawful end
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Companion’s
opinion
(Qawl al-Sahabi)
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‘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.
`Urf is a very important term in fiqh as many of the rulings (fatwas) issued
by a mujtahid on different issues are based on `urf.
It is considered as ‘adat jama`iyyah (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, `urf tijari refers to customary practices
in businesses that are considered a basis for guidance and hukm.
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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.”
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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
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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.”
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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
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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.
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