Wednesday, March 9, 2011

The Sources of Islamic Law

 The Sources of Islamic Law 
1. Gradation of Revelation (Tanjeem) 
Binder page 45 
a. What is the gradation of revelation? 
i. The Qur’an was revealed piecemeal over a period of twentythree years in relation to particular events. 
 . 
32: Muhsin Khan: And those who disbelieve say: "Why 
is not the Quran revealed to him all at once?" Thus (it is 
sent down in parts), that We may strengthen your heart 
thereby. And We have revealed it to you gradually, in 
stages. (It was revealed to the Prophet SAW in 23 
years.). [Surah al-Furqan, 25:32] 
b. Why gradually? 
i. To give the believers an opportunity to reflect and memorize. 
ii. To facilitate continuous contact with the Divine. 
1. Whenever the Prophet sal’Allaahu ‘alayhi wasallam received a 
revelation, he would perspire because of the weight of the 
message. 
iii. To give the believers enough time to spread the word and follow 
the injunctions. 
iv. To allow for a progression in legislation until it reached 
perfection  
c. How was the revelation gradual? 
i. Considering the events that were experienced throughout the 
years of the revelation. 
ii. In response to a question the Prophet sal’Allaahu ‘alayhi wasallam was 
asked. 
iii. Observing the rule of abrogation (Naskh). 
d. Examples for the rule of abrogation: Part Three: The Sources of Islamic Law 
i.
67: Muhsin Khan: And from the fruits of date-palms and 
grapes, you derive strong drink (this was before the order of the 
prohibition of the alcoholic drinks) and a goodly provision. 
Verily, therein is indeed a sign for people who have wisdom. 
[Surah An-Nahl, 16:67] 
ii.
219: Muhsin Khan: They ask you (O Muhammad SAW) 
concerning alcoholic drink and gambling. Say: "In them is a 
great sin, and (some) benefit for men, but the sin of them is 
greater than their benefit." And they ask you what they ought to 
spend. Say: "That which is beyond your needs." Thus Allah 
makes clear to you His Laws in order that you may give 
thought." [Surah al-Baqarah, 2:219] Part Three: The Sources of Islamic Law 
iii.
43: Muhsin Khan: O you who believe! Approach not AsSalat 
(the prayer) when you are in a drunken state until you know 
(the meaning) of what you utter, nor when you are in a state of 
Janaba, (i.e. in a state of sexual impurity and have not yet 
taken a bath) except when travelling on the road (without 
enough water, or just passing through a mosque), till you wash 
your whole body. And if you are ill, or on a journey, or one of 
you comes after answering the call of nature, or you have been 
in contact with women (by sexual relations) and you find no 
water, perform Tayammum with clean earth and rub therewith 
your faces and hands (Tayammum). Truly, Allah is Ever OftPardoning, OftForgiving. [Surah an-Nisaa’, 4:43] 
iv. . 
90: Muhsin Khan: O you who believe! Intoxicants (all kinds of 
alcoholic drinks), gambling, AlAnsab, and AlAzlam (arrows for 
seeking luck or decision) are an abomination of Shaitan's 
(Satan) handiwork. So avoid (strictly all) that (abomination) in 
order that you may be successful. [Surah al-Maaidah, 5:90]  Part Three: The Sources of Islamic Law 
One of the wisdoms behind this is to show the mercy of Allah. Aisha radi’Allaahu 
‘anha said that if only the first and then the fourth verse had been revealed, 
no one would have embraced Islam. 
2. Asbab an-Nuzool 
Binder page 46 
a. Definition: 
i. The phenomenology of the Qur’an which explains the events 
that are related to the revelation of particular Ayaat. 
b. Why is it important? 
i. Knowledge of words and concepts of an Ayah is incomplete 
without knowledge of the context.   
ii. Understanding the wisdom behind the legislation of a particular 
law. 
c. What is the source of Asbab An-Nuzool? 
i. A reliable report related to us by a Sahabi who has been present 
at the time of the occasion. 
d. General text vs. Particular occasion 
i. From a legislative perspective, what is considered in regard to a 
general text which was revealed for a particular reason, is it the 
generality of the text or the particularity of the occasion? 
1. The marriage of the Prophet sal’Allaahu ‘alayhi wasallam to the 
ex-wife of his adopted son.  By this marriage, Allah 
showed that one can marry one’s adopted son’s ex-wife. 
2. When Allah revealed the ayat for when the Prophet 
sal’Allaahu ‘alayhi wasallam frowned towards the blind man. 
ii. Majority of jurists rule by the generality of the text unless 
another clue is provided to suggest otherwise. 
iii. Example 
1. The ruling of Dhihaar was made general even though the 
legal text revealed was for a particular occasion between 
Khawla bint Tha’laba and her husband Aws bin As-Saamit. 
a.
1: Muhsin Khan: Indeed Allah has heard the Part Three: The Sources of Islamic Law 
statement of her (Khaulah bint Tha'labah) that 
disputes with you (O Muhammad SAW) concerning 
her husband (Aus bin AsSamit), and complains to 
Allah. And Allah hears the argument between you 
both. Verily, Allah is All-Hearer, All-Seer. [Surah alMujaadilah, 58:1] 
b. The Prophet sal’Allaahu ‘alayhi wasallam refused her case 
based on the presumption of continuity, assuming 
that what the law had been before was still the law. 
c. We must assume that the ruling does not only 
pertain to her. Other verses which were revealed in
reference to specific incidents are also to be taken 
as general rulings unless otherwise specified in the 
Qur’an or Sunnah 
a. Other examples of Asbab An-Nuzool are: 
i. Surah Lahab (111), revealed when Abu Lahab mocked 
Muhammad sal’Allaahu ‘alayhi wasallam
ii. Surah ‘Abasa (81), the beginning of which was revealed when 
Muhammad sal’Allaahu ‘alayhi wasallam turned away from a blind 
man because he was busy 
3. Ratiocination in the Qur’an (Ta’leel) 
a. Definition 
i. It is the rationale of an injunction, the purpose and the objective 
of the law.  It is the search for the effective cause of legislation 
for a particular given law. 
ii. A cause (Sabab) is called Illah. Illah is also used to identify the 
wisdom (hikmah) or the benefit accrued with a particular law or 
for the higher objective of a ruling. 
b. How Illah is identified? 
i. The Qur’an sometimes justifies the ruling with reference to Illah 
and the benefits accrued with it. 
1.Part Three: The Sources of Islamic Law 
103: Muhsin Khan: Take Sadaqah (alms) from their 
wealth in order to purify them and sanctify them with it, 
and invoke Allah for them. Verily! Your invocations are a 
source of security for them, and Allah is All-Hearer, AllKnower. [Surah at-Tawbah, 9:103] 
ii. Jurists have identified the Illah through reasoning & Ijtihaad 
1. .
90: Muhsin Khan: O you who believe! Intoxicants (all 
kinds of alcoholic drinks), gambling, AlAnsab, and AlAzlam (arrows for seeking luck or decision) are an 
abomination of Shaitan's (Satan) handiwork. So avoid 
(strictly all) that (abomination) in order that you may be 
successful. [Surah al-Maaidah, 5:90] 
a. The process of inference conducted by jurists 
concluded that intoxication is the main Illah for the 
prohibition of wine. 
iii. One hukm can have more than one Illah depending on how the 
scholars take it. 
iv. If the hikmah is not clear, only one hikmah becomes
recognizable: it is a test from Allah 
v. The ‘Ulama are not obligated to find the wisdom behind the 
rulings, but they may do so in order to establish the higher 
objective of the law. 
vi. The authority of the Qur’an as the principal source of Shari’ah is 
absolutely independent of ratiocination. 
vii. The explanation of the Illah in the Qur’an in most occasions is 
designed to make the Qur’an easier to understand. 
Chapter Three: Sources about which there is Unanimous 
Agreement: The Sunnah
Binder page 47 Part Three: The Sources of Islamic Law 
The Sunnah has many technical definitions according to the different uses of the 
terminology used by the fuqahaa’, muhaditheen, theologians, and usoolees 
(Scholars of Jurisprudence) 
- Arabic Language 
   1.    The way of life, or tradition 
- Fuqahaa’ 
1. Mustahab 
- Muhaditheen 
1. The life of the Prophet sal’Allaahu ‘alayhi wasallam , including his 
habits, appearance and attributes, even before Islam, as 
well as his examples, statements, and his approvals and 
disapprovals. 
- Theologians (‘Ulama) 
1. Sunnah vs. Bid’ah (the straight path to Allah in belief and 
practices) 
- Usoolees 
1. The Prophet’s sal’Allaahu ‘alayhi wasallam examples, statements, 
and his approvals and disapprovals. 
1. Definition 
a. All that is narrated from the Prophet sal’Allaahu ‘alayhi wasallam , his acts, his 
sayings and whatever he has tacitly approved. 
2. As a source of law 
a. “I left two things among you.  You shall not go astray so long as you hold 
on to them: the Book of Allah & my Sunnah.” 
3. An act, Sunnah Fi’liyyah (actual) 
a. Aisha narrates, “The Messenger of Allah used to eat with his right hand 
and drink with his right hand.” 
4. A saying, Sunnah Qawliyyah (verbal) 
a. Omar narrates, “Deeds are judged by their intentions…” 
5. A tacit approval, Sunnah Taqreeiyyah 
a. Anas narrates, “Handshaking was a common practice amongst the 
Companions of the Messenger of Allah.” 
6. Sunnah vs. Hadith 
a. Hadith is a narration of the conduct of the Prophet sal’Allaahu ‘alayhi wasallam. 
b. Sunnah is the example and the law that is deduced from the conduct itself 
(the actual ruling that is derived from the hadith)Part Three: The Sources of Islamic Law 
The definition used in this study is that of the Usoolees which serves the concept of 
legislation. 
Hujjiyyah of the Sunnah (The Proof Value)
1. Definition 
a. Hujjiyah is the proof value of the Sunnah as a source of law into the legal 
theory. 
b. The conduct of the Messenger of Allah sal’Allaahu ‘alayhi wasallam was meant to 
establish a rule of Shari’ah and constitute a binding ruling. 
2. The Qur’an 
a. . 
7: Muhsin Khan: What Allah gave as booty (Fai') to His Messenger 
(Muhammad SAW) from the people of the townships, - it is for Allah, His 
Messenger (Muhammad SAW), the kindred (of Messenger Muhammad 
SAW), the orphans, AlMasakin (the poor), and the wayfarer, in order that 
it may not become a fortune used by the rich among you. And 
whatsoever the Messenger (Muhammad SAW) gives you, take it, 
and whatsoever he forbids you, abstain (from it) , and fear Allah. 
Verily, Allah is Severe in punishment. [Surah al-Hashr, 59:7] 
3. The Sunnah 
a. “Indeed I was given this Qur’an and something similar to it (Sunnah).” 
4. Practice of the Sahaba 
a. It was reported that the first Muslim Caliphs have issued instructions to 
their deputies and judges around the state in which they asked them to 
follow the Sunnah of the Prophet sal’Allaahu ‘alayhi wasallam whenever they 
could not find the answer in the Qur’an. 
5. Ijmaa’ Part Three: The Sources of Islamic Law 
a. Muslim jurists are unanimous on the fact that Sunnah is a source of 
Shari’ah, and that it stands on the same footing as the Qur’an. 
• If there is an apparent contradiction between the Qur’an and Sunnah, we 
need to look at the historical background.  Also we need to check if somehow 
it is abrogated. If we can’t tell from historical areas, then both are dropped 
and other means are looked at.  This is going to be covered in Usool II. 
• Therefore, those who say they follow the Qur’an but reject the Sunnah 
(Qur’aneeyoon) aren’t actually following the Qur’an in the first place. 
• The Hujjiyah (proof value) of the Sunnah becomes binding once the 
authenticity of that particular text of the Sunnah is determined i.e. Sahih or 
Hassan and Mutawattir (continuous reports) or Ahaad (solitary reports) 
Binder page 48 
Classification of the Sunnah and Value: Legal vs. Non-Legal
1. What is legal and what is non-legal Sunnah? 
a. Legal Sunnah, Sunnah Tashree’yah (literally: legislation) 
i. The exemplary conduct of the Prophet sal’Allaahu ‘alayhi wasallam , be it 
an act, saying or a tacit approval which incorporates the rules and 
principles o the Shari’ah. 
ii. Wajib 
1. “Pray as you see me pray.” [Bukhari] 
iii. Mustahaab 
1. “Was it not for my fear of imposing a difficulty on my 
Ummah I would have ordered that the Miswak be used for 
every salaat, and delay in Isha prayer.” [Bukhari] 
b. Non-legal Sunnah, Sunnah Ghayr Tashree’iyyah 
i. The natural activities of the Prophet sal’Allaahu ‘alayhi wasallam such as 
the manners in which he ate, slept, dressed and such activities 
which do not seek to constitute a part of the Shari’ah or the legal 
norms.  
1. The preference of the Prophet sal’Allaahu ‘alayhi wasallam for certain 
foods: Anas reports, “I saw Allah’s Messenger going after the 
pumpkin round the dish, so I have always liked pumpkin since 
that day.” 
2. This is not an act of ibadah (simply to eat pumpkin). However, 
if your intention was to like something that Muhammad 
sal’Allaahu ‘alayhi wasallam liked, then inshallah, the intention will be 
rewarded. Part Three: The Sources of Islamic Law 
3. Abdullah ibn Umar was the quickest to follow the non-legal 
Sunnah, to the point of taking the same footsteps as 
Muhammad sal’Allaahu ‘alayhi wasallam and using the same rest 
stops when going for hajj. 
4. Some Sunnah practices are difficult to tell whether they are 
legal or non-legal. 
2. What is Hujjiyyah of each type of Sunnah? 
a. Legal Sunnah 
i. It establishes a Hukm Shar’ee.  All commands and prohibitions that 
are imposed by the Sunnah are binding on every Muslim. 
b. Non-legal Sunnah 
i. The majority of jurists consider it an indication for permissibility 
(Mubaah), unless other evidence suggests otherwise.
3. Khusoosiyyaat An-Nabi 
a. Certain matters which are particular to the person of the Prophet sal’Allaahu 
‘alayhi wasallam. 
i. Multiple marriages above the limit of four, connected fasting and 
the prohibition of remarrying his wives after his death. 
4. What is the ruling of the Khusoosiyyah of the Prophet sal’Allaahu ‘alayhi wasallam? 
a. If the Qur’an addresses the Prophet sal’Allaahu ‘alayhi wasallam with an exclusive 
term such as “O ye Messenger” then it is to the Prophet sal’Allaahu ‘alayhi 
wasallam alone, unless there is conclusive evidence to suggest otherwise. 
Coincidental actions of the Prophet sal’Allaahu ‘alayhi wasallam such as his prayer inside 
the ka’bah in a certain position, praying in a specific location on his journeys or 
taking the pledge on Hudaybiyyah beside a particular tree do not constitute any 
ruling according to the vast majority of jurists. 
Chapter Four: Sources about which there is General 
Agreement
Binder page 49 
1. First: Ijmaa’ or Consensus of Opinion 
a. Definition 
i. The unanimous agreement of the Mujtahids of the Muslim Ummah 
of any period following the death of the Prophet sal’Allaahu ‘alayhi 
wasallam on any matter.  
I. This means 100% agreement, while consensus means almost 
100% agreement. Part Three: The Sources of Islamic Law 
II. Only Muslim Mujtahids can be involved in this process. Laymen 
and scholars of other faiths cannot issue legal verdicts.  
III. It was never used within the Prophet’s sal’Allaahu ‘alayhi wasallam  
time because there was no need. 
IV. The Mujtahids are not chosen or picked from a society; they 
are publicly and universally recognized as Muslim scholars. 
b. Is the Ijmaa’ factual or relative evidence? 
i. Majority of Muslim jurists accept the Ijmaa’ as a universal 
consensus, while other jurists accept it as a valid concept in a 
relative sense, not as a factual evidence. This is because we cannot 
be sure that any Ijmaa’ after the sahaba’s time included all the 
‘Ulama or not. 
ii. The only Ijmaa’ which they accept as a factual evidence is the 
Ijmaa’ of the Sahaba before they were dispersed. 
c. What is the value of Ijmaa’? 
i. It reflects the natural evolution and acceptance of ideas in the life 
of the Muslim Ummah. 
1. Selecting Abu Bakr as a caliph. 
ii. It ensures the correct interpretation of the Qur’an and Sunnah. 
iii. It enhances the authority of rules that are of speculative origin.  
For example, the prohibition of simultaneous marriage to the close 
relative of one’s wife. 
iv. It represents an authority of its own right once it is established. 
d. There are two types of Ijmaa’ 
i. Explicit Ijmaa’ or Ijmaa’ Sareeh 
1. The Ijmaa’ in which every Mujtahid expresses his opinion 
either verbally or by an action. 
ii. Tacit Ijmaa’ or Ijmaa’ Sukooti 
1. The Ijmaa’ in which some of the Mujtahids of a certain age 
express their opinion concerning an incident while the rest 
remain silent. This is not technically an Ijma’ from a juristic 
perspective (because not everyone had their say, or they 
may not have spoken out for some other reason). 
Conditions of Ijmaa’ 
• What are the conditions of a valid Ijmaa’ ? 
• Condition one Part Three: The Sources of Islamic Law 
o There should be a number of Mujtahids available at the 
time when the issue is encountered. 
• Condition two 
o There should be a universal consensus of all the Mujtahids 
on the issue encountered. The presence of any dissenting 
view precludes the possibility of the Ijmaa’. 
• Condition three 
o The agreement of the Mujtahids on the juridical opinion 
must be demonstrated by their expressed opinions on that 
particular issue. 
 Binder page 50 
2. Second: Qiyas or Analogical reasoning 
a. Definition
i. The application to a new case (Far’) on which the law is silent of the 
ruling (Hukm) of an original case (Asl) because of the effective 
cause (Illah) which is in common to both.
ii. It is a branch of Ijtihad
iii. Applied to cases in which the Qur’an and Sunnah is silent
b. What are the essential requirements (Arkaan) of Qiyas?
i. First : Asl
1. The original case on which a ruling is given in the text & 
which analogy seeks to extend to a new case.
ii. Second: Far’
1. The new case on which a ruling is needed.
iii. Third: Illah
1. The effective cause which is an attribute of the Asl and is 
found to be common to the original and the new case.
a. Find this in the asl, and can find this in the far’ also.
b. The Illah never fluctuates, regardless of the case being 
discussed and it must be generated before deciding 
upon the Hukm.
iv. Fourth: Hukm
1. The rule governing the original case which is to be extended 
to the new case.
a. This is based on characteristic/reason which makes it 
similar to the new case. Part Three: The Sources of Islamic Law 
c. Example 
i. Wine versus narcotic drugs
1. Asl
a. Wine drinking
2. Far’
a. Taking narcotic drugs
3. Illah
a. Intoxicating effect
4. Hukm
a. Prohibition
ii. Gold vs. bank notes
1. Asl
a. Paying zakah on legal amount of gold.
2. Far’
a. Paying zakah on currency made of bank notes or other 
metals.
3. Illah:
a. The value of all commodities.
4. Hukm
a. Obligatory
3. Conditions of Arkaan Al-Qiyas 
a. Condition of Asl
i. Asl must be constituted in the Qur’an and the Sunnah and 
according to the majority of jurists by Ijmaa’.
ii. Asl may not be constituted by a former Qiyas.
b. Conditions of Far’
i. The new case may not be covered by the text or Ijmaa’.
ii. The effective cause of the analogy must be applicable to the new 
case in the same way as to the original case.
c. Conditions of the Illah
i. The effective cause must be a constant attribute (Mundhabit) i.e. 
applicable to all cases without being affected by differences of 
persons, time, place, and circumstances.
ii. The Illah must be evident not hidden.Part Three: The Sources of Islamic Law 
iii. The Illah must be a proper attribute and bears a reasonable 
relationship to the law of the text.
iv. The Illah must be an objective quality which can be transferable to 
other cases.
v. The Illah must not be an attribute that runs counter to or seeks to 
alter the law of the text.
d. Conditions of hukm
i. The hukm must be of a practical ruling of Fiqh.
ii. The hukm must be operative, not abrogated.
iii. The hukm must be rational or the Illah is clearly given in the text 
itself.
iv. The hukm must not be confined to an exceptional situation or to a 
particular state of affairs.
• Qiyas is the most dynamic part of Usool Al-Fiqh which is what makes the 
Shari’ah so alive and contemporary.
• The Illah and Hikmah are not interchangeable. The Illah for shortening 
prayers while traveling, for example, is that one is traveling. Therefore, any 
person who is traveling may shorten the prayers. The hikmah is that 
journeys are difficult, and so prayers are shortened. However, even if you 
have an easy journey, it doesn’t mean you cannot shorten your prayers.
Chapter Five: Sources about which there is General 
Disagreement
Binder page 51 
1. Statement of the Sahabi 
a. Definition 
i. Should the statement of a single Sahabi which does not contradict 
the general opinion of the community of the Sahaba be considered 
as a proof of its own right, and be given a precedence over other 
rules such as Qiyas? 
b. The Prophet sal’Allaahu ‘alayhi wasallam told us to follow his example and the 
khulafaa’ that will follow after him.  Some scholars say that their Ijtihad 
should be found as proof and some don’t. Part Three: The Sources of Islamic Law 
c. Ibn Abbas said that the temporary marriage is acceptable to do in harsh 
conditions, even though all the other Sahaba say that this is 
unacceptable. 
• In this case, some scholars say the opinion in invalid. 
• Others say they would rather take the Ijtihad of the sahaba than 
take their own. 
2. ‘Urf (Custom) 
a. Definition 
i. It is recurring practices that are acceptable to people of sound 
nature, reasonable as to be taken in consideration in order to 
constitute a valid basis for legal decisions. 
b. For example, languages can use the same words and mean totally 
different things. 
c. Whenever we do things, we need to know what the custom of the land is 
before doing anything. 
3. Istihsaan (Juristic Preference) 
a. Definition 
i. It is setting aside an established analogy in favor of an alternative 
ruling that serves the ideals of justice and public interest in a better 
way. 
ii. Should not be against Qur’an or Sunnah, but against Qiyas. 
b. Should the Mujtahid use his personal discernment in deciding the ruling of 
an issue in contradiction to the established Qiyas?
c. Example: 
i. The Prophet sal’Allaahu ‘alayhi wasallam said that you cannot sell 
something that doesn’t exist. 
1. The scholars say that you can put conditions on items such 
that when the people invent items, it will be clear cut on 
what they are getting. 
4. Maslaha Mursala or Istislaah (Consideration of Public welfare) 
a. Definition 
i. It is a consideration that is proper and harmonious with the 
objectives of the Lawgiver; it secures a benefit or prevents a harm, 
and the Shari’ah provides no indication as to its validity or 
otherwise. Part Three: The Sources of Islamic Law 
ii. Does this concept fall under innovation or independent enactment 
of law? Can Maslaha Mursala be observed in devotional matters? No 
b. Example: A woman whose husband is missing can file for divorce after 1 
to 4 years even though her husband is not proven to be dead because it 
would be in her best interest to get a divorce. 
5. Istishaab (Presumption of continuity) 
a. Definition 
i. It is a rational proof that may be employed in the absence of other 
indications; specifically, those facts or rules of law and reason, 
whose existence or non-existence had been proven in the past and 
which are presumed to remain so for lack of evidence to establish 
any change. 
6. Sadd Al-Dharaa’I (blocking the means) 
a. Definition 
i. Blocking the means to an expected (evil) end that is likely to 
materialize if the means towards it is not obstructed. 
b. This is why in Saudi Arabia it is forbidden for women to drive cars, and for 
farmers to sell grapes to wine makers. 
7. Shar’u man qablana (Laws revealed prior to the advent of Islam) 
a. Are the rules revealed before the advent of Islam applicable to the 
Muslims? 
b. If these laws contradict our laws – they are not to be taken 
i. Example: Yusuf’s alayhis salaam brothers prostrated to him, but that is 
wrong according to our Shari’ah 

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