ISLAMIC JURISPRUDENCE

Quran:

Q. Write a detailed note on Quran primary source of law. (2002, 2003)

Q. Write a detailed note on Quran as primary source of Islamic law. (2003/S)

1. Introduction:

The Holy Quran is the name of book consisting of those direct revelations which were made to the Holy Prophet Hazrat Muhammad (Pace Be Upon Him). It is in the very words of Allah almighty. Quran is the primary source of law. It is first in the order of primary sources and thus the first search for a hukm is to be in the Quran and the jurist should not move to the next source unless the search in the Quran has been completed.

2. Meaning and definition of holy Quran.

(I) Meaning:

Quran is derived from the Arabic word Quran’ a which means “To dead”.

(II) Definition:

Many jurists have attempted to define. Holy Quran, but they maintain that the purpose of definition is not to grasp the nature of the Quran.

Definition by Al-Bazdawl.

“The Quran is the book revealed to the messenger of Allah, Muhammad (Peace Be Upon Him) as written in the masahif and transmitted to us from him through an authentic continuous narration without doubt.”

3. Revelation of the holy Quran

Holy Quran is a book of Allah which is revealed to Holy Prophet (Peace Be Upon Him). The first revelation came to the Holy Prophet (Peace Be Upon Him) when he was forty years of age. Following verses of Surah-Al-Alaq were revealed to him.

“Read in the name of thy lord, who create the man from a clot.”

“Read! And it is thy lord the most bountiful. Who teacheth by the pen. Teacheth man that which he knew not.” (Al-Alaq: 1-5)

4. Attributes of the holy Quran

There are 55 alternative names or attributes of the holy Quran e. g Al-Kitab, Al-Furqan, Al-Noor etc.

5. Quran as a source of law

The holy Quran is a complete code of creed and morals as well as of the laws based thereupon. The Quran seeks to guide man in all walks of life spiritual temporal, individual and collective Quran says.

“And we have revealed the scripture unto the only that thou may explain unto them that wherein they differ, and (as) a guidance and a mercy for a people who believe. (16: 64)

“There are the limits of Allah (hadud Allah) so do not near them.” (2: 187)

(I) Divisions of verses of holy Quran

The holy Quran is divided into 30 division called Ajza or Paras and into 114 chapters called Surrah. Which considts of 6666 verses. These verses divided in three sections or portions.

(i) First portion

First portion deals with religion and its duties e. g. belief in one Allah, day of judgement etc.

(ii) Second portion

Second portion deals with Quranic ethics.

(iii) Third portion

Third portion is related with Muamalat. It regulates the relationship of individuals among themselves, with states etc. it deals with sales and purchase, lease and mortgages, evidence, torts and contracts etc.

(II) Ahkam in the holy Quran

Two main categories of Hukm have been classified by the Muslim jurists.

(i) Hukm Taklifi

(ii) Hukm Wadi

(i) Hukm Taklifi

The aim of the hukm Taqlifi is to create an obligation for the commission or omission of an act.

(ii) Hukm Wadi

The aim of hukm wadi is to either inform a subject that certain thing is a cause of condition for or obstacle to a hukm or is to explain the relationship that exists between two rules or to provide the criterion for judging whether an act perform is valid or not.

(III) Category of laws reveled

Most of the verses containing rules of law were revealed with reference to cases which arose during the lifetime of the holy Prophet (Peace Be Upon Him). These may be categorized as under.

(i) Abrogating verses

Verses which repeal or abrogate objectionable customs like usury gambling and unlimited polygamy.

(ii) Verses affecting social reforms

Verses which affects social reforms such as by raising the legal status of woman, setting the question of succession and inheritance on equitable basis.

(iii) Verses providing rights

Verses providing protection for the rights of minors and other persons under disability.

(iv) Penal verses

Verses providing principal f punishment for the purpose of securing place and order.

(v) Legal verses

These are the verses providing constitutional and administrative matters.

These verses principally occur in the madni Surahs.

(VI) Nature of laws lays down

The Holy Quran is a code of conduct laying down the fundamental principles and not the detailed provisions so in case of ambiguity reference should be made to the Sunnah.

6. Position in Pakistan

Pakistan is an Islamic state and since the creation of Pakistan, attempts have been made at different times to modify the existing laws in the light of Quran and Sunnah.

Article 227 of constitution of Pakistan 1973, runs as follows.

“All existing laws shell be brought in conformity with the injunctions of Islam as laid down in the holy Quran and Sunnah.”

7. Constitutional status of Quran

In the west constitutional law is called the supreme law of the land. In Islamic jurisprudence Quran is the constitutional law. It has all those features which a modern constitution have. The Quran provides all norms and principal for statehood.

8. Conclusion

To conclude, I can say, that the holy Quran is the first primary source of Islamic law. All other sources derive their validity from the holy Quran which is in the direct words of Allah almighty who is complete sovereign over the entire universe, but it is to be noted that it is not a book of law. It is a book of guidance for the mankind, so it does not contain a detailed corpus of legislation.

SUNNAH:

Q. Describe various kinds of Sunnah mentioning their role in Islamic legislation. (2003)Q. Quran and Sunnah cannot be detached from each other. Support your answer with reason.(2002)Q. Discuss the difference between Sunnah and Hadith. (2001) (1998) (1996)Q. Discuss and explain the importance of Sunnah as a source of Islamic law. (1998) (1997) (1996)Q. Quran cannot be understood without Sunnah. (1995) (1993)Q. Discuss Sunnah as a source of Islamic law what are it kinds. (2004/A 2007/A)Q. Discuss Sunnah as source of law. (2005/S)1. IntroductionSunnah is the second primary source of Islamic law. If the mujtahid does not find a text in the Quran for a case he has to settle, he has recourse to the Sunnah for the derivation of the Hukms. There is a special bond between Quran and Sunnah which must not be severed as Sunnah is the explanation of the holy Quran.2. Meaning meaning(I) Literal meaningThe word Sunnah stands for the “Well know path” or “Well-trodden path.” Which is followed again and again.(II) Technical meaning“What was transmitted from the messenger of Allah (Peace Be Upon Him) of his words, acts and approvals.”

3. Kinds of SunnahFollowing are the kinds of Sunnah.(i) According to its nature(ii) According to its written record(I) According to its natureAccording to its nature, Sunnah is of following types.(i) Sunnah al QawliahIt 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:(i) “La darar Wa-la dirar”(No injury is to be caused and none is to borne)(ii) Sunnah Al FiliyahIt is defined as the deeds and practices of the Prophet (Peace Be Upon Him) having a legal content like his prayers, fasts etc.(iii) Sunnah TaqririyahIt is defined as the commission of certain acts, by word or deed. If something was done in a particular way and Prophet (Peace Be Upon Him) maintained silence without expressing disproval to it, his silence in such a case is called taqrir or tacit approval and is considered a Sunnah.(II) According to its written recodeSunnah may also be classified according to its entire written record, that is Ahadith.(A) Division of AhadithWith respect to its narration, Ahadith are divided into two types.(i) Hadith Muttasil(ii) Hadith Mursal(i) Hadith MuttasilThe hadith whose chain of narration. Is complete. These are the ones in which the narrator are mentioned from the beginning of the sands upon the Prophet (Peace Be Upon Him)and no narrator is missing.Types of hadith MuttasilFollowing are the types of hadith Muttasil(a) Hadith MutawatirIt is one that is related by such a large umber of people that their agreement to propagate a falsehood cannot be conceived. Twatur is of two types.Twatur LafziWhen all the narrators agree about the words as well as meaning the hadith is called twatur Lafzi. For example. Following Hadith is twatur Lafzi.“He who attributes falsehood to me should prepare his abode in the fire.”Twatur Manawi (Meaning)It is a Hadith which coveys the same meaning even if the words are not exactly the same.(b) Hadith MashhurThe mashhur tradition is one the number of whose reporters do no reach the level of twatur in the first generation. Thus if one or two companions related the tradition from the prophet but in the next generation of tabium, a very large number related from them and so on till the end of the chain when the traditions were compiled then such a tradition is called mashhur.(c) Hadith AhadThe Hadith Ahad or the Khabar Wahid is reported by one or two persons from the beginning of its chain up to its end when all traditions were recorded.(ii) Hadith MursalHadith Mursal is one that is not continuous and one or more names of the narrators are missing from the chain of narration the jurists disagreed about the employment of a Mursal hadith as proof for a Hukm.

4. Sunnah as a source of lawAllah almighty has delegated legislative powers to the Holy Prophet (Peace Be Upon Him). The Quran from time and again makes the prophetic Sunnah as obligatory on the Muslims the reason why Sunnah is treated as a source of law is based on the argument that Sunnah of Holy Prophet (Peace Be Upon Him) was also revealed on him.“And came to you from God the light (Prophet) and the book”. (Surah Al-Maida 15)“And remember what is read in your houses out of the Quran and the Hikma (sunhah). (surah-Al-Ahzaab 34)(I) Derivation of the authority of SunnahThe authority of the Sunah as a source of law is derived from the Quran. Following Quranic verses throws light on the importance of Sunnah.“If ye differ in anything among yourselves, refer it to the Allah and his Prophet” (Peace Be Upon Him) (Surah Al-Nisa 59)“And he does not speak of his own desire all is revealed on him.” (Sura Al-Nahal)“He who obyes the Prophet (Peace Be Upon Him) obeys Allah”. (Surah Al Nisa : 80)(II) Legislative function of SunnahSunnah is the second primary source of law. The jurists must recourse to the Quran first for the search of the Hukm and should not move to the Sunnah unless the Search in the Quran has been completed. More often than not, it is not possible for the jurist to understand the meaning of the text of the Quran for the derivation of the Ahkams, unless he has recourse to the explanation and commentary of the Quran which is Sunnah itself.(i) Qualification for Sunnah as source of lawIt is not every Sunnah that is a Source of law. To qualify Sunnah as a source of law, it is necessary that the acts must have a legal content. The purpose of the saying or acts of the Holy Prophet (Peace Be Upon Him) should be the laying down of the law or its elaboration.(ii) Original law-making by SunnahWhere some Hukm is not mentioned in the Quran and Holy Prophet (Peace Be Upon Him) decides it according to its own wisdom, it becomes a source of original law making.(iii) Legislative function of Sunnah with respect to holy Quran or relationship between Quran and Sunnah.Quran laid down the basic principles and Sunnah explains these principles. The legislative function of Sunnah with respect to the Holy Quran or the relationship between Quran and Sunnah can be discussed as under.(a) Specification of general ruleThe Ahkams in the Quran is in general, undetermined form. The Sunnah restricts or qualifies these Ahkams.Example:Quran says that “ for the male two shares of the female the Sunnah explains that the murdered will not inherit.(b) Elaboration of AhkamsThe Ahkams in Quran are general in unelaborated from. The Sunnah elaborates these Ahkams.Example:Quran order prayer, Sunnah provide for timing, number and Rak’ as of prayers.

(c) Analogy on the basis of rule in QuranThe Sunnah may add or supplement the legal provision of the Quran.Quran prohibits marriage of two sisters with one man. Sunnah prohibits it which maternal or paternal aunt.(d) Linkage of case with well known principleSunnah links a case with the well-known principal mentioned in the Holy Quran.ExampleQuran has permitted all goods things and has commanded the avoidance of Khabaith. The Sunnah has linked with the Khabith the consumption of animals with morals and birds with claws.(e) General principal laid down by SunnahSome times Sunnah lays down a general principal.Example:Sunnah lays down the principal “No injury is to be caused or borne.” Quran mentions a number of cases in which injury t others has been prohibited.(f) Explanation of the implicitThe Quranic injunctions are sometimes implicit and the Sunnah makes it explicit by providing the details.Example:Quran provides that the hands of each thief are to be cut. The Sunnah restricts this to the thief who steals wealth equivalent to the Nisab and from the protective custody.5. Difference between Sunnah and HadithHadith is the noun derived from the word “Hadatha” which means a tale or verbal communication of any kind. In legal sense Hadith means saying of Holy Prophet (Peace Be Upon Him) which must be practiced. Sunnah and Hadith means one and the same thing, yet there are few differences between these two terms.(i) As to meaningHadith means saying of Holy Prophet (Peace Be Upon Him) Sunnah refers to every saying of Holy Prophet (Peace Be Upon Him) and to every act which he did or performed and every act which was permitted to be done by him.(ii) ScopeSunnah is bigger in scopeHadith is narrow in scope as it refers to only the sayings of Holy Prophet (Peace Be Upon Him)(iii) As to elementSunnah is a complete term which has three elementsHadith is one element of Sunnah.(iv) As to activityHadith consisted in some sort of activity. There must be saying of the Holy Prophet (Peace Be UPON Him).In Sunnah, there may be no activity. It may be that act of Holy Prophet (Peace Be Upon Him) where he kept quiet in case he saw people doing a particular thing.(v) As to collectionHadith have been collected and compiled in a proper formCollection of Sunnah was never made and it is out of collection.

6. Constitutional status of SunnahIn constitutional making Sunnah has a great role. God has delegated legislative powers to the Holy Prophet. He (S. A. W) gave practical shape and concrete form to the injunctions of Quran.

7. ConclusionTo conclude, I can say, that Sunnah is the second primary source of Islamic law. It is interlinked with the Quran insofar as it restricts its general meaning or qualifies its absolute texts or explains its difficult words.

IJMA:

Q. Define and discuss Ijma and Qiyas as source of Islamic law. (2002)Q. Define Ijma. What are its kinds and how it is conducted. (2002/A, 2005/A)Q. Ijma is a valid surce of Islamic law. (1995, 1997, 2000)Q. Define Ijma. What are its kinds? How it is conducted? (2006/S)1. Introduction“Ijma” is the primary source of law. It means determination or consensus. The society which was established by the Holy Quran and the Sunnah is a living society so the Allah almighty gave sanction to the consensus of the Muslim to meet the arising needs of the time.2. Meaning and definition of Ijma(I) Meaning of IjmaIjma is the verbal noun of the Arabic word Ajmaa it is used in two senses.(i) Determination and resolution(ii) Agreement upon a matter(II) Definition of Ijma“Ijma is defined as agreement of the jurists among the followers of Mohammadan in a particular age on a question of law.”3. Basis of IjmaIjma may be based on:(i) Quran (ii) Hadith or(iii) Analogy4. Reasons or arguments in support of IjmaAllah almighty has completer the Islamic religion and Hazrat Muhammad (Peace Be Upon Him) was the last of the Prophets (Peace Be Upon Him), so it necessarily follows that any rule of law, which is not found to be explicitly laid down in the Quran or by the precepts of the Holy Prophet, must be capable of being deduced from them, so Ijma is permitted.(I) Quranic verses in support of IjmaFollowing Quranic verses support the conception of Ijma.“You are the best of man, and it is your duty to order men to do what is right and to forbid them from practicing what is wrong.”“Obey God and obey the Prophet (Peace be Upon Him) and those amongst you who have authority.”“If you yourself do not know, then question those who do.’(II) Hadith in support of Ijma

Following Ahadith also support the concept of Ijma.“My following will never agree upon what wrong.”“It is incumbent upon you to follow the most numerous body.”“Whoever separates himself (from the main body) will go to hell.”5. Kinds of IjmaFollowing are the kinds of Ijma(i) Express Ijma or Ijma Qawli(ii) Tacit Ijma or Ijma Sakuti(I) Explicit Ijma Explicit Ijma is one in which the legal opinions of all the jurists of one period coverage in relation to a legal issue, and each of them states his opinion explicitly.(a) It may take place when all the jurists are garthered in one session and an issue is presented to them and they collectively expressed a unanimous opinion.(b) It may also take place when an issue is raised in a certain period and all the jurists in turn issue similar fatwas independently and at sepaeate times.(II) Tacit Ijma(III) Tacit Ijma takes place when some mujtahid issue a verdict on a legal issue and the rest of the mujtahids come to know of it during the same period, but they keep silent, neither acknowledge it nor refuse it expressly.6. Who can perform IjmaOnly Muslim Mujtahids or jurists can perform Ijma. He must possess the following qualifications.(i) Scholar of Quran and Sunnah(ii) Knows Qiyas (iii) Expert of Arabic language(iv) Impartial thinking (v) Well versed with up to date knowledge(vi) Knows the principal of Naskh(vii) Conversant with the science of usul and faro(viii) Competent to expound law.7. Conditions for the validity of IjmaFollowing are the conditions for the validity of Ijma.(I) Ijma by mujtahidsThe Ijma must be performed by Mujtahids i. e those who have attained the status of Ijtihad.(II) Unanimous opinionThere must be unanimous opinion among all mujthahids upon a Hukm shari.(III) Performed by Muslims All the jurists participating in Ijma must be from the Ummah of Hazrat Muhammad (Peace be Upon Him).(IV) After the death of Holy Prophet (Peace be Upon Him)The Ijma must have taken place after the death of Holy Prophet (Peace be Upon Him).(V) In a determinate periodThe Ijma must be performed by jurists of single determined period i. e. of the same generation.(VI) Upon rule of lawThe Ijma must be upon rule of law and all-non legal matters are excluded from the domain of Ijma.(VII) Reliance upon sanad (Evidence)For deriving their opinion, Mujtahids should relied upon some sanad (evidence).8. Ijma as a source of lawIjma as a third source of law and under the circle of Quran and Sunnah’s delegation many issues can be

resolved by Ijma.(I) Enforcement of ordains of Quran and SunnahIjma as a source of law helps in discovering the law and enforces the principals laid down in Quran and Sunnah.(II) Interpretation of Sharia Ijam help in interpretation of laws of Sharia, according to the changing needs of times.(III) New legislation can be madeTo achieve the objects of Quran and Sunnah, new legislation can be made through the process of Ijma.(VI) First Ijma performed by MuslimsThe election of Hazrat Abu Bakr to the caliphate by the votes of the people was based of Ijma.9. Legal effect of IjmaThe law laid down by consensus of opinion is authoritative and binding. But in its theological sense, a decision of Ijma would be of absolute authority only if it conforms to the following conditions.(i) No opinion to the contrary should have been expressed on the question by any of the companions, or by other Mujtahids before the formation of the Ijma.(ii) None of the Mujatahids taking part in the decision should have afterwards changed his opinion.(iii) The decision must be proved as being either universally knows or well-knows.(iv) It should be based on an express text of the Quran or a tradition of a continuous or well-knows character.(v) It must be regularly constituted.10. Ijma and western concept of “opinion prudentium“Opinion prudentium” which meaqns the opinions and decisions of lawyers is parallel concept of Ijma in the western society. In Roman law the lawyers were empowered to give opinions by Emperor. With the passage of time such opinions become part of their legal system. However the concept of Ijma has wider scope than the concept opinion prudentium which is also knows as “Responsa Prudentium.”11. Ijma in modern periodAccording to the accepted opinion of all four sunni schools, Ijma is not confined to any particular age or country. The underneath principal of Ijma is that if a rule or principal is upheld collectively by the highest legal forum in the land, then such a principle must be followed by those subordinate to this forum. In the earlier stages, this forum was confined to jurist companions then the leading jurists of each school. Today the forum would be the highest court in each Muslim country.12. ConclusionTo conclude, I can say, that Ijma is an essential and characteristic principal of Sunni Jurisprudence, one upon which the Muhammadan Community acted as soon as they were left to their own resources. It may be constituted by decision expressed in words or by practice of the jurists. The number of jurists participating in Ijma need not be large and Ijma of one age may be reversed by subsequent Ijma of the same age.