SOURCES OF ISLAMIC LAW

JURISPRUDENCE

AUGUST 27, 2016universITY LAW COLLEGE QUETTA

KHOJAK ROAD QUETTA

Sources of Islamic lawRevelation

The communication of god made to prophet (PBUH) through angel Gabriel.

Revelation

Manifest Internal

The revelation brought to Prophet the communication of god to prophet indicated

By Gabriel in the very word of in the ratiocination of the prophet.

ALLAH, or by hints or inspiration.

The communication in the very word of ALLAH is QURAN. The communication through hints or inspiration or by the ratiocination make SUNNAH.

Primary and Secondary SourcesMain distinction

Primary sources secondary sources

Unanimous agreement not so unanimous agreement

Transmitted mostly rational

Definitive probable

Primary Sources of Islamic lawThe first sources of Islamic law is Quran.

AL_BAZDAWI: Quran is the book revealed to the messenger of ALLAH, Muhammad (PBUH) as written in the masahif and transmitted to us from him, through an authentic continuous narration (tawatur) without doubt.

IJAZ OF THE QURANThe incapable or inability of humans collectively or individually to imitate a single ayat of the Quran is ijaz of the Quran.

The Ahkam of the Quran.Ayat: 6666

Ahkamat: 600

Family matter: 70 verses

Trade and finance: 80 verses

Oaths: 13 verses

Crimes and sentacing: 30 Verses

Constitutional and administrative matters: 10 verses

Internal law and IHL: 25 verses

Rest verses: Ibadat

Sunnah as Primary sourceWell known path. “The acts, deeds, saying and approval or denials of prophet Muhammad (PBUH) is called sunnah”

Sunnah

On the basis of mode on the basis of transition

Establishing ahkamSunnah al qawliya muttasil

Sunnah al filiyah murrasil or munqati

Sunnah al taqririah

Hadith e ahad

Hadith e mutawatir

Hadith e mashure

Degree of authority of HadithHadith e Mutawatir

Hadith e Mashure

Hadith e Ahad

Hadith e Munqati

Hadith e Murrasil

Secondary sources

Ijma Qiyas Istehsan Istedlal Ijtihad Other sources

IjtihadThe derivation of rule from primary sources (Quran + Sunnah) is called ijtihad.

Literal Meaning: the effort made by a mujtahid in seeking knowledge of the ahkam (rules) of the shariah trough interpretation

Nus: a text of the Quran and Sunnah which is carrying ahkam.

Mujtahid: Muslim, adult, and sane

Knowledge of Arabic language

Knowledge of Quran and Sunnah.

Knowledge of Ijma.

Knowledge of the maqasid al shariah.

Aptitude for ijtihad.

Modes of IjtihadThere are 3 modes

1. Literal interpretation2. Analogy 3. Maqasid Al shariah.

IJMALiteral meaning: determination / resolution

To decide a dispute or issues.

Technical meaning: consciences of the mujtahididen / jurist of the Muslim community.

Agreement among the mujtahideen in a particular period after the death of prophet in a specific / determine period upon a role of Islamic law (Hukum al shariah).

Types of IJMA

Ijma Qawli Ijma sukutiExplicit ijma tacit Ijma

QiyasLiteral meaning: To compare one thing with other

Technical meaning: an extension of the law from the original to which the process in applied to a particular case by means of the common illlat or effective cause which can’t be a curtained merely by interpretation of the language of the text.

Qiyas is a process of deduction by which the laws of a text NUS is applied to cases which through not covered by the language are governed by the reason of the text.

Element of Qiyas1. Asl (Maqis al alayah)

The case discovered in the original text of ijma.

2. Hukum al Maqis Alayah

The rule in the text or ijma

3. Illah (Effective cause)

Ground or Reason

4. Far or Maqis

The case which is not covered by the language but by reason of the text or ijma.

5. Hukum al far

The murderer of testator shall not receive the legacy, the Hukum is called Hukum al far.

Types of Qiyas

Qiyas Khafi Qiyas jaliConcealed Manifest

Istehsan Reason

Also types of analogical deduction

Other sources of Islamic law

Istehsan IstedlalJuris equity or juristic preference istishab

Qiyas Khafi

Istehsan

Literal meaning: to consider something good or beautiful.

Technical meaning: Al bazdavi istehsan is moving away from implications of analogy to an analogy that is stronger than it.

It is the restriction of analogy by an evidence that is stronger than it

Al Halwani the giving up of analogy for a stronger evidence from the book (Quran), Sunnah or Ijma.

IstedlalIstedlal is inferring of one thing from another thing.

BY EHSAN KHAN KAKAR

UNIVERSITY LAW COLLEGE QUETTA