‫الشر يعة ومصادرها‬

Shari’ah and Its Sources

ANWAR M. RADIAMODA
PhD in Shari’ah & Law, Islamic University of Indonesia
Acting Director, MSU Shari’ah Center Marawi City
09065542987
radiamodaa@yahoo.com
THE COMPREHENSIVENESS OF ISLAM

Da’wah Islamiyah: Ways & Means,

(Anwar M. Radiamoda)
Shari’ah (Islamic Law)

Shari’ah is the totality of

Allah’s commandments to man,
whether it is in the aspect of
Aqeedah, Ibadaat (worship), or
Mu’amalaat and akhlaaq
‘Aqīdah [System of Belief]

 The foundations of faith

 Belief in Allah, in His angels, in His Revealed
Books. in His Messengers and Prophet, in life
after death, and in pre-determination;

 The need for congruence among faith, action and

human relations
Al-aqīdah al-salīmah
Al-‘ibādah al-sahīhah
Al-akhlāq al-hasanah
‘Ibadat [Acts of Worship]

 Physical Purification
 Ablution
 Ghusl
 Tayammum
 Purification of the Soul
 Dhikr
 Salāt or Prayer
 Zakāt and Sadaqah
 Sawm
 Hajj and ‘Umrah
Mu’āmalāt [Human/Social Relations]

 Ahwāl Shakhsiyah
 Legal Capacity (Ahliyyah)
 Receptive legal capacity (Ahliyyah al-wujūb)
 Capacity to act (Ahliyyah al-adā’)
 Age of majority - puberty + mental maturity

 Marriage
 Purpose and requisites of marriage
 Inter-religious marriages
 Prohibited marriages
• Mu’āmalāt [Human/Social Relations]

Divorce
 Kinds and conditions
 Talāq - Immediate Divorce
 Tafwīd - giving the option and control of divorce
 Khulū‘ - Dissolution by Khul’
 Ilā’ - Ceasing Relations
 Zihār - declaring her to be like his mother from the back
 Li‘ān - when a man accuses his wife of adultery
 Faskh - Judicial Decree
 ‘Iddah or waiting period
• Mu’āmalāt [Human/Social Relations]

 Inheritance
 Reasons for inheritance
Nasab [family relations]
Nikāh [marriage]
Walā’ [relation between a former slave and his
manumitter]

 Causes of disinheritance
Difference of religion
Causing the death of the decedent
Slavery
Fornication or adultery
Li‘ān
• Mu’āmalāt [Human/Social Relations

 Trade or Business Deals

 Pillars: seller, buyer, valued merchandise,
manner of contract, mutual consent

 Ribā (Usury and Interest)

 Partnership: profit-and-loss sharing;
working/corporal; speculative (mudhārabah)
 Mortgage
• Jināyāt [Crimes and Punishment]
 Hudūd : zinā, qadhf, shurb al-khamr, sariqah, hirabah,
irtidād
 Qisās
 Retaliation; blood money; pardoning
 Conditions: no injustice will be done; retaliation is
possible; the limb sought to be retaliated is the same
with the damaged limb of the victim; equality of the two
limbs.
 Crime committed by a group: all will be subjected to
retaliation
 Ta‘zīr or discretionary punishment
Islamic Law: Between Sharī’ah, Fiqh and Usul Al-Fiqh
• Shari‘āh
 Refers to the totality of Allah’s commandments to man
 Divine Law, Perfect, eternal, unalterable
• Fiqh
 Refers to the human understanding of the law
 Human interpretation
 Imperfect, not eternal, alterabl
• Ushul Al-Fiqh
 It is the principles by the use of which the mujtahid derives the
legal rules of conduct from the specific evidence.
 It is the body of principles of in interpretation of the law.
Coverage of Islamic Law
• Faith and Beliefs (‘Aqā’id)
• Religious worship (‘Ibādāt)
– Shahādah, salāt, zakāt, sawm, hajj, jihād
• Human relations and commercial transactions
(Mu’āmalāt)
 Ahwāl shakhsiyah
 ‘alāqāt al-tijāriyyah
 ‘ulūm al-harbiyyah wa ‘alāqāt al-dawliyyah
• Penal and criminal laws (Jināyāt)
– Hudūd
– Qisās
– Ta’zīr
• Ethics and morality (Akhlāq)
THE PRIMARY AND SUPPLEMENTARY SOURCES OF SHARI’AH
(ISLAMIC LAW)

1. The Holy Qur’an

2. The Sunnah of the Prophet Muhammad (peace be on
him)
3. The Ijmaa’ (consensus)
4. The Qiyas (analogy)
5. The Istihsan (juristic preference)
6. The Istislah or Maslahah Murslah (consideration of
public interest)
7. The Istis-hab (presumption of continuity)
8. The ‘Urf (custom)
9. The Sunnah or Qawl of the Prophet’s Companions
(shahabah)
10. Shar’u man-Qablana (earlier scriptures)
 The Qur’an/ Al-Qur’an

• Holy Qur’an:

The Holy Qur’an is a speech of Allah and the book

revealed in Arabic to the Messenger of Allah, Muhammad
(peace be on him) through Jibreel as written in the
Masaahif and transmitted to us from him through an
authentic continuous narration (tawatur) without doubt.
The Revelation of the Holy Qur’an

The Qur’an was not revealed all at once

to the Messenger of Allah (peace be on him),
but -

1) In stages and in accordance with incidents

and cases faced by the Muslim community.
2) Another reason for the gradual revelation
of the Qur’an is considered to be the
implementation of the law in stages. Like
the prohibition of Khamr (wine)
Distinctions between Makkī and Madanī verses

• Makkan verses – devoted to matters of belief,

Tawhīd, necessity of the prophethood of
Muhammad [saw], the hereafter, disputation with
unbelievers and inviting them to Islam
• Madanī verses – comprised of legal rules and
regulated the political, legal, social and economic
life of the new community; regulated war and
peace, the status and rights of conquered people,
the organization of the family.
QUR’ANIC FIELD OF STUDY

1) Al-Aqeedah
2) Al-Akhlaaq
3) Al-Qanun and Mu’amalaat
LEGAL CONTENTS OF THE QUR’AN

1) Relations between Allah and men

a. Purely faith and belief (Aqeedah
Saheehah)
b. Correct religious forms of worship, like
prayer and fasting;
c. Socio-economic forms of worship, like
Zakah (compulsory charity);
d. Socio-physical forms of worship, like Hajj
(pilgrimage to Makkah).
LEGAL CONTENTS OF THE QUR’AN

2) Dealings among men.

1. Jihaad or struggle, defending the
teachings of Islam;
2. Family laws include the laws concerning
marriage, divorce and inheritance.
3. Trade laws governing business
transactions, etc.
4. Criminal laws specifying punishments and
or compensations for various crimes.
BASIS OF LEGISLATION IN THE HOLY QUR’AN

1. Removal of difficulty. (to avoid difficulties)

2. Reduction of Religious Obligation. (forced by
necessity)
3. Realization of Public Welfare
4. Realization of Universal Justice.
Characteristics of Qur’ānic Legislations

• They establish general rules

• They were directly meant to deal with actual events
• As a rule, everything that is not prohibited is permissible
• Some injunctions or prohibitions were revealed in a gradual
way
• Pressing necessity makes a thing prohibited permissible
• Anything of value may be adopted for as long as it does not
contradict the texts of the Glorious Qur’ān or the Sunnah
 Some Principles Pursued by the
Glorious Qur’ān (1)

• The principle of (Tawhīd) which is the keystone

of the Qur’anic Message.
• Tawhīd means complete faith and belief:

1. Tawheed Robubiyah
2. Tawheed Uluhiyah
3. Tawheed Al-asma wa As-sifaat
 Some Principles Pursued by the
Glorious Qur’ān (2)

The principle of (Ihyā al-mawāt)

1. Giving life to dead lands

2. If a person has a piece of land and does
not cultivate the same, the state can take
the land and give it to someone who will
make use of the land for the welfare of
the community
 The Sunnah/ As-Sunnah
THE SUNNAH OF THE PROPHET MUHAMMAD
(PEACE BE ON HIM)
• literally means a path or a way or a manner of life.
• It is the actual explanation and practical
demonstration of the holy Qur’an.
• Technically, it refers to the sayings, actions or
deeds, physical attribute and manner of Prophet
and actions of his followers which he approved.
THE RELATION OF SUNNAH TO THE HOLY QUR’AN

1) Confirming Sunnah;
2) Explanatory Sunnah;
3) Sunnah that brings new legislation, such
as the Hadith: “The Messenger of Allah
prevented of us from any animal that
kills with its teeth or fingernails”. Like
lions, tigers, eagles, etc.
The Sunnah as a source of law

• Sunnah Tashri’i
 Instructions of the Holy Prophet as Messenger
of Allah
 Pronouncements as Head of State
 Decisions as Judge among Muslims

• Sunnah ghayr tashri’i

 Acts and deeds of the Prophet as a human
being
The Sunnah as a source of law

• The aspects of Sunnah

1. Sunnah qawli
2. Sunnah fi’li
3. Sunnah taqriri
The Sunnah as a source of law

• Two parts of a Hadith

 Sanad or the chain of narrators that traces the
origin of the statement, deed or approval from
the Holy Prophet himself. The study and
examination of the sanad is called riwayah. Out
of this developed the science of ‘asma’ al-rijal’
 Matn or the statement of the Holy Prophet or
the narration of his action or approval of an act
done by others. The study of the matn resulted
into dirayah
Classification of the Sunnah as to
transmission
• Muttasil [continuous]
1) Mutawatir or one that is continuously recurrent
and reported by an indefinite number of people
2) Mash’hur or one reported by one, two or more
Companions or from another companion and
the diffusion of the report must have taken
place during the first or second generation
following the demise of the Prophet, not later
3) Ahad or one reported by one person
SUNNAH, HADEETH AND HADEETH QUDSI
1) Sunnah refers to the Prophet’s saying, action and practices,
and practical gathered and congregated from the Prophet
(peace be upon him). It refers also to what He silently or
verbally approved.
2) Hadeeth implies the narration of the record of the Sunnah
and also contained historical elements, and it is the story of
an eyewitness concerning what the Prophet (peace be upon
him) said, did or tolerated in connection with certain situation
or happening.
3) Hadeeth Qudsi is that Allah has communicated to His
Prophet (peace be upon him) through revelation or in dream,
and Prophet (peace be upon him) has communicated it in his
own words.
 Al-Ijtihad
• Ijtihad
– Literally means intellectual striving or self-exertion which
entails a measure of hardship
– The intellectual exertion of a jurist in order to infer, with a
degree of probability, the rules of Shari’ah from their
detailed evidence from the sources
– The person who exercises ijtihad is called a mujtahid
• Types of Mujtahid
– Mujtahid fi ‘l-din
– Mujtahid fi ‘l-madh’hab
– Mujtahid fi ‘l-mas’alah
The Process of Ijtihad

 The process of deriving the Shari'ah laws

from their sources is based on two main
branches of Islamic sciences: (Usulul-fiqh and
fiqh).
 Usulu’l-fiqh is the science of the method of
deriving the shari'ah laws, it is the
methodology of ijtihad. "Fiqh" is the practice
of ijtihad,
Conditions of Ijtihaad
1) The Mujtahid must be a Muslim, sound of mind and
competent person who has attained the level of intellectual
competence which enable him to formulate independent
judgment;
2) Knowledgeable in Arabic language, Sunnah and Tafseer;
3) Knowledgeable in Ijma’ and Qiyas and their rules and
regulation;
4) He must understand well the Islamic Law and jurisprudence;
5) He must understand the theory of abrogation and all its
aspects;
6) He knows the objectives (maqaasid) of Shari’ah; and
7) He must be an upright, honest and righteous person.
 AL-IJMA’
• Ijma’
 The unanimous agreement of the mujtahidin of the Muslim
community of any period following the death of the Holy Prophet
on any matter
 It applies to all juridical (shar’i), intellectual (‘aqli), customary
(‘urfi), and linguistic (lughawi) matters
 It is based from the nusus of the dependability of the ummah
 It begins with the personal ijtihad of individual jurists and ends in
the universal acceptance of a particular opinion over a period of
time
 Differences of opinion are tolerated until a consensus arises; there
is no compulsion or imposition of ideas in the process
• Essential requirements of Ijma’
1. Presence of a number of mujtahidin at a time an issue
is encountered
2. There is unanimity of opinion of the mujtahidin or jurists
3. The agreement of the mujtahidin must be shown in
their expressed opinion on a particular issue
4. Consensus must be by all the mujtahidin, not just a
majority [However, according to Ibn Jarir al-Tabari, Abu
Bakr al-Razi, Ahmad ibn Hanbal (in one of his two
views), and Shah Waliullah, ijma’ may be concluded by
a majority opinion]
– Once concluded, ijma’ cannot be repealed or modified
Bases of Ijma’ in the Sunnah
 “My community will not agree on error.”
 “Whoever separates himself from the
community and dies, dies the death
jahiliyyah.”
 “A group of my ummah shall continue to
remain on the right path. They will be
dominant and will not be harmed by the
opposition of opponents.”
The Shari’ah Value of Ijma

• The Shari’ah value of Ijma is obligatory to us.

Once the unanimous declaration is made it is
binding on every Muslim, including mujtahid who
took part in it.

• Ijma' or consensus, applies to a situation where

no clear conclusion can be made from the Qur'an
and the Sunnah.
 Al-Qiyas [Analogy]
Qiyas (Analogical Deduction) is a comparison
with a view of suggesting equality or similarity
between two things in accordance with the ashl,
far’ie, ‘illa and hukm.

Four parameters

 Nusus [verses from Quran & Sunnah]

 Rulings
 Cases [old and new]
 ‘Illah [cause/reason]
Essential Requirements of Qiyas

1) Paradigm case (ashl) - This is the original case on

which a ruling is given in the text and which
analogy seeks to extend to a new case
2) The new case (far’ie) - The branch, to which the
ruling is to be extended.
3) The ruling (hukm) -This is the Shari’ah value of the
original case which is to be extended to the new
case
4) The effective cause (illah). This is an attribute of the
Asl and it is found to be in common between the
original and the new case.
 Al-Qiyas
Cases ‘Illah Ruling Nusus

Old case Intoxication HARAM Quran &

Alcohol Sunnah

New case Not the ???? Derived from

Alcoholic same old nusus
perfume
• Examples of Qiyas (1)

The Glorious Qur’an (Surah al-Jumu’ah

62:9) forbids the selling of goods after
the last call for Friday prayer until the end
of the prayer. By analogy, the prohibition
is extended to all kinds of transactions
because the effective cause, that is,
diversion from prayer is common to all
Examples of Qiyas (2)

The Prophet is reported to have said:

“The killer shall not inherit from his
victim.” By analogy, the ruling is
extended to bequests, which would
mean that the killer will not benefit
from the will of his victim
Examples of Qiyas (3)

According to a Hadith, a man cannot

make an offer of engagement to a
woman who is already engaged to
another unless the latter gives his
permission or has abandoned his
offer. This is extended to similar other
transactions.
 Subsidiary Legal Principles (1)
Al-Istihsan
 Istihsan is considering a thing to be good.
 Juristically, it is a process of exercising personal
opinion in order to avoid rigidity and unfairness
that might result from the literal (meaning)
enforcement of the existing law.
 The Hanafi School advocates the principles of
istihsan because, the jurists described that
“Avoidance of hardship is a fundamental
principle of religion”.
• Istihsan
 Literally means ‘to approve, or to consider
something preferable
 It is derived from hasuna which means ‘good’ or
‘beautiful’
 It can be translated as ‘juristic preference’
 It involves the setting aside of an established
analogy in favor of an alternative ruling which
serves the ideals of justice and public interest in
a better way.
 Bases of Istihsan, the Prophet’s (peace be upon
him said:

" ‫حسَ ٌن‬

َ ِ ‫حسَنا فَه ُو َ عِنْد َ الله‬
َ َ‫" م َا ر َأه ُ ال ْم ُسلمُوْن‬

In English translation: “What the Muslims

discourse to be good is good in the sight of Allah”
(Hadeeth Saheeh)
 Subsidiary Legal Principles (2)
Maslaha Mursalah
(CONSIDERATION OF PUBLIC INTEREST)

 This is a legal method which associated

with the Malikie School.
 It is a method of deduction and reasoning
of law based on general consideration of
public well-being.
TYPES OF MASLAHAH:

1) Maslahah Mu’tabarah - (like the

protection of life by enacting the law of
retaliation)
2) Maslahah Mulghah - (such as to give the
son and the daughter an equal share)
3) Maslahah Mursalah - (such as the
issuance of currency; the instituting of
prisons; imposition of tax (kharaj).
Conditions of Maslahah Mursalah:

 The maslaha must be genuine [haqiqiyah]

 The maslaha must be general [kulliyah]
 The maslaha must not be in conflict with a
principle upheld by the nass and ijma’
 Imam Malik added: the maslaha must be
rational [ma’qulah] and must remove or
prevent hardship to the people
 Imam al-Ghazali added: the maslaha must
be essential [dharuriyah]
Example of Maslahah:
1) When the Muslim population increased during the
supremacy of Uthman bin Affan (R.A), he added the first
call to prayer (athan) in the Friday congregation. – There
was no nass allowing the additional call to prayer. During
the time of Caliph Uthman Bin Affan,
2) There was a husband while in his death illness (Maradul-
mawt)
3) Compilation of the Holy Quran
4) The contract of Istisna’
 Subsidiary Legal Principles (3)
ISTIS-HAB (PRESUMPTION OF CONTINUITY)

Shafi’ie and Hanbalie schools of law

sustained on this legal principle, Istishab
applies only when no other evidence is
available, because maslahah means
attending and leading.
An example of this is “Everything is
recognized to be permissible unless the
contrary is proved”.
• An example of Istis-hab

The legal presumption of innocence

until the proof of guilt is established;
things presumed Halal in the absence of
prohibition; and marriage is presumed to
continue until its dissolution becomes
known.
Other feature of Istishab
 “Ownership is accepted arising from valid title
deeds until contrary is proved.” and “The legal
presumption of innocence until the proof of guilt is
established.
 There are many legal maxims such as,
1) Certainty may not be disproved by doubt.
2) When a person is known to be sane, he will be
recognized as such until it is established that
he has become insane.
 Subsidiary Legal Principles (4): ‘Urf

The ‘Urf (Custom)

• ‘Urf is a habitual practice, which are acceptable to
the people of sound nature.
• It is a part of the supplementary sources of Shari’ah
based on the legal maxim: “Customary norms are
valid and authentic”.
• In other words, the validity of this custom is
supported by legal maxim: “What is accepted by ‘urf
is tantamount to stipulated agreement”
• Kinds of ‘Urf
1) ‘Urf Qawlie (Verbal) – It refers to the general
agreement of the people on the usage and
meaning of words for purposes other than literal
meaning. An example of this is hajj and talaq,
etc.
2) ‘Urf Fi’ilie (actual) – It refers to the commonly
recurrent practices which re accepted by the
people. An example of this is the give and take
sale. (Bayi’e At-ta’atee) which is normally
concluded without utterance of offer acceptance.
• Conditions of a valid ‘urf:

 Must represent a common and regular

phenomenon
 Must be in existence when a transaction is
concluded
 Must not contravene the clear stipulation
of an agreement
 Must not violate the nass
An Example of ‘Urf

1) Part of Adat is customary rules relating to the

payment of dower in marriage may require a certain
amount to be paid before, during, or after the
celebration of marriage;

2) The maintenance of children is the obligation of the

father;

3) The rules of inheritance ascribe to the male line

relationship, known as ‘asabah.
 Subsidiary Legal Principles (4)
Sadd Al-dhari’ah

• Sadd Al-dhari’ah is blocking the lawful means

to an unlawful end; it is concerned with lawful
acts that may be prohibited as they lead to
unlawful results.
• An example of this is the farming of poppy
has been banned in many countries, because
it is leading in most cases to the production of
opium and heroin which is a poisonous drug
that is being misused.
• Sadd Ad-thari’ah
Opinions:
 Hanafi and Shafi’I schools do not recognize it as
a principle of jurisprudence
 Maliki and Hanbali jurists validated it as a proof
of Shari’ah in its own right
 Example: a man sent by the Prophet [saw] to
collect zakat and who took gifts from the people
 The Prophet prevented creditors to take gifts
from debtors which may lead to riba’ and the gift
becoming a substitute for riba’
 Subsidiary Legal Principles (5)

Opinion of the Shahabah (R.A)

Sahabah is defined as a person who met
the messenger of Allah and believed in him,
and died as a Muslim. The companions are all
considered trustworthy.
The Opinion of the Companion (Shabah)

Sunnah of the Companion is referring to the

companion of particular sahabah to specific
rulings or issues concerning legal actions. After
the death of the Prophet (Peace be on him), it
was the companions who interpreted the law
and developed it through ijtihad.
Rules of the Opinion of the Sahaabah

1) If they were united on an opinion it was

referred to as Ijmaa’; and
2) If they had different opinions on a single
issue, each opinion was referred to as a
Ra’yie (personal opinion).
 Subsidiary Legal Principles (6)
SHAR’U MAN QABLANA (EARLIER SCRIPTURES)
 Shar’u man qablana (Earlier Scriptures) is the body
of rules ordained by Allah for the nations before the
Prophet’s Ummah through revelation to their
Prophets (peace be on them).

 Some scholars said that it was abrogated by our

Shari’ah, while others said that those parts that were
not abrogated are compulsory on us.
Basic reasons for conflicting rulings
1) Word denotations – it refers to the literal and figurative meaning,
such as the word (Qur’ and Lams) and the grammatical
connotation (e.g. ila) which means “up to but not including” in other
place in the holy Qur’an “up to and including”.
2) The narrations of hadeeth – it refers to the conditions and
acceptance of hadeeth, and the resolution of the textual conflicts in
hadeeth.
3) The admissibility of certain principles among the school of
thought (Madahib); such as Imam Abu Hanifa on his principle of
Istihsan, Imam malik’s istislah, trust and reliance on costumes of
ahlul Madinah, were both disallowed by Imam As-shafi’ie.
4) The methods of Qiyas – it because of the various approaches
and applications of jurists, such as Imam Abu Hanifa’s Qiyas Jalie
and Qiyas Khafie.
As-Siyasah As-Sar’iyyah (Shari’ah Policy)

It is the management of the affairs of

the Islamic state by what is not mentioned in
the text, or in what is changed or
transformed for the sake of the nation’s
interest, and in a manner consistent with the
general principles and provisions of the
Shari’ah.
There are issues and topics related to Shari’ah policy,
namely:

1) The relationship of the Islamic state with other

countries in situations of peace and war.
2) The treasury house system, state materials, what is
owed to it, and what is spent.
3) The relationship of the ruler and the ruled, and
knowing the rights, responsibilities and duties of
each party.
4) Judicial policy in Islam.
5) Investing money in the state and ways of
organizing that, and in what is called the economic
system in Islam.
Sources of As-Siyasah As-Shar’iyyah

The rulings of Sharia policy are Sharia rulings, and therefore their
sources are the same as the sources of Islamic Law, and these sources
are:

1) The Holy Qur'an,

2) The Prophet’s Sunnah
3) The Sunnah of Rightly-Guided Caliphs, which are Abu Bakr, Omar,
Othman and Ali, may Allah be pleased with them,
4) Consensus (Ijma),
5) Qiyas,
6) Ijtihad and inference (Istidlal),
 Reference Book

INTRODUCTION TO SHARI’AH
AND ISLAMIC PENAL LAW
ENFORCEMENT

(Question & Answer)

ANWAR M. RADIAMODA

2017