SOURCES OF SHARIAH

Dr. Abidullah Khan

 Topics

• Sources of Islamic Jurisprudence: The Quran,

Sunna, Ijma’and Qiyas
• Istihsan (Juristice Preference)
• Ürf (Custom)
• Istislah (Consideration of benefits) and Al-
Masalih al-Mursalah (Unrestricted Benefits)
 Shariah ‫ا لشريع ة‬

Then We have put you (O prophet) on a plain

way of (our) commandment. So follow it and
do not follow the desires of those who do not
know. (45:18)

3
 Shariah ‫ا لشريع ة‬
• Lexically, a plain way. ‫ا صل راط ا لم تس ق يم‬

• Terminologically, shariah is the body of Islamic

religious law.

• But its scope extends beyond law as it regulates

both public and private aspects

• Shariah is the totality of religious, political, social,

domestic and private life.

4
 Shariah ‫ا لشريع ة‬

These four are the fountainheads from which

the spring of Jurisprudence flow:
• Quran

• Hadeeth

• Ijma

• Qiyas
 Quran‫ا لقران‬

• It performs same role as the constitution in the

positive laws of nations.
• Being constitutional in nature, its texts are
usually general
• Consists of command of offering Salah and
paying Zakah without discussing the method
and quantity.
• Commands fulfillments of contract, but does not
explain the detailed characteristics of valid and
void contracts
• Sometimes it goes into details. Like inheritance,
invoking curse (‫ان‬4‫ع‬44‫)ل‬, some criminal
punishments, and to whom one cannot marry.
 Quran‫ا لقران‬

• The generality attribute of Quran deals with the

requirements of the changing societies.
• In any case these general texts of Quran need
an elaboration by the Sunnah.

Allah says: “and whatever the Messenger gives

you, accept it; and from whatever he forbids you,
keep back”. (Al-Hashr, 59:7).
 Hadeeth ‫ا لحديث‬

• Literally, Sunnah means sayings.

• Terminologically, it includes the narration of

sayings, actions, and even silence on a certain
act by the Holy Prophet Muhammad ‫ص ل یہللا علیہ وسلم‬.

• It also includes the description of personality of

the Holy Prophet Muhammad 4‫ وسلم‬4‫ عليه‬444‫ليهللا‬44‫ص‬.

• From one hand, it is an independent source. It

may include some rulings that are not contained
in the Quran.
 Hadeeth ‫ا لحديث‬

• For example, the inheritance of grandmother of

deceased.

• On the other hand, Hadeeth is always

subordinate to Quran in a sense that it does not
go against Quranic principles and general rules.

• Since the sunnah now is just reported

narrations, therefore only authentic narrations
are accepted as source of legislation.

• There are levels of authenticity in hadeeth.

 Forms of Hadeeth ‫ا لحديث‬
• Mutawatir (‫تر‬4‫لمتوا‬44‫لحديثا‬44‫)ا‬:
• Several chain of narrations
• Number of narrators is so high that it is
not possible for them to lie collectively.
• Every chain consists of several narrators
at every level.
 Forms of Hadeeth ‫ا لحديث‬

• Mashhoor (‫ور‬4‫لمشه‬44‫لخبر ا‬44‫)ا‬:

• The narrators at every level are three or
more than three. But are less than the
extent of Tawatur.
 Forms of Hadeeth ‫ا لحديث‬

• Al-Azeez (‫زيز‬4‫لع‬44‫لخبر ا‬44‫)ا‬:

• The narrators at every level are just two.

 Forms of Hadeeth ‫ا لحديث‬

• Al-Ghareeb ‫ريب‬4‫غ‬
( ‫ل‬44‫لخبر ا‬44‫)ا‬:

• If a narration has only one narrator either in

the whole chain or at a particular level.
 Forms of Hadeeth ‫ا لحديث‬

• Hadeeth Mashhoor, Ghareeb and Azeez are

further classified into Sahih , Hasan , and Zaeef.

• Sahih is the narration whose chain of narrators

is integrated, and the narrators are authentic
and have sound memory. Moreover, the text of
the narration does not have any inconsistency
with Quran, Hadis e Mashhoor, and the
preliminary era of Islam.
 Forms of Hadeeth ‫ا لحديث‬

• Hasan is the narration whose one or more narrator

does not have sound memory.
 Forms of Hadeeth ‫ا لحديث‬

• Zaeef ‫ف‬( ‫لضعي‬44‫ )ا‬is the narration which is weak

because of disintegrated chain or dishonest
narrator.

• There are so many books written on Zaeef and

fictitious narrations.
 Ijma’ ‫ا الجماع‬

Consensus of the Islamic Jurists, be them

Sahabah or generations that came after, on a
particular problem after the demise of the Holy
Prophet Muhammad is called Ijma’.

Same as Wahy in authority

 ‫ا الجماع ’‪Ijma‬‬

‫يل‬ ‫س و َل ِم ْن بَ ْع ِد َم ا تَبَيَّ َن لَهُ ا ْل ُه َدى َويَتَّبِ ْع َغ ْي َر َ‬

‫س ِب ِ‬ ‫ق ال َّر ُ‬ ‫شاقِ ِ‬ ‫َو َم ْن يُ َ‬
‫ن‬
‫صي ًرا (ال ساء ‪)۱۱۵‬‬ ‫سا َءتْ َم ِ‬‫صلِ ِه َج َهنَّ َم َو َ‬ ‫ا ْل ُمْؤ ِم ِن َ‬
‫ين نُ َولِّ ِه َما تَ َولَّى َونُ ْ‬

‫ج‬ ‫ت‬
‫ن‬ ‫ض‬ ‫خ‬ ‫ر مہ‪:‬ش‬
‫ف‬ ‫ب‬ ‫ن‬ ‫ن‬
‫ل‬ ‫ہ‬
‫ے ہ دای ت وا ح و ے کے ب عد ھی رسول کی خم ا ت‬ ‫م‬ ‫ے سا‬ ‫پ‬ ‫اور ج و ص ا‬
‫ہ‬ ‫ت‬ ‫ت‬ ‫ن‬
‫ے کی پ یروی کرے‪ ،‬اس کو م‬ ‫ے کے سوا کنسیخاور را ئس‬ ‫کرے‪ ،‬اور مؤم وں کے را س‬
‫ے ‪ ،‬اور اسے دوزخ می ں‬ ‫ی‬ ‫ا‬ ‫اسی راہ کے حوالہ کرد ں گےج و اس ے ود اپ ن‬
‫ہ‬ ‫ٹ‬ ‫ی‬ ‫ج ن‬
‫ن‬
‫ے۔‬ ‫ھو کی ں گے‪ ،‬اور وہ ب ہت برا ھکا ہ ہ‬

‫ال تجتمع أمتي علي الضاللة (أبو داود)‬

 Ijma’ ‫ا الجماع‬

• Consensus must rest on proof.

• But present scholars only need to investigate

its presence and authenticity and not its
proof.

• Otherwise, the proof will be an authority and

not the Ijma’.
 ‫ا الجماع ’‪Ijma‬‬
‫ف‬ ‫شت خ ت‬ ‫ت ن‬ ‫ق‬
‫ے‬ ‫‪ .1‬رآن کری م (آل عمران‪ )۲۳ :‬می ں ہللا عالی ے ان ر ہ دار وا ی ن کا ذکر رمای ا ہ‬
‫غ‬ ‫ن‬ ‫نن ت‬ ‫ن‬ ‫ن‬
‫ے‪ ،‬اس آی ت می ں دادی‪ ،‬ا ی‪ ،‬پو ی اور واسی و ی رہ کا ذکر‬ ‫ج ن سے کاح کر ا حرام ہ‬
‫ن‬ ‫نن ت‬ ‫تف‬ ‫لی ت‬ ‫ن‬
‫ے اس ب ات پ ر کہ دادی‪ ،‬ا ی‪ ،‬پو ی اور واسی‬ ‫ے‪ ،‬کن مام صحاب ہ کا ا اق ہ‬ ‫ہی ں ہ‬
‫وغ رہ سے ب ھی ن کاح کرن ا حرام ے‪ ،‬ہ ب ھی ا ماع کی ا ک مث ال ے۔ اس م ں س دن‬
‫ی‬ ‫ہ‬ ‫ی‬ ‫ج‬ ‫ہ ی‬ ‫ی‬
‫ق‬
‫ے۔‬ ‫اج ماع رٓان ہ‬
‫‪2. Impermissibility of sale of food before‬‬
‫‪possession.‬‬
 Qiyas‫ا لقياس‬

To apply any Ruling of Shariah mentioned in Quran or

Sunnah to a similar thing or situation by way of finding
illah (Effective Cause, Actual reason and basis).

The Holy Prophet (SAW) said: “O Muaz, How will you

decide cases?”. Muaz replied: “ according to Allah’s Book.”
The Prophet (SAW) asked: “ and if you don’t find them
there?”. Muaz replied: “ Then according to your Sunnah”.
The Prophet (SAW) asked: “ and what if you don’t find in
Sunnah?”. Muaz replied: ““I will do ijtihad (and extract the
judgement with my opinion”. The Prophet (SAW) said:
“Praise belongs to Who caused the envoy of Allah’s
Messenger to conform to what pleases Allah’s Messenger.
(Abu Dawood)
 Examples of Qiyas‫ا لقياس‬
Narration related to Sale contract are far
more than those related to Ijarah contract.
Rulings of Ijarah was deduced by qiyas.
Effective Cause: Leasing is also a form of
selling. Sale of utility is lease.

Original Case: Trading after call for Juma

prayer is prohibited by Quran.
New Case: Other contracts like Ijarah is also
prohibited by Qiyas. Common
Effective Cause: Distraction from preparing
for jumuáh.
 Examples of Qiyas‫ا لقياس‬
4. Option to terminate contract due to non
payment by the purchaser(‫د‬4‫لنق‬44‫ )خيار ا‬is also
deduced through Qiyas on ‫لشرط‬44‫خيار ا‬.
Common Characteristic: Termination of
contract due to necessity.

Qiyas cannot be displaced by the generality of

some texts because:

• General text covers the component that fit in

its meaning
• Qiyaas renders the texts inclusive of all what
does not fit in its meaning through the
method of deducing common characteristic.
(‫لعلة‬44‫)ا‬
 Qiyas, An Important note:
The Shariah ruling is dependent on Íllat (‫لعلة‬44‫)ا‬
and not Hikmah (‫لحكمة‬44‫)ا‬

Íllat (‫لعلة‬44‫ )ا‬is the real reason of the existence of a

particular Shariah law.

Hikmah (‫لحكمة‬44‫ )ا‬are the secondary benefits to be

achieved through the ruling.

A particular Shariah Law/ruling exists because of

Íllat (‫لعلة‬44‫ )ا‬and not because of Hikmah (‫لحكمة‬44‫)ا‬.
 Qiyas, An Important note:
• Íllat (‫لعلة‬44‫)ا‬ of the prohibition of
fornication/adultery is the Quranic verses or
narrations of the Messenger 4‫ وسلم‬4‫ عليه‬444‫ليهللا‬44‫ص‬.

• Hikmah (‫لحكمة‬44‫ )ا‬of its prohibition is existence

of doubts in the chain of descents ‫نسب‬ ( ‫ل‬44‫)خلط ا‬

• If a scenario comes, where due to scientific

technologies, there is no doubt in the chain
of descents, fornication will still be
prohibited.

• Because Íllat (‫لعلة‬44‫ )ا‬of this ruling, which is

Quran or Hadeeth, still exist.
 Qiyas, An Important note:
• Íllat (‫لعلة‬44‫ )ا‬may be metaphorically understood
as a traffic red light signal.

• Hikmah (‫لحكمة‬44‫ )ا‬is to avoid the collision of

cars.

• If there are no cars on road, and red light

glows, then there seems no hikmah in
stopping as collision is already avoided.

• Still, the ruling is to stop your car as Íllat

(‫لعلة‬44‫ )ا‬does exist. Red light.
Secondary Sources of Shariah
 ISTIHSAN (Juristic Preference)
Istihsan is the diversion from the ruling of
qiyas to another ruling due to another reason
which requires that departure.

This another reason may be a narration, Ijma’,

necessity or another qiyas.
 ISTIHSAN: Examples

• Salam transaction is against the basic laws of

sale. It is allowed due to a narration.
 Urf ‫رف‬
( ‫)ا لع‬

Literally, it means knowledge.

Technically, it is customary practice of a large

number of people in a community.

It is also called Taámul ‫ت‬

( ‫الم‬44‫املا‬4‫ع‬444‫)ت‬

‫ ما رأه المسلمون حسنا فهو عند هللا حسن‬:‫أن ابن مسعود رضي هللا عنه قال‬
What the Muslims deem good, then it is also
good in the sight of Allah.
 Urf ‫رف‬
( ‫)ا لع‬: Examples
Following are referred to Urf:

1. How much dowry is advanced and how much

is deferred, if not decided in the contract, will
be referred to Urf.

2. What is considered a defect in the commodity

that activates the option of defect?

3. What are the responsibility of an employee?

 ISTISLAH (‫)ا الستصالح‬

• Istislah is the establishment of the rules of

fiqh on the basis of Al-Masliha Al-Mursala
(‫لمرسلة‬44‫لمصلحة ا‬44‫)ا‬

• Acquiring Benefits and avoiding harm

• Al-Masliha (benefit) Al-Mursala

(unrestricted or unregulated) (‫لمرسلة‬44‫لحة ا‬4‫لمص‬44‫)ا‬
is every benefit that has not been
specifically discussed in the text of
Shariah.
 ISTISLAH (‫)ا الستصالح‬
Literal Connotation

• Literally, Maslaha (‫لمصلحة‬44‫ )ا‬is antonym of

Mafsadah (‫لمفسدة‬44‫)ا‬.
• Absolute benefit is Maslaha (‫لمصلحة‬44‫ )ا‬and
absolute harm is Mafsadah (‫لمفسدة‬44‫)ا‬.
• Knowledge, profit, enjoyment, comfort,
amusement, health are Masalih (4‫لح‬44‫لمصا‬44‫)ا‬
• Ignorance, loss, pain, fatigue are Mafasid
(‫اسد‬4‫لمف‬44‫)ا‬
• But it is a narrow vision
 ISTISLAH (‫)ا الستصالح‬
Literal Connotation

• Pain of healing and treatment is not harmful

• Pleasure of drinking wine may consequently
lead to pain or detriments to soul
• Thus apparent pain and pleasure cannot be
the basis of legal rulings.
• Another criterion is thus needed for
establishing that a particular matter is
Maslaha (‫لمصلحة‬44‫ )ا‬or Mafsadah (‫لمفسدة‬44‫)ا‬
• This criterion is the terminological
connotation of Istislah
Everything has dual direction of benefit and harm but consideration is for
dominant
 ISTISLAH (‫)ا الستصالح‬
Terminological Connotation

1. Necessities (Zarooriyyaat)(‫لضروريات‬44‫)ا‬

These are the deeds and behaviors on which the

protection of five essential elements is dependent.

Religion, self, intellect, offspring and wealth.

 ISTISLAH (‫)ا الستصالح‬
Terminological Connotation

2. Needs (Hajiyyaat)(‫لحاجيات‬44‫)ا‬

These are the deeds and behaviors on which

the protection of five essential elements is not
dependent.

E.g. Legitimizing of contracts.

 ISTISLAH (‫)ا الستصالح‬
Terminological Connotation
3. Supplements (Tahsiniyyat) ‫ت‬
( ‫لتحسينيا‬44‫)ا‬

Observing them is part of good morals or

beautiful traditions.

Some of them are just preferred like

etiquettes of dining, speaking etc.
 ISTISLAH (‫)ا الستصالح‬
Terminological Connotation
Rulings that legitimize for the protection of the
Zarooriyyaat are the most important rulings.

2nd level is of those rulings that pertain to

hajiyyat.

Examples: healthy food, communication tools,

marriage, transportation etc.

3rd level of rulings are those that pertain to

Tahsiniyyat

Example: branded outfits, luxury car etc.

 ISTISLAH (‫)ا الستصالح‬
Factors that call for Istislah

1. Acquiring benefit (‫لمصلحة‬44‫)جلبا‬

Imposing fair taxes

2. Averting harm (‫اسد‬4‫لمف‬44‫)درأ ا‬

Legal restrictions
 ISTISLAH (‫)ا الستصالح‬
Factors that call for Istislah

3. Blocking the means (4‫ئع‬4‫لذرا‬44‫د ا‬44‫)س‬

Some acts are not inherently forbidden, but they
are potential path to illegal actions.

Any action that may lead to illegal action is

prohibited.
 ISTISLAH (‫)ا الستصالح‬
Factors that call for Istislah
4. Change of time
Ijtihadi rulings may change with the change in
time.

Examples:
i. Contrary to original Hanafi school, now the
coercion is considered as an excuse for
coerced person
ii. Waqf estates, if constructed shops and
houses, are now prohibited to be given on
rent for more than one year. And for more
than three years, if agricultural lands.
Previously it was allowed by the Hanafi Jurist.
 ISTISLAH (‫)ا الستصالح‬
Factors that call for Istislah
4. Change of time
Ijtihadi rulings may change with the change in
time.

Examples:
i. Contrary to original Hanafi school, now the
coercion is considered as an excuse for
coerced person
ii. Waqf estates, if constructed shops and
houses, are now prohibited to be given on
rent for more than one year. And for more
than three years, if agricultural lands.
Previously it was allowed by the Hanafi Jurist.