Sources and Schools of Muslim Law

Name the 4 Primary Sources

Primary Sources

1) The Quran

2) Sunnah

3) Ijma

4) Qiyas

Name the Secondary Sources

Secondary Sources

1) Equity and absolute good

a)Istehsan

b)Al-masalih-al-mursalah

c)Istedlal

d)Istishab

e)IeIjtehad

f)Taqlid

2) Precedent

3) Legislation

4) Urf or Custom

What is a ‘surah’?

Chapter of a Quaran are Surah.

What is ‘Ayats’?

Quran contains about 6000 verses called ‘Ayats’. The verses dealing with law does not exceed 200.

Meaning of Sunnah/ Hadith.

Sunnah / Hadith:

The term “Sunnah” literally means a path, a procedure and a way of action.

3 types of Sunnah are _________

There are three types of Sunnah:

Sunnah Qawliyyah: Sayings;

Sunnah Fi’lliyah: Actions;

and

Sunnah Taqriyyah: Approvals.

Meaning of Ijma?

Ijma (Consensus):

The “Ijma” means an agreement, among followers of Muhammad in particular age on a question of law.

Fayzee defines ‘Ijma’ as a consensus of opinion among learned of the community.

Ijma’s  classification into 3 types - 

Ijma has been classified into three types:

a) Ijma of the companions of the Prophet;

b) Ijma of the jurists; and

c) Ijma of the people.

Meaning of “Qiyas”

Qiyas (Analogy): The word “Qiyas” has come from a root which means measurement, accord, equality, etc.

Qiyas  is defined as the process of deduction from first three sources of law, by which the law of a text is applied to cases which, though not covered by the language, are governed by the reason of the text.

With the conquest and the expansion of the Islamic state, and with the advent of time, new cases came up which were not provided for in the Quran, Sunnah or Ijma.

The jurists found themselves compelled in seeking solutions, and to have recourse to reason, logic and opinion. Analogy, thus became the fourth source of Islamic law.

Equity and Absolute good in Muslim law

Equity and the Absolute Good: In most systems of law, something akin to he English doctrine of Equity, has existed. The same is in Muslim Law.

For the better understanding all those sources which have their origin in equity and absolute good are placed under this heading.

Meaning of “Istehan”?

Istehsan: Literally it means preferring or considering a thing to be good, it is also called, by some authors a juristic preference or equity.

Istehsan is a doctrine by which a jurist is enabled to get over a deduction of analogy (Qiyas) either because it is opposed to text or consensus of opinion or is such that his better Judgment does not approve of it.

Istehsan came to signify a breach of strict analogy for reason of public interest, convenience or similar consideration. This is essentially a doctrine of Hanafis, and other schools of the Sunnis did not look at it kindly.

Al-masalih-Al-mursalah meaning?

Al-masalih-Al mursalah (public interest): Shariah has religious and transactional aspect. The transactional aspect is based upon the interests of, and the benefit of people.

So Imam Malik approved “public interest” as one of the sources of the Shariah.

For example, the imposition of taxes on the rich in order to meet the costs of the army and to protect the realm.

Istidal meaning

Istidlal: Literally, the word “istidlal” means the inferring form one thing to another thing, in other words, Istidlal is an effort to reach at same rule acting on certain basis.

Sale is a contract; the basis of every contract is consent; it is necessary therefore that consent be the basis of sale.

This source of law is mainly recognised by the Malikis and the shafis, while Hanafis regard it as only a special mode of interpretation.

Istishab meaning

Istishab: Literally, it mean permanency.

Technically, it is used to denote the things whose existence or non-existence had been proved in the past, be presumed to have remained as such for lack of establishing any change.

For instance; A man who has disappeared and whose whereabouts are not known, the shafis would treat such a man as living for all purposes of law until his death is proved, so that his estate will not be distributed among his heirs and he will be allotted his share in the estate of a person, form whom he is entitled to inherit and who happen to die during his disappearance.

This principle was particularly emphasized by most followers of as Shafi, Ahmed ibn-Hanbal and adherents of Immamiyah shias.

Meaning of Ijtihad?

Ijtihad (Interpretation): means the extending of effort and the exhaustion of all powers but technically, it means the expending of effort in seeking, and arriving at rules from various sources of in seeking, and arriving at rules from various sources of law.

After Prophet’s death the companions of prophet took recourse to the right of Ijtihad when need arose, under the shield of legislation approved and sanctioned by the prophet and the Quran.

However, towards the end of the abbasid period. Suuni jurists declared that the gate of Ijihad was closed. The reasons were:

1) a belief that the exposition of principles by four Sunni schools was sufficient to meet future requirements;

2) evolution of sectarian groups gave rise to prejudices and unwarranted hatred among the Muslims belonging to different schools;

3) moral degradation of Muslims. Many intelligent people became concerned with rulers of time and began to give futwas and practice Ijtihad for their pleasure;

4) Absence of qualified persons competent to make Ijtihad.

Ijtihad has been applied more extensively by the Imamiyah shias, than by the followers of the Sunni schools.

To shias, the door of interpretation has always been open, and continues to be so.

Meaning of Taqlid?

Taqlid (Imitation): It means to follow the opinions of others without scrutinizing them.

Meaning of Precedent?

Precedent: means a previous instance or case which is, or may be taken as an example or rule or subsequent cases, or by which some similar act or circumstances may be supported or justified.

The doctrine has never been a part of Muslim Law. The opinions of the jurists called Fatwa, have great persuasive force, yet the Kazi was not bound to follow the Fatwa, or if he thought it fit in his judgment, he could ignore it and render and independent judgment.

But the doctrine of precedent became a part of Muslim Law during British period.

egislation: In India, during British period there have been many legislative modifications of Muslim Law.

Shariat Act, 1937 was passed with a view to make Muslim Law Muslim Law applicable to all Muslims, in those matters where they governed by some other law or usage.

What is Custom?

Custom:

It is the recurring practices which are acceptable to people of sound mind. For example, the language of Nikah.

Name the 4 Sunni Schools

Sunni School is further divided into Four sub schools: 

The Hanafi School 

The Maliki School

The Shafi School

The Hanbali School

Name the 3 Shia Schools.

Shia School is further divided into three sub schools:

Zaidiya School

Ismailiyah School

Ithna Asahari School