The Sources of Islamic Law

Obey Allah and the Messenger that hopefully you will receive mercy. (Q.3:132.) How, then, do we know what the commands of Allah and His Prophet are, so that we can obey them?

1. The Qur'an
Firstly, of course, we have the Qur'an, "a sending-down from the Lord of all the worlds" (Q.56:80), "which no falsehood approaches, either from in front of it or from behind; a sending-down from [One] Wise and Praiseworthy" (Q.41:42). But, as with any linguistic text, there are potential problems. It is necessary to determine, for instance, whether an expression is to be taken generally, or whether there are exceptions to it. Thus, for example, the punishment of being flogged a hundred times for zina (fornication, illicit sexual intercourse) in Q.24:2 - "A woman who fornicates and a man who fornicates - flog them both a hundred times" - is understood to refer specifically to free men and women rather than all men and women because of the judgement in Q.4:25 to the effect that slave-girls, and thus slave men as well, who are guilty of the same offence should only be punished with half the punishment stipulated for free men and women, i.e. being flogged fifty times rather than a hundred. (The relevant part of Q.4:25 reads: "and if they [i.e. slave-girls] are married [fa-idha uhsinna] and then commit adultery, they should receive half the punishment prescribed for free women".) The second verse is thus taken as an exception to the general ruling in the first. This comes under the uslis' heading of al-amm wa-l-khass ("what is general and what is specific"). It may also be that an expression which is unqualified in one part of the Qur'an is qualified elsewhere: should the first expression thus be understood to be qualified in the same way? An example of this would be the phrase fa-tahriru raqaba ("then the freeing of a slave") in Q.58:3, referring to the kaffara ("expiation") for breaking the1 oath of zihar, while the kaffara for accidental killing mentioned in Q.4:92 is referred to using the phrase fatahriru raqabatin mumina ("then the freeing of a believing slave"). Would a slave freed for the kaffara of zihar have to be "believing", i.e. a Muslim, as well? (Malik and al-Shafii said "Yes", while Abu Hanifa said "No.") This comes under the uslis' heading of haml al-mulaq ala l-muqayyad (i.e. assuming an unqualified expression to be qualified in the same way as its qualified counterpart elsewhere). It may also be that there is a contradiction between two judgements because one of them was revealed later and intended to supersede the other, although both remain in the text. An example of this would be the verses detailing inheritance rights (Q.4:11, 12 and 176) which superseded the verses prescribing bequests to parents and relatives (Q.2:180). This involves the science of al-nasikh wa-l-manskh ("what is abrogating and what is abrogated"). Similarly, it is often of importance when understanding the meaning of a passage to know something about the circumstances in which it was revealed. This involves the knowledge of the "circumstances of revelation", or asbab al-nuzul (sing. sabab al-nuzul). Thus, for example, the phrase wa-la jidala fi l-hajj (Q.2:197) ("and [let there be] no argument during [or "about"] the hajj") is explained by Malik in the Muwatta as referring to the arguments that the Quraysh and various other tribes used to have in the pre-Islamic period concerning where the rite of "standing" should take place; now that these places had been decided and the correct sunna of doing
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the hajj was known, there was no longer any need for argument during the hajj about the hajj, that is, about where the various rites should take place. This interpretation by the sabab al-nuzul of the aya thus implies that "argument" in this context is not to be understood in the general sense of any argumentation during the hajj but rather in the specific sense of argument during the hajj about the hajj. However, the general rule usually observed in this context is that one goes by the general sense of such words rather than simply the specific meaning suggested by the occasion of revelation (al-ibra bi-umum al-lafz, la bi-khusus al-sabab). Furthermore, it goes without saying that all these issues of textual interpretation demand a firm knowledge of the Arabic language. The men who later systematised this science isolated five different types of Qur'anic statement from which judgements can be derived: (i) Firstly, there is the nass (lit. "Text") of the Qur'an (nass al-kitab), meaning, in this instance, an unambiguous text or judgement, as, for example, when Allah says: "Men who steal and women who steal - cut off their hands ... (Q.5:38). (ii) Secondly, there is the zahir ("overt, apparent meaning") of the Qur'an (zahir al-kitab), by which is also meant the general meaning (al-umum). In other words, you take an expression at face value - unless there is specific evidence to the contrary - and assume that everything that could be covered by the words is covered by those words. Thus, for example, Malik assumes that the word "mosques" in the phrase "while you are doing itikaf in mosques" (Q.2:187) refers to any mosque, and not just a mosque where the Jumua is done, although he then points out that if the intended period of itikaf involves a Jumua, then it should only be in a Jumua mosque, so that the person does not have to break his itikaf in order to go to the Jumua.

2. The Sunna, or the Qur'an in Action

So far these are very textual considerations, but the Qur'an did not come down in a vacuum. It was revealed on the tongue of a man - the Messenger, salla-llahu alayhi wa-sallam - or, more correctly, it was revealed "onto his heart", and from there it came out by means of his tongue, which was "a clear, Arabic tongue". Allah says: "The Noble Spirit brought it down onto your heart for you to be one of the warners, in a clear, Arabic tongue" (Q.26:193-5), i.e. via someone who spoke clear Arabic. This message was then acted upon by the Messenger. There is the famous hadith of A'isha where she describes the Prophet by saying, "His behaviour was the Qur'an"; or, as it has also been translated, "He was the Qur'an walking". This is the origin of our second source, the sunna. This means that, at the first level, the Qur'an is initially explained by what the Prophet, salla-llahu alayhi wasallam, did, i.e. how he put the Qur'an into practice, as it is also explained by what he said. These actions and words were of course witnessed and heard by those with him, who in turn acted upon them, and, in some cases, also recorded them in a more formal, "textual" way, whether by committing them to memory or, in some cases, writing them down. It was the activities of this latter group of specialists that led to the later compilation of the hadith reports about the sunna - and here we differentiate between hadith and sunna, since they are not the same.

At this point we have a second written source - commonly known as the sunna, but more accurately described as the hadith (although there is a source which we can call the sunna and which is really our second source, as we shall see shortly). From this second written source, the hadith, we can then derive the same sort of judgements that we did from the first, so we can have nass al-hadith, zahir alhadith, dalil al-hadith, mafhum al-hadith, and shibh al-hadith in the same way that we had nass alkitab, etc. We should also note that the interplay between the two is extensive. Thus we can use sunna, or its textual form of hadith, to clarify what is stated generally in the Qur'an, and/or define exceptions to it, etc. Thus, for example, beyond the basic commands, very few details are given in the Qur'an about how to do the prayer or pay the zakat. Nevertheless, copious details are provided in the records of the sunna of how the Prophet, salla-llahu alayhi wa-sallam, carried out these two obligations. These two bases, the Qur'an and the sunna, are the accepted bases of the law for all the madhhabs, or schools of law. The only difference at this point is on details of interpretation, i.e. on what exactly the words of a particular aya or hadith mean. 3. Ijma (consensus)
There is the famous hadith that "My community will not agree on an error"

4. Qiyas (analogy) Thus, for instance, if intoxication by wine was haram, then so too should intoxication by other drinks, or indeed other substances, once it had been establish that it was intoxication that was being prohibited. 6. The Opinion of a Companion
This principle includes, for example, something which one of the Rightly-Guided Caliphs did and which nobody disagreed with, such as Umar's institution of group tarawih prayers in the mosque in Ramadan. Such a practice then becomes like an authoritative text (nass) because of the Prophet's saying that "You must hold to my sunna and the sunna of the Rightly-Guided Caliphs [after me]." Furthermore, since nobody said gainsaid this judgement, it is like a silent consensus (ijma sukuti).

7. Istihsan
Istihsan refers to when a "hidden" qiyas (qiyas khafi) is given preference to a "clear" qiyas (qiyas jali), or when a partial exception is made to an otherwise general rule because of some indication elsewhere in the Sharia.

8. al-Masalih al-mursala
Masalih is the plural of maslaha, which means "something of benefit". Mursala in this context means, literally, "set free", "unrestricted", i.e. that there is no text either expressly allowing or forbidding the particular matter

Examples:
i. ii. iii. iv. v. vi. vii. Writing down the Qur'an and vocalizing the written text Abu Bakr's appointment of Umar as his successor Demolishing a waqf or other building next to a Establishing a standard coinage for the Muslims Adding a second adhan on the Day of Jumua Establishing a jail (sijn) Compiling official diwans

9. Sadd al-dhara'i: Sadd al-dhara'i means, literally, "blocking the means", i.e. to undesirable ends, in other words, forbidding what is likely to lead to the haram. This is thus an extension of the general principle that what leads to the haram is haram, just as what leads to the obligatory is obligatory, and what leads to the permitted is permitted. The basis of this principle is contained in the Qur'an where Allah says: "Do not swear at those who call on other gods than Allah, so that they will then swear at Allah in enmity, without any knowledge. In this way We have made every community's action seem good to them. Then their return will be to their Lord and He will inform them of what they used to do." (Q.6:108). Allah has made it haram for us to swear at the idols of idol-worshippers because, if we do, they will then swear at Allah, and this greater evil needs to be prevented. This is thus also an application of the principle of choosing the lesser of two evils (akhaff al-dararayn) (see below).

10. Urf (custom)

This principle applies to things such as use of language, food, clothing, etc. One example would be understanding the word dabba ("riding-beast") as used in certain areas to refer to a donkey rather than any other type of animal. In other words, certain words are understood in a certain way in certain areas, which might be different from the "dictionary" definition. In cases involving the interpretation of such words, their customary meaning is taken into account. Another example is the custom in some areas of dividing the dowry into two parts, one of which is paid at the time of the marriage (hall), and the other of which is delayed until later (muajjal). If a case arises in which a wife says she has only received half of her dowry (i.e. not the "delayed" part) and her husband says that he has paid it all, the urf, or customary practice, in such matters is taken into account in arriving at a judgment, and preference given to what is normally understood by the relevant words.