JURISPRUDENCE PROJECT

ISLAMIC VERSION OF LAW

SUBMITTED ON:

18th August 2015

Submitted By: Submitted To:

Zahawa Mr. Shyam Krishan Kaushik

Ahmad Faculty of Law

III Semester

B.A, LL.B. (Hons.)

NATIONAL LAW UNIVERSITY, JODHPUR

SUMMER SESSION

(JULY-NOVEMBER 2015)

ACKNOWLEDGEMENT

On the completion of this project I find that there are many persons to whom I would like

to express my gratitude, since without their help and co-operation the success of this educative

endeavor would not have been possible.

I welcome this opportunity to express my sincere gratitude to my teacher and guide,

respected Kaushik Sir, who has been a constant source of encouragement and guidance

throughout the course of this work.

I am grateful to the IT Staff for providing all necessary facilities for carrying out this

work. Thanks are also due to all members of the Library staff for their help and assistance at all

times.

I am also grateful to all my friends and colleagues for being helpful in their differences

and for their constant support.

I express my deepest gratitude to my father .Dr. Anis Ahmad, who has been the real

driving force for this work and for making me realize my potential and encouraging me to

believe in myself and to push me to work hard and to give my best in this project.

(Zahawa Ahmad)

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RESEARCH METHODOLOGY

The method of research opted by me to complete this project was doctrinal research from

primary and secondary sources. Major part of the project has been researched Articles, blogs

available in web databases on the topic by scholars and jurists on the subject . Books have also

been referred to. Newspaper reports and laws have also been seen in order to make this project

more authenticated and informative.

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SCOPE OF THE PROJECT

In this project, the author has tried to highlights the evolution or the origin of islamic law. The

project in detail talks about the source of islamic law and different schools of thought that have

evolved over different perod of time. The project even discovers Different phases of development

of islamic law.

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CONTENTS

INTRODUCTION...........................................................................................................................................6

DEFINITION OF ISLAMIC VERSION OF LAW AND ITS DEVELOPMENT...........................................................7

1. First period: the legislative period (622-632 A.D)............................................................................7

2. The second period: the caliphate period (632-661 A.D)..................................................................7

3. The Third Stage: The Period of Maturity( 661-900 AD)....................................................................8

4. The Fourth Stage: The period of ‘old age’ or ‘degeneration’ of Islamic Jursiprudence (from the beginning of the fifth century until present)...........................................................................................8

SOURCES OF ISLAMIC LAW..........................................................................................................................9

ISLAMIC MAJOR SCHOOLS OF THOUGHT..................................................................................................14

1. HANAFI SCHOOL:...........................................................................................................................14

2. MALIKI SCHOOL:............................................................................................................................14

3. SHAFI΄I SCHOOL:............................................................................................................................15

4. HANBALI SCHOOL:.........................................................................................................................16

5. JA‘FARI SCHOOL:............................................................................................................................16

BIBLIOGRAPHY...........................................................................................................................................17

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INTRODUCTION

Islamic jurisprudence or the Islamic version of law plays a very important role in the life of a

Muslim as it provides the individual with the rulings on the practical aspects of his daily life. All

together from the moment when a Muslim wakes up in the morning, all the issued related to

personal hygiene, salat, business, marriage, divorce, fasting, hajj, zakat, laws of succession, even

the issues related to the judicial system and the rules regarding the responsibilities of an

individual to himself and to the world at large are all the main matter governed by the Islamic

version of law. Quran and hadiths address the importance of Islamic jurisprudence of Islamic

understanding. Therefore the sahabas, (people who were the companions of the prophet

Mohammad) went on to apply different methodologies in order to understand laws and rulings

from the sources of the sharia. Over the centuries scholars produced monumental works in

Islamic Jurisprudence (Fiqh) that included Fatħ Al-Qadīr and Ħāshiyat Ibn ‛Abidīn in the Ħanafī

School, Al-Dhakīrah in the Mālikī School, Al-Majmū’ and Al-Ħāwī in the Shāfi‛ī School and Al-

Mughnī in the Ħanbalī School1. In my project I have focused on the islamic version of law from

prophet’s time, the period thereafter and the subsequent formation of different schools of

thought, sources of islamic and and the periods of the development of islamic jurisprudence or

law.

1 The Development of Islamic Jurisprudence (fiqh) and Reasons for Juristic Disagreements among Schools of Law by Shoayb Ahmed

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DEFINITION OF ISLAMIC VERSION OF LAW AND ITS DEVELOPMENT

Islamic Laws are made up of shariah and Islamic jurisprudence (fiqh). Shari'ah is seen as sacred

and constitutes the quran and Prophet Muhammad’s sunnah (way), which is found in

the hadith and sira. Islamic jurisprudence is a complimentary expansion of the former by Islamic

jurists.

Muslim law is the outcome of several political and administrative developments in the Arabian

society. Historical development of islamic law are divided into four periods:

1. First period: the legislative period (622-632 A.D)

The first stage in the development of islamic law began when the prophet migrated from mecca

to madina marking the beginning of the hejarat that stated in 622 AD and ends with 632 AD,

with the death of the prophet2. It dealt with the last ten years of the prophet’s life according to the

quran and hadis. Ths period dealt with the main sources of the islamic law that is the quran and

sunnal as well as ijima and qiyas. The whole first period has rightly been called the legislative

period of islam as laws were enacted by divine legislature and promulgated in the words of quran

or by the percepts of Muhammad.3

2. The second period: the caliphate period (632-661 A.D) This period is the one after the death of the prophet. Also known as the period of the first four

caliphs of islam namely, abu bakr, omar, Osman and ali. The four Khalīfs were all trained in

jurisprudence and other matters of Islam by the best teacher, the Prophet Muħammad. They were

very capable jurists but at the same time consultation (shūrā) formed an essential part of their

rule. The ultimate goal of the legal scholars and the jurists was to deduce laws from the Qur’ān

and Sunnah that conformed to the spirit and objectives of the Sharī‛ah. Due to the different

approaches and methodologies of different legal scholars, different schools developed. During

this period, Islamic Jurisprudence matured and developed fully.

2 Textbook on muslim law, dr. rajesh kumar singh( new delhi: universal law publishing co. pvt. Ltd., 2011).3 Abdul Rahim, mohammadan jurisprudence, T.L.L. 1907

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3. The Third Stage: The Period of Maturity( 661-900 AD) With the assassination of Ali, the fourth caliph in 661 AD dawned the third phase of

development in islamic jurisprudence.4 This phase saw the development of different schools of

thought of islam. Schools like hanafi, maliki, shafi, hanbali, ismaili and zyadisa emerged which

are discussed in the project at a later stage.

4. The Fourth Stage: The period of ‘old age’ or ‘degeneration’ of Islamic Jursiprudence (from the beginning of the fifth century until present)

This stage commences from the beginning of the fifth century and continues until the present.

The caliphate was abolishedin 1924 AD and thus the formation of islamic law stopped. Efforts

were then made by the jurists of distinct schools to develop law. In this stage it was decided that

no one can deduce to the independent rules and principles but they must follow the quran, the

sunnah and the ijima. The task of developing law was now given to the mufti. Gradually,

legislation came and steps were taken toward the codification of Islamic law.

4 Textbook on muslim law, dr. rajesh kumar singh( new delhi: universal law publishing co. pvt. Ltd., 2011).

8

SOURCES OF ISLAMIC LAW

The sources of islamic law can be classified as primary and secondary where primary sources

are the quran and the sunnah of the prophet mohammad where as the secondary sources included

the concensus , reasoning etc. There sources of islamic law namely, the quran, hadith that is the

percepts, actions and sayings of the prophet mohammad, not written down during his life time

but preserved by tradition and handed down by authorized persons, Ijima, that is a concurrence

of the opinion of the companions of the mahomed and his disciples and the fourth is Qiyas, being

analogical deductions derived from a comparison of the first three sources when they did not

apply to the particular case.

In islam, having tawheed is believing in oneness of Allah, it literally means peace and

submission demostratted in the spirit of worshipping Allah by completely submitting oneself to

his will. Among the sources of islamic version of law the two most important are the quran and

the sunnah of the prophet mohammad .

PRIMARY SOURCES

1. THE QURAN:

Muslim believes in the divine origin of their holy book which according to their belief was

revealed to the prophet by the angel Gabriel. The Quran is al-furqan that is the one showing truth

from falsehood and the right from the wrong.5 The verses in the Qur’an are divided into two

groups: clear or decisive verses and allegorical verses. The Qur’an—a “guidance for mankind”—

revealed to Prophet Muhammad between 610–632 CE cover three wide areas: the science of

speculative theology (e.g., in comprehending, establishing, and maintaining human beings’

relationships with the Creator), ethical principles (e.g., about economic relationships and

systems; roles and qualities of the leaders), and rules of human conduct (e.g., law of inheritance,

relationships within and across genders, and with the followers of other religions. Thus

Muhammad Abduh opined that the Qur’an urges people to search and think about the revelation,

5 Mulla principles of mahomedan law, 19nth edition, M. hidayatullah and arshad hidayatullah.

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and is “a Book of freedom of thought”, “respect of reason” and for shaping the individuals

“through research, knowledge, and the use of reason and reflection”6.

2. SUNNAH OF THE PROPHET:

The word sunnah means the trodden path and it denotes some kind of practice or the tradition,

precedent. The principles which were laid down or stated in the Quran found their application in

the hands of the prophet. This gave birth to hadis. Therefore, The second source of Islamic

jurisprudence, Sunnah (in the form of the Prophet Muhammad's words, acts, and consents), are

compiled as the Hadith (pl. ahadith) literature,offers (social, economic, and political) guidance

defining the human beings’purpose and objectives and their relationships to one another, to God

and the Nature. As a source of law hadis is as binding as the principles of the quran. The Hadith

literature includes what the Prophet said, ( Hadith Qawli or sayings;includes Hadith Qudsi—

those sayings where Prophet Muhammad referred to Allah), did ( Hadith Faili; actions), and gave

silent consents to ( Hadith Taqriri; was said and/or performed in front of the Prophet without

receiving his disapproval). These ahadith are the sources of the Sunnah (usual practice) and

explain and complement the text of the Qur’an, and are classified as Sunnah Tashri’ah (rooted

fromthe word ‘shari’a’; legal Sunnah) or the Prophet’s activities and instructions as the head of

the state and as a judge, and Sunnah Ghair Tashri’ah (non-legal Sunnah)consisting of the daily

activities of the Prophet (eating, sleeping, dressing) that do not form a part of the Shari’a.7

According to the classical belief of the muslims the word of god is law and law is the

command of the god. The law is known as sharia. Fiqh, which is jurisprudential in character is

the ascertainmenrt of the right of the principle. In the word of god is included, of course, the

quran but the divinely inspired sunnah of the prophet ranks equal. These two are immutable and

the only room for the exercise of human reason is in their understanding. These two sources,

namely, the quran and sunnah may thus be said to form the fundamental roots of the islamic

law.8 To deal with the matters not covered in the quran and the sunnah, there are ijima and qiyas

as the next major sources of Islamic jurisprudence.

SECONDARY SOURCES6 Haddad (2005) Muhammad Abduh ,Tafsir al-Fatiha (edited by RashidRida, al-Manar Press, Cairo)7 Islamic Jurisprudence: Sources and Traditions Creating Diversity in Human Relationships, samiul hasan8 Mulla principles of mahomedan law, 19nth edition, M. hidayatullah and arshad hidayatullah.

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Among the secondary sources of the Islamic version of law, consensus, analogical reasoning,

juristic discretion, public interests, inferences, reasons and local customs plays an important role.

1. IJMA: THE DOCTRINE OF CONSENSUS

Ijmāʿ (إجماع) is an Arabic term that refers to the consensus or agreement of the Muslim

community basically on religious issues. It is equally binding on the people to act on a principle

not contrary to the quran or hadis which had been established by agreement among highly

qualified legal scholars of any generation. In history, consensus has always been an very

important determining factor which help in the upbringing of any law.9 This is so because ijma'

represents the unanimous agreement of Muslims on a regulation or law at any given time.10

There are various views on ijma' among Muslims. Sunni jurists consider ijma' as a source, in

matters of legislation, as important as the Qur'an and Sunnah. Shiite jurists, however, consider

ijma' as source of secondary importance, and a source that is, unlike the Qur'an and Sunnah, not

free from error.11 Ijma' was always used to refer to agreement reached in the past, either remote

or near. This has often been confused with popular opinion, but is in essence the agreement of

the community of interpretation constituted by qualified master jurists, after debate has subsided.

The existence of consensus is established through the absence of dissent. The legal questions

subject to consensus, together with the disputed questions, on which a number of authoritative

variant opinions are held, form the range of orthodox opinion.12

2. QIYAS: THE DOCTRINE OF ANALOGICAL REASONING

One of the principal doctrines of Islamic law is qiyas, or analogical reasoning. Qiyas literally

means “measuring” or “ascertaining” the length, weight, or quality of something. The doctrine of

qiyas is based on the idea that while God had His reasons for commanding or forbidding a

particular activity in the Qur’an, believers are obligated to consider “What would God say?” in

dealing with problem for which there is no clear solution either within the Qur’an or within the

Sunnah.13 If the matter is already been addressed in the quran by allah or is resolved by

9 Encyclopædia Britannica, Ijma.10 Encyclopaedia of Islam11 Nomani and Rahnema (1994), p. 7–912 http://science.jrank.org/pages/9937/Law-Islamic-Jurisprudence-Sources-Law.html13 Oxford Encyclopedia of the Islamic World 4:457‒458

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unanimous consensus of jurists, one should not engage in qiyas. Absent this condition, the

doctrine of qiyas tests whether an injunction or position held within the Qur’an or Sunnah can be

extended from its original case (asl) to a new case. Under the rules regulating the use of qiyas, if

both the case found within the Qur’an and the new case have the same legal reason (illah), the

Qur’an’s injunction or decree (hukm) may be extended to a new situation.14

3. IKHTILAF: THE DOCTRINE OF DISAGREEMENT

The doctrine of disagreement or ikhtilaf (which literally means “disagreement” in Arabic) is the

opposite of the doctrine of ijma. Specifically, ikhtilaf permits a Muslim to choose the

interpretation of religious law that best suits his or her own circumstances and causes the least

harm. According to one hadith, the Prophet Muhammad asserted that God Himself favored

disagreement: “Difference of opinion in the Muslim community is a sign of divine

favor.”15Ikhtilaf thus gives believers the freedom to choose from among a variety of views but

also from divergent views. This embrace of diversity is not unfettered, however, because no

ruling may violate Islam’s most basic principles, such as Muhammad as Prophet, or any matter

that has reached the status of ijma. Even so, ikhtilaf remains an essential element in

understanding—and, indeed, in expanding—the scope of Islamic law.16

4. JURISTIC DISCRETION- ISTIHSAN

Istihsan (استحسان) is an Arabic term for juristic "preference". In its literal sense it means "to

consider something good". Muslim scholars use it to express their preference for particular

judgements in Islamic law over other possibilities. It is one of the principles of legal thought

underlying personal interpretation or ijtihad. The source, inspired by the principle of conscience,

is a last resort if none of the widely accepted sources are applicable to a problem. It involves

giving favor to rulings that dispel hardship and bring ease to people.

5. PUBLIC INTEREST

14 Kamali, Principles of Islamic Jurisprudence, 19715 Kamali, M. H. (2005). The Islamic state: Origins, definition, and salient features. In K. Nathan &M. H. Kamali (Eds.), Islam in Southeast Asia: Political, social, and strategic challenges for the21st century (pp. 278–300). Singapore: Institute of Southeast Asian Studies.16 Islamic Law, Hamid Khan

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According to this source of Islamic law, rulings can be pronounced in accordance with the

"underlying meaning of the revealed text in the light of public interest". In this case, the jurist

uses his wisdom to pursue public interest.

6. REASON- IJTIHAD

Ijtihad (Arabic: اجتهاد ijtihād, "diligence") is an Islamic legal term that means "independent

reasoning" or "the utmost effort an individual can put forth in an activity." As one of the four

sources of Sunni law, it is recognized as the decision-making process in Islamic law (sharia)

through personal effort (jihad) which is completely independent of any school of jurisprudence

(fiqh). As opposed to taqlid, it requires a "thorough knowledge of theology, revealed texts and

legal theory; an exceptional capacity for legal reasoning; thorough knowledge of Arabic." By

using both the Qu'ran and Hadith as resources, the scholar is required to carefully rely on

analogical reasoning to find a solution to a legal problem, which is considered to be a religious

duty for those qualified to conduct it. Thus, a mujtahid is recognized as an Islamic scholar who is

competent in interpreting sharia by ijtihad. Today, there are many different opinions surrounding

the role of ijtihad in modern society.17

7. LOCAL CUSTOM- URF

The term ʿurf, meaning "to know", refers to the customs and practices of a given society.

Although this was not formally included in Islamic law, the Sharia recognizes customs that

prevailed at the time of Muhammad but were not abrogated by the Qur'an or the tradition (called

"Divine silence"). Practices later innovated are also justified, since Islamic tradition says what

the people, in general, consider good is also considered as such by Allah. According to some

sources, ʿurf holds as much authority as 'ijma (consensus), and more than qiyas (legal reasoning

by analogy). ʿUrf is the Islamic equivalent of "common law".

17 http://www.pascalsview.com/pascalsview/2006/02/the-importance-of-learning-the-meaning-of-ijtihad.html

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ISLAMIC MAJOR SCHOOLS OF THOUGHT

Schools of Islamic thought (madhahib) are the paths people follow to the Noble Qur’an and

Prophet Muhammad. Obviously, these schools of thought were founded considerably after the

death of the Prophet; in fact, they never took shape until the time of the Umayyid Caliphate.

Today, the five schools of Islamic thought accepted by all Muslims are the Ja‘fari, comprising

23% of the Muslims; the Hanafi, comprising 31% of the Muslims; the Maliki, comprising 25%

of the Muslims; the Shafi΄i, comprising 16% of the Muslims; and the Hanbali, comprising 4% of

the Muslims. The remaining small percentage follow other minority schools, such as the Zaydi

and the Isma΄ili.1

1. HANAFI SCHOOL:

The Hanafi school of thought was named after and headed by Imam al-Nu΄man ibn Thabit (Abu

Hanifa) who lived from 80H to 150H. Imam Abu Hanifa was born to a non-Arab father, was

raised in Kufa, and died in Baghdad. This school of thought prevailed during the time of the

Abbasid Empire when a student of Imam Abu Hanifa, Abu Yusuf al-Qadi became the head of

the judiciary department and the highest judge, and thus he spread this madhhab (school of

thought), in particular, during the caliphates of al-Mahdi, al-Hadi, and al-Rashid.18 Remains the

dominant legal authority in successor states for personal status and religious observances. Uses

reason, logic, opinion (ray), analogy (qiyas), and preference (istihsan) in the formulation of laws.

Legal doctrines are relatively liberal, particularly with respect to personal freedom and women's

rights in contracting marriages. First school to formulate contract rules for business transactions

involving resale for profit and payment for goods for future delivery19

2. MALIKI SCHOOL:

The Maliki school of thought was headed by Imam Malik ibn Anas al-Asbahi who lived from

93H to 179H. He was born in the holy city of Madina, and his fame spread throughout Hijaz. He

18 B R Verma, Commentaries on Mohammedan Law.19 http://www.oxfordislamicstudies.com/article/opr/t125/e798

14

was in practical touch with the environment of the prophet. On the account of his disagreement

with Imam Abu Hanifa, Imam Malik became the leader of the school of tradition (hadith), while

Imam Abu Hanifa was the leader of the school of opinion (ra΄i). Yet, most Muslim governments

were supportive of Imam Abu Hanifa. Originally referred to as the School of Hejaz or the School

of Medina. Predominant in North Africa and significantly present in Upper Egypt, Sudan,

Bahrain, United Arab Emirates, and Kuwait. Characterized by strong emphasis on hadith; many

doctrines are attributed to early Muslims such as Muhammad 's wives, relatives, and

Companions. A distinguishing feature of the Maliki school is its reliance on the practice of the

Companions in Medina as a source of law. Additionally, Malik was known to have used ray

(personal opinion) and qiyas (analogy).

3. SHAFI΄I SCHOOL:

The Shafi΄i school of thought was headed by Imam Muhammad ibn Idris al-Shafi΄i who lived

from 150H to 198H. Imam Shafi΄i was born in Hijaz and his school of thought emerged in

Egypt. The Shaf'i school is predominant in east Africa, Indonesia and southeast Asia. Al Shafii's

(d. 855) thought influenced Indonesia, Southern Arabia, Lower Egypt, parts of Syria, Palestine,

Eastern Africa, India and South Africa. The school remains predominant in Southern Arabia,

Bahrain, the Malay Archipelago, East Africa and several parts of Central Asia. Shafi'i is

practiced in Indonesia, Malaysia and the Philippines. It is followed by approximately 15% of

Muslims world-wide.

The Shaf'i school is considered the easiest school. Imam shafi relied on traditions more than

hanafis but also studied them more critically than malik. He devised ways to compromise

between contradictory traditions. He based his analogy on the quran, the sunnah, the ijima and

the qiyas. He gave wide scope to ijima. He was the creator of classical theory of islamic

jurisprudence.20

20 Textbook on muslim law, dr. rajesh kumar singh( new delhi: universal law publishing co. pvt. Ltd., 2011).

15

4. HANBALI SCHOOL:

The Hanbali school of thought was headed by Imam Ahmad ibn Hanbal who lived from 164H to

241H. He was born and died in Baghdad. The official school in Saudi Arabia and Qatar, with

many adherents in Palestine, Syria, and Iraq. Recognizes as sources of law: the Quran, hadith,

fatwas of Muhammad 's Companions, sayings of a single Companion, traditions with weaker

chains of transmission or lacking the name of a transmitter in the chain, and reasoning by

analogy (qiyas) when absolutely necessary. Encourages the practice of independent reasoning

(ijtihad) through study of the Quran and hadith. Rejects taqlid, or blind adherence to the opinions

of other scholars, and advocates a literal interpretation of textual sources. Ritualistically, the

Hanbali school is the most conservative of the Sunni law schools, but it is the most liberal in

most commercial matters.

5. JA‘FARI SCHOOL:

The Ja‘fari school of thought was headed by Imam Ja‘far ibn Muhammad al-Sadiq who lived

from 83H to 148H. He was born in and died in the holy city of Madina, and he is the sixth Imam

of the twelve designated imams of the school of Ahlul Bayt. Although the fiqh (Islamic

Jurisprudence) was developed by the Prophet Muhammad and his successors (i.e., the imams),

the fiqh, as taught by the Shi‘a, did not have the opportunity to be presented to the masses of

people because of the political predicament that the Ahlul Bayt suffered under the rulers for

many centuries. Recognizes four sources of Islamic law: the Quran, the Sunnah (including

traditions reported by the Prophet and the imams), consensus (which must include the Prophet's

or an infallible imam's opinion to establish its validity), and human reason. Human reason is

capable of inferring categorical judgments drawn from both pure and practical reason.21

Whatever is judged necessary by reason is also judged necessary by revelation. This correlation

between reason and revelation has allowed Shii jurists to derive religious rulings on many issues

not covered in normative sources such as the Quran and Sunnah. Since 1959 the Jafari school of

jurisprudence has been afforded the status of “fifth school” along with the four Sunni schools.

21 http://www.oxfordislamicstudies.com/article/opr/t125/e1153

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BIBLIOGRAPHY

Articles:

1. ISLAMIC LAWAND THE CANADIAN MOSAIC: politics, jurisprudence, and

multiculturalaccommodation by Anver M. Emon

2. The Development of Islamic Jurisprudence (fiqh) and Reasons for Juristic Disagreements

among Schools of Law by Shoayb Ahmed

3. Islamic Jurisprudence: Sources and Traditions Creating Diversity in Human

Relationships by Samiul Hasan

4. Islamic law of Confession: a comparison with western and Indian laws by: Faizan

Mustafa

5. Islamic Law by,Hamid Khan, J.D.

Books:

1. Textbook on Muslim Law, dr. Rajesh Kumar S ingh( New Delhi: Universal Law

Publishing co. pvt. Ltd., 2011).

2. B R Verma, Commentaries on Mohammedan Law.

3. Kamali, M. H. (2005). The Islamic state: Origins, definition, and salient features. In K.

Nathan & M. H. Kamali (Eds.), Islam in Southeast Asia: Political, social, and strategic

challenges for the 21st century (pp. 278–300).

4. Haddad (2005) Muhammad Abduh ,Tafsir al-Fatiha (edited by RashidRida, al-Manar

Press, Cairo)

5. Islamic Jurisprudence: Sources and Traditions Creating Diversity in Human

Relationships, Samiul Hasan

6. Mulla principles of mahomedan law, 19nth edition, M. hidayatullah and arshad

hidayatullah.

17