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Open Access Articles- Top Results for Sources of sharia

Sources of sharia

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School of jurisprudence Formation of ijma' Rationale
Hanafi through public agreement of Islamic jurists the jurists are experts on legal matters
Shafi'i through agreement of the entire community and public at large the people cannot agree on anything erroneous
Maliki through agreement amongst the residents of Medina, the first Islamic capital Islamic tradition says "Medina expels bad people like the furnace expels impurities from iron"
Hanbali through agreement and practice of Muhammad's Companions they were the most knowledgeable on religious matters and rightly guided
Usuli only the consensus of the ulama of the same period as the Prophet or Shia Imams is binding. consensus is not genuinely binding in its own right, rather it is binding in as much as it is a means of discovering the Sunnah.
Source:[1][19]

In modern Muslim usage it is no longer associated with traditional authority and appears as democratic institution and an instrument of reform.[17]

Analogical reason

Main article: Qiyas

Qiyas or analogical reason is the fourth source of the sharia for the majority of Sunni jurisprudence. It aims to draw analogies to a previously accepted decision. Shiites do not accept analogy, but replace it with reason (aql); among Sunnis, the Hanbalites have traditionally been reluctant to accept analogy while the Zahirites don't accept it at all. Analogical reason in Islam is the process of legal deduction according to which the jurist, confronted with an unprecedented case, bases his or her argument on the logic used in the Qur'an and Sunnah. Legally sound analogy must not be based on arbitrary judgment, but rather be firmly rooted in the primary sources.[20]

Supporters of the practice of qiyas will often point to passages in the Qur'an that describe an application of a similar process by past Islamic communities. According to supporters of the practice, Muhammad said: "Where there is no revealed injunction, I will judge amongst you according to reason."[21] Further, supporters claim that he extended the right to reason to others. Finally, supporters of the practice claim that it is sanctioned by the ijma, or consensus, amongst Muhammad's companions.[20] Islamic studies scholar Bernard G. Weiss has pointed out that while analogical reason was accepted as a fourth source of law by later generations, its validity was not a foregone conclusion among earlier Muslim jurists.[22] Thus the issue of analogical reason and its validity was a controversial one early on, though the practice eventually gained acceptance of the majority of Sunni jurists.

The success and expansion of Islam brought it into contact with different cultures, societies and traditions, such as those of Byzantines and Persians. With such contact, new problems emerged for Islamic law to tackle. Moreover, there was a significant distance between Medina, the Islamic capital, and the Muslims on the periphery on the Islamic state. Thus far off jurists had to find novel Islamic solutions without the close supervision of the hub of Islamic law (back in Medina). During the Umayyad dynasty, the concept of qiyas was abused by the rulers. The Abbasids, who succeeded the Umayyads defined it more strictly, in an attempt to apply it more consistently.[20]

The general principle behind the process of qiyas is based on the understanding that every legal injunction guarantees a beneficial and welfare satisfying objective. Thus, if the cause of an injunction can be deduced from the primary sources, then analogical deduction can be applied to cases with similar causes. For example, wine is prohibited in Islam because of its intoxicating property. Thus qiyas leads to the conclusion that all intoxicants are forbidden.[20]

The Hanafi school of thought very strongly supports qiyas. Imam Abu Hanifa, an important practitioner of qiyas, elevated qiyas to a position of great significance in Islamic law. Abu Hanifa extended the rigid principle of basing rulings on the Qur'an and Sunnah to incorporate opinion and exercise of free thought by jurists. In order to respond suitably to emerging problems, he based his judgments, like other jurists, on the explicit meanings of primary texts (the Qur'an and sunnah). But, he also considered the "spirit" of Islamic teachings, as well as the whether the ruling would be in the interest of the objectives of Islam. Such rulings were based on public interest and the welfare of the Muslim community.[20]

The Shafi'i school of thought accepts qiyas as a valid source. Imam Shafi'i, however, considered it a weak source, and tried to limit the cases where jurists would need to resort to qiyas. He criticized and rejected analogical deductions that were not firmly rooted in the Qur'an and sunnah. According to Shafi'i, if analogical deductions were not strictly rooted in primary sources, they would have adverse effects. One such consequence could be variety of different rulings in the same subject. Such a situation, he argued, would undermine the predictability and uniformity of a sound legal system. [23]

Imam Malik accepted qiyas as a valid source of legislation. For him, if a parallel could be established between the effective cause of a law in the primary sources and a new case, then analogical deduction could be viable tool. Malik, however, went beyond his adherence to "strict analogy" and proposed pronouncements on the basis of what jurists considered was "public good".[23]

Juristic discretion

Main article: istihsan

Abu Hanifa developed a new source known as juristic discretion.[24] Juristic discretion is defined as:

  • A means to seek ease and convenience,
  • To adopt tolerance and moderation,
  • To over-rule analogical reason, if necessary.[25]

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.[23] The doctrine was justified directly by the Qur'anic verse stating: "Allah desires you ease and good, not hardship".[25] Though its main adherents were Abu Hanifa and his pupils (such as Abu Yusuf), Malik and his students made use of it to some degree. The source was subject to extensive discussion and argumentation,[26] and its opponents claimed that it often departs from the primary sources.[23]

This doctrine was useful in the Islamic world outside the Middle East where the Muslims encountered environments and challenges they had been unfamiliar with in Arabia.[24] One example of isthisan is cited as follows: If a well is contaminated it may not be used for ritual purification. Istihsan suggests that withdrawing a certain number of buckets of water from the well will remove the impurities. Analogical reason, however, dictates that despite removing some of the water, a small concentration of contaminants will always remain in the well (or the well walls) rendering the well impure. The application of analogy means the public may not use the well, and therefore causes hardship. Thus the principle of justistic discretion is applied, and the public may use the well for ritual purification.[25]

Public interest

Malik developed a tertiary source called al-maslahah al-mursalah, which means that which is in the best interests of the general public. 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. This source is rejected by the Shafi'ites, Hanbalites and Zahirites from Sunni jurisprudence.[23]

Inference

Shafi'i accepted cases in which he had to be more flexible with the application of Qisas. Similar to Abu Hanifa and Malik, he developed a tertiary source of legislation. The Shafi'i school adopted istidlal or inference, a process of seeking guidance from the source. Inference allowed the jurists to avoid strict analogy in a case where no clear precedent could be found. In this case, public interest was distinguished as a basis for legislation.[23]

Muslim scholars divided inference into three types. The first is the expression of the connection existing between one proposition and another without any specific effective cause. Next, inference could mean presumption that a state of things, which is not proved to have ceased, still continues. The final type of inference is the authority as to the revealed laws previous to Islam.[27]

Reason

Main article: Ijtihad

Shi'ite jurists maintain that if a solution to a problem can not be found from the primary sources, then aql or reason should be given free rein to deduce a proper response from the primary sources. The process, whereby rational efforts are made by the jurist to arrive at an appropriate ruling, when applied is called ijtihad (literally meaning "exerting oneself"). Shi'ite jurists maintain that qiyas is a specific type of ijtihad. The Sunni Shafi' school of thought, however, holds that both qiyas and ijtihad are the same.[28]

Sunni jurists accepted ijtihad as a mechanism for deducing rulings. They, however, announced an end to its practice during the thirteenth century. The reason for this was that centers of Islamic learning (such as Baghdad, Nishapur, and Bukhara) had fallen into the hands of the Mongols. Thus, the "doors to ijtihad", were closed.[28] In Sunni Islam, thus, ijtihad was replaced by taqlid or the acceptance of doctrines developed previously.[29] Later in Sunni history, however, there were notable instances of jurists using reason to re-derive law from the first principles. One was Ibn Taymiyya (d. 728/1328), another was Ibn Rus̲h̲d (Averroes d. 595/1198).[29]

There are many justifications, found in the Qur'an and sunnah, for the use of ijtihad. For example, during a conversation with Mu'ādh ibn Jabal, Muhammad asked the former how he would give judgments. Mu'ādh replied that he would refer first to the Qur'an, then to the Sunnah and finally commit to ijtihad to make his own judgment. Muhammad approved of this.[30]

A lawyer who is qualified to use this source is called a mujtahid. The founders of the Sunni madhabs (schools of law) were considered such lawyers. All mujtahid exercise at the same time the powers of a mufti and can give fatwa. Some mujtahid have claimed to be muj̲addid, or "renewer of religion." Such persons are thought to appear in every century. In Shi'ite Islam they are regarded as the spokespersons of the hidden Imam.[29]

Local custom

Main article: Urf

The term urf, meaning "to know", refers to the customs and practices of a given society. Although this was not formally included in Islamic law,[31] 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 God. According to some sources, urf holds as much authority as ijma (consensus), and more than qiyas (analogical deduction). Urf is the Islamic equivalent of "common law".[32]

Local custom was first recognized by Abū Yūsuf (d. 182/798), an early leader of the Ḥanafī school. However, it was considered part of the Sunnah, and not as formal source. Later, al-Sarak̲h̲sī (d. 483/1090) opposed it, holding that custom cannot prevail over a written text.[31]

According to Sunni jurisprudence, in the application of local custom, custom that is accepted into law should be commonly prevalent in the region, not merely in an isolated locality. If it is in absolute opposition to Islamic texts, custom is disregarded. However, if it is in opposition to analogical reason, custom is given preference. Jurists also tend to, with caution, give precedence to custom over doctoral opinions of highly esteemed scholars.[32] Shi'ite scholars do not consider custom as a source of jurisprudence, nor do the Hanbalite or Zahirite schools of Sunni jurisprudence.

See also

Notes

  1. ^ a b c d e f g h Mutahhari, Morteza. "Jurisprudence and its Principles". Tahrike Tarsile Qur'an. Retrieved 2008-07-26. 
  2. ^ "Shari`ah and Fiqh". USC-MSA Compendium of Muslim Texts. University of Southern California. Retrieved 2008-07-26. 
  3. ^ Motahhari, Morteza. "The Role of Ijtihad in Legislation". Al-Tawhid. Retrieved 2008-07-26. 
  4. ^ Momen (1985), p.185–187 and 223–234
  5. ^ Momen (1985), p.188
  6. ^ a b Nomani and Rahnema (1994), p. 3–4
  7. ^ a b c d Nomani and Rahnema (1994), p. 4–7
  8. ^ Quran 59:7
  9. ^ Qadri (1986), p. 191
  10. ^ "Hadith", Encyclopedia of Islam.
  11. ^ Berg (2000) p. 8
  12. ^ See:
    • Robinson (2003) pp. 69–70;
    • Lucas (2004) p. 15
  13. ^ Makdisi, John (1985). "Legal Logic and Equity in Islamic Law", The American Journal of Comparative Law, 33 (1): 63-92
  14. ^ a b Mahmasani, S. Falsafe-e Ghanoongozari dar Eslam. Tehran: Amir Kabir. pg. 143
  15. ^ Verses Quran 2:143, Quran 3:103, Quran 3:110, Quran 4:59, Quran 4:115 and Quran 9:119 are presented by Mahmasani.
  16. ^ Muslehuddin, M. Philosophy of Islamic Law and the Orientalists. New Delhi: Taj printers, 1986. pg.146
  17. ^ a b c Encyclopædia Britannica, Ijma.
  18. ^ "Id̲j̲māʿ", Encyclopaedia of Islam
  19. ^ a b Nomani and Rahnema (1994), p. 7–9
  20. ^ a b c d e f Nomani and Rahnema (1994), p. 9–12
  21. ^ Mahmasani, S. Falsafe-e Ghanoongozari dar Eslam. Tehran: Amir Kabir. pg. 140
  22. ^ Bernard G. Weiss, The Search for God's Law: Islamic Jurisprudence in the Writings of Sayf al-Din al-Amidi, pg. 633. Salt Lake City: University of Utah Press, 1992.
  23. ^ a b c d e f Nomani and Rahnema (1994), p. 13–15
  24. ^ a b Encyclopædia Britannica, Istihsan
  25. ^ a b c Hasan (2004), p.157–160
  26. ^ Hallaq, "Considerations on the Function and Character of Sunnī Legal Theory".
  27. ^ Hodkinson, Keith. Muslim Family Law: A Sourcebook. India: Routledge, 1984.
  28. ^ a b Nomani and Rahnema (1994), p.15–16
  29. ^ a b c Ijtihad, Encyclopaedia of Islam
  30. ^ ʻAlwānī (1973), p. 9
  31. ^ a b "Urf", Encyclopaedia of Islam
  32. ^ a b Hasan (2004), p. 169–71

References

Encyclopedias

  • The New Encyclopædia Britannica (Rev Ed ed.). Encyclopædia Britannica, Incorporated. 2005. ISBN 978-1-59339-236-9. 
  • Libson, G.; Stewart, F.H. "ʿUrf." Encyclopaedia of Islam. Edited by: P. Bearman, Th. Bianquis, C.E. Bosworth, E. van Donzel and W.P. Heinrichs. Brill, 2008. Brill Online. 10 April 2008

Further reading

External links

Sunni

Shia

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