Al-Adillah al-Ahkam al-Shar`iyyah

Al-Adillah al-Ahkam al-Shar`iyyah
(Sources of Shari`ah) (11 Ogos 2007)

1.INTRODUCTION.

1.1. The true source for Islamic law is Allah al-Mighty. The sources of Islamic law therefore is divine in origin.
1.2. To illustrate the sources of law from common law point of view, we can also divide the sources of the Islamic law into material and formal sources

2. CLASSIFICATIONS OF THE SOURCESS

The sources of the Shariah can be divided into several classifications as follows:

2.1. Primary and secondary sources
2.2. Agreed upon and disputed sources.
2.3. Transmitted and rational sources.
2.4. Definitive and probable or speculative sources.

3.Primary and Secondary Sources

3.1. Primary Sources

3.1.1. Al-Qur`an
3.1.2. Al-Sunnah
3.1.3. Al-Ijma’


4.Secondary Sources

4.1.Al-Qiyas
4.2.Al-Istihsan
4.3.Al-Maslahah al-mursalah
4.4.Al-Istishab
4.5.Sadd al-Dhari`ah
4.6.Al-`Urf
4.7.Qawl al-Sahabi
4.8.Shar` Man Qablana

5.Primary Sources

5.1. Hadith Muaz bin Jabal:

When the Prophet send Muaz bin Jabal to Yemen as judge and governor, he asked him on what basis he would judge if he was confronted with a problem. Muaz said that he would judge based on the content of the Qur`an. The Prophet (p.b.u.h) asked him, “assuming that you do not find it in the Qur`an, on what basis would you judge?”. Muaz replied that he would judge base on the Sunnah of the Prophet. The Prophet also asked him “assuming that you do not find him in both, the Qur`an and the Sunnah, on what basis would you judge? Muaz replied that that he would use his own individual opinion without transgressing the boundary set by the Qur`an and the Sunnah.

5.2. Agreed upon (al-ittifaq) and disputed (al-ikhtilaf) sources

5.2.1. Sources which are agreed upon by the jurists are the Qur`an, Sunnah, ijma’ and Qiyas (it is however said that ijma’ was rejected by al-Nazzam from Mu`tazilah, where as Zahiri and Ja`fari schools rejected qiyas.

5.2.2. Sources which are not accepted by all jurists are istihsan, maslahah al-mursalah, istishab and the rests of the secondary sources.

5.3. Transmitted (naqli) and Rational (`aqli) sources

5.3.1. Transmitted sources are the Qur`an, the sunnah, ijma’, fatwa of the Companions and the laws of the earlier scriptures.

5.3.2. The authority of the transmitted proof is not dependent upon whether it can be rationally justified or not.

5.3.3. However most of the hukm which are derived from the transmitted sources can be rationally justified.

5.3.4. The rational sources are qiyas, istihsan, maslahah al-mursalah, sadd and al-dhari`ah.

5.3.5. They are founded in reason and can only be accepted by virtue of their rationality.


5.3.6. They are however in many ways dependent on transmitted sources.


6.Definitive (qat`ei) and probable or speculative (zanni) sources.

6.1.The definitive sources are the Qur’an, Sunnah and ijma’.
6.2.The definitive sources are decisive and binding.
6.3.The rests of the sources are considered as speculative.
6.4.The speculative or probable sources are not binding.

However the Qur`an and Sunnah contain speculative rules which are open to interpretations. The jurists have discussed this from two perspectives i.e definitive by way of transmission (qat`ei al-thubut/sanad) and definitive in meaning (qat`ei al-dalalah). This topic will however be dealt later.

1.Al-Qur`an

1.2.The first and the main source of Islamic law.

1.3.It is defined as the Book containing the words of Allah revealed to the Prophet Muhammad (p.b.u.h) in Arabic language and transmitted to us from him through authentic continuous narration without doubt

1.4.The Qur`an as the Primary Source of Islamic law

“O you who believe! Obey Allah, and obey the Messenger, and those charged with authority among you. If you differ in anything among yourselves, refer it to Allah and His messenger, if you do believe in Allah and the Last Day. That is best, and most suitable for final determination”
(al-Qur`an, chapter 4 (al-nisa’): verse 59)

1.5. The Qur`an is divided into 114 chapters with different topics .The shortest chapter consists of three verses and the longest is 286.

1.6. In order to facilitate the reading, the Qur`an is divided into 30 parts or sections.

1.7. The Qur`an was revealed gradually within a period of 22 years, 2 months and 22 days according to the need of time and to provide answers for questions and solutions for problems.

1.8. The first revelation began in the month of Ramadhan.

2.Makki (Meccan) and Madani (Medinan) verses

2.1.Nineteen parts of the Qur`an were revealed during the 13 years of the Prophet residence in Mecca.

2.2.The remainder eleven parts were revealed after his migration to Medina over a period of 10 years.

2.3.The verse revealed before the migration of the Prophet to Medina were categorized as Makki and those revealed after the migration were categorized as Madani.

3.Nature and Content of Makki and Madani

3.1.The Makki mainly emphasizes on the topics of related to belief, tawheed, the prophethood, the Hereafter and the invitation to Islam.

3.2.The Madani comprised legal rules and regulated various aspects of life, political, legal, social, economic, family etc.


4.Graduality (tanjim) in the Revelation



4.1.Afforded the believers to reflect over it and to retain it in their memories.

4.2.Facilitate continuous contact and renewal spiritual strength so that the hostility of the jahiliyyah towards the new faith did not weaken the hearth of the Prophet and believers.

4.3.Response to questions and problems.

4.4.Widespread illiteracy of the people.

4.5.Avoid hardship to the believers.

5.Asbab al-Nuzul (reasons of revelation)



5.1.Explain the events which are related to the revelation of its particular verses.

5.2.The knowledge of it is necessary in order to understand the meaning the Qur`an and the application of its injunctions correctly.

5.3.Knowledge of words and concept is incomplete without the knowledge of the context and the nature of the audience.

6.I`jaz al-Qur`an



6.1.In its linguistic excellence.

6.2.In its narration of events which took place centuries ago.

6.3.In its accurate prediction of future events.

6.4.In its scientific truth eg. concerning the creation of man, earth and planetary system.

6.5.In its humanitarian, legal and cultural reforms.