INTRODUCTION

According to Islam, the ultimate authority of law-making belongs to God alone. In the ideal of
Islamic law, everyone including the Prophet and ruling authorities, is subordinate to God,
working under His direct or indirect guidance. Islamic law, irrespective of the variety of its
sources, emanates from God and aims at discovering and formulating His will. God's will is not
defined once for all and it is not a static system. It is, on the other hand, dynamic and
progressively reveals itself in history. As Islam gives guidance for all walks of life, Fiqh, the law
of Islam, as developed from the beginning, comprehends the religious, social, economic, and
political aspects of human existence. That is why a man acting according to the Islamic law is, in
all circumstances, deemed as fulfilling God's will. Thus, Islamic law is the manifestation of
God's will.

Islam carries significant characteristics of an elaborate legal system seeking to regulate broad
areas of human conduct in accordance with its ideal paradigm of what constitutes right and
wrong. Islamic precepts, which Muslims believe to have been inspired by God, should be
followed by believers by means of thought and deed. Classical Islamic jurisprudence rests on a
monotheistic outlook that regards God as the ultimate source of law, for He alone is taken to be
the ultimate sovereign whose omnipotence over human affairs stems from His status as the
creator of the universe. Humankind accordingly needs no further justification to be subordinate
to His will. Unsurprisingly, in relation to Lord (rabb), Islam characterizes humans as servants
(‘abd).1 The word ‘Islam’, likewise, derives from the Arabic term salám, which has a two-fold
meaning: peace and submission (to God).2A Muslim, then, is a person who submits to God’s will
to the exclusion of any other revered entity

1
Montgomery W. Watt, Islam and Christianity Today, Routledge, London, 1983, p. 125.
2
Bernard Lewis, The Political Language of Islam, University of Chicago Press, Chicago, 1988, p. 78.
Primary Sources
The Qur’án

The Qur’an¯ is considered by Muslims to be the embodiment of the words of God as revealed to
the Prophet Muhammad through Angel Gabriel. It is the chief source of Islamic law and the root
of all other sources.3 However, it is far from being a textbook of jurisprudence and is rather a
book of guidance on all aspects of the life of every Muslim4 ‘We have sent down to thee the
Book explaining all things, a Guide, a Mercy, and Glad Tidings to Muslims’ (Qur’an¯ , 16:89).
The Qur’an¯ consists of more than 6000 verses (ayat)5 Jurists differ on the number of verses that
are of legal subject matter, as they use different methods of classification for determining what
constitutes a legal verse – estimates range from 80 up to 800 verses.6 The legal verses are not
accumulated in their own separate chapter (sura), but may occur alongside verses about belief,
general behavior, the nature of existence, or the history of bygone peoples. A particular judgment
may occur on a number of different occasions and in different styles to deepen and broaden the
understanding of the believer while reminding him of the rule.7

The Qur’an is an indivisible whole and a guide that must be accepted and followed in its
entirety.8 It was revealed, a few verses at a time, over a period of 23 years, ending with the death
of Prophet Muhammad in 632 CE. To properly understand its legislation, one has to take into
consideration the Sunnah as well as the circumstances and the context of the time of the
revelation

The Prophet’s recitations were initially written down on whatever material came to hand,
including palm leaves, wood pieces, and parchment. Under Muḥammad’s supervision, these
fragmented pieces were subsequently collected into súrahs or chapters. Although the Qur’án
existed in its full, albeit fragmented, form since the first revelation, the written material was not
brought together into a single codex during the Prophet’s lifetime. The assembly of the entire
Qur’ánic text was a lengthy and arduous task. Most commentators concur that an official codex
had been collected under the rule of Uthmán, the third Caliph, within the period of 20 years
following Muḥammad’s death9

3
A. S. Alarefi, ‘Overview of Islamic Law’, (2009)
4
M. S. El-Awa, ‘Approaches to Shari’a: A Response to N. J. Coulson’s A History of Islamic Law’, (1991) 2 Journal
Of Islamic Studies 143,at 146.
5
6239 verses (Bassiouni, supra note 18); 6235 verses (Kamali, supra note 8); 6666 (I. Abdal-Haqq, ‘Islamic Law:
An Overview of Its Origin and Elements’, (2002) 7 Islamic Law and Culture 27).
6
There are 80 legal verses according to Coulson (infra note 57), 120 according to Bassiouni (supra note 18), 350
according to Kamali (supra note 8), 500 according to Ghazali, and 800 according to Ibn Al-Arabi, while,
according to Shawkani, any calclulation can only amount to a rough estimat
7
El-Awa, supra note 3
8
M. H. Kamali, Shari’ah Law: An Introduction (2008)
9
John Burton, The Collection of the Quran, Cambridge University Press, Cambridge, 1977, p. 139
The Substance and Structure of the Qur’án
The Qur’án, as touched upon earlier, is deemed to embody an authentic record of God’s eternal
and unalterable word.10 Incorporating an amalgamation of legal and ethical principles, as well as
ritualistic and moral exhortations, the Qur’án provides the fundamental substance of the Islamic
law (Sharí‘ah) and imposes a clear set of legal and moral obligations on Muslims. The Qur’án
covers the basic aspects of mundane and spiritual existence, envisaging guidelines for legitimate
and ideal human conduct.11 Lessons of right behaviour in daily matters, and wisdom in spiritual
matters, may thus be sought from the Qur’án. In view of the fact that God’s ordinance is
contained in the Qur’án, the ideal life for Muslims is one that is lived in line with the relevant
Islamic precepts and injunctions, whether ritualistic, moral or legal in character. 12The Qur’án is
thus a system of duties and responsibilities, which if duly performed may not only give a
believer an inner satisfaction in the temporal domain, but also assure him a place in Heaven.

It is worth noting that a notable portion of the Qur’án’s contents had essentially been informed
by the prevailing socio-political, economic, and religious circumstances of its day; thus, many
moral, religious, and social pronouncements of the Qur’án, even though divinely inspired and
transcendental, answer some of the problems faced at the time of Muḥammad’s ministry. As
some of the early verses make it clear, the Qur’án was primarily concerned with the acute
problems of its time, which include such issues as polytheism, idolatry, the exploitation and
maltreatment of the poor, malpractices in trade, and the overall injustice affecting society.13

Certainly when integrated within the Islamic law, some of such laws must have assumed a
character in tune with the overall tenor of Islam. More importantly, Islam’s rejection of idolatry
in favour of God’s supremacy resulted in the rejection of many pre-Islamic customs and
practices that were idolatrous in nature.14

10
The Qur’án (translation by Arthur J. Arberry), 5:5.
11
Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, Islamic Texts Society, Cambridge, 1989, p. 18.
12
Joseph Schacht, An Introduction to Islamic Law, Oxford University Press, Oxford, 1982, p. 11.
13
Fazlur Rahmán, Islam & Modernity: Transformation of an Intellectual Tradition, University of Chicago Press,
Chicago, 1982, p. 2.
14
Majid Khadduri, War and Peace in the Law of Islam, Johns Hopkins Press, Baltimore, 1955, p. 3.
Sunnah
According to the common understanding of Muslims, the second sources of Islamic law are the
sayings and practice of the Prophet Muhammad or the Sunnah, collected in hadıths. 15While the
Qur’an is believed to be of manifest revelation – that is, that the very words of God were
conveyed to the Prophet Muhammad by the Angel Gabriel – the Sunnah falls into the category of
internal revelation, that is, it is believed that God inspired Muhammad and the latter conveyed
the concepts in his own words.16

The Sunnah is complementary to the Qur’an¯ as a source for knowing the divine will, which is
explicitly stated in the Qur’an¯ itself: ‘And what the Messenger gives you, take; and what he has
forbidden you, leave alone’ (Qur’an¯ , 59:7). The Qur’an¯ authorizes the Prophet Muhammad to
make legal decisions in response to developments in the Muslim community and delegates to
him the task of explaining the judgments of the Qur’an 17

Judge between them according to what God has revealed, and do not follow them in their vain
desires.’ Qur’an¯ (5:49); ‘No, by your Lord, they are not (truly) believers until they make you
the judge of the disputes that arise among them, and find no resistance in their- selves to what
you decide but accept (it) with complete submission. (Qur’an¯ , 4:65)

For Muslims, the significance of the Sunnah lies in the fact that Muḥammad was the final
messenger of God, and as such his practice bears a decisive role for a better appreciation of the
Qur’án. As Esposito points out, Muḥammad has over the centuries “served as the ideal model for
Muslim life, providing the pattern that all believers are to emulate. He is, as some Muslims say,
the ‘living Qur’án’”.18 A connected Sunní proposition is that only the Prophet was divinely
protected from committing major errors in interpreting the revelations. This moot doctrine is
known as the ‘Prophetic infallibility’ (iṣmat al-anbiyá). Having rejected the view that
Muḥammad was a fallible being who had been “subject to the same experiences as the rest of
men”,19 apologists of the ‘infallibility’ doctrine posit that while the Prophet could commit minor
errors (ḍalálah) as a human being, his interpretive infallibility is unquestionable, for he is the
“seal of the Prophets” who passed away without an heir of his stature.20 After him, the argument

15
M. S. El-Awa, ‘Approaches to Shari’a: A Response to N. J. Coulson’s A History of Islamic Law’, (1991) 2 Journal of
Islamic Studies 143, at 146.
16
Kamali, supra note 8,
17
6239 verses (Bassiouni, supra note 18); 6235 verses (Kamali, supra note 8); 6666 (I. Abdal-Haqq, ‘Islamic Law: An
Overview of Its Origin and Elements’, (2002) 7 Islamic Law and Culture 27).
18
John L. Esposito, Islam: The Straight Path, Oxford University Press, Oxford, 1994, p. 13.
19
Daniel W. Brown, Rethinking Tradition in Modern Islamic Thought, Cambridge University Press, Cambridge, 1996,
p. 66.
20
Jackson Sherman, Islam and the Black American: Looking Toward the Third Resurrection, Oxford University
Press, New York, 2011, p. 4.
runs, there remained no intermediary between God and humankind; and the successors (Caliphs)
lacked the mandate to promulgate, or authoritatively explain, God’s law.21

Although this is not the place to discuss whether the ‘infallibility doctrine’ stands on solid
grounds, it is certainly true that the death of the Prophet had marked the termination of divine
legislation. Remarkably, shortly before his demise in 632, Muḥammad recited what many
scholars believe to be the final verse of the Qur’án: “Today I have perfected your religion for
you”.22 This verse indeed signalled the termination of Muḥammad’s prophetic mission, after
which no divine law was to be sent down. The law of God was henceforth to be developed
through (fallible) human effort, an enterprise whose results had to comply with the basic tenets
of Islam. This fact alone made the traditions ascribed to Muḥammad all the more important, for
they provided a perfect paradigm for the manner in which divine injunctions must be observed
and applied.

21
Albert Hourani, A History of the Arab Peoples, Faber and Faber, London, 2005, p. 22.
22
The Qur’án (translation by Arthur J. Arberry), 5:5.
A ḥadíth is a narration containing a report of what the Prophet said or did in a certain form as
transmitted one of his companions, who in his turn would relate it to someone belonging to the
following generation.23 Every ḥadíth has two parts. The first part (isnád) comprises a list of
narrators that handed down accounts of the actions, sayings, teachings, decisions, overt or tacit
views of Muḥammad or his immediate companions. This chain traces the sources through which
the Prophetic practice had been reported with a view to attesting the historical authenticity of a
particular ḥadíth. Isnád employs a classical formula along these lines: “It has been related to me
by A on the authority of B on the authority of C on the authority of D that Muḥammad said
[…]”. The second part, on the other hand, contains the actual content or text (matn) of the ḥadíth
that communicates what the Prophet had reportedly said or done.24 The report’s main function is
to shed light on a wide array of important matters in Islam.25

Roughly since the second century of Islam, Muḥammad’s well attested manner of behavior has
been considered to constitute a normative rule of conduct for Muslims. The phenomenon of
precedent or normative custom, however, is not entirely foreign to the pre-Islamic period; Arabs
have felt bound by tradition or precedent since time immemorial. The conventional wisdom
dictated that the precedent of ancestors was to be revered and imitated. Adherence to ancient
traditions often left no noteworthy room for new experiments and innovations that could alter the
status quo. Entrenched customs thus presented a significant obstacle to innovation, so much so
that in order to discredit an idea, it was generally sufficient to label it an ‘innovation’.26 The
emergence of Islam, in this sense, proved to be the most radical innovation in Arabia at the time.
Yet once Islam successfully prevailed over the Arabian Peninsula, the conventional adherence to
customs reasserted itself in the form of following the dictates of the new religious system.27

Concerning the role of the traditions, jurists reached a consensus that secondary norms had to be
derived from the primary sources (as opposed to mere speculative reasoning). To be sure, this
necessitated a much greater emphasis on the documentation of genuine (sahih) traditions28
Muslim scholars, among whom Al-Sháfiʻí played a prominent role, sought to ensure the
authenticity of transmitted ḥadíths so that legal certainty and predictability could be achieved.
Rejecting the thesis that the authority of the Prophet had been that of an individual who had been
better placed than any other human person to interpret the Qur’án, Al-Sháfiʻí defended the
position that the Prophet’s overall practice was divinely inspired. This thinking, he reasoned, was

23
Annemarie Schimmel, And Muhammad is His Messenger: The Veneration of the Prophet in Islamic Piety,
University of North Carolina Press, London, 1985, p. 26.
24
Israr A. Khan, Authentication of Hadith: Redefining the Criteria, International Institute of Islamic Thought,
London, 2010, p. 28
25
John Burton, An Introduction to the Hadith Tradition, Edinburgh University Press, Edinburgh, 1994, p. 19.
26
Majid Khadduri and Herbert J. Lienbesny, Law in the Middle East, The Lawbook Exchange, New Jersey, 2008, p.
34.
27
1 Joseph Schacht, An Introduction to Islamic Law, Oxford University Press, Oxford, 1982, p. 11
28
M. Izzi Dien, Islamic Law: From Historical Foundations to Contemporary Practice, Edinburgh University Press,
Edinburgh, 2004, p. 37.
the inexorable consequence of the Qur’ánic injunctions to obey God and His Messenger.29 The
eventual prevalence of Al-Sháfiʻí’s proposition that the acts or sayings of the Prophet reflected
the divine will meant that accepted traditions could no longer be rebutted through content
analysis of the narrations.30 It followed that the veracity of a ḥadíth became generally dependent
on the reliability of the chain of narrators transmitting the tradition. The wide acceptance of this
position eventually raised controversy on the extent to which the reported traditions could be
trusted

29
The Qur’án, 8:20; 4:59, see supra note 5; Andrew Rippin, Muslims: Their Religious Beliefs and Practices,
Routledge, New York, 2005, p. 223.
30
Noel J. Coulson, A History of Islamic Law, Edinburgh University Press, Edinburgh, 1964, p. 5
Secondary Sources
As stated earlier, Muḥammad has metaphorically been described as the corporeal scripture.
Having contributed to establishing a blueprint for a moral life, his demise imposed a disquieting
task on Muslims to keep the Islamic law responsive to unprecedented challenges. Despite the
absence of continuous prophetic guidance, the companions of Muḥammad eventually managed
to develop the raw legal material by devising new juristic tools to meet the demands of a rapidly
changing social milieu. These tools, known as the ‘non-revealed’ sources on account of their
non-divine origin, mainly include:

(1) ijmá‘: the general consensus of commentators on a moot point of law;

(2) qiyás: the method of analogical reasoning;
(3) ijtihád: the application of critical personal reasoning in the interpretation of Islamic law.31

Ijmá

Ijma is a principle for guaranteeing the veracity of the new legal content that emerges as a result
of exercising Qiyas and Ijtihdd. It is, in fact, a check against the fallibility of Qiyas. There are
points which have been universally accepted and agreed upon by the entire This Community.
This sort of Ijma6 that allows no difference of opinion i$ generally confined to obligatory duties
(fara? id). This is known as Ijma6 of the Community. On the contrary, there are certain rules
which we may call positive law that are agreed upon by the learned of a particular region, but
they do not carry the force of the consensus of the Community. This is known as Ijma1 of the
learned (Ijma6 al-Khdssah). The Ijma' of the learned (Ijma' al-Khdssah). in early schools, was a
mechanism for creating a sort of integration among the divergent opinions which arose as a
result of the individual legal activity of jurists. It seems that the whole system of law in the pre
Shafi'I period was held together and strengthened by this institution. It represents the average
general opinion of each region in respect of the positive law. It sets aside the stray and
'unsuccessful' opinions circulating in each locality. It is remarkable that the Ijma6 of the learned
is not the name of the decisions on legal issues taken by an assembly of Muslim jurists. It
emerges, in fact, by itself through a process of integration, and creates for itself a position in the
Community.
It is significant to note that the concept of al-Shafi'i about Ijma is different from that of the early
schools. He holds, as is evident from his writings, that Ijma6 is something static and formal
having no room for disagreement. That is why he is reluctant to accept the validity of the Ijma6
of the learned as a source of law due to the differences among them. Only the Ijma' of the
Community is valid according to him. In support of his argument he says that the Community at
large cannot neglect the Sunnah of the Prophet. However, the individuals may neglect. Further,
he contends that the Community? God willing can never agree on a decision opposed to the

31
Kamali Hashim, “Methodological Issues in Islamic Jurisprudence”, in Arab Law Quarterly, 1996, vol. 11, p. 3;
Noor Mohammed, “Principles of Islamic Contract Law”, in Journal of Law and Religion, 1988, vol. 6, p. 115
Sunnah of the Prophet nor on an error.32 As such, he restricted Ijma6 only to the fard?id. Ijma6,
therefore, according to al-Shafi'i, became merely a theoretical source of law rather than a
practical one.
According to al-Shafi'I, legal knowledge may be derived primarily from the Qur'an and the
Sunnah of the Prophet, then from the Ijma' of the Community. In cases these sources are silent
on some point, he follows first the agreed opinion of the Companions. Then in case of
differences among them he adopts the opinion of one of the first four Caliphs. He argues finally
on the basis of Qiyds which is strictly based on the Qur'an and the Sunnah of the Prophet alone.33
In fact, al-Shafi'I confines legal knowledge to the two basic sources, namely, the Qur'an and the
Sunnah which he calls asldn (two bases). He regards these two sources as independent entities
('aynan), while Ijtihdd, according to him, is not 'ayn (entity), but something created by human
intelligence. He believes that the Qur'an and the Sunnah provide answers to all possible problems
concerning religion. Thus, the whole emphasis throughout his writings centers around these two
sources.

Qiyás
Another source of Islamic law is Qiyas (analogical deduction). It is, in fact, a systematic and
developed form of ra'y (considered opinion). The most natural and simple mode of reasoning is
ray which played a paramount role prior to the prevalence of Qiyas. In the early days of Islam,
rdy was a generic term that covered practically different modes of Ijtihdd. We find its use in the
Prophet's time as well as after him by the Companions. The Qur'an and the Sunnah no doubt
provide us with legal rules with regard to the individual and social life of Muslims. But human
life, being dynamic, requires laws that should change with the changing circumstances. Ra'y is
an instrument that enables the coverage of diverse situations and enables Muslims to make new
laws according to their requirements. The period of 'Umar's Caliphate abounds in such instance

We first meet with a semi-technical use of the term Qiyas in the letter of 'Urnar b. al-Khattab, the
second Caliph, to Abu Musa al-Ash'arl (d. 44 A.H.). 'Umar is reported to have advised him to
acquaint himself with the parallels and precedents (of legal cases) and then to weigh up the cases
(qis al-umura), deciding what in his judgment would be the most pleasing to God and nearest the
truth.34 From such beginning as the reported advice of Umar, ra'y appears to have developed
later into the legal and technical concept of Qiyas, viz. to find out a common factor between two
similar cases and to apply one to the other. It is, however, noteworthy that the result after the
application of Qiyas by different persons is not necessarily one and the same. The reason is that
the actual location of the common factor (illah) is open to difference of opinion. As such, a rule
inferred by applying Qiyas is always subject to challenge, and can be rejected by any opposed
group.

32
Al-Shafi'i. al-Risdlah, op. cit., p. 65.
33
Al-Shafi'i, Kitab al-Umm, op. cit., Vol. VII, p. 246.
34
Al-Mubarrad, al-Kdmil, Cairo, 1936, Vol. I. p. 14
Qjyas, according to al-Shafrl, comes last in the order of the ul. He regards it as weaker than
Ijma'. He does not permit the use of Qiyas in the presence of a tradition (khabar). He treats Qiyas
as a thing permitted for the sake of need (manzilatu daruratin). As tayammum is allowed, he
argues in the absence of water during a journey, so is the case with Qiyas. Further, he contends
that since no tahdrah is valid with tayammum when water becomes available, similarly use of
Qiyas is invalid in the presence of khabar.35 He seeks to prove the validity of Qiyas on the basis
of the Qur'anic verse: Whencesoever thou comest forth turn thy face toward it so that men may
have no argument against you.36 From this verse he infers that the use of Qiyas in reasoning is
obligatory on Muslims. Explaining this verse he remarks that the man who is far away from the
Ka'bah depends on indications (dald'U) like stars and mountains. Similarly, he says, one should
depend on the indications to reach a certain conclusion.37 These pro-Qiyas and pro-Ijtihad
arguments are, in fact, directed towards the refutation of the use of unrestricted ra9y which he
thinks arbitrary and subjective.

35
Al-Shafi'i, al-Risdlah, op. cit., p 82
36
Qur'an, 2 : 150
37
Al-Shafi'i, al-Risdlah, op. cit., p. 66 passim; Cf. Kitab aUUmm, op. cit., Vol. VII, p. 272 f
Ijtihád

The word is derived from the root word. Allama Abu al Hasan Ali bin Ismail Ibn sayida said that
means hardship and difficult. Ibn Manzur al-Misri says: Jahd and juhd mean power and strength.
He adds that it is said that whereas jahd means hardship and difficulty, juhd gives the sense of
power and strength. jahd is used in the sense of power and strength. In the same work, he states
that Ijtihad and tajahud mean exertion of power and strength. In the hadith narrated from Mu'adh
the phrase in which he said that “I will exert to form my own judgment” showing that this
judgment will be executed by putting in complete efforts and exertion to achieve the same
purpose38.

Technically it means, deduce the hukm amid varying interpretations of legal injunctions of
Quran ad Sunnah and construe hukm or any new ruling from the Qur’an and the Sunnah, in order
to address new legal situations. Person who performs "Ijtihad" is titled "Mujtahid".39Shatibi
defines Ijtihad as
“A process in which one exerts one’s efforts to one’s full capacity in order to acquire exact or
probable knowledge or reach judgment in a given case.” 40

In the complete procedure of Islamic legislation Ijtihad plays an important role and has central
position in the whole process because Islamic law has two levels; essential and existential. The
first level of Islamic law being the actual spirit is related to the progress and development of
human life while the second level which is structural form of Islamic law’s aims to give it
discipline and structure. Demands of life is going to change day by day and human life also
comes under the influence of the influence of these changes. In this changeable phenomena it
become necessary to take on the structural review of Islamic laws but it must be keep in mind
that the spirit and discipline of Islamic law must be alive and does not clash with the aspects of
evolution of human life. Their mutual clash and disagreement has to make possible to describe
the vitality and development of life into nonproductive and inactivate state attain to organize and
association become far from possible. In the process of law making the achievement of this
responsibility is proved by Ijtihad. In the changing situation of every period, this process of
Ijtihad is very effective in Islamic law.41

38
Zubair, hafiz Muhammad. (2010) Asar I hazir me Ijtimai Ijtihad (P.75-77).Punjab University: Lahore
39
http://muslimcanada.org/ijtahadmujtahid.pdf
40
http://catchyworld.com/download/Islamiat/Ijtihad.pdf
41
http://www.minhajbooks.com/english/btext/cid/17/bid/315/btid/838/read/txt/Ijtihadand-its-need-Ijtihad-
meanings-application-and-scope.html