The History and Sources of Islamic Law

Introduction
All praise is due to Allah, from Whom alone we seek help and
guidance. We seek refuge in God from the evils of our own selves
and from our evil deeds. He who Allah guides is guided, and he who
He does not guide has no guide. Peace and blessings be upon our
beloved Prophet Muhammad, a mercy and a blessing and a bright
light to be followed.
1
As a religion which includes doctrine, law and ethics, Islam forms a
complete and comprehensive worldview for human life. Islamic law
(fiqh), for its part, is the means by which we are capable of
producing appropriate rulings through derivation from the
revelatory foundational texts. These last come in two forms:
“recited,” i.e. the Holy Qur’an; and “not recited,” i.e., the pure
Prophetic sunna.

After its initial period of direct legislation in the time of the Prophet,
Islamic law has undergone many stages, each of which has its own
distinctive features and impact on its current form. It is
1
Aqeel Ahmad: Muslim Law, Central Law Agency, Allahabad.
appropriate, then, that there be a study of these stages, which is not
simply a description and explanation of the past, but which also
serves the present by contributing to greater expertise and depth in
understanding the shari’a. And God alone gives success.

Sources of Islamic Law

In the eighth century, a difference in legal approach arose amongst
Islamic thinkers in two prevailing schools of legal thought. The
traditionalists (ahl al-hadith) relied solely on the Quran and the
sunna (traditions) of the Prophet as the only valid sources for
jurisprudence, such as the prevailing thought emanating from
Medina. The non-traditional approach (ahl al-ra'y) relied on the
free use of reasoning and opinion in the absence of reliable ahadith,
which was heralded in Iraq. The reason for the difference in
technique is that in Medina, there was an abundance of reliable
ahadith that scholars could depend on for forming legislation, since
the Prophet lived the last ten years of his life during a period of
legislation in the young Muslim community. In Iraq, the sources
that were available were not as reliable as in Medina and so the
jurists had to turn to analogy because of their circumstances.
Therefore, a hadith may have been accepted by Malik (from
Medina) and not by Abu Hanifa (from Iraq) who had to use analogy
in the absence of reliable hadith. A challenge that jurists had to
reconcile was which of the Prophet’s actions and decisions were
religiously binding and which were merely a function of personal
discretion of the Prophet? In general, ahl al-hadith eventually lent
legislative significance to much of the Prophet’s decisions, whereas
other schools tended to distinguish between the various roles that
the Prophet played in his life.

Muhammad ibn Idris al-Shafi'i (d. 819) was concerned about the
variety of doctrine and sought to limit the sources of law and
establish a common methodology for all schools of Islamic law.3 His
efforts resulted in the systemization of usul al-fiqh, the following
four sources of Islamic law:

the Quran;

the sunna or tradition of the Prophet;

qiyas or analogies;

ijma or unanimous agreement.

Throughout history these sources were used in descending order by

Muslim jurists in determining the legality of an issue. If the legality
was not based on an explicit command in the Quran, then the jurists
turned to look for explicit commands in the hadith, and so on.
Unfortunately, as we shall discover, not all aspects of the
methodology were unanimously agreed upon; the Quran could be
interpreted differently, some traditions of the Prophet were
questioned for their authenticity and to what extent they were
religiously imperative, theuse of analogies was greatly debated and
there was little unanimous agreement among scholars in Islamic
history about inexplicit issues.

Primary sources
The Qur'an
it is the first and most important source of Islamic law. Believed to
be the direct word of God as revealed to Muhammad through angel
Gabriel in Mecca and Medina, the scripture specifies the moral,
philosophical, social, political and economic basis on which a society
should be constructed. The verses revealed in Mecca deal with
philosophical and theological issues, whereas those revealed in
Medina are concerned with socio-economic laws. The Qur'an was
written and preserved during the life of Muhammad, and compiled
soon after his death.

Muslim jurists agree that the Qur'an in its entirety is not a legal
code (used in the modern sense); rather its purpose is to lay down a
way of life which regulates man's relationship with others and God.
The verses of the Qur'an are categorized into three fields: "science
of speculative theology", "ethical principles" and "rules of human
conduct". The third category is directly concerned with Islamic
legal matters which contains about five hundred verses or one
thirteenth of it. The task of interpreting the Qur'an has led to
various opinions and judgments. The interpretations of the verses
by Muhammad's companions for Sunnis and Imams for Shias are
considered the most authentic, since they knew why, where and on
what occasion each verse was revealed.

The first source of Shari'ah: The Qur'an Qur'an means reading or

recitation. Can be defined as book containing the speech of God
revealed to the prophet Muahammad in Arabic and transmitted to
us by nonstop testimony, or twatur. The Quran is a proof of the
prophecy of Muhammad and the first source of the shariah. The
Quran was revealed exclusively to the Prophet Muhammad, it was
put into writing, it is all mutawatir; it is the immitable speech of
God and it is recited in salah. The revelation of the Quran began
with sura al Alaq starting with the words, 'Read in the name of your
Lord' and ending with the ayah in sura al Ma ida: ' Today I have
perfected your religion for you and completed my favour toward
you, and chosen Islam as your religion.' The Quran was sent down
and revealed in three successive stages. The first descent was to
Lawh al Mahfuz (the guarded tablet) in a manner and time that is
not known. The second descent was to the lowest heaven, described
as bayt al - izzah (the abode of honour) and this occurred in the
night which the quran names laylah al qadr - the ayahs in the
Quran suggest that he second stage of the revelation occurred in a
single night, which is further specified as one of the last ten nights in
the month of Ramadan. It was during the last of the three stages
that the Quran was revealed to mankind gradually, in about twenty
three years, through the mediation of the archangel Gabriel.
2
There are 114 suras and 6245 ayat of unequal length in the Quran.
The longer suras appear first and the suras become shorter as the
text proceeds. The Quran begins with Surah al fatihah and ends
with sura al Nas. Professor Kamali tells us that the Quran is an
indivisible whole, and a guide for belief and action that must be
accepted and followed in its entirety hence any attempts to follow
some parts of the Quran and abandon others will be invalid. The
Quran consists of manifest revelation (wahy zahir) which is defined
as communication from God to the Prophet Muhammad, conveyed
by the angel Gabriel, in the very words of God. Manifest revelation
differs from internal revelation internal revelation consists of the
inspiration of concepts only; God inspired the Prophet and the latter
conveyed the concepts in his own words. All sayings, or hadith, of
the prophet fall into the category of internal revelation and as such
are not included in the Quran. Hadith qudsi: - in this variety of
hadith, the prophet narrates a concept directly from God which may
consist either of wahy zahir (manifest revelation) or wahy batin

2
. Sir D.F. Mulla: Principles of Mahomedan Law,
(internal revelation). Hadith qudsi differs from the other varieties of
hadith in form only. Hadith consists of divine inspiration and is
communicated in the words of the prophet. No hadith may be
ranked on equal footing with the Quran, therefore salah (prayer)
cannot be performed by reciting the hadith, nor is the recitation of
hadith considered of the same spiritual merit as reciting the Quran.
The Quran may not be read or touched by anyone who is not in
state of purity. The Quran is communicated in pure and clear
Arabic.

Since the Quran consists of manifest revelation in Arabic,

translations of the Quran into other languages, are not part of the
Quran - however imam Abu Hanifah has held the view that the
Quran is the name for a meaning only and as such, salah may ne
performed in its Persian translation but the disciples of Abu
Hanifah have disagreed with this view and it is reported that Abu
Hanifah himself reversed his initial ruling and this is now
considered to be the correct view of the hannafi school. The prophet
and his companions memorized the Quran, facilitated by the fact
that the Quran was revealed piecemeal over a period of twenty three
years in relation to particular events. The Quran itself explains the
rationality of graduality (tanjim) in its revelation as follows: 'The
unbelievers say, why has not the Quran been sent down to him all at
once. Thus it is revealed that your hearts may be strengthened, and
we rehearse it to you gradually, and well arranged' Revelation over
a period of time meant continuous contact between the believers and
a renewal of spiritual strength, so that the intimidation of the
believers toward the new faith did not weaken the hearts of the
Muslims. Had the Qur'an been revealed all at once, the arabs would
have found it difficult to understand. Considerable portion of the
Quran was revealed in response to questions that the prophet was
being asked from time to time, and also the events that were
experienced throughout the years of the revelation. Graduality
provided the opportunity to rectify and errors that the Muslims, or
even the prophet himself, might have committed and lessons that
could be learned from them. The occurrence of naskh (abrogation),
abrogation of an earlier ruling at a later stage owning to change of
circumstance, is also connected with the gradual unfolding of the
Qur'an.

Sunnah
The Sunnah is the next important source, and is commonly defined
as "the traditions and customs of Muhammad" or "the words,
actions and silent assertions of him". It includes the everyday
sayings and utterances of Muhammad, his acts, his tacit consent,
and acknowledgments of statements and activities.
According to Shi'ite jurists, the sunnah also includes the words,
deeds and acknowledgments of the twelve Imams and Fatimah,
Muhammad's daughter, who are believed to be infallible.

Justification for using the Sunnah as a source of law can be found in

the Qur'an. The Qur'an commands Muslims to follow Muhammad.
During his lifetime, Muhammad made it clear that his traditions
(along with the Qur'an) should be followed after his death. The
overwhelming majority of Muslims consider the sunnah to be
essential supplements to and clarifications of the Qur'an. In Islamic
jurisprudence, the Qur'an contains many rules for the behavior
expected of Muslims but there are no specific Qur'anic rules on
many religious and practical matters. Muslims believe that they can
look at the way of life, or sunnah, of Muhammad and his
companions to discover what to imitate and what to avoid.

Much of the sunnah is recorded in the Hadith. Initially, Muhammad

had instructed his followers not to write down his acts, so they may
not confuse it with the Qur'an. However, he did ask his followers to
disseminate his sayings orally. As long as he was alive, any doubtful
record could be confirmed as true or false by simply asking him. His
death, however, gave rise to confusion over Muhammad's conduct.
Thus the Hadith were established. Due to problems of authenticity,
the science of Hadith (Arabic: `Ulum al-hadith) is established. It is a
method of textual criticism developed by early Muslim scholars in
determining the veracity of reports attributed to Muhammad. This
is achieved by analyzing the text of the report, the scale of the
report's transmission, the routes through which the report was
transmitted, and the individual narrators involved in its
transmission.On the basis of these criteria, various Hadith
classifications developed.

To establish the authenticity of a particular Hadith or report, it had

to be checked by following the chain of transmission (isnad). Thus
the reporters had to cite their reference, and their reference's
reference all the way back to Muhammad. All the references in the
chain had to have a reputation for honesty and possessing a good
retentive memory. Thus biographical analysis (`ilm al-rijāl, lit.
"science of people"), which contains details about the transmitter
are scrutinized. This includes analyzing their date and place of
birth; familial connections; teachers and students; religiosity; moral
behaviour; literary output; their travels; as well as their date of
death. Based upon these criteria, the reliability (thiqāt) of the
transmitter is assessed. Also determined is whether the individual
was actually able to transmit the report, which is deduced from
their contemporaneity and geographical proximity with the other
transmitters in the chain.
Examples of biographical dictionaries include Ibn Hajar al-
Asqalani's "Tahdhīb al-Tahdhīb" or al-Dhahabi's "Tadhkirat al-
huffāz."[ Using this criteria, Hadith are classified into three
categories:

1. Undubitable (mutawatir), which are very widely known, and

backed up by numerous references.

2. Widespread (mashhur), which are widely known, but backed up

with few original references.

3. Isolated or Single (wahid), which are backed up by too few and

often discontinuous references

Various sources of Islamic law are used by Islamic jurisprudence to

elucidate the Sharia, the body of Islamic law. The primary sources,
accepted universally by all Muslims, are the Qur'an and Sunnah.
The Qur'an is the holy scripture of Islam, believed by Muslims to be
the direct and unaltered word of Allah. The Sunnah consists of the
religious actions and quotations of the Islamic Prophet Muhammad
and narrated through his Companions and Shia Imams. However,
some schools of jurisprudence use different methods to judge the
source's level of authenticity.

As Islamic regulations stated in the primary sources do not

explicitly deal with every conceivable eventuality, jurisprudence
must refer to resources and authentic documents to find the correct
course of action. According to Sunni schools of law, secondary
sources of Islamic law are consensus among Muslims jurists,
analogical deduction, al-Ra'y; independent reasoning, benefit for the
Community and Custom. Hanafi school frequently relies on
analogical deduction and independent reasoning, and Maliki and
Hanbali generally use the Hadith instead. Shafi'i school uses Sunnah
more than Hanafi and analogy more than two others. Among Shia,
Usuli school of Ja'fari jurisprudence uses four sources, which are
Qur'an, Sunnah, consensus and aql. They use ijma under special
conditions and rely on aql (intellect) to find general principles based
on the Qur'an and Sunnah, and use usul al-fiqh as methodology to
interpret the Qur'an and Sunnah in different circumstances, and
Akhbari Jafaris rely more on Hadith and reject ijtihad. According
to Momen, despite considerable differences in the principles of
jurisprudence between Shia and the four Sunni schools of law, there
are fewer differences in the practical application of jurisprudence to
ritual observances and social transactions
Conclusion

The purpose of studying the history of any science is to come to

know its foundational principles, central concerns, and ultimate
goals and benefits so that we may better learn from it. Islamic law is
no exception to this, for it is not simply a collection of legal rulings in
matters of ritual worship or transactions; rather, it is a complete
methodology for all the various facets of human life: doctrine, ritual
worship, society, economics, law-making, and politics. Indeed, in its
later stages, Islamic law came to be an impressive edifice, organizing
human civilization in all of its social interactions and human
relationships with sophistication and nuance.

This, of course, gives the study of the history of Islamic law a great
importance, because fiqh treats human life in all its details and
forms, such that it might be said that the shari’a is the basis upon
which the entire umma is built, and the logic that serves as the focal
point for Islamic civilization.