The Sources of Islamic Legislation for the Different Muslim Jurists

By Mohamed Baianonie, Imam at the Islamic Center of Raleigh, NC

 

Muslim jurists have agreed on four main Islamic sources of legislation. These sources are: the Noble Qur'aan, the Prophet's traditions, the consensus of the companions of the Prophet or scholars, and analogy. However, there are more sources of legislation, but they are not all agreed upon by all scholars. Other than the Qur’aan, Prophetic traditions, and consensus, the scholars differed in the order of the following sources of legislation, as in which source overrules the other. When Muslim scholars look for a ruling on various religious matters they look for evidence starting with the Qur’aan, Prophetic traditions, and consensus; thereafter they differ in their methodologies.

 

  1. Al-Qur’aan: The Noble Qur'aan is the speech of Allaah, which has been revealed to the Prophet Muhammad in wording and meaning through Angel Gabriel in the Arabic language. It is a miracle, and Allaah challenges mankind and jinn to produce something similar to the smallest chapter from it. The Qur'aan has been transmitted through a chain considered to be on the level of mutuwaatir, meaning it has numerous authentic chains to the point that it cannot be untrue. The Qur'aan has been compiled into a single volume beginning with the chapter entitled Al-Faatihah and ending with the chapter entitled An-Naas.

 

  1. As-Sunnah: As-Sunnah means the traditions of the Prophet Muhammad including his words, actions, and his tacit approvals or disapprovals of others’ words or actions. His traditions have been transmitted to us through numerous single chains of narrators. Some of those narrators were highly accurate in their memory and also high in their level of righteousness. If the narrations were reported through these high quality narrators, then what they narrated is considered a sound narration. Furthermore, narrations considered sound are arranged in varying levels of authenticity. However, if one of the two requirements mentioned above, accuracy and righteousness, is lacking then the narration will be considered weak. Also, narrations considered weak are categorized in varying levels of weakness.

 

  1. Al-Ijma’: Al-Ijma’ means consensus. Al-Ijma’ is consensus on a religious matter and it includes all the companions of the Prophet Muhammad or all scholars living during a specific time. The consensus can be by all of them saying their opinions clearly or some of them saying their opinions and the rest not raising any objection. An example of consensus of the companions was when the companions chose Abu Bakr as the first caliph. Other examples from that same time period include fighting those who left Islaam and those who stopped paying zakaat. Historically, consensus of the companions has not been applied except during the time of the first two caliphs, Abu Bakr and Umar. This is because both caliphs did not allow the companions of the Prophet to live outside of Al-Madinah so it was possible to survey the companions and obtain their opinions about matters. However, at the time of Uthmaan, the companions were allowed to live outside of Al-Madinah, so it was no longer feasible to obtain a true consensus on a religious matter due to the scattering of the companions throughout different regions.

 

  1. Al-Qiyaas: Al-Qiyaas means analogy. It is another source of legislation for new matters in which there is no evidence or ruling from the Qur'aan, the Prophet Muhammad's traditions, or consensus. When jurists face this situation, they search for similar matters that share the same cause leading to the same result for their legislation and also they have proof of their ruling from previous sources of legislation (the Qur'aan, the traditions of the Prophet, and consensus). Once the jurists have made these logical analogies, they apply the same ruling to a new matter which had no previous ruling. For example, it is clear that drinking wine is prohibited in the Qur'aan and in the traditions of the Prophetbecause it intoxicates the mind. Later, after the Prophet'stime, new intoxicants were invented or discovered. Therefore, Muslim jurists applied the same ruling of prohibition to these new substances because they share the same cause for prohibition as wine, namely both wine and these new substances intoxicate.

 

All four main Muslim jurists considered Al-Qiyaas as a source of legislation. Among the Muslim jurists who rejected Al-Qiyaas as a source of legislation were the Dhaahiris, some Mu’tazilites, and the Shi’ites.

 

There are more sources of legislation, but they are not agreed upon by all four main Muslim jurists.

 

  1. Al-Istihsaan: Al-Istihsaan is another source of legislation on a new matter in which there is no evidence or ruling from the Qur'aan, the Prophet Muhammad's traditions, or consensus, therefore a jurist may apply analogy and he may find in some cases that the resultant ruling went beyond what was intended by the analogy, therefore the jurist will modify the analogy, thus changing the resultant ruling. This act of modifying the analogy is al-istihsaan. For example, the Prophetforbade selling items that did not exist at the time of transaction, as in selling fruits from an orchard before they had actually grown. Using this analogy, it was prohibited to sell custom made items because they did not exist at the time of transaction, such as customized furniture and clothes, however for merchants it was difficult financially for them to make customized furniture and clothes in advance without being paid for manufacturing the items. Without modifying this ruling it would have caused hardship upon the people, and Allaah does not want hardship upon the people as evident from the Qur’aan. Allaah says what may be translated as, “Allaah intends for you ease, and He does not want to make things difficult for you.” (02:185). Therefore, in this case and similar cases scholars used al-istihsaan to modify the prohibition of selling items that did not exist at the time of transaction by stipulating specifications of the furniture and clothing to minimize ambiguity, i.e. the size, color, type of wood, etc. thus allowing custom ordering.

 

Among the Muslim jurists who considered al-istihsaan as a source of legislation were the Hanafis, Maalikis, and Hanbalis. Among the Muslim jurists who rejected al-istihsaan as a source of legislation were the Shaafi’is, Dhaahiris, Mu’tazilites, and Shi’ites because they considered al-istihsaan as following one’s own desire without providing evidence.

 

  1. Al-Masaalih Al-Mursalah: Al-Masaalih is defined as matters of public interest which may arise and benefit the people or protect them from harm thus fulfilling the main objective of the legislator. Matters of public interest vary from place to place and time to time and are too numerous to be restricted to limited texts. Al-Mursalah means that there is no evidence to consider it or not. Therefore, al-Masaalih al-Mursalah refers to unrestricted public interest in the sense of its not having been regulated by the Lawgiver insofar as no textual authority can be found on its validity or otherwise. The objective of the legislator is to protect five necessities for the people: religion, life, mind, offspring, and wealth. Everything that includes protecting these five main things for the public is considered a matter of public interest and the legislator looks after it. In contrast, everything that harms these five things should be avoided by the legislator. For example, under the caliphate of Abu Bakr, the Qur’aan was compiled in written form in one book to be protected from being lost, also under the caliphate of ‘Uthmaan the Qur’aan was recompiled in one volume. In another example, under the caliphate of ‘Umar, a documentation system was implemented to keep track of annual revenue of agricultural lands, rotation of the soldiers, taxes, and revenues.

 

Among the Muslim jurists who considered al-masaalih al-mursalah were the Maalikis and Hanbalis. Among the Muslim jurists who rejected al-masaalih al-mursalah were the Shaafi’is, Dhaahiris, and Shi’ites. The Hanafis did not consider al-masaalih al-mursalah as a source of legislation, but in reality they reached the same conclusions in numerous matters by applying al-istihsaan.

 

  1. Al-‘Urf: Al-‘Urf means customs, more specifically the recurring collective practices and statements that are acceptable to the people of sound nature. In practice, for example, when a person buys a house or car, the question as to what is to be included in either of these is largely determined by custom if not otherwise specified in the terms of agreement. In statement, for example, the customary definition of the word ‘meat’ in some regions does not include fish, based upon this custom if someone swears that he will not eat meat anymore, he could still eat fish because of the customary definition and he would not be breaking his oath. Al-‘Urf in both practice and statement can be wide-spread in many regions or local to a specific town or city. Al-‘Urf can be limited to a specific kind of trade or business.

 

There are two kinds of ‘urf. The first is a valid custom in which prohibitions are not made permissible and validities are not made prohibited such as the examples mentioned already. The second is an invalid custom in which prohibitions are made permissible and validities are made prohibited such as dealing with interest. An invalid custom will not be considered in Islaamic legislation. It is clear that al-‘urf changes from time to time and place to place, and the rulings based upon customs will change similarly.

 

Among the Muslim jurists who considered al-‘urf as a source of legislation were the Hanafis and Maalikis. The Shaafi’is considered al-‘urf in practice but not in statement. The Hanbalis rejected al-‘urf as a source of legislation.

 

  1. Revealed Laws Prior to the Shari’ah of Islaam: All divinely revealed laws originate from one single source who is Allaah, as such they convey a basic message that is common to them all. However, each one of the revealed religions was addressed to different nations at different points in mankind’s history, and they each have unique features. For example, the rules laid down by different religions and ritual acts of worship are not the same, though the essence of worship are the same. The Shari’ah of Islaam has many of the previous laws, while in many cases it has abrogated previous divine laws as well. For example, the law of retaliation (qisaas) and some of the capital punishments (hudood) prescribed in the Torah have also been mentioned in the Qur’aan. The general rule is that laws that were revealed before Islaam are not applicable to Muslims. The jurists are in agreement that the laws of the previous religions are not to be sought in any source other than that of the Shari’ah of Islaam. The rules of other religions do not constitute a binding proof for Muslims. The Shari’ah of Islaam is the exclusive source of all law for Muslims.

 

Laws that were in previous scriptures, which were not mandated by the Shari’ah of Islaam, and there is no ruling for them found in the Qur’aan or the Sunnah are not applicable to the Muslims. The Prophet was commanded to follow the guidance of the previous religions only, the essence of faith which is the belief in Allaah and monotheism, and other tenets of Islaamic faith.

 

The Qur’aan or the Sunnah may refer to a previous revelation’s ruling, and make it obligatory upon Muslims, such as with fasting. In the Qur’aan Allaah says what may be translated as, “…fasting is prescribed for you as it was prescribed for those who came before you.” (02:183). The Qur’aan or the Sunnah may refer to a previous revelation’s ruling, and may abrogate it, such as certain kinds of food. In the Qur’aan Allaah says what may be translated as, “And to the Jews We forbade every animal having claws and of oxen and sheep We made unlawful to them the fat of both…” (06:146).

 

The Qur’aan or the Sunnah may refer to a previous revelation’s ruling without clarifying its position, such as with retaliation (qisaas). In the Qur’aan, with reference to the Torah, Allaah says what may be translated as, “We ordained therein for them life for life, eye for eye, nose for nose, ear for ear, tooth for tooth, and wounds equal for equal.” (05:45). The majority of Hanafis, Maalikis, Hanbalis, and some Shaafi’is have agreed that in this case retaliation is part of Islaam because the Qur’aan makes a reference to this rule, it is sufficient to be binding upon Muslims. They used many evidences, such as from the Qur’aan. Allaah says what may be translated as, “Those are the ones to whom Allaah has given guidance, so follow their guidance.” (06:90). and also Allaah says what may be translated as, “…and We revealed to you to follow the religion of Ibraheem...” (42:13) from the first verse mentioned, the word ‘guidance’ includes both faith and laws together. From the second verse mentioned, Allaah ordered the Prophet to follow the religion of Ibraheem which includes laws, and this was an obligatory command upon the Prophet from Allaah . The majority of Shaafi’is, Ash’aris, Mu’tazilites, Shiites, and Dhaahiris agree that since Islaam abrogated the previous laws, they are no longer applicable to the Muslims; thus these laws do not constitute a part of the Shari’ah of Islaam unless specified or validated elsewhere in the Qur’aan. They refuted the evidences of those jurists who accepted retaliation for the previously mentioned reasons because they did not accept these to be definite evidences, but what was meant by these evidences was that Allaah wanted the Prophet to follow the faith portion of those previous revealed religions. As for the previous revealed laws, Allaah says in the Qur’aan what may be translated as, “For every one of you We have ordained a divine law and an open road.” (05:48) and this is definite evidence that every nation has its own laws and nobody is obligated to follow the laws of another nation. Also, they refuted using the hadeeth when the Prophet sent Mu’aadh ibn Jabal as a judge to Yemen. He was asked about the sources on which he would rely to make judgments. Mu’aadh replied first referring to the Qur’aan, then the Prophetic Traditions, then Personal Opinion or Reasoning, and the Prophet approved Mu’aadh’s response[1] and he did not tell him to use previous revealed laws as a source. If it was a source of legislation for Muslims, then the Prophet would have commanded Mu’aadh to use it.

 

Thus, every nation has its own Shari’ah, and therefore the laws that were revealed before Islaam are not binding on Muslims. Furthermore, it is well-known that the Prophet did not search for legislation in the Torah or Injeel, even in times when waiting for revelation. This implied that the Prophet did not regard previous laws as sources of legislation. The majority of jurists maintain that the Shari’ah of Islaam only abrogates rules that are disagreeable to its teaching. The Qur’aan overall confirms the Torah and the Injeel, and whenever a ruling of the previous scriptures is quoted without abrogation, it becomes an integral part of the Shari’ah of Islaam.

 

  1. Al-Istishaab: Al-Istishaab linguistically means escorting or companionship. Juristically it means rational evidence that may be used if other evidences are unavailable, or in other words presumption of continuity. Rational evidence includes facts or rules of law and reason which have been proven in the past and are assumed to remain true for lack of evidence to change them.   In this sense, the past ‘escorts’ or ‘accompanies’ the present without any change.   For example, once a sales or marriage contract is concluded, it is presumed to be valid until there is a change. These contracts are permanently valid under Shari’ah, it is reasonable to presume their continuity until there is evidence of change. A mere possibility of resale or dissolve of marriage is not sufficient to rebut presumption of istishaab. Should there be doubt about the absence or non-existence of something, it will be presumed to exist, but if the doubt is in the proof of something, the presumption will be that it is not proven. Thus with regard to facts and situations that are known to have been present or absent in the past, istishaab presumes its non-existence until the claim is proven by evidence. If someone claims that he has cleared and paid the debt he owed, istishaab will presume the opposite of the claim until evidence shows otherwise. This is because there is doubt as to whether he has repaid the debt, there is no doubt that the debt existed or not in the past. In the case of a missing person, the doubt arises of the possibility of his death. Istishaab presumes that he is still alive. In the case of an unsubstantiated claim, like Person A claims Person B owes him money, but no evidence exists. The doubt here is with the proof of existence of debt, and it is thus presumed there is no debt until proven.

 

The principle of permissibility is from the Qur’aan, Allaah says what may be translated as, “It is He who has created for you all that is in the earth.” (02:29). and also Allaah says what may be translated as, “God has subjugated to you all that is in the heavens and in the earth.” (45:13). These are declarations that man should be able to utilize the resources of the world around him to his advantage, which is another way of saying that he is generally permitted to act in the direction of securing his benefits unless he has been expressly prohibited. Therefore all objects, legal acts, contracts and exchange of goods and services that are beneficial to human beings are lawful on grounds of original permissibility. Similarly, when it comes to the ritual state of purity, water and people are presumed to be in this natural state until there is evidence to prove the state has changed. When the legal norm in regard to something is prohibition, then istishaab presumes its continuity until there is evidence to suggest that it is no longer prohibited.

 

Among the Muslim jurists who considered al-istishaab as a source of legislation were the Shaafi’is, Hanbalis, Dhaahiris, and Shiites. Among the Muslim jurists who rejected al- istishaab as a source of legislation in its own right were the Hanafis and Maalikis.

 

  1. Verdict or Ruling of a Companion : According to the majority of jurists, a companion is defined as anyone who met the Prophet and while believing in him died as a believer. The scholars of sunnah and jamaa’ah are in agreement that the consensus (ijma’) of the companions is a source of legislation in Shari’ah; however, they disagree as to whether the sayings and verdicts of a single companion or few companions is binding.

 

The sayings and verdicts of a companion is invaluable because the leadership of the ummah was upon the companions’ shoulders after the Prophet passed away, and a number of learned companions who had deep knowledge and understanding from the Prophet formulated verdicts or rulings for numerous issues. The most learned companions, especially the four rightly guided caliphs, were particularly noted and mentioned in determining detailed verdicts and rulings.

 

Jurists agree that the saying of a companion is a proof that requires obedience when it is not opposed by other companions. For example, the grandmother’s share of one-sixth inheritance on which the companions have agreed, and it represents their authoritative ijma’. However, jurists are in disagreement with rulings that are based on opinion and ijtihaad of companions when they differed with one another.

 

Some jurists held that the verdict or ruling of a companion was an absolute source of legislation. The Maalikis, one of the two Shaafi’i views, one of the two Hanbali views, and some Hanafis were among the jurists who accepted this as a source of legislation. Among the evidences they used is for example from the Qur’aan, Allaah says what may be translated as, “The first and foremost among the Muhaajiroon (Emigrants) and Ansaar (Helpers) and those who followed them in good deeds, Allaah is well-pleased with them, as they are with Him.” (09:100) this verse was interpreted as meaning that those who followed the opinion and judgment of the companions are obedient to Allaah , meaning that the verdict or ruling of a companion is an evidence or source of legislation. In another verse Allaah says what may be translated as, “You are the best community that has been raised for mankind; you enjoin right and you forbid evil.” (03:110) this verse was interpreted to mean the companions’ leadership commands authority and respect. Even though these verses are all in plural, it is argued that the Qur’aan establishes the righteousness of the companions as individuals as well, and their opinions and judgments should be followed whether a single companion or many.

 

Other jurists viewed the verdict or ruling of a companion as not binding and not a source of legislation. The Ash’aris, Mu’tazilites, and one of the two Hanbali views were of this opinion. Among the evidences they used for their view is for example from the Qur’aan, Allaah says what may be translated as, “Consider (or Take a lesson), O you who have vision (or sight).” (59:02) this verse was interpreted to mean everyone who is capable to exercise ijtihaad should do so and there is no distinction for companions. Also, to support their view they mentioned that the verdict or ruling of one companion was not binding upon the other companions, this is different than the consensus of the companions.

 

A view attributed to Abu Hanifah is that the ruling of a companion is a proof and source of legislation when it is in conflict with analogy, but not when it agrees with analogy. This is because if there is a difference, then usually there is a reason for the difference, and this exposes a weakness in the analogy; thus the companion’s view prevails.

 

And yet another view is that only the ruling of the four rightly guided caliphs is a source of legislation. The jurists who follow this view use the following hadeeth as evidence, “You are to follow my Sunnah and the Sunnah of the rightly guided caliphs after me.” [Recorded by Imaam Abu Daawood]

 

  1. Sadd ud-Daraa’i: Ad-Daraa’i is plural for ad-daree’ah, and it means obtaining a specific end, and sadd means blocking. Sadd ud-Daraa’i juristically means blocking the means to an expected evil that is likely to materialize if the means towards it is not obstructed. A typical case for the application of sadd ud-daraa’i is when a lawful means is expected to lead to an unlawful result, or when a lawful means that normally leads to a lawful result is used to obtain an unlawful end. For example, khalwah or privacy between a woman and a man not mahram for her is unlawful because it is a means which may lead to zina whether zina takes place or not. Sadd ud-Daraa’i is founded upon the idea of preventing an evil before it actually materializes. The intention is not a factor in sadd ud-daraa’i, it is the expected result.

 

Normally the means to an obligation become obligatory, and the means to a prohibition become prohibited. Means many times may lead to a benefit or an evil, in which case if the evil is equal to or greater than the benefit, then the evil prevails over the benefit, thus according to Imaam Ash-Shaatibi, “preventing an evil takes priority over securing a benefit.” The Prophet forbade the killing of the hypocrites for it was a means giving rise to people characterizing him as killing his own companions, which would give the enemies of Islaam an opportunity to undermine Muslim unity. Otherwise, had the Prophet decided to punish the hypocrites with the death penalty, he may have done so.

 

Among the Muslim jurists who considered sadd ud-daraa’i as a source of legislation were the Maalikis, Hanbalis, and Shiites. They used many evidences, such as from the Qur’aan, Allaah says what may be translated as, “And insult not those whom they (disbelievers) worship besides Allaah, lest they insult Allaah wrongfully without knowledge.” (06:108) Allaah had prohibited the believers from insulting the disbelievers’ false gods to prevent the disbelievers from using this as a means to insult Allaah. The Hanafis, Shaafi’is, and the Dhaahiris rejected it as a source of legislation. Using sadd ud-daraa’i is using presumption as evidence and both permission and prohibition in Shari’ah are based upon definite evidences not presumption as Allaah says in the Qur’aan what may be translated as, “…and verily, presumption is no substitute for the truth.” (53:28). The jurists who rejected sadd ud-daraa’i say that the origin of a ruling is permissibility until there is definite evidence prohibiting it, and presumption is not definite evidence.

 

  1. Actions of the People of Al-Madinah: These are the agreed upon collective actions and traditions of the people of Al-Madinah within a few generations after the death of the Prophet. These actions’ origins are believed to have come from the Prophet himself. After the Prophet passed away in Al-Madinah, among them lived the people of his community who most followed him: Abu Bakr, 'Umar, 'Uthmaan, and other companions. They implemented the Sunnah after investigating it and studying it while it was still fresh. Then the taabi’een (successors) after them followed those paths. Thus, Al-Madinah had inherited the knowledge of the Sunnah in this time period. Some examples are: not saying the basmalah aloud in the prayer, other descriptions of the prayer, definitions for the sa' and the mudd, specification of the place of the minbar and its position for the prayer, the specification of the Rawda, al-Baqi', and the prayer hall, the places for ihram such as Dhu'l-Hulayfa.  

 

The Maalikis considered the practice of the people of Al-Madinah to be a legal source for legislation. When no text or other authority existed, Imaam Maalik used the practice of the people of Al-Madinah as evidence. To support this view, the Maalikis cited evidences from the Qur’aan such as, Allaah says in the Qur’aan what may be translated as, “The first and foremost among the Muhaajiroon (Emigrants) and Ansaar (Helpers) and those who followed them in good deeds, Allaah is well-pleased with them, as they are with Him.” (09:100). And also, Allaah says in the Qur’aan what may be translated as, “So give good news to My slaves, those who listen well to what is said and then follow the best of it.” (39:17-18) these verses were interpreted to mean Muslims should follow the actions of the people of Al-Madinah.

 

Summary of Sources of Legislation According to the Four Muslim Jurists

 

Hanafis

Maalikis

Shaafi’is

Hanbalis

1.     Al-Qur'aan

2.     As-Sunnah (Prophetic Traditions)

3.     Sayings of the Companions

4.     Ijma’ (Consensus)

5.     Qiyaas (Analogy)

6.     Istihsaan

7.     Al-‘Urf (Custom)

8.     Previous Revealed Laws

1.     Al-Qur'aan

2.     As-Sunnah (Prophetic Traditions)

3.     Ijma’ (Consensus)

4.     Actions of the People of Al-Madinah

5.     Qiyaas (Analogy)

6.     Sayings of the Companions

7.     Al-Masaalih wal-Mursalah

8.     Al-‘Urf (Custom)

9.     Sadd ud-Daraa’i

10.  Istishaab (Presumption of Continuity)

11.  Istihsaan

12.  Previous Revealed Laws

1.     Al-Qur'aan

2.     As-Sunnah (Prophetic Traditions)

3.     Ijma’ (Consensus)

4.     Qiyaas (Analogy)

5.     Istishaab (Presumption of Continuity)

 

1.     Al-Qur'aan

2.     As-Sunnah (Prophetic Traditions)

3.     Sayings of the Companions

4.     Ijma’ (Consensus)

5.     Qiyaas (Analogy)

6.     Istishaab (Presumption of Continuity)

7.     Al-Masaalih wal-Mursalah

8.     Sadd ud-Daraa’i

9.     Previous Revealed Laws

10.  Istihsaan

 

 

 

 

 

 

 

[1] This was recorded by Imaams Ahmad, Abu Daawood, At-Tirmidhi, Ibn ‘Adi, At-Tabaraani, and Al-Bayhaqi.