Islamic Jurisprudence

1. Sources of Islamic
law
ISLAMIC JURISPRUDENCE
BY AIJAZ AHMED JATOI

2. Distinction between primary and secondary
source
 Primary source are those that are unanimously agreed upon by the Sunni
schools . Quran , sunnah and while secondry source are not unanimously
accepted by sunni schools . Ijma (consensus of legal opinion), Qiyas
(Analogy) accepted by few sunni school not by others , Istihsan is accepted
by the Hanafi and Malki schools not by others . Shi’ah schools don't accept
Quran and sunnah. Zahi’r’i school did not accept analogy
 Primary source are transmitted ‫منتقل‬ source, while secondary source are
mostly rational ‫عقلی‬ source. Opinion of Companions on primary source
 Primary sources are definitive ‫مقرر‬ ,‫حتمی‬ source , while secondary are
probable ‫وقوع‬ ِ‫ل‬‫قاب‬‫ممکنہ‬
 Laws discovered through the primary sources may be extended through
rational sources, while laws discovered through secondry source can’t be
further extended.

3. • Quran
 To the Muslims, the Quran is the Word of God and contains complete
guidance for mankind. Much of the Quran is about God, His attributes and
man's relationship to Him. But it also contains directives for its followers,
historical accounts of certain prophets and peoples, arguments for
accepting Muhammad as a genuine Prophet and good news for the
believers and warnings for the disbelievers. Broadly speaking, the contents
of the Holy Quran fall into five main categories:
 Nature of the Spiritual World
 The Law and Commandments
 Historical Accounts
 The Wisdom
 The Prophecies

4. • Allah is true source of all law
“The hukm (order) belongs to Allah alone” 6:57
 There are Six Hundred verses in Quran that indicate commandments
(Ahkams) of Islamic law .
 About Five Hundred of these pertain to worship (Ibadt) and remaining to
crimes ,personal law other issues.
 70 verse about family law.
 80 verses to trade and finance.
 13 to oaths.
 30 verses about crimes and sentence .
 Ten constitutional and administrative matters
 25 International law and prisoners of war

5. Hukm Shar’i
 Elements of Hukm Shar’i
The Hukm Shar’I in its literal sense conveys the meaning of a rule of Islamic
Law. It comes through the operation of its three elements (arkan)
1. The Hakim (lawgiver),the true source from the which hukm
originates.the orginal source for Islamic law is Hakim or the Law giver
,that is, Allah Almighty.
2. The mahk’um fih or the act on which the hukm oprates, Also called the
mahkm bih
3. The mahkum alayh or the subject (legal person) for whose conduct the
hukm is stipulated.

6. Meaning of Hukm Shar’i or meaning of Islamic
law
 The Arabic word hukm in its literal sense means a command
.in its technical sense its means a ”rule", this may be a rule of
any kind.
 The Muslims jurists give us definition hukm shar’I as
“A communication from Allah, the Exalted, related to acts
of the subject through demand or option or through a
declaration”

7. Communication
Makes a demand
Grants a Choice
Makes a Declaration
Demand Commission Binding Obligations
Non-Binding Recommendation ‫حمایت‬ ‫۔‬ ‫تجویز‬
‫یافتہ‬
Omission Binding Prohibition
Non-Binding Abomination ‫مکروہ‬
Declaration Cause
condition
Obstacle ‫رکاوٹ‬

8. • Obligation creating rules ( Hukm Taklifi)
 “The five decisions” ( ‫الخمسة‬ ‫األحكام‬, al-aḥkām al-khamsa)
 1. obligatory (Fard ,wajib-- (‫واجب‬ )
 2. Recommended (Mandu’b—Mustahhb-- ‫)مستحب‬
 3. Abominable, Disapproved (Makroh)
 4. Prohibited (Haram--‫)حرام‬
 5. Permissible (Mubah---‫)مباح‬

9.  Frad: Obligatory .this duty arise an evidence or source that is definitive
with respect to its implication
 Wajib: obligation. This duty I slightly weaker than the first in its demand
for commission . It arise from a source that is probable with respect to its
implication and authenticity . The demand however has been expressed
in binding terms.
 Mandub, recommended ‫کرنا‬ ‫.تجویز‬the deference between
recommendation and the tow kinds of obligation above is based on the
binding nature of the command. The source is probable ,but the demand
is expressed in non-binding terms
 Makroh karahat al-tamzih . Disapproved ‫.نامنظور‬ It is an act whose
omission is demanded by lawgiver through a probable evidence
expressed in non-binding terms

10.  Makroh karahat al-tahrim abominable ‫نفرت‬‫انگیز‬ ,‫حقیر‬ . This category arises
from a probable evidence expressed in binding terms . It is close to
prohibition
 Haram: Prohibited ‫ممنوعہ‬ or duty not to commit an act. This arises from a
definitive evidence
 Mubah permissible ‫.جائز‬ No duty is created and the subject is given a
choice to perform the act or not to perform it. We may also say here that
the subject is sometimes given the power to create obligations and duties
with respect to other individual . This may occur, for example
 in the case a person appointing another his agent or concluding a
contract with .

11. • Declaratory rules ‫واضح‬ ‫اعالنیہ‬ ‫استقراریہ‬ (
Hukm Wad’i)
 The law of wadh'I is, the word of Allah which is in the form of a provision
that makes something as a cause or condition or a barrier from a law of
taklifi .
 Therefore, in reality, the law wadh'I is closely associated with taklifi, either
in the form of reason ( cause ), thus producing a result ( musabbab ) a
UUM taklifi.
 Or in terms of conditions ( conditions ), so that it is possible ( masyruth) a
law of taklifi, or in the form of obstruction ‫رکاوٹ‬ (mani), so that a law of
taklifi becomes unsuccessful (assuming). In addition, it includes the
discussion of the legal restraints relating to the law (general and normal
law) and rukhsah (relief). Ash-shihhah (sah) and al-buthlan (invalid). Thus,
the rulers of the law of wadh'iberkaiatan with seven main things namely,
because, syarth, mani, azimah, rukhsah, ash-shihhah. And al-buthlan.

12.  1. Classification secondry rules ito Sabab,shart and obstruction mani. The
usul’I is concerned more with this classification
 2. classification into sihhah ‫,جائزیت‬butlan ‫محدومیت‬ and fasad ‫کر‬ ‫خراب‬‫دینا‬ ,
‫ناقص‬ (validity,nullity and vitiations). This classification is more important
for the faqih. Because it pertains to performance of acts
 3 Classification into Azimah and rukhsah (general rules and
exemptions). This classification helps the jurists identify the general
principle of the law and the exceptions to these general principle. It is
used as a tool for achieving analytical consistency

13. The distinction between the (Hukm Taklifi )and
The Hukm Wad’i
 The aim of the hukm taklifi is to create an obligations for the commissions
or omission of an act or to grant a choice between the commission or
omission of the act while the hukm wad’I has no such aim. It’s a purpose
is to either inform the subject that certain things cause of or it is to
explain the relationship that exists between two rules or to provide the
criterion for judging whether an act performed is valid or void
 The act or event that is affected by the hukm taklifi is within the ability of
subject with respect to its commission and omission . The fact by hukm
wad’i may or may not be within the ability of subject with respect to
commission or omission. In other words it is always possible for subject
to commit or omit an affected by hukm taklifi but it may not be possible
for him to commit or omit all acts that fall within the domain of the hukm
wa’d’I .

14. • The fundamental Norm of The legal System
 I am ready to obey such and such law as it has been communicated to me
by qualified jurist
 I follow the opinion of the jurist as it is in conformity with the source of
Islamic Law.
 I obey a law based on the sources as they are sources revealed to
Muhammad. I obey Muhammad for he is messenger of Allah and
 I believe in Allah

15. • Sunnah
 In its literal meaning the word Sunnah stands for the (well known path)
are the (well trodden path), which is followed again and again saying of
prophet p.b.u.h is “He who establishes a good sunnah has its reward
and reward of however acts upon it till the day of judgment, and he
who establishes a bad sunnah bears its burden and the burden of
whoever acts upon it till the day of judgment.” The sunnah of an
individual is a practice that he considers binding for himself and that he
attempt protect and uphold.
 Technical meaning of Sunnah
1. Some jurists apply it to mean the recommended acts of worship
while others apply it to supererogatory ‫اعلی‬ acts.

16. 2. The word sunnah as an antonym of (bidah) innovation, that is innovation in
matters of religion in this sense it is said “this act is sunnah that is it is legal.
The meaning of legal is assigned to its irrespective of the legality arising from the
Quran or Sunnah. When it is said that such and such act is bidah it means it is
not legal according to Quran and Sunnah.
3. The term sunnah is used to mean the practice of companions (sahaba), even
though they are relying on it on the authority of book, the sunnah, or their own
ijtehad an example is compilation of the Quran.
4. Finally, it is defined as “what was transmitted from the messenger of Allah
p.b.u.h of his words acts and tacit approvals.” It is in this sense that the jurists the
term sunnah as a source of Islamic law.

17. Kinds of sunnah
 The classification of sunnah according to nature there are three types of
sunnah
1. Sayings (Qawliyah)
2. Acts (Failiha)
3. The tacit approval (Taqririyah)
these three Kinds of Sunnah are the practice of Prophet (PBUH)

18. How it transmitted to us ?

19. • Status of Sunnah with respect to the Quran
 Authority of Hadith from the Qur'an
‫ا‬َ‫م‬َ‫و‬َ‫ن‬ِ‫ل‬ َّ‫َِّل‬‫ا‬ ٓ‫ا‬َ‫ه‬ۡ‫ی‬َ‫ل‬َ‫ع‬ َ‫ت‬ۡ‫ن‬ُ‫ك‬ ۡ‫ى‬ِ‫ت‬َّ‫ال‬ َ‫ة‬َ‫ل‬ۡ‫ب‬ِ‫ق‬ۡ‫ال‬ ‫ا‬َ‫ن‬ۡ‫ل‬َ‫ع‬َ‫ج‬َّ‫ی‬ ۡ‫ن‬َّ‫م‬ِ‫م‬ َ‫ل‬ ۡ‫ُو‬‫س‬َّ‫الر‬ ُ‫ع‬ِ‫ب‬َّ‫ت‬َّ‫ی‬ ۡ‫ن‬َ‫م‬ َ‫م‬َ‫ل‬ۡ‫ع‬‫ى‬ٰ‫َل‬‫ع‬ ُ‫ب‬ِ‫ل‬َ‫ق‬ۡ‫ن‬
ِ‫ه‬ۡ‫ی‬َ‫ب‬ِ‫ق‬َ‫ع‬
 Translation: “And we did not make the Qiblah upon which you were (Bayt
al- Maqdis) but so that we may distinguish who follows the Rasul from he
who turn on his heels.” 2:143
 In the above verse, a reference of the previous order to face Bayt al-
Maqdis (Jerusalem) is given.
 The express order is no where in the Qur'an. It is thus clear, that there are
orders given to Rasulullah [Sallallahu 'alayhi wasallam] which are not
recorded in the Qur'an. It is therefore incorrect to state that we only follow
the Qur'an and not the Ahaadith.

20. ‫ع‬َ‫م‬ِ‫ل‬َ‫ن‬ ۡ‫و‬ُ‫ن‬‫ا‬َ‫ت‬ ۡ‫خ‬َ‫ت‬ ۡ‫م‬ُ‫ت‬ۡ‫ن‬ُ‫ك‬ ۡ‫م‬ُ‫ک‬َّ‫ن‬َ‫ا‬ ُ ‫ه‬‫اّٰلل‬ۡ‫م‬ُ‫ک‬َ‫س‬ُ‫ف‬ۡ‫ن‬َ‫ا‬
 Translation: ‘Allah knows that you used to deceive yourselves’ 2:187
 In the beginning stages, fasting used to commence after one falls asleep.
was prohibited to eat or cohabit with one’s wife after falling asleep. The
order for this prohibition is not in the Qur'an. It was given to Rasulullah
[Sallallahu 'alayhi wa sallam] and the Qur'an refers to that. It is clear from
the above two examples that not every order of the Shari’ah is in the
Qur'an only, but they were also given to Rasulullah [Sallallahu 'alayhi wa
sallam]. Some of these orders are referred to in the Qur'an.

21. It is obvious that the orders of Rasulullah [Sallallahu 'alayhi wa sallam] are
by Divine Order. Allah Ta’ala
says, َ ‫و‬‫ى‬ ۡ‫ح‬َ‫و‬ َّ‫َِّل‬‫ا‬ َ‫و‬ُُ ۡ‫ِن‬‫ا‬ ؕ ٰ‫و‬َ‫ه‬ۡ‫ال‬ ِ‫َن‬‫ع‬ ُُِِۡ‫ن‬َ‫ی‬ ‫ا‬َ‫م‬‫ى‬ ٰ‫ح‬ ۡ‫و‬‫و‬‫ی‬
Translation: ‘And he (Rasulullah [Sallallahu 'alayhi wa sallam] does not speak
from desires. It is not but revelation sent to him.’ 53:3-4

22. ۡ‫ك‬ِ‫الذ‬ َ‫ك‬ۡ‫ی‬َ‫ل‬ِ‫ا‬ ۤ‫ا‬َ‫ن‬ۡ‫ل‬َ‫ز‬ۡ‫ن‬َ‫ا‬َ‫و‬ ​ ِ‫ُر‬‫ب‬‫و‬‫الز‬َ‫و‬ ِ‫ت‬ٰ‫ن‬ِ‫ی‬َ‫ب‬ۡ‫ال‬ِ‫ب‬ۡ‫ی‬َ‫ل‬ِ‫ا‬ َ‫ل‬ ِ‫ز‬ُ‫ن‬ ‫ا‬َ‫م‬ ِ‫اس‬َّ‫ن‬‫ل‬ِ‫ل‬ َ‫ن‬ِ‫ی‬َ‫ب‬ُ‫ت‬ِ‫ل‬ َ‫ر‬ۡ‫ُم‬‫ه‬َّ‫ل‬َ‫ع‬َ‫ل‬َ‫و‬ ۡ‫م‬ِ‫ه‬
َ‫ن‬ ۡ‫و‬ُ‫ر‬َّ‫ك‬َ‫ف‬َ‫ت‬َ‫ی‬
Translation: “We have revealed to you (O Muhammad) the message (al-Qur'an)
so that you can explain to the
people what was revealed to them, in order that they may reflect.” 16:44
 The sunnah is a commentary of Quran
 The sunnah links a vacillating ‫اوپر‬‫نیچے‬‫ہونا‬ case with a known principle
 The sunnah performs analogy on the basis of a rule in the Quran
 The sunnah lays down general principles
 The sunnah elaborates the meaning of words in Quran

23. Thanks
‫أطيب‬‫األماني‬ Best wishes