sources and defintion of islamic law

1. Dr. Mufti Wasie Butt
wasiefasih@hotmail.com
linkedin.com/in/dr-mufti-wasie-fasih-butt-83290b51

2. Case
Are these terms technically different ?
Islam Shariah Fiqh Islamic Law

3. Learning Outcomes
 At the end of session , You will (in sha Allah tala):
 Be able to differentiate between Shariah and Fiqh
 Understand sources of Islamic law
 Recognize The basic Shari‘a valuations and objective
 Know how the contemporary islamic rules are extracted from
sources
 Understand how the shariah was implemented in the famous
Mughal Ottoman Empire

4. SHARI’AH—The Islamic Law
‫يعة‬‫ر‬‫الش‬

5. SHARIAH
 “Shara’a” is the root Arabic word of shariah.
 The verb shara’a literally means “ to chalk out
or mark out a clear road to water”.
 In a religious sense, it means “the divine way
of a good life”.
 Shariah refers to commands, prohibitions,
guidance, and principles that God has
addressed to mankind pertaining to their
conduct in this world and salvation in the
next.

6. SHARI’AH—The Islamic Law
. ِ‫ب‬َّ‫ت‬‫ا‬َ‫ف‬ ِ‫ر‬ْ‫م‬َ‫أل‬‫ا‬ َ‫ن‬ِ‫م‬ ٍ‫ة‬َ‫يع‬ِ‫ر‬َ‫ش‬ ‫ى‬َ‫ل‬َ‫ع‬ َ‫اك‬َ‫لن‬َ‫ع‬َ‫ج‬ َّ‫م‬‫ُث‬‫ي‬ََِِّّ‫ا‬ ‫ا‬ََََْْ ِْْ‫ب‬َََّّ‫ت‬‫ت‬ َ‫ا‬ََ ‫ا‬ََْ‫ع‬َ‫ن‬َ‫م‬‫م‬َ‫ل‬ْ‫ع‬َ‫ت‬‫ي‬ َ‫ا‬ َ‫ن‬
 Then We have put you (O Prophet) on a plain way of
(our) commandment. So follow it and do not follow the
desires of those who do not know. (Surah Al-Jathiyah 45:18)

7.  Rabbaniyyah (divine)
 Reward in the world and hereafter
 ‘Alamiyyah and umumiyyah (universal)
 Permanent
 Syumul (complete)
FEATURES OF SHARIAH

8. Shariah: ‘A Complete Code of Life’
Imaniyat
Articles
of Faith
Shariah
Ibadat
Modes of
Worship
Akhlaqiy
at
Ethics
Mu’amalat
Dealing
Mu’asharat
Social
System
Allah
Angels
Books
Rusul
Last Day
Resurrection
Predestination
Shahadatain
Salah
Zakat
Saum
Hajj
Right of:
Parents
Teachers
Wives
Relatives
Neighbors
Non-Muslims
Employer &
Employee
Buyer & Seller
Joint
Ownerships
Joint
Enterprise
Ijarah
Political
System
Education
system
Government
System
Defense
System

9. The Basic Shari‘a valuations (aḥkām)
1. Fardh: is compulsory. A person who denies or rejects a Fardh will become a Kaafir.
fard ‘ayn (individual). E,g five prayers
fard kifaya (sufficient number of a group). E.g Namaze Janaza
2. Wajib is also something necessary, although of a slightly lesser degree than Fardh. The person who
denies this will not become a Kaafir, but will be a Faasiq (flagrant sinner).
3. Sunnah Mua’kadah is one which the Prophet (s.a.w) practiced with emphasis on it.It is for this
reason it is called Mua’kadah, i.e. emphasized. A person who continuously leaves out such an act
without valid excuse will be sinning.
4. Sunnah Ghair Mua’kadah (non-emphasized Sunnah),, mandūb, mustaḥabb. God rewards for doing,
does not punish for omitting
5. Makruh linguistically means ‘to dislike’. Technically, it refers to an act that is disliked in Shariah.
There are two types of Makruh:
Makruh Tanzihan
An act that is detested in Shariah, without the promise of punishment for the one who carries it out.
Examples:
1) Wasting water whilst performing ablution or being miserly with it;
2) Not taking a bath on Fridays;
2.

10. The Basic Shari‘a valuations (aḥkām)
Makruh Tahrimah
A command for abstinence such a level that failure to abstain from such acts
necessitates a sin and punishment in the hereafter, though the punishment will be
of a lesser degree than that for committing a Haram
Examples:
1) Delaying Asr prayer until the sun changes it’s colour;
2) The Using of gold or silver utensils for men and women;
3) Buying and selling when the call for prayer (adhan) of Jumu’ah takes place;
6. Haram
a binding demand of the lawgiver to abandon something which is established in definitive
proof (Quran & Hadith).
Established in definitive proof means, that it is clear and specific, it has only one meaning
and admits of no other interpretations.
Some Examples in the Quran:
“[Forbidden] to you are the dead carcass, blood and pork…” (5:3) – Haram –
“Allah permitted sale but [prohibited] usury.” (2:275) –

11. Objectives of Shariah
There are five objectives of Islamic jurisprudence:
1. Hifzud din = preserve religion
2. Hifzun nafs = preserve soul / life
3. Hifzul `aqal = preserve common sense
4. Hifzun nasl = preserve offspring
5. Hifzul mal = preserve propety

12. Fiqh & Shariah
Fiqh is the absolute
Understanding
Mutlaq al fahm.
Shariah refers to the road to the
watering place, the straight path
to be followed
The knowledge of the legal rules
(Al Ahkam Al Shariyyah), pertaining
to conduct that have been derived
from their specific evidences
Shariah consist from law, rules, regulations,
commands, obligations, guidance, principles,
ideology, faith and behavior which govern the
human being in every aspect of life
Fiqh Sharia
h
Literal
Literal
TechnicalTechnical

13. Major components
Shariah
Ethic - Aklak
Believe – faith
Fiqh - Islamic Law

14. SHARI’AH—The Sources of Islamic Law
‫يعة‬‫ر‬‫الش‬ ‫مصادر‬

15. SOURCES OF SHARI’AH—Some of The Sources of Islamic Law
1. The Holy Qur’an
2. The Sunnah of the Holy Prophet (S.A.W)
3. Ijma’ (Consensus)
4. Qiyas (Analogy)

16. SHARI’AH—The Islamic Law
‫اجمليد‬ ‫ان‬‫ر‬‫الق‬

17. Primary Sources of Shariah Laws : Al- Qur’an

18. •The Holy Qura’an
•Allah’s Book revealed on the Holy Prophet (Peace
be upon him) is unlike other divine books in that:
•Its text is protected by Allah.
•It was revealed gradually in twenty three years
•Its injunction hold good for all times to come

19. THE HOLY QUR’AN
… َ‫م‬‫م‬‫ك‬ْ‫ح‬َََِّّ ِ‫ق‬َ‫حل‬ِ‫ِب‬ َ‫اب‬ََِّ‫َّك‬‫ا‬ َ‫ك‬ْ‫ي‬ََِّ‫إ‬ ‫ا‬َ‫َّن‬َ‫َنز‬َ َّ‫َّن‬ِ‫إ‬‫م‬‫ال‬ َ‫اك‬ََََ ‫ا‬َِِ ِِ‫َّا‬‫ن‬َّ‫ا‬ ََْْ‫ت‬َ
 Surely, We have sent down to you the Book (this Qur’an)
with truth that you might judge between mankind as
guided by Allah…
(Surah Nisa’ 4:105)

20. THE HOLY QUR’AN

21. Simple Command

22. Complex Commands
NO COMPULSION IN RELIGION COMPULSION IN RELIGION
“Let there be no compulsion in
religion: Truth stands out clear
from Error: whoever rejects evil
and believes in Allah hath
grasped the most trustworthy
hand-hold, that never breaks.
And Allah heareth and knoweth
all things,” (2:256).
“But when the forbidden months
are past, then fight and slay the
Pagans wherever ye find them,
and seize them, beleaguer them,
and lie in wait for them in every
stratagem (of war); but if they
repent, and establish regular
prayers and practice regular
charity, then open the way for
them: for Allah is Oft-forgiving,
Most Merciful,” (9:5

23. THERE IS NO COMPULSION IN RELIGION BUT MUSLIMS
ARE PERMITTED TO DEFEND THEMSELVES
 The Quran promotes freedom of opinion, religion, and
expression.
 The critic is taking the verses from Chapter 9 out of its
context
 The Chapter 9 starts with an ultimatum Meccan mushriks
who not only tortured, killed, and evicted muslims from
their homes. The beginning of the Chapter refers to their
violation of the peace treaty and gives them an ultimatum
and four months to stop aggression. Thus, the verses
quoted from Chapter 9 have nothing to do with freedom of
religion; it is a warning against aggressor murderer
religious fanatics.

24. SHARI’AH—The Islamic Law
‫احلديث‬‫و‬ ‫السنة‬

25. SUNNAH—Second Primary Source of Islamic Law
Literal meaning: Way
Technical meaning: Way of Prophet Muhammad
(s.a.w)
 Definition
A word spoken or an act done or an action ratified by
Holy Prophet ( ‫ى‬َّ‫ل‬َ‫ص‬َّ‫ال‬ِ‫ه‬ْ‫ي‬َ‫ل‬َ‫ع‬َ‫م‬َّ‫ل‬َ‫س‬ََ )

26. SUNNAH—Second Primary Source of Islamic Law
َِْ‫ن‬ِ‫م‬ْ‫ؤ‬ُّ‫م‬ ‫م‬‫م‬َّ‫ن‬‫م‬‫ك‬‫ن‬ِ‫إ‬ ‫م‬‫ه‬َََّ‫م‬‫س‬ََََ ََّ‫ال‬ ْ‫ا‬َ‫م‬‫يع‬ِ‫َط‬َََ
 Obey Allah and His Messenger, if you are true believers.
(Surah Anfal 8:1)
ًَ‫ال‬ َ‫اع‬َ‫ط‬ََ ْ‫د‬َ‫ق‬َ‫ت‬‫ف‬ َ‫َل‬‫م‬‫س‬َّ‫َّر‬‫ا‬ ِِْ‫ط‬‫م‬‫ي‬ ْ‫ن‬‫م‬…
 He who obeys the Messenger has indeed obeyed Allah...
(Surah Nisa’ 4:80)
…‫َا‬‫م‬‫د‬ََََّْ‫ت‬‫ت‬ ‫م‬‫َه‬‫م‬‫يع‬ِ‫ط‬‫م‬‫ت‬ ‫ن‬ِ‫إ‬ََ
 If you obey him (the Messenger), you shall be on the right
guidance. (Surah Nur 24:54)
… ِ‫َِن‬‫م‬‫ع‬ِ‫ب‬َّ‫ت‬‫ا‬َ‫ف‬ َ‫ال‬ َ‫ن‬َُّ‫ب‬ِ‫م‬‫ُت‬ ْ‫م‬‫م‬َّ‫ن‬‫م‬‫ك‬‫ن‬ِ‫إ‬ ْ‫ل‬‫م‬‫ق‬
 Say (O Muhammad SAW): "If you (really) love Allah then
follow me. (Surah Al-e-Imran 3:31)

28. SUNNAH AS SOURCE OF LAW
 The holy Quran treats major issues and often deals with
subjects in brief terms, leaving details to be explained by
holy prophet(pbuh).
 Example:
 In the quran we are commanded to pay zakat by all
muslims. But the percentage and exact amount is
unspecified. All these details were learnt by the
prophet’s(pbuh) words.
“No sadaqa(zakat) is payable on less than five grain or dates
or less than five camel heads and on less than five silver.”
(Muslim)

29. The types of rulings found in the
sunna:
1. Rulings according with the rulings of the Quran.
 An example of this is a hadith, “The wealth of a Muslim is not permissible to
another except with his agreement and permission.” This is in agreement with
the verse, “O ye who believe! Squander not your wealth among yourselves in
vanity, except it be a trade by mutual consent,” (al-Nisa: 29).
2. Rulings that explain general commandments in the Qur’an.
 An example of this is that which clarifies the amounts for zakat.
3. Rulings that restrict or specify general commands of the Qur’an.
 An example is the general Qur’anic prohibition against eating carrion:
“Forbidden to you (for food) are: dead meat, blood, the flesh of swine, and
that on which hath been invoked the name of other than Allah.” (al-Ma’ida: 3).
However, the following hadith exempts seafood from this prohibition.
According to Ibn ‘Umar, the Prophet said, “Two types of blood and two types
of dead meat have been made permissible for us: of the dead meat, fish and
locusts; and of the blood, liver and spleen.”

30. The types of rulings found in the
sunna:
4. New rulings not mentioned in the Qur’an.
 The Prophet said, ““Verily, I have been given the Quran
and something along with it, but the time is coming
when a man will recline on his couch and say: Keep to the
Quran, for whatever you find in it lawful is lawful and
whatever you find in it unlawful is unlawful. Certainly, it
is not lawful for you to eat a domesticated donkey, beasts
with fangs, ”(Sunan Abu Dawud 4604)

31. SHARI’AH—The Islamic Law
‫امجاع‬

32. IJMA’—Consensus
Third Source of Islamic Law
Literal meaning:
Consensus
Technical meaning:
Consensus of the mujtahideen in a particular
period after the death of Prophet on any religious
issue where Quran and Hadith have not clarified a
certain aspect of law.

33. IJMA’—Consensus
Third Source of Islamic Law
‫ى‬َ‫د‬‫م‬‫اهل‬ ‫م‬‫ه‬ََّ َََّْ‫ت‬‫ب‬َ‫ت‬‫ت‬ ‫ا‬َ‫م‬ ِ‫د‬ْ‫ع‬َ‫ت‬َ ‫ن‬ِ‫م‬ َ‫َل‬‫م‬‫س‬َّ‫َّر‬‫ا‬ ِ‫ق‬ِ‫اق‬َ‫ش‬‫م‬‫ي‬ ‫ن‬َ‫م‬ََ
َِْ‫ن‬ِ‫م‬ْ‫ؤ‬‫م‬‫امل‬ ِ‫يل‬ِ‫ب‬َ‫س‬ َ‫ر‬ْ‫ت‬‫ي‬َ‫غ‬ ِْْ‫ب‬َََّّ‫ت‬‫ي‬ََ
‫ا‬‫ري‬ِ‫ص‬َ‫م‬ ْ‫ت‬ ‫ا‬َ‫س‬ََ َ‫َّم‬‫ن‬َََ‫ج‬ ِ‫ه‬ِ‫ل‬ْ‫ص‬‫م‬‫ن‬ََ َّ‫َّل‬َََ‫ت‬‫ت‬ ‫ا‬َ‫م‬ ِ‫ه‬َََِّ‫م‬‫ت‬‫ن‬
 And whoever opposes the Messenger after the right path has
been shown clearly to him, and follows other than the way
of Believers,We shall keep him in the path he has chosen,
and burn him in Hell - what an evil destination.
(Surah Nisa 4:115)

34. IJMA’—Consensus
Third Source of Islamic Law

35. IJMA’—Consensus
Third Source of Islamic Law
Examples:
 Compilation of the Holy Qur’an
 The Tarawwih Salah that is prayed in Ramadan from the 1st
of Ramadan until the last day of Ramadan every day, and
which is prayed after Isha Salah and in which the whole
Quran is recited. This was the Ijma of the Shaba(R.A)
during the time of Umar(R.A), this is carried right from the
time of Umar(R.A) until today in both Makah and Medina.

36. SHARI’AH—The Islamic Law
‫قياس‬

37. QIYAS—Analogy
Fourth Source of Islamic Law
 Literal meaning:
To measure, compare, analyze
 Technical Meaning:
Extrapolating a ruling on a new issue after a comparison with an original
ruling (origin), because of mutual link in the reason behind the original
ruling.
 Explainiation
Qiyas is an analogical deduction from the previous three sources.
When a Jurist compares a new situation which is not mentioned in
the holy Quran an Sunnah with that situation which is already
mentioned in the Holy Quran & Sunnah with some reasoning it is
known as Qiyas.

38. QIYAS—Analogy
While sending Mu’adh (r.a) to Yemen, Prophet Muhammad (S.A.W)
asked: ‘How will you decide the issues when it comes to you?’ Mu’adh
(r.a) replied: ‘I shall decide in the light of the Book of Allah.’ The Holy
Prophet (s.a.w) asked: ‘If you do not find it in the Book of Allah’. He
replied: ‘Then, in the light of the Sunnah of the Messenger of Allah.’
Prophet (s.a.w) asked: ‘If you do not find it even in my Sunnah.’... …
Mua’dh (r.a) replied: ‘I shall do Ijtihad on the basis of my understanding
and shall not spare any effort (to reach to the truth).’Prophet (s.a.w)
remarked: ‘Praise be to Allah, who has let the Messenger of the
Messenger of Allah to do what pleases him.’ (Abu Dawud, Hadith#3592)

39. QIYAS—Analogy
Fourth Source of Islamic Law
Example:
‫م‬‫اب‬َ‫نص‬َ‫أل‬‫ا‬ََ ‫م‬‫ر‬ِ‫س‬ْ‫ي‬َ‫امل‬ََ ‫م‬‫ر‬ْ‫م‬َ‫خل‬‫ا‬ ‫ا‬ََّ‫َّن‬ِ‫إ‬ ْ‫ا‬َ‫م‬‫ن‬َ‫آم‬ َ‫ين‬ََِِّّ‫ا‬ ‫ا‬ََُّ‫ت‬‫ي‬ََ َ‫َي‬ِ‫ان‬َ‫ط‬ْ‫ي‬َّ‫َّش‬‫ا‬ ِ‫ل‬َ‫م‬َ‫ع‬ ْ‫ن‬ِ‫م‬ ٌ‫س‬ْ‫ج‬َِ ‫م‬‫م‬َ‫ا‬ْ‫ز‬َ‫أل‬‫ا‬ََ
‫م‬‫َه‬‫م‬‫ب‬ِ‫ن‬ََّْ‫اج‬َ‫ف‬.َ‫ن‬َ‫م‬‫ح‬ِ‫ل‬ْ‫ف‬‫م‬‫ت‬‫ت‬ ْ‫م‬‫م‬‫ك‬َّ‫ل‬َ‫ع‬ََّ
 O you who believe! (i) Intoxicants, (ii) gambling, (ii)
(dedication of) stones, and (iv) (divination by) arrows, are an
abomination - of Satan's handwork: so avoid (strictly all) such
(abomination), so that you may prosper. (Surah Ma’idah 5:90)

40. QIYAS—Analogy
Fourth Source of Islamic Law
Example:
Finding of Hukm (ruling of Shari’ah) concerning (i) opium and its
derivative (ii) heroin, as well as (iii) cocaine:
Far’ (new case) Opium
Illat (effects) Intoxication
Hukm (ruling) (unknown) ?
Asl (original case) Wine Drinking
Illat (effects) Intoxication
Hukm (ruling) Haram [Al-Maidah 5:90],
Opium is Haram in Islam due its intoxicating effects

41. QIYAS—Analogy
Fourth Source of Islamic Law
Example:
Finding of Hukm (ruling of Shari’ah) concerning cigarette and shisha:
Far’ (new case) Cigarette
Illat (effects) slightly intoxication but excess use is injurious
Hukm (ruling) (unknown) ?
Asl (original case) Wine Drinking
Illat (effects) highly Intoxication
Hukm (ruling) Haram [Al-Maidah 5:90],
Cigarette is ‘not Haram’ as its effects are not intoxicating to that extent
but since its excess use is injurious to health and its odor is painful for
others it will be regarded as mukruh as it is not allowed in Islam to
harm ourselves or others

42. QIYAS—Analogy
Fourth Source of Islamic Law
 Misconceptions:
• Qiyas is based on rational
assessment
• Qiyas can be exercised even
against the explicit
provisions of the Holy
Qur’an and/or Sunnah
• Qiyas is meant to find
convenience in religion
 Corrections:
• Qiyas is based on Qur’an
and/or Sunnah
• Qiyas can not be exercised in
those cases where explicit
provisions are found in the
Holy Qur’an and/or Sunnah
• Qiyas is meant to discover
Divine Law regardless to
facilitation and
inconvenience

43. Fatawa-e-
Alamgiri
 A compilation of law created at the insistence
of Mughal emperor Aurangzeb
 He gathered 500 experts in islamic jurisprudence , 300 from the South Asia ,
100 from Iraq and 100 from the saudi arabia.
 It consists of legal code on personal, family, slaves, war, property, inter-
religious relations, transaction, taxation, economic and other law for a range
of possible situations.
 The substance of the law was based on the Hanafi legal tradition
 It spanned 30 volumes originally, but is now printed in 6 volumes
 It served as the basis of law and doctrine imposed by aurangzeb throughout
his empire by the early 18th century

44. Al-Majallah al-Ahkam al-Adaliyyah
 civil code of the Ottoman Empire in the 19th & 20th
centuries.
 The code was prepared by a commission headed by Ahmet
Cevdet Pasha, issued in sixteen volumes (containing 1,851
articles) from 1869 to 1876 and entered into force in the year
1877.
 The substance of the code was based on the Hanafi legal
tradition that enjoyed official status in the Empire. However,
it also incorporated other legal opinions .
 After the dissolution of the Ottoman Empire, the Majalla
remained a lasting influence in most of its successor states .
It remained in force in the following states:
 - Turkey until 1926 –
 Albania until 1928 –
 Lebanon until 1932 –
 Syria until 1949 –
 Iraq until 1953 - Cyprus until the 1960s –
 The British Mandate for Palestine and, later, Israel
formally until 1984.

45. For details