15.2.1 QUR’AN AS A PRIMARY SOURCE OF LAW
The Qur'an is 'Allah’s words revealed to Muhammad (PBUH) in Arabic, transmitted to us in continuity,
written in the mashaf, whose recitation is worship, commencing with surat
al fatihat and ending with surat al nas. Verses of the Qur’an were revealed
adhoc each associated with sabab al nuzuul. It was memorized and also
written down immediately. Abubakar collected the written records and Othman issued one official version in the Quraishi dialect
that is used all over the world. The Qur’an is practical, rational, and miraculous. Its 3 themes are aqidat, spiritual refinement, and practical guidance. Legal rulings,
ayat al ahkaam, are a minority of its more than 6000 verses being distributed munakahaat
70, mu'amalat 70, jinayaat 30, iqtisaad 10 verses, qadha 13 verses, government 10 verses, and international law 25 verses.
The Qur’an is comprehensive and complete but deals with issues in a generic and not specific way. Its verses are muhkamat
or mutashabihat. It challenges the intellect, does not indoctrinate, and gives room for opposing views. It is divided into
114 surats. Each surat
starts with the basmalah except surat al baraa. It is divided into 30 juz’us each divided into 2 hizbs. Rub'u or thumun are subdivisions of the hizb. The Makkan verses, dealing with aqidat, are short, poetic, and powerful.
Madinan verses are longer dealing with details of societal organization. The prophet read the Qur’an in 7 different
ways, The Qur’an can be recited as tartiil or as tajwid. As a source of legislation
the Qur’an provides general foundations and principles. Qur'anic evidence for legal rulings is either qatui,
or dhanni. The Qur'an is the primary source of law. All other recognized sources are secondary to the Qur'an and are validated
by it.
15.2.2 SUNNAT AS A PRIMARY SOURCE OF LAW
Sunnat, a subgroup of hadith and part of wahy, is defined as words, actions, and tacit agreement of the Prophet. A hadith consists of a sanad, and matn.
It can be hadith nabawi or hadith
qudsi. Writing of hadith started late. Hadith collections are classified as sihaah, sunan, masanid, and muwatta’at.
Hadith is described as mutawatir if narrated by many, mash'hur if reported by at least 2, and aahaad if reported by only 1 sahabi. It be tashri'i if legislative or ghayr tashri' if it is not. The grades of hadith authenticity in descending order are: sahiih, jayyid, and hasan. Muttafaq ‘alayhi is reported by both Bukhari and Muslim. Musnad has a chain of narrators to the prophet. Muttasil has
an unbroken chain of narrators. The sanad stops at a sahabi in mawquf and at a tabi’e in a marfu’u hadith. In mursal the tabi’e reports directly from the prophet.
Munqati’u has an incomplete sanad. Dha’if lacks the attributes of the sahiih and hasan. Sunnat can affirm, explain, or elaborate the Qur'an
or bring up matters not mentioned in the Qur’an. Obedience of the prophet implies following his sunnat. The sunnat comes second to the Qur'an as a source of law. The daliil of the sunnat may be definitive,
qatai, or probable, dhanni. The sunnat is interpreted in the light of general principles of the Qur'an, the social situation
in the prophetic era, and the Arabic language.
15.2.3 IJMA and QIYAAS AS SECONDARY SOURCES OF LAW
Ijma is agreement of all mujtahids existing at one time on a particular legal ruling based on nass.
It can be ijma sariih or ijma sukuuti. Qiyas is use of a ruling of one matter
for another matter when the two share the same illat.
15.2.4 OTHER SECONDARY SOURCES OF LAW: shara’u man
qablama, qawl al sahabi, ‘aadat, dhari’at
Pre-Islamic laws, shara'u man qablana, were either abrogated
or confirmed by the Qur’an. The word of the companion, qawl al sahabi,
is a source of law under specified conditions. Custom or precedent, ‘aadat
or 'urf, is a source of law if it does not contradict nass, there is ijma
on it, and is in the public interest, and closes the door to evil. Istishaab
is continuation of an existing ruling until there is evidence to the contrary. Istihsaan is preference for one qiyaas by a mujtahid. Istislaah
is assuring a benefit or preventing a harm used
in mu’amalat but not ‘ibadat.
Maslahat mursalat is public interest based on ra’ay when there is no nass. Sadd al dhari'at is prohibition of an act that is otherwise mubaah because it has a high probability of leading to haram.
15.2.5 METHODOLOGY OF EXTRACTING LEGAL RULINGS, tariqat istinbat al ahkaam, tariqat al istidlal
Nass can be muhakkam
or mutashabih. The muhakkam
can be ‘aam, khaas (amr and
nahy), or mushtarak. Amr can be wajib, manduub, or mubaah. Nahy can be haram or makruh.
Nahy implies both batil
and fasid in ibadat. In
mu’amalat a fasid transactions is irregular but not batil and has some legal effect. Legal reasoning uses the tools of agreement, ashbaahu, difference, furuuqaat, or exceptions, nadhair, Conflict of evidences is
apparent and not real and is due to different views of mujtahidiin. It is
resolved by the tools of nasakh, tarjih,
or tawfiq. Nasakh is abrogation
of one daliil. by another. Tarjiih
is an intellectual effort to compare two or more rulings and select the best of them on the basis of strength of daliil. Tawfiq is combining two contradictory daliil to give one ruling.
