UMARU MUSA YAR’ADUA UNIVERSITY KATSINA, KATSINA
STATE.
FACULTY OF LAW.
U1/18/LAW/0486
HALIMA ABUBAKAR SULEIMAN
COURSE CODE: LIL 5301
USUL Al FIQH (ISLAMIC JURISPRUDENCE) ASSIGNMENT
QUESTION
EXPLAIN THE MEANING OF SOURCES OF ISLAMIC LAW, THE
CLASSIFICATION OF THIS SOURCES AND EXPLAIN THEIR GRADES
IN ORDER OF PRIORITY
COURSE LECTURER
PROFESSOR BALA BABAJI
INTRODUCTION
A Muslim’s life ideally is ruled by Islamic law ‘the sharia’. Literally, the word ‘sharia’
can be translated as ‘the path that leads to the spring’. It also means ‘a clear path to
be followed and observed’. Islamic law springs from various sources which
collectively form the foundation for legal and moral decisions. The sources guide
Muslim communities in understanding and implementing Islamic law in their daily
lives. In this paper, the meaning of the sources of Islamic law, its classification and
how it can be resorted according to its order of priority will be discussed. However, it
should be noted that the sources in Islamic law does not differ much with that of
positive law even though there is a slight difference between the two, in that, the
sources of Islamic law are divine, because the true source are the rules (Ahkam) of
Allah S.W.T while the sources of positive law are not divine. And the similarity
between the two is that, they both possess the element of human analogy in
deducing rules.
MEANING OF THE SOURCES OF ISLAMIC LAW
The word ‘source’ is called ‘’dalil’ which literally means ‘guide.’ The word
linguistically means a proof, indication, or an evidence. As a term, ‘dalil’ means the
source or evidence for a thought, concept, or a ruling. That is why a person leading a
caravan is called ‘dalil’ so also a telephone directory, because it leads to a number of
addresses. Therefore, it is right and apt to say that any law or ruling must have a
’dalil’, which can be from Quran, Sunnah, or a source, which Quran and Sunnah
directed us to adopt.
While technically, the sources of Islamic law (masadir Al-ahkam Al-shar’iyyah) means
what can lead to a law with a right vision. It leads to the law either in a definitive or
probable manner.
CLASSIFICATION OF THE SOURCES OF ISLAMIC LAW
The classification of sources of Islamic law refers to the categorization and
organization of the principles of Islamic law. Scholars of Islamic law has classified the
sources of Islamic law into different dimensions. According to some1, the sources of
Islamic law can be classified according to their origin, which include:
1. Revelations that are considered textual sources or Al nusus (The Quran and
Sunnah), and
2. Sources based on power of legal exercise called non-textual sources.( i.e Ijma’,
qiyas, istihsan, Istishab, maslaha mursala, urf, sadd az zara’i, shar’u man qablana
e.t.c)
While another author 2 classified the sources of Islamic law into:
1. The agreed upon and disputed sources
2. The transmitted (Naqliyyah) and rational (Aqliyyah) sources
3. The definitive (qat’iyyah) and probable (zanniyyah) sources
1 Issues in legal theory, by Yaaqub A.A Wakili (ph.D) chapter 3 page 29
2 Chapter 7, page 41 of Yahaya Y Bambale in his book ‘An outline of Islamic jurisprudence’.
4. Primary and secondary sources
1. THE AGREED AND DISPUTED SOURCES
The Muslim jurists have classified some sources of Islamic law as being agreed upon
unanimously without any different opinion or doubt and some disputed sources,
where there are different opinions and doubt. The sources that are unanimously
agreed by the Muslim jurist are the Holy Qur'an and Sunnah. And the sources that
are agreed upon by majority of Muslim jurist is the Quran, Sunnah, ijma (consensus
of legal opinion) and qiyas (analogical deduction) even though this last two sources is
disputed by other jurists. For instance, Ijma was not accepted by the Mu'utazilah and
some of the Khawarij and Qiyas is rejected by the Zahiri and Ja'afari schools. Other
disputed sources include:
a. Juristic preference (Istihsan)
b. Consideration of Public Interest (Istislah/Masalih Mursalah),
c. Custom (Urf),
d. Blocking the Means (Sadd al-Zara'i),
e. Opinion of a Companion (Qawl al-Sahabi),
f. Previous Revelation (Shar' Man Qablana), and
g. Presumption of Continuity (al-Istishab.
2. THE TRANSMITTED (NAQLIYYAH) AND RATIONAL (AQLIYYAH) SOURCES
The transmitted sources are the ones that their existence is through transmission
and no involvement of human reasoning. They are the holy Qur'an, Sunnah, Ijma,
laws of the earlier nations (I.e Torah, injil, and zaboor, e.t.c) and opinion of a
companion. While the rational sources are sources that exist through mental process
of a human being not transmitted, but their acceptance as legally valid sources relies
upon the transmitted sources.
They include:
a. Qiyas (analogical deduction)
b. Masalih al-Mursalah (jurisprudential interest or consideration of public
interest)
c. Istihsan (juristic preference or equity),
d. Istishab (legal presumption of continuity of a rule),
e. Urf (custom) and
Adat (usages).
3. THE DEFINITIVE (QAT’IYYAH) AND PROBABLE (ZANIYYAH) SOURCES
This classification is also sub classified into two:
a. Definitive and probable source with respect to transmission, and
b. Definitive and probable source with respect to meaning
a. Definitive and probable source with respect to transmission
A definitive source is that which is transmitted by a large group of persons which is
impossible that they would agree on fabricating a falsehood. They include: The holy
Qur'an and Sunnah mutawatirah ( Hadith being reported by such a large number of
rightful companions that it is agreed upon as authentic) while the probable
transmission is the Sunnah Ahad (hadith narrated by only one person which did not
fulfill all of the conditions necessary to be deemed as hadith mutawatir)
b. Definitive and probable source with respect to meaning
The definitive meaning is that which there can never have two opinions about it.
While a probable source is one in which there can be more than one opinion. The
Holy Qur'an and Sunnah contain some texts that convey definitive meanings and
there are others that conveys a probable meaning. An example of a definitive
meaning in the Holy Qur'an can be found in different verses. Some of them include:
Chapter 4 verse 12:
َّْ ف َما ت ََركَْ أَز َٰ َو ُجكُمْ ِإن لَّمْ يَكُن لَّ ُه
ْن َولَد ُْ َولَكُمْ نِص
“you have 'half of what your wife left if they are childless”
And also in another verse Allah S.W.T said:
ٱلزانِى فَٱج ِلدُواْ كُ َّْل َٰ َوحِ دْ مِن ُه َما مِائ َْةَ جَلد َْة
َّ لزانِي َْةُ َو
َّ ٱ
“As for female and male fornicators, give each of them one hundred lashes” 3
From the above verses it can be seen that the words 'half and 'hundred' cannot
have dual meanings, because a 'hundred' is hundred and a 'half is a half.
While an example of a probable meaning in the Qur'an can be found in chapter 5
verse 6:
ْسحُوا ِْ سلُواْ ُوجُو َهكُمْ َوأَي ِديَكُمْ ِإلَى ٱل َم َراف
َ ِق َوٱم ِ فَٱغ
Rub your hands (mash) with water.
With regard to this verse, there are opinions as to wether the meaning is to the part
or whole of the hand.
As for ijma, it has to have a definitive meaning otherwise it will negate the very
essence of Ijma. This is because for a valid Ijma, the opinion of the jurists have to be
unanimous. While the rest of the sources conveys a probable meaning.
4. PRIMARY AND SECONDARY SOURCES
The classification of the sources of Islamic law into primary and secondary is a
collection and combination of the preceding classifications. Thus, primary sources
are those that are agreed upon, transmitted, definitive on the whole, and those upon
which further extension can be based. The primary sources are the Holy Qur'an and
Sunnah. Some of the jurists also classify ijma as a primary source even though it is
not unanimously agreed.
While the secondary sources are mostly rational, disputed and dependent on the
primary sources for their content. They include:
3 Chapter 24 verse 2 of the holy Qur’an
a. Ijma (consensus of the Muslim jurists)
b. Qiyaas (Analogical deduction)
c. Preference(Istihsan)
d. Consideration of Public Interest (Istislah/Masalih Mursalah),
e. Custom (Uruf),
f. Blocking the Means (Sadd al-Zara'i),
g. Opinion of a Companion (Qawl al-Sahabi),
h. Previous Revelation (Shar' Man Qablana),
i. Presumption of Continuity (al-Istishab.
Sources of Islamic law according to their order of priority
The order of the sources means the hierarchy of the sources used in deriving Islamic
rulings. It also means the priority assigned to a source by the jurists in search for the
rules.4 Thus, the sources of Islamic law have a specific order in the deduction of the
rules. They include:
1. Quran,
2. Sunnah,
3. Ijma (consensus of Muslim jurists), and
4. Qiyaas (Analogical deduction).
It is maintained on the basis of this natural order, that it is not proper to move to
another source unless the search in the prior source has been exhausted. Thus, a
mujtahid cannot consult the sunnah except only when he consult Quran and did not
find any rule therein, likewise a Mujtahid cannot consult Ijma except if he consult
Quran first and Sunnah and he did not find any rule there, and also, he cannot
consult Qiyas without consulting Quran first, Sunnah second and then Ijma.’
The jurists have argued in support of this order on the basis of the holy Quran,
Sunnah, and the practice of the companions:
The authority of the order of priority in the holy Quran
This can be found in chapter 5 verse 59:
ِ َّ ٱلرسُو َْل َوأُولِى ٱْلَم ِْر مِنكُمْ ْۖ فَ ِإن تَنَـ ََٰزعت ُمْ فِى شَىءْ فَ ُردُّوهُْ إِلَى
ْٱّلل َّ ْٱّلل َوأَطِ يعُوا
ََّْ ْن َءا َمنُ ٰٓواْ أَطِ يعُوا
َْ يَ َٰـٰٓأَيُّهَا ٱلَّذِي
َٰ
ً ن تَأ ِو
ْيل َ ٱّلل َوٱليَو ِْم ٱلـَٔاخِ ِْر ذَلِكَْ َخي ْر َوأَح
ُْ س َْ ٱلرسُو ِْل ِإن كُنت ُمْ ت ُؤ ِمنُو
َِّْ ن ِب َّ َو
“O ye who believe! Obey Allah, and obey the Apostle, and those charged with
authority among you. If ye differ in anything among yourselves, refer it to Allah and
His Apostle if ye do believe in Allah and the last day. This is the best and fairest
resolution.”
4 Chapter 7 page 44 of Yahaya Y Bambale in his book ‘An outline of Islamic jurisprudence’.
The above verse prescribed the order in which recourse to the sources is to be made.
It is maintained that obedience to Allah means having recourse to the Book of Allah,
obedience to the Holy Prophet (p.b.u.h) means having recourse to His Sunnah,
obeying those in authority means having recourse to ljma and Qiyaas can be made if
there is an argument, by referring it to the book of Allah or the Sunnah of the
prophet.
The authority of the order of priority in Sunnah
This can be found in the well known tradition of Mu’az bn Jabal, as it was reported
by Abu dawud and Al tirmizi that:
When the Apostle of Allah intended to send Mu’az bn Jabal to Yemen, He asked: How
will you judge when the occasion of deciding a case arises? He replied I shall judge in
accordance with Allah's Book. He asked: (what will you do) if you do not find
guidance in Allah's Book? He replied (I will act) in accordance with the Sunnah of the
Messenger of Allah. He asked: (what will you do) if you do not find guidance in the
Sunnah of the Apostle of Allah? He replied I shall do my best to form an opinion and
spare no pains. The Apostle of Allah then patted him on the breast and said: praise
be to Allah who helped the Messenger of Apostle of Allah to find a thing which
pleases the Apostle of Allah.
The above tradition also determines the order in which the sources are to be
approached. It also indicates that analogy is to be resorted to when the search in the
texts has been exhausted.
The authority of the order of priority according to the practice of the companions
1. It is reported by Maymun bin Mahran that Abu Bakr when he had a disputed
parties, he searched a ruling from the Qur'an, he gave judgment in accordance
with it (if there was a ruling). If there was no ruling, he looked into Sunnah, he
gave judgment in accordance with it (if there was a ruling), If he exhausted all
the two sources, he will then assemble a prominent leader among them and
consult them. If they agreed on something,he gave judgment in accordance
with it.
2. Also, the famous letter of Umar bn khattab written to Shurayh al-Qadi is
relevant, the letter reads as follows:
When you are faced with an issue, decide through what is laid down in the Book of
Allah. If the issue you face relates to what is not in the book of Allah, then decide by
what is in the sunnah of the messenger of Allah (p.b.u.h)
All the above show that there is a determined order for approaching the sources and
that the jurists should not move to the next source unless the first source has been
searched thoroughly for a solution.
CONCLUSION
The sources of Islamic law as it is defined in this paper means what can lead to a law
with a right vision. And such sources are the holy Quran, Sunnah, Ijma’, qiyas,
istihsan, Istishab, Maslah mursalah, urf, shar’u min qablana and sadd al zara’i, e.t.c
which are classified differently by different scholars, whereby some sources are
disputed, agreed, transmitted, rational, definite, probable, primary and secondary.
And the order of priority in deducing the rules of Islamic law starts from Quran first,
Sunnah second, Ijma third, and qiyas last. A person cannot apply any rule of the
sources without resorting the hierarchy of the order.
REFERENCE
1. Issues in legal theory, by Yaaqub A.A Wakili (ph.D)
2. Yahaya Y Bambale in his book ‘An outline of Islamic jurisprudence’.
3. Islamic Jurisprudence [FIQH] CIBI Institute of Islamic Banking
and Insurance. https://islamic-banking.com
4. http://islamicbankers.me/wp-content/uploads/2015/08/sources-of-islamic-
law-31.pdf
