Sources of Islamic law:
Accepted universally by all Muslims
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Not accepted universally by all Muslims
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Text
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Intellect
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1. Reason (personal effort
of thinking)
2.
Public good or public interest
3.
Preference
4. Common
practice
5.
Textual indication
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The Quran
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Tradition of the Prophet
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Consensus or unanimous
agreement
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Analogical deduction. |
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Degrees of approval:
Obligatory (obligation - compulsory – must)
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Recommended (desirable)
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Neutral (lawful - allowed –permissible)
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Abominable (disliked – hated)
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Sinful (unlawful – prohibition - forbidden)
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Fard (Wajib)
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Mustahab
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Halal
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Makrouh
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Haram
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Individual duty
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Sufficiency duty
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relates to tasks every Muslim is required to perform.
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is a duty which is imposed on the whole community of believers
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Example
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Daily prayer or the pilgrimage to Mecca at least once in a
lifetime.
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Janaza prayer
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Umrah
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Eating an apple.
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The use of a great amount of water for the
small and large ablutions.
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Pre-marital sex, murder, eating pork,
and drinking alcohol.
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Fulfillment
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is
rewarded
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is
rewarded
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is not rewarded
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is not
punished
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is
punished
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neglected
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with
punishment
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without
punishment
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without
punishment
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with
reward
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with
reward
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1.
Imam Malik
2.
Imam Ash-Shafi’i
3.
Imam Abu hanifah
4.
Imam Ahmad bin Hanbal.
The four
orthodox Sunni Islamic schools of jurisprudence (fiqh)
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The Hanbali school
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The Shafi'i
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The Mālikī
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The Hanafi
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The
founder
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Ahmad
ibn Hanbal
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Abū
Ḥanīfa an-Nu‘man
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History
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He was a disciple of Al-Shafi‘i.
Like Shafi'i, he was deeply concerned with the extreme elasticity being
deployed by many jurists of his time, who used their discretion to
reinterpret the doctrines of Quran and Hadiths to suit the demands of Caliphs
and wealthy. Ibn Hanbal advocated return to literal interpretation of Quran
and Hadiths. Influenced by the debates of his time, he was known for
rejecting religious rulings (Ijtihad) from the consensus of jurists of his time,
which he considered to be speculative theology (Kalam). He
associated them with the Mu'tazilis, who he despised. Ibn Hanbal was also
hostile to the discretionary principles of rulings in jurisprudence (Usul
al-fiqh), which were established by his predecessors; Al-Shaf'i, Imam Malik
and Abu
Hanifa. He linked these discretionary principles with kalam. His guiding
principle was that the Quran and Sunnah are the only proper sources of
Islamic jurisprudence, and are of equal authority and should be interpreted
literally in line with the Athari creed. He also believed that there can be no true
consensus (Ijma)
among jurists (mujtahids) of his time, and preferred the consensus of
Muhammad's companions and weaker hadiths. Imam Hanbal himself compiled Al-Musnad,
a text with over 30,000 saying, actions and customs of Muhammad.
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The Shafi'i madhab was spread by Al-Shafi'i students in Cairo, Mecca and
Baghdad. It became widely accepted in early history of Islam.
The Shafi'i jurisprudence was
adopted as the official law during the Great Seljuq Empire, Zengid dynasty, Ayyubid
dynasty and later the Mamluk Sultanate (Cairo), where it saw
its widest application. It was also adopted by the Kathiri state
in Hadhramawt
and most of rule of the Sharif of Mecca.
With the establishment and
expansion of Ottoman Empire in West Asia and Turkic Sultanates in Central and
South Asia, Shafi'i school was replaced with Hanafi school, in part because
Hanafites allowed Istihsan (juristic preference) that allowed the rulers
flexibility in interpreting the religious law to their administrative
preferences.
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Although Ibn Anas himself was a
native of Medina, his school faced fierce competition for followers in the
Muslim east, with the Shafi'i, and Hanbali schools all enjoying more success
than Malik's school. It was eventually the Hanafi school,
however, that earned official government favor from the Abbasids.
The Malikis enjoyed considerably more success in the Africa, and for a
while in Spain and Sicily. Under the Umayyads and their remnants, the Maliki school
was promoted as the official state code of law, and Maliki judges had free
rein over religious practices; in return, the Malikis were expected to
support and legitimize the government's right to power. This dominance in
Spanish Andalus from the Umayyads up to the Almoravids
continued, with Islamic law in the region dominated by the opinions of Malik
and his students. The Sunnah and Hadith, or prophetic tradition in Islam, played lesser roles
as Maliki jurists viewed both with suspicion, and few were well versed in
either.
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As the fourth Caliph, Ali had
transferred the Islamic capital to Kufa, and many of the first generation of
Muslims had settled there, the Hanafi school of law based many of its rulings
on the earliest Islamic traditions as transmitted by first generation Muslims
residing in Iraq. Ali and Abdullah, son of Masud formed much of the base of
the school. In the early history of Islam, Hanafi doctrine was not fully
compiled. The fiqh was fully compiled and documented in the 11th century. The
Turkish rulers were some of the earliest adopters of relatively more flexible
Hanafi fiqh, and preferred it over the traditionalist Medina-based fiqhs
which favored correlating all laws to Quran and Hadiths and disfavored
Islamic law based on discretion of jurists. The Abbasids patronized the
Hanafi school from the 10th century onwards. The Seljuk Turkish dynasties of
11th and 12th centuries, followed by Ottomans adopted Hanafi fiqh.
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Sources of law
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The sources of
Islamic law are
1.
the Qur'an
2.
and the Sunnah found in Hadiths
(compilation of sayings, actions and customs of Muhammad).
3.
Where these texts did not
provide guidance, the Hanbali school recommended guidance from established
consensus of Muhammad's companions,
4.
then individual opinion of
Muhammad's companions,
5.
followed in order of preference
by weaker hadiths,
6.
and in rare cases qiyas
(analogy).
This school
rejected that a source of Islamic law can be jurists personal discretionary
opinion or consensus of later generation Muslims on matters that serve the
interest of Islam and community.
Ibn Hanbal's
strict standards of acceptance regarding the sources of Islamic law were
probably due to his suspicion regarding the field of Usul al-Fiqh, which he
equated with speculative theology (kalam).
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The
school stipulates authority to five sources of jurisprudence. In hierarchical
order:
1-
the Quran,
2-
the hadiths - that is, sayings, customs and practices of Muhammad,
3-
the ijmā' (consensus of Sahabah, the community of Muhammad's companions),
4-
the individual opinions of Sahaba with preference to one closest to the issue
as Ijtihad,
5-
and finally qiyas (analogy).
The
Shafi'i school rejects two sources of Sharia that are accepted in other major
schools of Islam:
-
Istihsan (juristic preference, promoting the interest of Islam)
-
and Istislah (public interest).
The
Shafi'i school rejected these two principles stating that these methods rely
on subjective human opinions, its potential for corruption and adjustment to
political context and time.
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Maliki school's
sources for Sharia are hierarchically prioritized as follows:
1.
Quran
2.
and then trustworthy Hadiths
(sayings, customs and actions of Muhammad);
3.
if these sources were ambiguous
on an issue, then `Amal (customs and practices of the people of Medina),
4.
followed by consensus of the
Sahabah (the companions of Muhammad),
5.
then individual's opinion from
the Sahabah,
6.
Qiyas (analogy),
7.
Istislah (interest and welfare
of Islam and Muslims),
8.
- and finally Urf (custom of
people throughout the Muslim world if it did not contradict the
hierarchically higher sources of Sharia).
Mālik included the practices of the
people of Medina and where the practices are in compliance with or in variance
with the hadiths reported. This is because Mālik regarded the practices of
Medina (the first three generations) to be a superior proof of the
"living" sunnah than isolated, although sound, hadiths.
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The sources from
which the Hanafi madhhab derives Islamic law are, in order of importance and
preference:
1- the Quran,
2- and the hadiths
containing the words, actions and customs of the Islamic
prophet Muhammad
(narrated in six hadith collections, of which Sahih
Bukhari and Sahih Muslim are the most relied upon);
3- if these
sources were ambiguous on an issue, then the consensus of the Sahabah
community (Ijma of
the companions of Muhammad),
4- then
individual's opinion from the Sahabah,
5- Qiyas (analogy),
6- Istihsan
(juristic preference),
7- and finally
local Urf (local
custom of people).
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