Everything About Shariah Law in Short
Contents
What is Sharia Law?
Sources of Sharia Law
The Maxims of Islamic Law
Discussion on Sharia Rulings
What is Madhab/Mazhab
The Legal Schools of Islam
Reference
What is Sharia Law?
In linguistic terms, Sharia Law refers to a water source, which is the source to which people who want to drink come, so they drink from it and fill their buckets, and perhaps bring their animals to drink from it as well. The Arabs do not call a water source Sharia Law unless the water is flowing without interruption and is visible and can be seen. Lisaan al-‘Arab (8/175).
In shar‘i/legal terminology, Sharia Law refers to the entire religion (Islam), which Allah has chosen for His servants to bring them forth thereby from the depths of darkness into the light. It is what He has prescribed for them and what He has explained to them of commands and prohibitions, halaal and haraam.
Whoever follows the Sharia Law of Allah, regarding as permissible (halaal) that which He has permitted and regarding as forbidden (haraam) that which He has prohibited, will triumph. Whoever goes against the Sharia Law (laws) of Allah has exposed himself to divine vengeance, wrath and punishment.
Allah, may He be exalted, says (interpretation of the meaning):
“Then We put you, [O Muhammad], on an ordained way [Sharia Law] concerning the matter [of religion]; so follow it and do not follow the inclinations of those who do not know” [Quran 45:18].
Sharia law is disciplines and principles that govern the behavior of a Muslim individual towards his or herself, family, neighbors, community, city, nation and the Muslim polity as a whole, the Ummah (global Muslim community) and everyone under Islam’s jurisdiction. Similarly, Shariah governs the interactions between communities, groups and social and economic organizations. Shariah establishes the criteria by which all social actions are classified, categorized and administered within the overall governance of the state.
Shariah conceives of the earth as a single ‘city’ with diverse inhabitants—in modern parlance, a ‘global village.’
In a land there can only thus be one system which defines best how to protect these interests. This system can be called as the constitution, parliament, the whole legal apparatus. In Islamic state or republic, the system is the Shariah law. Shariah law has two aspects: Spiritual aspect and the practical aspect. To elaborate these two types Shariah law has the following essential categories: adab (behavior, morals and manners), ibadah (ritual worship), i’tiqadat (beliefs), mu’amalat (transactions and contracts) and ‘uqubat (punishments).
The spiritual aspect essentially is the Islamic faith and worship which are purely for Muslims to observe (ibadah and I’tiqad). The practical aspect however transcends everyone under the Islamic jurisdiction. Quran 2:256 and Quran 5:44/45 proves the two assertions.
Sources of Sharia Law
The Quran
Muslims believe the Quran to be the direct words of Allah, as revealed to and transmitted by the Prophet Muhammad. All sources of Islamic law must be in essential agreement with the Quran, the most fundamental source of Islamic knowledge. The Quran is therefore regarded as the definitive authority on matters of Islamic law and practice. It is only when the Quran itself does not speak directly to or in detail about a certain subject, that Muslims turn to alternative sources of Islamic law.
The Sunnah
The Sunnah is a collection of writings documenting the traditions or known practices of the Prophet Muhammad and His family (Ahl Bayt), many of which have been recorded in the volumes of Hadith literature. The resources include many things that he said, did, or agreed to—mostly based on his life and practice based entirely on the words and principles of the Quran. During his lifetime, the Prophet's family and companions observed him and shared with others exactly what they had seen in his words and behaviors—in other words, how he performed ablutions, how he prayed, and how he performed many other acts of worship.
It was also common for people to ask the Prophet directly for legal rulings on various matters. When he passed judgment on such matters, all of these details were recorded, and they were used for reference in future legal rulings. Many issues concerning personal conduct, community and family relations, political matters, etc. were addressed during the time of the Prophet, decided by him, and recorded. The Sunnah can thus serve to clarify details of what is stated generally in the Quran, making its laws applicable to real-life situations.
Hadith is classified as authentic, weak and fabricated.
Ijma' (Consensus)
In situations when Muslims have not been able to find a specific legal ruling in the Quran or Sunnah, the consensus of the community is sought. This community can be the legal scholars of Islam or the Ummah (Muslim community) in general. Most Sunni scholars consider consensus binding; others, including Shii scholars, say such consensus is impossible.
Qiyas (Analogy)
In cases when something needs a legal ruling but has not ever been clearly addressed in the other sources, judges may use the analogy, reasoning, and legal precedent to decide new case law. This is often the case when a general principle can be applied to new situations. For example, when recent scientific evidence showed that tobacco smoking is hazardous to human health, Islamic authorities deduced that the Prophet Mohammad's words "Do not harm yourselves or others" could only indicate that smoking should be forbidden.
In addition to these basic sources, several presumptions and principles aid the jurist in deriving interpretive rules: preference (istihsan), unregulated interest (maslahah mursalah), and the presumption of continuity (istishab) and legal maxims (qawa’id). This field is also concerned with hermeneutic and deductive principles.
Interpreting The Sharia Law
Sharia Law is deduced by using Usul al-fiqh/Usool al-fiqh. Usool al-fiqh is knowledge of shar‘i (legal) evidence and the way in which that evidence is interpreted in order to reach a ruling, in general terms or in detail. (Sharh Mukhtasar ar-Rawdah 1/106). It is the body of principles and investigative methodologies through which practical legal rules are developed from the foundational sources Quran and Sunnah.
In Islamic legal terminology interpreting of Shari Law means ijtihad which is “the process of deriving the laws of the shari'ah from its sources.” The person who interprets the Sharia law is called Mujtahid.
General Process
When analyzing the sources jurists consider the following
The first three literally includes mantiq (logic), legal maxims and Arabic grammar.
Arabic grammar
Sarf and Nahw:
It is usually divided into two major parts: sarf or tasrif, the conjugation of verbs, and nahw or irab, modulations of words and declensions. The Baghdad and Basra schools of grammar are well known for their differences concerning Arabic syntax, semantics, and philosophy of language.
Balagha:
Or Ilm al-bayan (the art or science of eloquence) is a branch of Arabic rhetoric dealing with metaphorical language, connecting idea and verbal expression or writing, and interpreting knowledge, and is close to balagha, eloquence. Based on the sanctity of Arabic as the Quranic language, the Quran is sometimes called al-Bayan, the ultimate manifestation.
Arabic mantiq
In the Quran, mantiq is described as a means for justification and the expression of truth, hence connected with the ancient Greek logos. For Ibn Sina (d. 1037 ), it designated rules for passing from the known to the unknown in the acquisition of knowledge. Was extended to an intuitive or speculative arrival at the truth and then adapted to the mystical illuminationist philosophy (hikmet al-ishraq). Some grammarians (ninth century onward) highlighted logic's dependence on its linguistic or civilizational contexts, a view later held by the famous western philosopher Ludwig Wittgenstein
The Maxims of Islamic Law
Islamic legal maxims are rooted in Islamic texts in Quran and Sunnah. These have been deduced and extracted by jurists over a long period of time either knowingly or unknowingly. These were established after representatives of all schools of thought regarding Muslim Jurisprudence came together to reach a consensus. Legal maxims are general rules of fiqh, which can be applied in various cases that come under the common rulings. Legal maxims are theoretical abstractions, usually in the form of short descriptive statements that are expressive, often in a few words, of the goals and objectives of Sharia Law. These maxims are used to clarify and elaborate Islamic legal texts to new situations. They do not contradict the texts but rather broaden and simplify them.
The Codification of these maxims, known as the Mejelle, disseminated the jurisprudential maxims, and became like a legal encyclopedia of practical rulings. The rulings of this civil code were articulated according to the conventions of legal articles, 1851 of them arranged in 16 volumes. This filled an urgent need of the time, as the civil matters of the Shari‘a were otherwise scattered across innumerable tomes of law; with this new systematization, the responsa and various legal texts on a single topic were organized according to a single method.
The five great legal maxims:
The first legal maxim: matters are judged by their purposes.
Evidence for this lies in the Prophetic hadith, “Surely actions are by their intentions.” For example, different judgments are incurred by someone who killed another, depending on whether he intended to do so or it was an accident—for the very basis of the action differs in each case.
Secondary principles derived from this maxim:
1- Contractual stipulations are to be understood by their intended meaning, not strictly by their wording or formulation.
2- Intention generalizes the specific, and specifies the general.
3- The intention of the oath-taker determines.
The second legal maxim: certainty is not removed by doubt
Evidence for this lies in the hadith, “Let not any of you break their prayer [to go ablute] unless he hears a sound or passes wind.” That is, in the case when one is certain he performed ablutions, but then doubted whether he broke those ablutions (by passing wind or the like), then he should cleave to his certainty (i.e., that he remains ritually pure) and dispel himself of his doubts (i.e., that he broke his ablutions). The inverse case likewise obtains.
Secondary principles derived from this maxim:
1- the presumption that a thing remains as it was originally (unless definitely altered)
2- the presumption of innocence
3- the presumption that what is established with certainty is not altered except with certainty
4- the presumption to regard qualities and things depending on whether they are accidental or essential
5- the presumption to attribute an incident to the nearest occasion
6- that the general presumption in matters for the general populace is permissibility
7- that the general presumption in economic transactions is impermissibility
8- give no weight to evidence in the face of explicit testimony
9- do not attribute speech to the silent
10- give no weight to speculation
11- give no weight to suspicions in offenses
12- a habitual prohibition is like a definite prohibition
13- do not dispute the consequences of a proof
The third legal maxim: difficulty must be alleviated
Evidence for this lies in the Qur’anic verse And [He] has not laid any hardship upon you in religion (al-Hajj: 78) and in the Prophetic hadith, “I was appointed to [a prophethood of] primordial generous faith.” An example of this is the dispensation given one who finds it difficult to pray standing, as he may then pray seated.
Secondary principles derived from this maxim:
1- If a matter is difficulty, ease it.
2- If a matter is easy, straiten it.
3- Necessity renders the prohibited permissible.
4- What necessity makes permissible is permitted only to the extent of the necessity.
5- What is permitted with due cause is again prohibited without it.
6- A universal need is a necessity.
7- Necessity does not trump the rights of another.
8- If the principle cannot be satisfied, it falls to its equivalent.
The fourth legal maxim: harm must be removed
Evidence for this lies in the Prophetic hadith, “There is no inflicting harm (darar) or returning harm (dirar) [in Islam].” The former is done without cause, while the latter is performed with cause. For example, one whose possessions injure a neighbor has a responsibility to remove the source of the injury or hardship.
Secondary principles derived from this maxim:
1- repel harm to the extent possible
2- remove harm.
3- An greater harm is removed with a lesser harm.
4- A particular harm can repel a general harm.
5- Averting what corrupts is more important than generating what benefits.
The fifth legal maxim: custom has the weight of law
This can be understood with reference to the Prophetic hadith, may peace and blessings be upon him, “What Muslims hold to be excellent is deemed excellent by God.” Al-Suyuti held, in his al-Ashbah wal-naza’ir, that every transmitted but unrestricted legal injunction that cannot be specified with reference to another authority or linguistic analysis should accede to communal custom. Certain other scholars commented: the entirety of the law is based on a single principle, namely, convening what benefits and repelling what corrupts.
Secondary principles derived from this maxim:
1- What is in practice ought to be followed
2- Something becomes custom when it is generally adopted and becomes predominant
3- Weight is given what is predominant and common, not what is rare
4- Writing is considered like an oral expression.
5- A conventional gesture is considered like verbal speech.
6- Custom has the force of a contractual stipulation.
7- Something identified by custom has the force of something identified by a text.
8- The established practice of a community is considered like a stipulation between them.
Men of Sharia Law
Mujtahid
One who exercises independent reasoning (ijtihad) in the interpretation of Islamic law. Qualifications include training in recognized schools of Islamic law and extensive knowledge of the Quran, hadith and Usool al-fiqh.
Mufti
The Muslim man who is knowledgeable about the Islamic Sharia Law, according to specific conditions which qualifies him to reach the degree of fatwa (Sharia ruling) and the legal judgement. The mufti and the judge are one degree. But the mufti is informed of the ruling, and the judge carries out/implements the ruling. Usool al-fiqh is what explains the conditions of the judge, the mufti and the Mujtahid
Qadi
The judge who administers, judges by Sharia Law.
Hakim
The Islamic Ruler.
What is Fiqh?
In linguistic terms, fiqh means understanding. It may be said that so-and-so has been given fiqh fi’d-deen, meaning understanding of the religion. Another example is the du‘aa’ of the Prophet (blessings and peace of Allah be upon him) for Ibn ‘Abbaas: “Allahumma faqqihhu fi’d-deen (O Allah, give him understanding of the religion).” Narrated by al-Bukhaari (143) and Muslim (2477). Tahdheeb al-Lughah (5/263).
In shar‘i (legal) terminology, fiqh refers to knowledge of the practical, minor shar‘i rulings which are derived from detailed evidence and proof. Al-Mawsoo‘ah al-Fiqhiyyah (1/13).
Discussion on Sharia Rulings
This has been extensively discussed in Usool al-fiqh books. However, for information that it exists and due to it’s importance it is being discussed in short.
Hukm
The ḥukm shar‘ī (aḥkām) in its literal sense carries the meaning of a rule of Islamic law. Thus aḥkām (rules) is the plural form of ḥukm (rule), which means rule, command, the absolute, order, judgment, injunction, prescription, and decree. Technically, it is considered a rule of Islamic law. Āmidī (d. 631/1234) defines adillah/evidence as the science of the proofs of fiqh and the indications that they provide with regard to the aḥkām of the sharia.
Taklif/Mukallaf
A legal charge or obligation; to entrust or charge someone with a task. A person who meets the legal prerequisites becomes a mukallaf (a person obligated by law to discharge a legal duty). For instance, prayer is a taklif imposed upon those who reach the age of discernment (bulgh). A woman who is menstruating does not have a taklif to perform prayer. Hardship or incapacity will relieve a person from certain obligations or impose less demanding obligations, for instance, praying while sitting down in the case of a sick person. A taklif imposed upon property is an encumbrance.
Legal Rulings/Hukm Taklifi
Legal Features/Hukmu Wadi
Obligation to Rule by Sharia Law
Allaah has commanded us to refer matters to His judgement and to establish Sharia Law, and He has forbidden us to rule with anything else, as is clear from a number of aayaat in the Qur’aan:
The command to rule according to what Allaah has revealed: “And so judge between them by what Allaah has revealed . . .” [Quran 5:49]
Warning against ruling by other than what Allaah has revealed: “. . . and follow not their vain desires . . .” [Quran 5:49]
Warning against compromising on any detail of Sharia Law, no matter how small: “. . . but beware of them lest they turn you far away from some of that which Allaah has sent down to you . . .” [Quran 5:49]
Forbidding seeking the ruling of jaahiliyyah, as is expressed in the rhetorical question “Do they then seek the judgement of (the Days of) Ignorance?” [Quran 5:50]
The statement that nobody is better than Allaah to judge: “. . . and who is better in judgement than Allaah for a people who have firm Faith?” [Quran 5:50]
The statement that whoever does not judge according to what Allaah revealed is a kaafir, a zaalim (oppressor or wrongdoer) and a faasiq (sinner), as Allaah says: “. . . And whoever does not judge by what Allaah has revealed, such are the kaafiroon.” [aayah 44]; “. . . And whoever does not judge by that which Allaah has revealed, such are the zaalimoon (polytheists and wrongdoers)” [Quran 5:45]; “. . . And whoever does not judge by what Allaah has revealed (then) such (people) are the faasiqoon (rebellious or disobedient).” [Quran 5:47].
Obligation to judge non-Muslims by Sharia Law under Islamic jurisdiction, as Allaah says: “. . . And if you judge, judge with justice between them. . .” [Quran 5:42]
Judging or ruling according to other than what Allaah has revealed is contrary to faith and Tawheed/Monotheism, which are Allaah’s rights. It may be counted as kufr akbar (greater kufr/disbelief) or kufr asghar (lesser kufr/disbelief) according to circumstances. Kufr akbar will make a person no longer a Muslim.
Kufr Akbar
This is a form of disbelief which takes a Muslim outside of Islam. This disbelief is related with rejection, denial, arrogance and pride against Sharia Law. It can occur in the following circumstances:
Stubbornness and Arrogance:
If he does not rule according to what Allah has revealed out of stubbornness and arrogance, he is a kaafir and has left Islaam, even if he does not deny the rule of Allaah. Stubbornness and arrogance may mean negligence and turning away, as Allaah says: “Have you seen those (hypocrites) who claim that they believe in that which has been sent down to you, and that which was sent down before you, and they wish to go for judgement (in their disputes) to the Taaghoot (false judges, etc.) while they have been ordered to reject them. But Shaytaan wishes to lead them astray. And when it is said to them: ‘Come to what Allaah has sent down and to the Messenger,’ see they hypocrites turn away from you (Muhammad) with aversion.” [al-Nisaa’ 4:60-61]
Sharia is Optional:
“O Messenger! Let not those who hurry to fall into disbelief grieve you, of such who say: ‘We believe’ with their mouths but their hearts have no faith. And of the Jews are men who listen much and eagerly to lies - listen to others who have not come to you; they say, ‘If you are given this, take it, but if you are not given this, then beware!’ . . .” [al-Maa’idah 5:41]. He says: “Go to Muhammad (peace be upon him), and if he tells you that the ruling is lashes, accept it, but if he commands stoning, ignore what he says. Then Allaah revealed “. . . And whoever does not judge by what Allaah has revealed, such are the kaafiroon (disbelievers)” [al-Maa’idah 5:44].
Considering Sharia Law equal to Secular Law Absolutely or Particularly:
“. . . Then do not set up rivals unto Allaah (in worship) while you know (that He Alone has the right to be worshipped).” [al-Baqarah 2:22]
“Do they then seek the judgement of (the Days of) Ignorance? And who is better in judgement than Allaah for a people who have firm Faith?” [al-Maa’idah 5:50]
Denies Right of Allah and His Prophet (Sharia Law) to Rule:
“. . . And whoever does not judge by what Allaah has revealed, such are the kaafiroon.” [al-Maa’idah 5:44]. Ibn ‘Abbaas said (A senior companion of Prophet): “Whoever rejects what Allaah has revealed is a kaafir.”
Kufr Asghar
This is a form which makes a Muslim sinner. This is related with disobedience in physical action. An example can be if a ruler or judge passes judgement according to other than what Allaah revealed out of disobedience or on a whim, or as a favor to someone, or because he was bribed, and so on, although he believes that it is obligatory to judge according to what Allaah has revealed, and that what he has done is a sinful and haram/prohibited action.
Examples of Kufr Akbar
Example of Kufr Asghar
Najib Razak’s claim that Malaysia is not ready for Hodood laws.
The Message and Goal of Sharia Law
1. Proposes resistance against tyranny, persecution and exploitation
2. Proposes equity and fair play in economy and interest free economic system
3. Establishes Morality and charity
4. Proposes defense of honor, property and lives
5. Proposes Humility and mercy
6. Proposes rational freedom
7. Proposes accountability and transparency
8. Proposes justice irrespective of class, race, gender or power
9. Proposes defensive war
10. Proposes harsh deterring criminal legal system
Shariah law aims to protect five basic human interests: religion, life, lineage, property, and intellect. These basic interests are universally recognized among all other nations even though nations vary in their approach in doing so.
What is Madhab/Mazhab
Sheikh Nuh Keller an American Muslim, a philosopher and Islamic legal expert says:
‘The word madhhab is derived from an Arabic word meaning "to go" or "to take as a way", and refers to a mujtahids choice in regard to a number of interpretive possibilities in deriving the rule of Allah from the primary texts of the Qur'an and hadith on a particular question. In a larger sense, a madhhab represents the entire school of thought of a particular mujtahid Imam, such as Abu Hanifa, Malik, Shafi'i, or Ahmad--together with many first-rank scholars that came after each of these in their respective schools, who checked their evidences and refined and upgraded their work. The mujtahid Imams were thus explainers, who operationalized the Qur'an and Sunna in the specific shari'a rulings in our lives that are collectively known as fiqh or "jurisprudence". In relation to our din or "religion", this fiqh is only part of it, for the religious knowledge each of us possesses is of three types. The first type is the general knowledge of tenets of Islamic belief in the oneness of Allah, in His angels, Books, messengers, the prophethood of Muhammad (Allah bless him and give him peace), and so on. All of us may derive this knowledge directly from the Qur'an and hadith, as is also the case with a second type of knowledge, that of general Islamic ethical principles to do good, avoid evil, cooperate with others in good works, and so forth. Every Muslim can take these general principles, which form the largest and most important part of his religion, from the Qur'an and hadith.
The third type of knowledge is that of the specific understanding of particular divine commands and prohibitions that make up the shari'a. Here, because of both the nature and the sheer number of the Qur'an and hadith texts involved, people differ in the scholarly capacity to understand and deduce rulings from them. But all of us have been commanded to live them in our lives, in obedience to Allah, and so Muslims are of two types, those who can do this by themselves, and they are the mujtahid Imams; and those who must do so by means of another, that is, by following a mujtahid Imam, in accordance with Allahs word in surat al-Nahl, "Ask those who recall, if you know not" (Qur'an 16:43), and in surat al-Nisa, "If they had referred it to the Messenger and to those of authority among them, then those of them whose task it is to find it out would have known the matter" (Qur'an 4:83), in which the phrase those of them whose task it is to find it out, expresses the words "alladhina yastanbitunahu minhum", referring to those possessing the capacity to draw inferences directly from the evidence, which is called in Arabic "istinbat".
These and other verses and hadiths oblige the believer who is not at the level of istinbat or directly deriving rulings from the Qur'an and hadith to ask and follow someone in such rulings who is at this level. It is not difficult to see why Allah has obliged us to ask experts, for if each of us were personally responsible for evaluating all the primary texts relating to each question, a lifetime of study would hardly be enough for it, and one would either have to give up earning a living or give up ones din, which is why Allah says in surat al-Tawba, in the context of jihad:
"Not all of the believers should go to fight. Of every section of them, why does not one part alone go forth, that the rest may gain knowledge of the religion and admonish their people when they return, that perhaps they may take warning".
The slogans we hear today about "following the Qur'an and Sunna instead of following the madhhabs" are wide of the mark, for everyone agrees that we must follow the Qur'an and the Sunna of the Prophet (Allah bless him and give him peace). The point is that the Prophet (Allah bless him and give him peace) is no longer alive to personally teach us, and everything we have from him, whether the hadith or the Qur'an, has been conveyed to us through Islamic scholars. So it is not a question of whether or not to take our din from scholars, but rather, from which scholars. And this is the reason we have madhhabs in Islam: because the excellence and superiority of the scholarship of the mujtahid Imams--together with the traditional scholars who followed in each of their schools and evaluated and upgraded their work after them--have met the test of scholarly investigation and won the confidence of thinking and practicing Muslims for all the centuries of Islamic greatness. The reason why madhhabs exist, the benefit of them, past, present, and future, is that they furnish thousands of sound, knowledge-based answers to Muslims questions on how to obey Allah. Muslims have realized that to follow a madhhab means to follow a super scholar who not only had a comprehensive knowledge of the Qur'an and hadith texts relating to each issue he gave judgements on, but also lived in an age a millennium closer to the Prophet (Allah bless him and give him peace) and his Companions, when taqwa or "godfearingness" was the norm--both of which conditions are in striking contrast to the scholarship available today.
While the call for a return to the Qur'an and Sunna is an attractive slogan, in reality it is a great leap backward, a call to abandon centuries of detailed, case-by-case Islamic scholarship in finding and spelling out the commands of the Qur'an and Sunna, a highly sophisticated, interdisciplinary effort by mujtahids (one who is able to interpret the law), hadith specialists, Qur'anic exegetes, lexicographers, and other masters of the Islamic legal sciences. To abandon the fruits of this research, the Islamic shari'a, for the following of contemporary sheikhs who, despite the claims, are not at the level of their predecessors, is a replacement of something tried and proven for something at best tentative.
The rhetoric of following the shari'a without following a particular madhhab is like a person going down to a car dealer to buy a car, but insisting it not be any known make--neither a Volkswagen nor Rolls- Royce nor Chevrolet--but rather "a car, pure and simple". Such a person does not really know what he wants; the cars on the lot do not come like that, but only in kinds. The salesman may be forgiven a slight smile, and can only point out that sophisticated products come from sophisticated means of production, from factories with a division of labor among those who test, produce, and assemble the many parts of the finished product. It is the nature of such collective human efforts to produce something far better than any of us alone could produce from scratch, even if given a forge and tools, and fifty years, or even a thousand. And so it is with the shari'a, which is more complex than any car because it deals with the universe of human actions and a wide interpretive range of sacred texts. This is why discarding the monumental scholarship of the madhhabs in operationalizing the Qur'an and Sunna in order to adopt the understanding of a contemporary sheikh is not just a mistaken opinion. It is scrapping a Mercedes for a go-cart.’’
But whenever a Saheeh Hadith comes, we should understand the Saheeh hadith and over turn the weak position of Mazhab if it is really weak.
The Legal Schools of Islam
There are five legal schools of thought in Islam
Jafari
The Ja‘fari school of thought was headed by Imam Ja‘far ibn Muhammad al-Sadiq who lived from 83H to 148H. He was born in and died in the holy city of Madina, and he is the sixth Imam of the twelve designated imams of the school of Ahlul Bayt. Although the fiqh (Islamic Jurisprudence) was developed by the Prophet Muhammad and his successors (i.e., the imams), the fiqh, as taught by the Shi‘a, did not have the opportunity to be presented to the masses of people because of the political predicament that the Ahlul Bayt suffered under the rulers for many centuries. He taught thousands of students in subjects ranging from law and theology to mathematics and science.
The imams refused to acknowledge the legitimacy of the Umayyad and Abbasid caliphs, and their governments; and thus they and their followers were exposed to tremendous harassment and persecution at the hands of the unjust caliphs. Once the Umayyad government became weak, Imam Ja‘far ibn Muhammad al-Sadiq found a golden opportunity to formulate and spread the tradition of the Prophet Muhammad and his family. At one time, four thousand scholars, commentators of the Qur’an, historians, and philosophers attended his classes in the holy city of Madina.
Therefore, he was able to pass down the authentic teachings of the Noble Qur’an and the Prophet Muhammad and crystallize them in what came to be known as al-Fiqh al-Ja‘fari, the Ja‘fari Jurisprudence. His teachings were collected in 400 usul (foundations) which were written by his students and encompass hadith, Islamic philosophy, theology, commentary of the Qur’an, literature, and ethics.
After a period of time, three distinguished scholars categorized these 400 usul in four books which are the main sources of hadith for the Shi‘a school of thought. They are: Usul al-Kafi by al-Kulayni (d.329H), Man La Yahduruh al-Faqih by al-Saduq (d.381H), and al-Tahdib and al-Istibsar by al-Tusi (d.460H). These three scholars were known as the “three Muhammads” since their first names were all Muhammad.
While these four books are the main sources of hadith for the Shi‘a, their authors still did not label their books as “sahih” (authentic). Although they did their best to gather only authentic traditions, but if a particular tradition contradicted the Noble Qur’an then it was not accepted as legal and valid. Hadith, according to the Ja‘fari school of thought, are accepted only if the Noble Qur’an verifies them, since the Noble Qur’an is the only undoubtable source of guidance.
The Imam lived in a time when the Umayyad Dynasty was losing control of power to the Abbasid Dynasty. During this period, the power gap allowed for the Imam to spread the knowledge of Ahlul Bayt and teach the true teachings of Prophet Muhammad (peace be upon him and his family).
Imam as-Sadiq was known to be the most knowledgeable of his time in the Qur’an, Hadith (traditions), and other religious sciences. Imam as-Sadiq had thousands of attendees taking part in his classes. Notable among them were Abu Hanifa, founder of Hanafi school
Recognizes four sources of Islamic law: the Quran, the Sunnah (including traditions reported by the Prophet and the imams), consensus (which must include the Prophet's or an infallible imam's opinion to establish its validity), and human reason. Human reason is capable of inferring categorical judgments drawn from both pure and practical reason. Whatever is judged necessary by reason is also judged necessary by revelation. This correlation between reason and revelation has allowed Shii jurists to derive religious rulings on many issues not covered in normative sources such as the Quran and Sunnah.
Hanafi
Imam Abu Hanifa was born to a non-Arab father, was raised in Kufa, and died in Baghdad. This school of thought prevailed during the time of the Abbasid Empire when a student of Imam Abu Hanifa, Abu Yusuf al-Qadi became the head of the judiciary department and the highest judge, and thus he spread this madhhab (school of thought), in particular, during the caliphates of al-Mahdi, al-Hadi, and al-Rashid.
No other man was as close to the Abbasid caliph, Harun al-Rashid as was Abu Yusuf al-Qadi, but the Abbasid caliph, al-Mansur also worked hard to support and consolidate Imam Abu Hanifa’s school of thought and to spread his madhhab in the face of the growing popularity of Imam Ja‘far al-Sadiq. Imam Abu Hanifa studied under the instruction of Imam Ja‘far al-Sadiq for two years
Though it bears the name of Abu Hanifa al-Nuʿman ibn Thabit (died 767), the Hanafi School of Law in fact owes its doctrine to his two disciples Abu Yusuf (died 798) and Muhammad ibn al-Hasan al-Shaybani (died 805). They laid down the systematic foundations for the work of later Hanafis. In the eighth and ninth centuries, the law school (madhhab) was associated with the rationalists (ahl al-raʾy), who advocated free legal reasoning not strictly bound by the revealed texts. Although by the eighth century raʾy, a form of free reasoning, was largely abandoned in favor of a more disciplined and text-bound reasoning, the Hanafis continued to resort to similar methods of legal argument, notably istihsan (juristic preference). After the ninth century, and certainly by the beginning of the eleventh, even istihsan was restructured so as to render it subsidiary to the imperatives of the religious texts.
Though the Hanafi school finally came to adopt the mainstream legal methodology and philosophy, it did maintain peculiar characteristics such as its emphasis on the practical aspects of the law. Particularly in the first three centuries of Islam, its followers, more than any other school, were the chief authors and experts on formularies (shurut), notarial documents, and the profession and conduct of judgeship (adab al-qada).
Among the most important Hanafi authors on positive law after Abu Yusuf and Shaybani are Abu al-Hasan al-Karkhi (died 951), Abu al-Layth alSamarqandi (died 985), al-Quduri (died 1036), Shams al-Aʾimma al-Sarakhsi (died 1096), alKasani (died 1191), al-Marghinani (died 1196), Abu al-Barakat al-Nasafi (died 1310), and Ibn Nujaym (died 1563). For these authors, the works of Shaybani, known collectively as zahir al-riwaya, remained authoritative; they are al-Mabsut, al-Jami al-Kabir, al-Jami al-Saghir, al-Siyar al-Kabir, al-Siyar alSaghir, and al-Ziyadat. The most prominent legal theorists (usuliyyun) of the school are Pazdawi (died 1089), Sarakhsi, Nasafi, Sadr al-Shariʿa al-Thani al-Mahbubi (died 1346), and Mulla Khusraw (died 1480).
In 1876, the Hanafi law of contracts, obligations, and procedure was codified in the Ottoman law code of Mecelle, in an effort to modernize the law and to achieve uniformity in its application. The primary source on which the Committee of the Mecelle based its work was Shaybani's collected works, zahir al-riwaya, with the commentary on it by Sarakhsi, an eleventh-century Hanafi. In the first few decades of the twentieth century, however, the Mecelle was superseded by civil codes in all the countries that fell previously under Ottoman jurisdiction, with the notable exception of Jordan.
In medieval times, the school had a large following in its birthplace, Iraq, as well as in Syria, Transoxania (now Uzbekistan, a former Soviet Republic), the Indian subcontinent, the Mediterranean island of Sicily, and to a lesser extent in North Africa. Later on, the Ottoman Empire declared Hanafism the official doctrine of the state, thus rendering it dominant in all areas that fell under its sway. In modern times, Hanafism still prevails in these regions as well as in Afghanistan, the Balkans, Pakistan, Turkistan, the Caucasus (between the Black and Caspian Seas), India, and China.
Shafi
Imam Shafi΄i was born in Hijaz and his school of thought emerged in Egypt. At the time of the Fatimid Dynasty, the Egyptians were mainly followers of Ahlul Bayt, and the teachings of Ahlul Bayt were being taught in al-Azhar University. At a later time, Salah al-Din al-Ayyubi came and waged an extensive war against the school of Ahlul Bayt by banning the teaching of their madhhab (school of thought) in al-Azhar and resurrecting the other madhahib, including that of Imam Shafi΄i, who was killed in Egypt in 198H.
The Shafiʿi school of law was founded by Muhammad ibn Idris al-Shafiʿi (died 820), a disciple of Malik ibn Anas (died 795) and Muhammad ibn Hasan al-Shaybani (died 805). Bringing about a synthesis between the rationalists and the tradition-alists, Shafiʿi elaborated a system of positive law and a rudimentary legal theory that attracted a number of scholars who propagated his teachings, thus creating the first personal school of law (madhhab) in Islam. His two chief treatises that survived are al-Umm, a collection of treatises mainly concerned with positive law and disagreements among the early jurists, and al-Risala (also known as al-Kitab, ) a work on legal theory with particular emphasis on Prophetic hadith (traditions) as a binding source of law.
The immediate students of Shafiʿi who were responsible for propagating his teachings, and thus for laying the first roots of the school, were al-Buwayti (died 846), Harmala (died 857), Muzani (died 878), al-Zaʿfarani (died 874), al-Karabisi (died c. 859), and al-Rabi ibn Sulayman al-Jizi (died 870). Al-Rabi ibn Sulayman al-Muradi (died c. 884) is known as the transmitter of most of Shafiʿi's extant works. Other scholars, such as Ibn Hanbal (died 854) and Abu Thawr (died 855), initially the disciples of Shafiʿi, became themselves the founders of independent law schools.
The widespread influence of the Shafiʿi school must be credited to the work of Ibn Surayj (died 918), significantly nicknamed the "Little Shafiʿi." He was responsible for harmonizing the teachings of the school and for training a generation of influential Shafiʿi scholars who guaranteed not only the survival of the school but indeed its success. Among the most important of these scholars are Abu Bakr al-Sayrafi (died 942) and al-Qaffal al-Shashi (died 948), who are considered two of the first major authors of complete works on Shafiʿite legal theory (usul al-fiqh).
Among the many names that dominated the later history of Shafiʿism are: Abu Bakr al-Baqillani (died 1013), Abu Ishaq al-Isfara'ini (died 1015), Abu Muhammad al-Juwayni (died 1046) and his son Imam al-Haramayn (died 1085), Bayhaqi (died 1066), al-Mawardi (died 1058), Abu Ishaq alShirazi (died 1083), Ghazali (died 1111), Abu Bakr al-Shashi (died 1113), Fakhr al-Din al-Razi (died 1209), Rafiʿi (died 1226), Izz al-Din (b. Abd alSalam; died 1262), Muhyi al-Din al-Nawawi (died 1277), and Suyuti (died 1505). The positive law (furu) treatises of Juwayni, Shirazi, Ghazali, Rafiʿi, and Nawawi became standard for the later period, whereas in legal theory, the works of Juwayni, Ghazali, and Razi gained popularity.
Today the Shafiʿi school has followers in Egypt—mainly in rural areas—as well as in Syria, Lebanon, Palestine, Jordan, Iraq, Hijaz, Bahrain, Yemen, Pakistan, Iran, India, and Indonesia.
Maliki
Imam Malik joined the ‘Alawiyiin, the descendants of Imam ‘Ali, and received his knowledge from Imam Ja‘far al-Sadiq, but thereafter, inconsistencies marked his life. At one point he was oppressed and having earned the anger of the government, he was dragged through the streets by his clothes and lashed. In 148H, his fortunes reversed and he regained his popularity and dominance.
The Maliki school of law was named after the traditionalist and lawyer Malik ibn Anas (died 795) of Medina (in today's Saudi Arabia). Malik's active career fell at a time when the prophetic sunna (record of the utterances and deeds of the Prophet) had not yet become a material source of the law on equal footing with the Qurʾan and when hadith (prophetic traditions) were still relatively limited in number. In his legal reasoning, therefore, Malik made little reference to prophetic traditions and more often resorted to the amal (normative practice) of Medina in justification of his doctrines. As expressed in his Muwatta, in which he recorded the customary Medinese doctrine, Malik's reliance on traditions as well as his technical legal thought lagged behind those of the Iraqis.
Once the transition from the geographical to the personal schools took place, Malik became the eponym of the former Hijazi or Medinan school. This may be explained by the fact that Malik's writings represented the average doctrine of that geographical area, coupled perhaps with the high esteem in which he was held as a scholar.
Like the namesake of the Hanafi school of law, but unlike the founder of the Shafiʿi school of law, Malik did not provide his school with a developed body of legal doctrine. It was left for his successors, chiefly in the ninth and tenth centuries, to articulate a legal system particular to the school. Among the most important positive law works of the school are: al-Mudawwana al-Kubra by Sahnun (died 854); alRisala by Ibn Abi Zayd al-Qayrawani (died 996); alTahdhib, an authoritative synopsis of al-Mudawwana, by Abu Saʿid al-Baradhi'i (died probably after 1039); al-Bayan, a commentary by Ibn Rushd (died 1126) on al-Utbiyya of al-Utbi (died 869); Bidaya alMujtahid wa Nihaya al-Muqtasid by Ibn Rushd al-Hafid (died 1189); al-Mukhtasar by Sidi Khalil (died 1365); al-Mi'yar al-Mughrib wa al-Jami al-Mu'rib by al-Wansharisi (died 1508), one of the most important fatwa collections in the school. Further, in writing on legal theory (usul al-fiqh), the Malikis were not as prolific as their Hanafi and Shafiʿi counterparts. Three of their most distinguished legal theoreticians are: Ibn Khalaf al-Baji (died 1081), the author of Ihkam al-Fusul ; al-Qarafi (died 1285), whose main work on the subject is Sharh Tanqih al-Fusul, a commentary on the work of the Shafiʿi jurist and theologian Fakhr al-Din al-Razi; and Abu Ishaq al-Shatibi (died 1388), who elaborated in his Muwafaqat one of the most innovative legal theories that is highly regarded by modern legal reformers.
Since early medieval Islam, Malikism succeeded in spreading mainly in the Maghrib (North Africa) and Muslim Spain, being now the dominant doctrine in all Muslim African countries. In Egypt, it has traditionally shared influence with Shafiʿism. Maliki presence may also be found today in Bahrain and Kuwait.
Ibn Hazm al-Andalusi says that two schools of thought were spread due to the government and the sultan: the school of Imam Abu Hanifa, since Abu Yusuf al-Qadi only appointed Hanafi judges; and the school of Imam Malik ibn Anas, for a student of Imam Malik, Yahya ibn Yahya was so respected in the caliph’s palace that no judge was ever appointed in Andalus, Spain without his consultation and advice.
Hanbali
The Hanbali School of Law takes its name from Ahmad ibn Hanbal (died 854), a major theologian of the ninth century. He was a fierce opponent of the Muʿtazila, a school of religious thought that flourished under the Abbasids. Ibn Hanbal emerged victorious in the mihna (inquisition), led by the Abbasid caliph al-Maʾmun and the rationalist theologians against the traditionalists who upheld the doctrine that the Qurʾan is not the created but the eternal word of God. Ibn Hanbal's career as a dogmatic theologian, coupled with the fact that he did not elaborate a complete system of law, gave him and his immediate followers the reputation of being a theological rather than a legal school (madhhab). Indeed, the school's first complete work on positive law, alMukhtasar, appeared as late as the beginning of the tenth century, at the hands of Abu Qasim al-Khiraqi (died 946).
Being strict traditionalists, the Hanbalis of the ninth century rejected the rationalist elements of what had by the end of the century become the mainstream legal theory (usul al-fiqh). Later Hanbalis, however, gradually adopted the main elements of this theory, and by the eleventh century, their legal theory finally came to accept usul al-fiqh as elaborated by the Shafiʿi School of Law and Hanafi School of Law. Thus, it took the Hanbali school nearly two centuries after ibn Hanbal's demise to develop into a full-fledged school of law.
Two centuries later, the celebrated Hanbali jurist and theologian Taqi al-Din ibn Taymiyya (died 1328) even subscribed to a theory of istihsan (juristic preference), advocated by later Hanafis and vehemently opposed by early traditionalist Shafiʿis and Hanbalis.
There were several figures who dominated the history of Hanbalism. Among the prominent names are al-Khiraqi, Ibn al-Farra, Ibn Aqil, Abd al-Qadir al-Jili (died 1166), Abu al-Faraj ibn al-Jawzi (died 1200), Ibn Taymiyya, and his disciple Ibn Qayyim al-Jawziyya (died 1351), to name only a few. Distinguished as a major figure in Islamic religious history, Ibn Taymiyya was involved in the study of law, theology, philosophy, and mysticism and was engaged in the politics of the Mamluk state. He wrote at length against the Shiʿa, the philosophers, the logicians, and the pantheistic Sufis, though he himself belonged to the mystical school of Abd al-Qadir al-Jili.
Ibn Taymiyya's thought exercised significant influence on Muhammad ibn Abd al-Wahhab (died 1792), who, with the assistance of Ibn Saʿud, founded Wahhabism, an ideology that has sustained the Saudi state during the last two centuries. Saudi Arabia remains the principal country that applies Hanbali law. Nevertheless, the writings of ibn Taymiyya and ibn Abd al-Wahhab still continue to influence the Muslim reform and religious movements in the Middle East, from Rashid Rida (died 1935) to the Muslim Brotherhood.
What is Taqleed
Taqlid literally means "to follow someone", "to imitate someone". In Islamic legal terminology it means "to follow the mujtahid in religious laws." Before you start following the opinions of a mujtahid in the Sharia law, you have to ascertain that he has the required expertise and that he is of upright character.
Necessity of Taqleed
It is not always unreasonable to follow others and to hold uncritical faith in them. We can logically distinguish four possible forms of imitation:
that of an ignorant person by an ignorant person;
that of a learned person by a more learned person;
that of an ignorant person by a learned person;
that of a learned person by a less learned person.
It is quite clear that the first three forms of imitations are unreasonable and can serve no purpose. However, the fourth kind of imitation is obviously not only reasonable, but also necessary and matter of common sense; in our everyday life we follow and imitate others in many things; we like to feel that we are taking the advice of experts in matters outside our own knowledge.
The Qur' an strongly exhorts at least a group of Muslims to devote their time and energy in studying religion. This obligation is of such importance that Allah (SWT) has exempted such persons from the duty of jihad.
He says:
"It is not (right) for the believers to go forth all together (for jihad). So why should not a party from every section of them (the believers) go forth to become learned in the religion?..." (Quran 9:124).
Sharia Law in the 21st Century
Islamic civilization since the time of Prophet Muhammad (s) until now, is firmly founded on the concept of ‘rule of Divine law.’ Even though throughout the Islamic history kings and caliphs have contradicted this rule of law based on secular aspects such as racism, nationalism and tribalism but the concept remains in Islamic or Shariah law and have been practiced more often than not. Even still today Muslim countries such as Malaysia, Indonesia, Bangladesh and many others have contradicted this philosophy and reality of divine law.
Even though people will not believe in a practical law of Islam nonetheless governance by it is not impossible. In a secular state people do not necessarily believe or agree to all laws but they however must obey them as part of being under the jurisdiction. Any attempt to change the system in a criminal manner may label him or her as treasonous.
Islamic government and Shariah law do not have many examples except Islamic Republic of Iran and partially Saudi Arabia. The reason for this is colonialism and its legacy. Western governments have supported despots in Muslim countries as far back as colonialism. They never honored the hope and aspirations of self-rule for Muslims, most recent example is the coup against President Morsi. This has created mass suffering for Muslims in their existence resulting in a broken social, economic, political and intellectual existence. Even Iran is under constant sanctions and attacks. A country’s political and legal development and maturity depends on stability and non-interference by foreign powers.
However, Sharia Law has managed the greatest empires from east to west and created environment for Islamic golden age and so it can also manage modern Muslim states. The only thing needing is the will of the Muslim rulers to adopt it and adhere by it like Islamic Republic of Iran did in 1979. Our will to adopt it will shape not only our destiny but the destiny of the world!
Reference
www.al-islam.org
http://www.islam4u.com/ar
https://www.shiaresearch.com/
http://www.khamenei.ir/
http://dar-alifta.org
https://islamqa.info/en
http://www.oxfordislamicstudies.com
What is Sharia Law?
Sources of Sharia Law
- The Quran
- The Sunnah
- Ijma' (Consensus)
- Qiyas (Analogy)
- General Process
- Arabic grammar
- Sarf and Nahw
- Balagha
The Maxims of Islamic Law
- The five great legal maxims
- Mujtahid
- Mufti
- Qadi
- Hakim
Discussion on Sharia Rulings
- Hukm
- Taklif/Mukallaf
- Legal Rulings/Hukm Taklifi
- Legal Features/Hukmu Wadi
- Kufr Akbar
- Stubbornness and Arrogance
- Sharia is Optional
- Considering Sharia Law equal to Secular Law Absolutely or Particularly
- Denies Right of Allah and His Prophet (Sharia Law) to Rule
- Kufr Asghar
- Examples of Kufr Akbar
- Example of Kufr Asghar
What is Madhab/Mazhab
The Legal Schools of Islam
- Jafari
- Hanafi
- Shafi
- Maliki
- Hanbali
- Necessity of Taqleed
Reference
What is Sharia Law?
In linguistic terms, Sharia Law refers to a water source, which is the source to which people who want to drink come, so they drink from it and fill their buckets, and perhaps bring their animals to drink from it as well. The Arabs do not call a water source Sharia Law unless the water is flowing without interruption and is visible and can be seen. Lisaan al-‘Arab (8/175).
In shar‘i/legal terminology, Sharia Law refers to the entire religion (Islam), which Allah has chosen for His servants to bring them forth thereby from the depths of darkness into the light. It is what He has prescribed for them and what He has explained to them of commands and prohibitions, halaal and haraam.
Whoever follows the Sharia Law of Allah, regarding as permissible (halaal) that which He has permitted and regarding as forbidden (haraam) that which He has prohibited, will triumph. Whoever goes against the Sharia Law (laws) of Allah has exposed himself to divine vengeance, wrath and punishment.
Allah, may He be exalted, says (interpretation of the meaning):
“Then We put you, [O Muhammad], on an ordained way [Sharia Law] concerning the matter [of religion]; so follow it and do not follow the inclinations of those who do not know” [Quran 45:18].
Sharia law is disciplines and principles that govern the behavior of a Muslim individual towards his or herself, family, neighbors, community, city, nation and the Muslim polity as a whole, the Ummah (global Muslim community) and everyone under Islam’s jurisdiction. Similarly, Shariah governs the interactions between communities, groups and social and economic organizations. Shariah establishes the criteria by which all social actions are classified, categorized and administered within the overall governance of the state.
Shariah conceives of the earth as a single ‘city’ with diverse inhabitants—in modern parlance, a ‘global village.’
In a land there can only thus be one system which defines best how to protect these interests. This system can be called as the constitution, parliament, the whole legal apparatus. In Islamic state or republic, the system is the Shariah law. Shariah law has two aspects: Spiritual aspect and the practical aspect. To elaborate these two types Shariah law has the following essential categories: adab (behavior, morals and manners), ibadah (ritual worship), i’tiqadat (beliefs), mu’amalat (transactions and contracts) and ‘uqubat (punishments).
The spiritual aspect essentially is the Islamic faith and worship which are purely for Muslims to observe (ibadah and I’tiqad). The practical aspect however transcends everyone under the Islamic jurisdiction. Quran 2:256 and Quran 5:44/45 proves the two assertions.
Sources of Sharia Law
The Quran
Muslims believe the Quran to be the direct words of Allah, as revealed to and transmitted by the Prophet Muhammad. All sources of Islamic law must be in essential agreement with the Quran, the most fundamental source of Islamic knowledge. The Quran is therefore regarded as the definitive authority on matters of Islamic law and practice. It is only when the Quran itself does not speak directly to or in detail about a certain subject, that Muslims turn to alternative sources of Islamic law.
The Sunnah
The Sunnah is a collection of writings documenting the traditions or known practices of the Prophet Muhammad and His family (Ahl Bayt), many of which have been recorded in the volumes of Hadith literature. The resources include many things that he said, did, or agreed to—mostly based on his life and practice based entirely on the words and principles of the Quran. During his lifetime, the Prophet's family and companions observed him and shared with others exactly what they had seen in his words and behaviors—in other words, how he performed ablutions, how he prayed, and how he performed many other acts of worship.
It was also common for people to ask the Prophet directly for legal rulings on various matters. When he passed judgment on such matters, all of these details were recorded, and they were used for reference in future legal rulings. Many issues concerning personal conduct, community and family relations, political matters, etc. were addressed during the time of the Prophet, decided by him, and recorded. The Sunnah can thus serve to clarify details of what is stated generally in the Quran, making its laws applicable to real-life situations.
Hadith is classified as authentic, weak and fabricated.
Ijma' (Consensus)
In situations when Muslims have not been able to find a specific legal ruling in the Quran or Sunnah, the consensus of the community is sought. This community can be the legal scholars of Islam or the Ummah (Muslim community) in general. Most Sunni scholars consider consensus binding; others, including Shii scholars, say such consensus is impossible.
Qiyas (Analogy)
In cases when something needs a legal ruling but has not ever been clearly addressed in the other sources, judges may use the analogy, reasoning, and legal precedent to decide new case law. This is often the case when a general principle can be applied to new situations. For example, when recent scientific evidence showed that tobacco smoking is hazardous to human health, Islamic authorities deduced that the Prophet Mohammad's words "Do not harm yourselves or others" could only indicate that smoking should be forbidden.
In addition to these basic sources, several presumptions and principles aid the jurist in deriving interpretive rules: preference (istihsan), unregulated interest (maslahah mursalah), and the presumption of continuity (istishab) and legal maxims (qawa’id). This field is also concerned with hermeneutic and deductive principles.
Interpreting The Sharia Law
Sharia Law is deduced by using Usul al-fiqh/Usool al-fiqh. Usool al-fiqh is knowledge of shar‘i (legal) evidence and the way in which that evidence is interpreted in order to reach a ruling, in general terms or in detail. (Sharh Mukhtasar ar-Rawdah 1/106). It is the body of principles and investigative methodologies through which practical legal rules are developed from the foundational sources Quran and Sunnah.
In Islamic legal terminology interpreting of Shari Law means ijtihad which is “the process of deriving the laws of the shari'ah from its sources.” The person who interprets the Sharia law is called Mujtahid.
General Process
When analyzing the sources jurists consider the following
- Consideration of letters and wordings in divine texts
- Consideration of intent and purpose in divine texts
- Consideration of textual connectivity and context (not historical context)
- Consideration of historical context as supportive and secondary. This includes the activities, practices and custom of the common people.
- Consideration of accuracy and authority of texts. This can apply to abrogation and Hadith.
- Consideration of textual conflict.
The first three literally includes mantiq (logic), legal maxims and Arabic grammar.
Arabic grammar
Sarf and Nahw:
It is usually divided into two major parts: sarf or tasrif, the conjugation of verbs, and nahw or irab, modulations of words and declensions. The Baghdad and Basra schools of grammar are well known for their differences concerning Arabic syntax, semantics, and philosophy of language.
Balagha:
Or Ilm al-bayan (the art or science of eloquence) is a branch of Arabic rhetoric dealing with metaphorical language, connecting idea and verbal expression or writing, and interpreting knowledge, and is close to balagha, eloquence. Based on the sanctity of Arabic as the Quranic language, the Quran is sometimes called al-Bayan, the ultimate manifestation.
Arabic mantiq
In the Quran, mantiq is described as a means for justification and the expression of truth, hence connected with the ancient Greek logos. For Ibn Sina (d. 1037 ), it designated rules for passing from the known to the unknown in the acquisition of knowledge. Was extended to an intuitive or speculative arrival at the truth and then adapted to the mystical illuminationist philosophy (hikmet al-ishraq). Some grammarians (ninth century onward) highlighted logic's dependence on its linguistic or civilizational contexts, a view later held by the famous western philosopher Ludwig Wittgenstein
The Maxims of Islamic Law
Islamic legal maxims are rooted in Islamic texts in Quran and Sunnah. These have been deduced and extracted by jurists over a long period of time either knowingly or unknowingly. These were established after representatives of all schools of thought regarding Muslim Jurisprudence came together to reach a consensus. Legal maxims are general rules of fiqh, which can be applied in various cases that come under the common rulings. Legal maxims are theoretical abstractions, usually in the form of short descriptive statements that are expressive, often in a few words, of the goals and objectives of Sharia Law. These maxims are used to clarify and elaborate Islamic legal texts to new situations. They do not contradict the texts but rather broaden and simplify them.
The Codification of these maxims, known as the Mejelle, disseminated the jurisprudential maxims, and became like a legal encyclopedia of practical rulings. The rulings of this civil code were articulated according to the conventions of legal articles, 1851 of them arranged in 16 volumes. This filled an urgent need of the time, as the civil matters of the Shari‘a were otherwise scattered across innumerable tomes of law; with this new systematization, the responsa and various legal texts on a single topic were organized according to a single method.
The five great legal maxims:
The first legal maxim: matters are judged by their purposes.
Evidence for this lies in the Prophetic hadith, “Surely actions are by their intentions.” For example, different judgments are incurred by someone who killed another, depending on whether he intended to do so or it was an accident—for the very basis of the action differs in each case.
Secondary principles derived from this maxim:
1- Contractual stipulations are to be understood by their intended meaning, not strictly by their wording or formulation.
2- Intention generalizes the specific, and specifies the general.
3- The intention of the oath-taker determines.
The second legal maxim: certainty is not removed by doubt
Evidence for this lies in the hadith, “Let not any of you break their prayer [to go ablute] unless he hears a sound or passes wind.” That is, in the case when one is certain he performed ablutions, but then doubted whether he broke those ablutions (by passing wind or the like), then he should cleave to his certainty (i.e., that he remains ritually pure) and dispel himself of his doubts (i.e., that he broke his ablutions). The inverse case likewise obtains.
Secondary principles derived from this maxim:
1- the presumption that a thing remains as it was originally (unless definitely altered)
2- the presumption of innocence
3- the presumption that what is established with certainty is not altered except with certainty
4- the presumption to regard qualities and things depending on whether they are accidental or essential
5- the presumption to attribute an incident to the nearest occasion
6- that the general presumption in matters for the general populace is permissibility
7- that the general presumption in economic transactions is impermissibility
8- give no weight to evidence in the face of explicit testimony
9- do not attribute speech to the silent
10- give no weight to speculation
11- give no weight to suspicions in offenses
12- a habitual prohibition is like a definite prohibition
13- do not dispute the consequences of a proof
The third legal maxim: difficulty must be alleviated
Evidence for this lies in the Qur’anic verse And [He] has not laid any hardship upon you in religion (al-Hajj: 78) and in the Prophetic hadith, “I was appointed to [a prophethood of] primordial generous faith.” An example of this is the dispensation given one who finds it difficult to pray standing, as he may then pray seated.
Secondary principles derived from this maxim:
1- If a matter is difficulty, ease it.
2- If a matter is easy, straiten it.
3- Necessity renders the prohibited permissible.
4- What necessity makes permissible is permitted only to the extent of the necessity.
5- What is permitted with due cause is again prohibited without it.
6- A universal need is a necessity.
7- Necessity does not trump the rights of another.
8- If the principle cannot be satisfied, it falls to its equivalent.
The fourth legal maxim: harm must be removed
Evidence for this lies in the Prophetic hadith, “There is no inflicting harm (darar) or returning harm (dirar) [in Islam].” The former is done without cause, while the latter is performed with cause. For example, one whose possessions injure a neighbor has a responsibility to remove the source of the injury or hardship.
Secondary principles derived from this maxim:
1- repel harm to the extent possible
2- remove harm.
3- An greater harm is removed with a lesser harm.
4- A particular harm can repel a general harm.
5- Averting what corrupts is more important than generating what benefits.
The fifth legal maxim: custom has the weight of law
This can be understood with reference to the Prophetic hadith, may peace and blessings be upon him, “What Muslims hold to be excellent is deemed excellent by God.” Al-Suyuti held, in his al-Ashbah wal-naza’ir, that every transmitted but unrestricted legal injunction that cannot be specified with reference to another authority or linguistic analysis should accede to communal custom. Certain other scholars commented: the entirety of the law is based on a single principle, namely, convening what benefits and repelling what corrupts.
Secondary principles derived from this maxim:
1- What is in practice ought to be followed
2- Something becomes custom when it is generally adopted and becomes predominant
3- Weight is given what is predominant and common, not what is rare
4- Writing is considered like an oral expression.
5- A conventional gesture is considered like verbal speech.
6- Custom has the force of a contractual stipulation.
7- Something identified by custom has the force of something identified by a text.
8- The established practice of a community is considered like a stipulation between them.
Men of Sharia Law
Mujtahid
One who exercises independent reasoning (ijtihad) in the interpretation of Islamic law. Qualifications include training in recognized schools of Islamic law and extensive knowledge of the Quran, hadith and Usool al-fiqh.
Mufti
The Muslim man who is knowledgeable about the Islamic Sharia Law, according to specific conditions which qualifies him to reach the degree of fatwa (Sharia ruling) and the legal judgement. The mufti and the judge are one degree. But the mufti is informed of the ruling, and the judge carries out/implements the ruling. Usool al-fiqh is what explains the conditions of the judge, the mufti and the Mujtahid
Qadi
The judge who administers, judges by Sharia Law.
Hakim
The Islamic Ruler.
What is Fiqh?
In linguistic terms, fiqh means understanding. It may be said that so-and-so has been given fiqh fi’d-deen, meaning understanding of the religion. Another example is the du‘aa’ of the Prophet (blessings and peace of Allah be upon him) for Ibn ‘Abbaas: “Allahumma faqqihhu fi’d-deen (O Allah, give him understanding of the religion).” Narrated by al-Bukhaari (143) and Muslim (2477). Tahdheeb al-Lughah (5/263).
In shar‘i (legal) terminology, fiqh refers to knowledge of the practical, minor shar‘i rulings which are derived from detailed evidence and proof. Al-Mawsoo‘ah al-Fiqhiyyah (1/13).
Discussion on Sharia Rulings
This has been extensively discussed in Usool al-fiqh books. However, for information that it exists and due to it’s importance it is being discussed in short.
Hukm
The ḥukm shar‘ī (aḥkām) in its literal sense carries the meaning of a rule of Islamic law. Thus aḥkām (rules) is the plural form of ḥukm (rule), which means rule, command, the absolute, order, judgment, injunction, prescription, and decree. Technically, it is considered a rule of Islamic law. Āmidī (d. 631/1234) defines adillah/evidence as the science of the proofs of fiqh and the indications that they provide with regard to the aḥkām of the sharia.
Taklif/Mukallaf
A legal charge or obligation; to entrust or charge someone with a task. A person who meets the legal prerequisites becomes a mukallaf (a person obligated by law to discharge a legal duty). For instance, prayer is a taklif imposed upon those who reach the age of discernment (bulgh). A woman who is menstruating does not have a taklif to perform prayer. Hardship or incapacity will relieve a person from certain obligations or impose less demanding obligations, for instance, praying while sitting down in the case of a sick person. A taklif imposed upon property is an encumbrance.
Legal Rulings/Hukm Taklifi
- Ijab (declaring an act obligatory) It is the communication which absolutely demands the performance of an act.
- Nadb (recommendation): It is the communication which indecisively demands the performance of an act.
- 3. Tahrim (declaring an act forbidden): It is the communication which demands absolutely to refrain from an act.
- 4. Karahah (disapproval): It is the communication which indecisively demands to refrain from an act.
- lbahah (permissibility): It is the communication which confers a choice between the performance and omission of an act. The acts to which above mentioned
Legal Features/Hukmu Wadi
- Sabab (Cause): It is the cause on the basis of which a hukm taklifi is invoked or is established.
- Shart (condition): Shart literally means an inseparable sign. Technically shart means a thing by whose nonfulfillment the object of condition does not come into existence, but its fulfillment does not necessarily entail the existence of the thing.
- Mani' (Impediment): Mani' is one whose existence entails the non-existence of the command, such as a father is not killed in retaliation for killing his son. There is another classification of hukm wadi, Sahih, Fasid and Batil.
- Sahih (valid): It is one whose essential elements and conditions are combined together in as much as they are recognized by the Sharia Law with respect to the command. Hence prayer, fast and sale are valid when the essential elements and conditions of each of them are present.
- Batil (Invalid): Batil is one which neglects the objective in all respects despite the existence of the form, either by nonfulfillment of the object of the right of disposition on account of incapacity of the person.
- Fasid (Irregular): Fasid is defined as that which is legitimate by its nature but not legitimate by its attribute.
Obligation to Rule by Sharia Law
Allaah has commanded us to refer matters to His judgement and to establish Sharia Law, and He has forbidden us to rule with anything else, as is clear from a number of aayaat in the Qur’aan:
The command to rule according to what Allaah has revealed: “And so judge between them by what Allaah has revealed . . .” [Quran 5:49]
Warning against ruling by other than what Allaah has revealed: “. . . and follow not their vain desires . . .” [Quran 5:49]
Warning against compromising on any detail of Sharia Law, no matter how small: “. . . but beware of them lest they turn you far away from some of that which Allaah has sent down to you . . .” [Quran 5:49]
Forbidding seeking the ruling of jaahiliyyah, as is expressed in the rhetorical question “Do they then seek the judgement of (the Days of) Ignorance?” [Quran 5:50]
The statement that nobody is better than Allaah to judge: “. . . and who is better in judgement than Allaah for a people who have firm Faith?” [Quran 5:50]
The statement that whoever does not judge according to what Allaah revealed is a kaafir, a zaalim (oppressor or wrongdoer) and a faasiq (sinner), as Allaah says: “. . . And whoever does not judge by what Allaah has revealed, such are the kaafiroon.” [aayah 44]; “. . . And whoever does not judge by that which Allaah has revealed, such are the zaalimoon (polytheists and wrongdoers)” [Quran 5:45]; “. . . And whoever does not judge by what Allaah has revealed (then) such (people) are the faasiqoon (rebellious or disobedient).” [Quran 5:47].
Obligation to judge non-Muslims by Sharia Law under Islamic jurisdiction, as Allaah says: “. . . And if you judge, judge with justice between them. . .” [Quran 5:42]
Judging or ruling according to other than what Allaah has revealed is contrary to faith and Tawheed/Monotheism, which are Allaah’s rights. It may be counted as kufr akbar (greater kufr/disbelief) or kufr asghar (lesser kufr/disbelief) according to circumstances. Kufr akbar will make a person no longer a Muslim.
Kufr Akbar
This is a form of disbelief which takes a Muslim outside of Islam. This disbelief is related with rejection, denial, arrogance and pride against Sharia Law. It can occur in the following circumstances:
Stubbornness and Arrogance:
If he does not rule according to what Allah has revealed out of stubbornness and arrogance, he is a kaafir and has left Islaam, even if he does not deny the rule of Allaah. Stubbornness and arrogance may mean negligence and turning away, as Allaah says: “Have you seen those (hypocrites) who claim that they believe in that which has been sent down to you, and that which was sent down before you, and they wish to go for judgement (in their disputes) to the Taaghoot (false judges, etc.) while they have been ordered to reject them. But Shaytaan wishes to lead them astray. And when it is said to them: ‘Come to what Allaah has sent down and to the Messenger,’ see they hypocrites turn away from you (Muhammad) with aversion.” [al-Nisaa’ 4:60-61]
Sharia is Optional:
“O Messenger! Let not those who hurry to fall into disbelief grieve you, of such who say: ‘We believe’ with their mouths but their hearts have no faith. And of the Jews are men who listen much and eagerly to lies - listen to others who have not come to you; they say, ‘If you are given this, take it, but if you are not given this, then beware!’ . . .” [al-Maa’idah 5:41]. He says: “Go to Muhammad (peace be upon him), and if he tells you that the ruling is lashes, accept it, but if he commands stoning, ignore what he says. Then Allaah revealed “. . . And whoever does not judge by what Allaah has revealed, such are the kaafiroon (disbelievers)” [al-Maa’idah 5:44].
Considering Sharia Law equal to Secular Law Absolutely or Particularly:
“. . . Then do not set up rivals unto Allaah (in worship) while you know (that He Alone has the right to be worshipped).” [al-Baqarah 2:22]
“Do they then seek the judgement of (the Days of) Ignorance? And who is better in judgement than Allaah for a people who have firm Faith?” [al-Maa’idah 5:50]
Denies Right of Allah and His Prophet (Sharia Law) to Rule:
“. . . And whoever does not judge by what Allaah has revealed, such are the kaafiroon.” [al-Maa’idah 5:44]. Ibn ‘Abbaas said (A senior companion of Prophet): “Whoever rejects what Allaah has revealed is a kaafir.”
Kufr Asghar
This is a form which makes a Muslim sinner. This is related with disobedience in physical action. An example can be if a ruler or judge passes judgement according to other than what Allaah revealed out of disobedience or on a whim, or as a favor to someone, or because he was bribed, and so on, although he believes that it is obligatory to judge according to what Allaah has revealed, and that what he has done is a sinful and haram/prohibited action.
Examples of Kufr Akbar
- Abolishing Sharia Law as the law governing a country, as Mustafa Kemal (“Ataturk”) did in Turkey, as he abolished the book Majallah al-Ahkaam al-‘Adliyyah which was based on the Hanafi madhhab, and replaced it with man-made laws.
- Imposing man-made laws, such as Italian, French, German law, etc., to judge between the people, or mixing these laws and Sharia Law, as Genghis Khan did in his book al-Yaasiq, which combined laws from different sources; the ‘ulamaa’ (scholars) ruled that he was a kaafir.
- Enforced removal of Hijab by Shah of Iran pre-Islamic revolution era
- Mahathir Mohammad’s claim that Hodood law is unfair
Example of Kufr Asghar
Najib Razak’s claim that Malaysia is not ready for Hodood laws.
The Message and Goal of Sharia Law
1. Proposes resistance against tyranny, persecution and exploitation
2. Proposes equity and fair play in economy and interest free economic system
3. Establishes Morality and charity
4. Proposes defense of honor, property and lives
5. Proposes Humility and mercy
6. Proposes rational freedom
7. Proposes accountability and transparency
8. Proposes justice irrespective of class, race, gender or power
9. Proposes defensive war
10. Proposes harsh deterring criminal legal system
Shariah law aims to protect five basic human interests: religion, life, lineage, property, and intellect. These basic interests are universally recognized among all other nations even though nations vary in their approach in doing so.
What is Madhab/Mazhab
Sheikh Nuh Keller an American Muslim, a philosopher and Islamic legal expert says:
‘The word madhhab is derived from an Arabic word meaning "to go" or "to take as a way", and refers to a mujtahids choice in regard to a number of interpretive possibilities in deriving the rule of Allah from the primary texts of the Qur'an and hadith on a particular question. In a larger sense, a madhhab represents the entire school of thought of a particular mujtahid Imam, such as Abu Hanifa, Malik, Shafi'i, or Ahmad--together with many first-rank scholars that came after each of these in their respective schools, who checked their evidences and refined and upgraded their work. The mujtahid Imams were thus explainers, who operationalized the Qur'an and Sunna in the specific shari'a rulings in our lives that are collectively known as fiqh or "jurisprudence". In relation to our din or "religion", this fiqh is only part of it, for the religious knowledge each of us possesses is of three types. The first type is the general knowledge of tenets of Islamic belief in the oneness of Allah, in His angels, Books, messengers, the prophethood of Muhammad (Allah bless him and give him peace), and so on. All of us may derive this knowledge directly from the Qur'an and hadith, as is also the case with a second type of knowledge, that of general Islamic ethical principles to do good, avoid evil, cooperate with others in good works, and so forth. Every Muslim can take these general principles, which form the largest and most important part of his religion, from the Qur'an and hadith.
The third type of knowledge is that of the specific understanding of particular divine commands and prohibitions that make up the shari'a. Here, because of both the nature and the sheer number of the Qur'an and hadith texts involved, people differ in the scholarly capacity to understand and deduce rulings from them. But all of us have been commanded to live them in our lives, in obedience to Allah, and so Muslims are of two types, those who can do this by themselves, and they are the mujtahid Imams; and those who must do so by means of another, that is, by following a mujtahid Imam, in accordance with Allahs word in surat al-Nahl, "Ask those who recall, if you know not" (Qur'an 16:43), and in surat al-Nisa, "If they had referred it to the Messenger and to those of authority among them, then those of them whose task it is to find it out would have known the matter" (Qur'an 4:83), in which the phrase those of them whose task it is to find it out, expresses the words "alladhina yastanbitunahu minhum", referring to those possessing the capacity to draw inferences directly from the evidence, which is called in Arabic "istinbat".
These and other verses and hadiths oblige the believer who is not at the level of istinbat or directly deriving rulings from the Qur'an and hadith to ask and follow someone in such rulings who is at this level. It is not difficult to see why Allah has obliged us to ask experts, for if each of us were personally responsible for evaluating all the primary texts relating to each question, a lifetime of study would hardly be enough for it, and one would either have to give up earning a living or give up ones din, which is why Allah says in surat al-Tawba, in the context of jihad:
"Not all of the believers should go to fight. Of every section of them, why does not one part alone go forth, that the rest may gain knowledge of the religion and admonish their people when they return, that perhaps they may take warning".
The slogans we hear today about "following the Qur'an and Sunna instead of following the madhhabs" are wide of the mark, for everyone agrees that we must follow the Qur'an and the Sunna of the Prophet (Allah bless him and give him peace). The point is that the Prophet (Allah bless him and give him peace) is no longer alive to personally teach us, and everything we have from him, whether the hadith or the Qur'an, has been conveyed to us through Islamic scholars. So it is not a question of whether or not to take our din from scholars, but rather, from which scholars. And this is the reason we have madhhabs in Islam: because the excellence and superiority of the scholarship of the mujtahid Imams--together with the traditional scholars who followed in each of their schools and evaluated and upgraded their work after them--have met the test of scholarly investigation and won the confidence of thinking and practicing Muslims for all the centuries of Islamic greatness. The reason why madhhabs exist, the benefit of them, past, present, and future, is that they furnish thousands of sound, knowledge-based answers to Muslims questions on how to obey Allah. Muslims have realized that to follow a madhhab means to follow a super scholar who not only had a comprehensive knowledge of the Qur'an and hadith texts relating to each issue he gave judgements on, but also lived in an age a millennium closer to the Prophet (Allah bless him and give him peace) and his Companions, when taqwa or "godfearingness" was the norm--both of which conditions are in striking contrast to the scholarship available today.
While the call for a return to the Qur'an and Sunna is an attractive slogan, in reality it is a great leap backward, a call to abandon centuries of detailed, case-by-case Islamic scholarship in finding and spelling out the commands of the Qur'an and Sunna, a highly sophisticated, interdisciplinary effort by mujtahids (one who is able to interpret the law), hadith specialists, Qur'anic exegetes, lexicographers, and other masters of the Islamic legal sciences. To abandon the fruits of this research, the Islamic shari'a, for the following of contemporary sheikhs who, despite the claims, are not at the level of their predecessors, is a replacement of something tried and proven for something at best tentative.
The rhetoric of following the shari'a without following a particular madhhab is like a person going down to a car dealer to buy a car, but insisting it not be any known make--neither a Volkswagen nor Rolls- Royce nor Chevrolet--but rather "a car, pure and simple". Such a person does not really know what he wants; the cars on the lot do not come like that, but only in kinds. The salesman may be forgiven a slight smile, and can only point out that sophisticated products come from sophisticated means of production, from factories with a division of labor among those who test, produce, and assemble the many parts of the finished product. It is the nature of such collective human efforts to produce something far better than any of us alone could produce from scratch, even if given a forge and tools, and fifty years, or even a thousand. And so it is with the shari'a, which is more complex than any car because it deals with the universe of human actions and a wide interpretive range of sacred texts. This is why discarding the monumental scholarship of the madhhabs in operationalizing the Qur'an and Sunna in order to adopt the understanding of a contemporary sheikh is not just a mistaken opinion. It is scrapping a Mercedes for a go-cart.’’
But whenever a Saheeh Hadith comes, we should understand the Saheeh hadith and over turn the weak position of Mazhab if it is really weak.
The Legal Schools of Islam
There are five legal schools of thought in Islam
Jafari
The Ja‘fari school of thought was headed by Imam Ja‘far ibn Muhammad al-Sadiq who lived from 83H to 148H. He was born in and died in the holy city of Madina, and he is the sixth Imam of the twelve designated imams of the school of Ahlul Bayt. Although the fiqh (Islamic Jurisprudence) was developed by the Prophet Muhammad and his successors (i.e., the imams), the fiqh, as taught by the Shi‘a, did not have the opportunity to be presented to the masses of people because of the political predicament that the Ahlul Bayt suffered under the rulers for many centuries. He taught thousands of students in subjects ranging from law and theology to mathematics and science.
The imams refused to acknowledge the legitimacy of the Umayyad and Abbasid caliphs, and their governments; and thus they and their followers were exposed to tremendous harassment and persecution at the hands of the unjust caliphs. Once the Umayyad government became weak, Imam Ja‘far ibn Muhammad al-Sadiq found a golden opportunity to formulate and spread the tradition of the Prophet Muhammad and his family. At one time, four thousand scholars, commentators of the Qur’an, historians, and philosophers attended his classes in the holy city of Madina.
Therefore, he was able to pass down the authentic teachings of the Noble Qur’an and the Prophet Muhammad and crystallize them in what came to be known as al-Fiqh al-Ja‘fari, the Ja‘fari Jurisprudence. His teachings were collected in 400 usul (foundations) which were written by his students and encompass hadith, Islamic philosophy, theology, commentary of the Qur’an, literature, and ethics.
After a period of time, three distinguished scholars categorized these 400 usul in four books which are the main sources of hadith for the Shi‘a school of thought. They are: Usul al-Kafi by al-Kulayni (d.329H), Man La Yahduruh al-Faqih by al-Saduq (d.381H), and al-Tahdib and al-Istibsar by al-Tusi (d.460H). These three scholars were known as the “three Muhammads” since their first names were all Muhammad.
While these four books are the main sources of hadith for the Shi‘a, their authors still did not label their books as “sahih” (authentic). Although they did their best to gather only authentic traditions, but if a particular tradition contradicted the Noble Qur’an then it was not accepted as legal and valid. Hadith, according to the Ja‘fari school of thought, are accepted only if the Noble Qur’an verifies them, since the Noble Qur’an is the only undoubtable source of guidance.
The Imam lived in a time when the Umayyad Dynasty was losing control of power to the Abbasid Dynasty. During this period, the power gap allowed for the Imam to spread the knowledge of Ahlul Bayt and teach the true teachings of Prophet Muhammad (peace be upon him and his family).
Imam as-Sadiq was known to be the most knowledgeable of his time in the Qur’an, Hadith (traditions), and other religious sciences. Imam as-Sadiq had thousands of attendees taking part in his classes. Notable among them were Abu Hanifa, founder of Hanafi school
Recognizes four sources of Islamic law: the Quran, the Sunnah (including traditions reported by the Prophet and the imams), consensus (which must include the Prophet's or an infallible imam's opinion to establish its validity), and human reason. Human reason is capable of inferring categorical judgments drawn from both pure and practical reason. Whatever is judged necessary by reason is also judged necessary by revelation. This correlation between reason and revelation has allowed Shii jurists to derive religious rulings on many issues not covered in normative sources such as the Quran and Sunnah.
Hanafi
Imam Abu Hanifa was born to a non-Arab father, was raised in Kufa, and died in Baghdad. This school of thought prevailed during the time of the Abbasid Empire when a student of Imam Abu Hanifa, Abu Yusuf al-Qadi became the head of the judiciary department and the highest judge, and thus he spread this madhhab (school of thought), in particular, during the caliphates of al-Mahdi, al-Hadi, and al-Rashid.
No other man was as close to the Abbasid caliph, Harun al-Rashid as was Abu Yusuf al-Qadi, but the Abbasid caliph, al-Mansur also worked hard to support and consolidate Imam Abu Hanifa’s school of thought and to spread his madhhab in the face of the growing popularity of Imam Ja‘far al-Sadiq. Imam Abu Hanifa studied under the instruction of Imam Ja‘far al-Sadiq for two years
Though it bears the name of Abu Hanifa al-Nuʿman ibn Thabit (died 767), the Hanafi School of Law in fact owes its doctrine to his two disciples Abu Yusuf (died 798) and Muhammad ibn al-Hasan al-Shaybani (died 805). They laid down the systematic foundations for the work of later Hanafis. In the eighth and ninth centuries, the law school (madhhab) was associated with the rationalists (ahl al-raʾy), who advocated free legal reasoning not strictly bound by the revealed texts. Although by the eighth century raʾy, a form of free reasoning, was largely abandoned in favor of a more disciplined and text-bound reasoning, the Hanafis continued to resort to similar methods of legal argument, notably istihsan (juristic preference). After the ninth century, and certainly by the beginning of the eleventh, even istihsan was restructured so as to render it subsidiary to the imperatives of the religious texts.
Though the Hanafi school finally came to adopt the mainstream legal methodology and philosophy, it did maintain peculiar characteristics such as its emphasis on the practical aspects of the law. Particularly in the first three centuries of Islam, its followers, more than any other school, were the chief authors and experts on formularies (shurut), notarial documents, and the profession and conduct of judgeship (adab al-qada).
Among the most important Hanafi authors on positive law after Abu Yusuf and Shaybani are Abu al-Hasan al-Karkhi (died 951), Abu al-Layth alSamarqandi (died 985), al-Quduri (died 1036), Shams al-Aʾimma al-Sarakhsi (died 1096), alKasani (died 1191), al-Marghinani (died 1196), Abu al-Barakat al-Nasafi (died 1310), and Ibn Nujaym (died 1563). For these authors, the works of Shaybani, known collectively as zahir al-riwaya, remained authoritative; they are al-Mabsut, al-Jami al-Kabir, al-Jami al-Saghir, al-Siyar al-Kabir, al-Siyar alSaghir, and al-Ziyadat. The most prominent legal theorists (usuliyyun) of the school are Pazdawi (died 1089), Sarakhsi, Nasafi, Sadr al-Shariʿa al-Thani al-Mahbubi (died 1346), and Mulla Khusraw (died 1480).
In 1876, the Hanafi law of contracts, obligations, and procedure was codified in the Ottoman law code of Mecelle, in an effort to modernize the law and to achieve uniformity in its application. The primary source on which the Committee of the Mecelle based its work was Shaybani's collected works, zahir al-riwaya, with the commentary on it by Sarakhsi, an eleventh-century Hanafi. In the first few decades of the twentieth century, however, the Mecelle was superseded by civil codes in all the countries that fell previously under Ottoman jurisdiction, with the notable exception of Jordan.
In medieval times, the school had a large following in its birthplace, Iraq, as well as in Syria, Transoxania (now Uzbekistan, a former Soviet Republic), the Indian subcontinent, the Mediterranean island of Sicily, and to a lesser extent in North Africa. Later on, the Ottoman Empire declared Hanafism the official doctrine of the state, thus rendering it dominant in all areas that fell under its sway. In modern times, Hanafism still prevails in these regions as well as in Afghanistan, the Balkans, Pakistan, Turkistan, the Caucasus (between the Black and Caspian Seas), India, and China.
Shafi
Imam Shafi΄i was born in Hijaz and his school of thought emerged in Egypt. At the time of the Fatimid Dynasty, the Egyptians were mainly followers of Ahlul Bayt, and the teachings of Ahlul Bayt were being taught in al-Azhar University. At a later time, Salah al-Din al-Ayyubi came and waged an extensive war against the school of Ahlul Bayt by banning the teaching of their madhhab (school of thought) in al-Azhar and resurrecting the other madhahib, including that of Imam Shafi΄i, who was killed in Egypt in 198H.
The Shafiʿi school of law was founded by Muhammad ibn Idris al-Shafiʿi (died 820), a disciple of Malik ibn Anas (died 795) and Muhammad ibn Hasan al-Shaybani (died 805). Bringing about a synthesis between the rationalists and the tradition-alists, Shafiʿi elaborated a system of positive law and a rudimentary legal theory that attracted a number of scholars who propagated his teachings, thus creating the first personal school of law (madhhab) in Islam. His two chief treatises that survived are al-Umm, a collection of treatises mainly concerned with positive law and disagreements among the early jurists, and al-Risala (also known as al-Kitab, ) a work on legal theory with particular emphasis on Prophetic hadith (traditions) as a binding source of law.
The immediate students of Shafiʿi who were responsible for propagating his teachings, and thus for laying the first roots of the school, were al-Buwayti (died 846), Harmala (died 857), Muzani (died 878), al-Zaʿfarani (died 874), al-Karabisi (died c. 859), and al-Rabi ibn Sulayman al-Jizi (died 870). Al-Rabi ibn Sulayman al-Muradi (died c. 884) is known as the transmitter of most of Shafiʿi's extant works. Other scholars, such as Ibn Hanbal (died 854) and Abu Thawr (died 855), initially the disciples of Shafiʿi, became themselves the founders of independent law schools.
The widespread influence of the Shafiʿi school must be credited to the work of Ibn Surayj (died 918), significantly nicknamed the "Little Shafiʿi." He was responsible for harmonizing the teachings of the school and for training a generation of influential Shafiʿi scholars who guaranteed not only the survival of the school but indeed its success. Among the most important of these scholars are Abu Bakr al-Sayrafi (died 942) and al-Qaffal al-Shashi (died 948), who are considered two of the first major authors of complete works on Shafiʿite legal theory (usul al-fiqh).
Among the many names that dominated the later history of Shafiʿism are: Abu Bakr al-Baqillani (died 1013), Abu Ishaq al-Isfara'ini (died 1015), Abu Muhammad al-Juwayni (died 1046) and his son Imam al-Haramayn (died 1085), Bayhaqi (died 1066), al-Mawardi (died 1058), Abu Ishaq alShirazi (died 1083), Ghazali (died 1111), Abu Bakr al-Shashi (died 1113), Fakhr al-Din al-Razi (died 1209), Rafiʿi (died 1226), Izz al-Din (b. Abd alSalam; died 1262), Muhyi al-Din al-Nawawi (died 1277), and Suyuti (died 1505). The positive law (furu) treatises of Juwayni, Shirazi, Ghazali, Rafiʿi, and Nawawi became standard for the later period, whereas in legal theory, the works of Juwayni, Ghazali, and Razi gained popularity.
Today the Shafiʿi school has followers in Egypt—mainly in rural areas—as well as in Syria, Lebanon, Palestine, Jordan, Iraq, Hijaz, Bahrain, Yemen, Pakistan, Iran, India, and Indonesia.
Maliki
Imam Malik joined the ‘Alawiyiin, the descendants of Imam ‘Ali, and received his knowledge from Imam Ja‘far al-Sadiq, but thereafter, inconsistencies marked his life. At one point he was oppressed and having earned the anger of the government, he was dragged through the streets by his clothes and lashed. In 148H, his fortunes reversed and he regained his popularity and dominance.
The Maliki school of law was named after the traditionalist and lawyer Malik ibn Anas (died 795) of Medina (in today's Saudi Arabia). Malik's active career fell at a time when the prophetic sunna (record of the utterances and deeds of the Prophet) had not yet become a material source of the law on equal footing with the Qurʾan and when hadith (prophetic traditions) were still relatively limited in number. In his legal reasoning, therefore, Malik made little reference to prophetic traditions and more often resorted to the amal (normative practice) of Medina in justification of his doctrines. As expressed in his Muwatta, in which he recorded the customary Medinese doctrine, Malik's reliance on traditions as well as his technical legal thought lagged behind those of the Iraqis.
Once the transition from the geographical to the personal schools took place, Malik became the eponym of the former Hijazi or Medinan school. This may be explained by the fact that Malik's writings represented the average doctrine of that geographical area, coupled perhaps with the high esteem in which he was held as a scholar.
Like the namesake of the Hanafi school of law, but unlike the founder of the Shafiʿi school of law, Malik did not provide his school with a developed body of legal doctrine. It was left for his successors, chiefly in the ninth and tenth centuries, to articulate a legal system particular to the school. Among the most important positive law works of the school are: al-Mudawwana al-Kubra by Sahnun (died 854); alRisala by Ibn Abi Zayd al-Qayrawani (died 996); alTahdhib, an authoritative synopsis of al-Mudawwana, by Abu Saʿid al-Baradhi'i (died probably after 1039); al-Bayan, a commentary by Ibn Rushd (died 1126) on al-Utbiyya of al-Utbi (died 869); Bidaya alMujtahid wa Nihaya al-Muqtasid by Ibn Rushd al-Hafid (died 1189); al-Mukhtasar by Sidi Khalil (died 1365); al-Mi'yar al-Mughrib wa al-Jami al-Mu'rib by al-Wansharisi (died 1508), one of the most important fatwa collections in the school. Further, in writing on legal theory (usul al-fiqh), the Malikis were not as prolific as their Hanafi and Shafiʿi counterparts. Three of their most distinguished legal theoreticians are: Ibn Khalaf al-Baji (died 1081), the author of Ihkam al-Fusul ; al-Qarafi (died 1285), whose main work on the subject is Sharh Tanqih al-Fusul, a commentary on the work of the Shafiʿi jurist and theologian Fakhr al-Din al-Razi; and Abu Ishaq al-Shatibi (died 1388), who elaborated in his Muwafaqat one of the most innovative legal theories that is highly regarded by modern legal reformers.
Since early medieval Islam, Malikism succeeded in spreading mainly in the Maghrib (North Africa) and Muslim Spain, being now the dominant doctrine in all Muslim African countries. In Egypt, it has traditionally shared influence with Shafiʿism. Maliki presence may also be found today in Bahrain and Kuwait.
Ibn Hazm al-Andalusi says that two schools of thought were spread due to the government and the sultan: the school of Imam Abu Hanifa, since Abu Yusuf al-Qadi only appointed Hanafi judges; and the school of Imam Malik ibn Anas, for a student of Imam Malik, Yahya ibn Yahya was so respected in the caliph’s palace that no judge was ever appointed in Andalus, Spain without his consultation and advice.
Hanbali
The Hanbali School of Law takes its name from Ahmad ibn Hanbal (died 854), a major theologian of the ninth century. He was a fierce opponent of the Muʿtazila, a school of religious thought that flourished under the Abbasids. Ibn Hanbal emerged victorious in the mihna (inquisition), led by the Abbasid caliph al-Maʾmun and the rationalist theologians against the traditionalists who upheld the doctrine that the Qurʾan is not the created but the eternal word of God. Ibn Hanbal's career as a dogmatic theologian, coupled with the fact that he did not elaborate a complete system of law, gave him and his immediate followers the reputation of being a theological rather than a legal school (madhhab). Indeed, the school's first complete work on positive law, alMukhtasar, appeared as late as the beginning of the tenth century, at the hands of Abu Qasim al-Khiraqi (died 946).
Being strict traditionalists, the Hanbalis of the ninth century rejected the rationalist elements of what had by the end of the century become the mainstream legal theory (usul al-fiqh). Later Hanbalis, however, gradually adopted the main elements of this theory, and by the eleventh century, their legal theory finally came to accept usul al-fiqh as elaborated by the Shafiʿi School of Law and Hanafi School of Law. Thus, it took the Hanbali school nearly two centuries after ibn Hanbal's demise to develop into a full-fledged school of law.
Two centuries later, the celebrated Hanbali jurist and theologian Taqi al-Din ibn Taymiyya (died 1328) even subscribed to a theory of istihsan (juristic preference), advocated by later Hanafis and vehemently opposed by early traditionalist Shafiʿis and Hanbalis.
There were several figures who dominated the history of Hanbalism. Among the prominent names are al-Khiraqi, Ibn al-Farra, Ibn Aqil, Abd al-Qadir al-Jili (died 1166), Abu al-Faraj ibn al-Jawzi (died 1200), Ibn Taymiyya, and his disciple Ibn Qayyim al-Jawziyya (died 1351), to name only a few. Distinguished as a major figure in Islamic religious history, Ibn Taymiyya was involved in the study of law, theology, philosophy, and mysticism and was engaged in the politics of the Mamluk state. He wrote at length against the Shiʿa, the philosophers, the logicians, and the pantheistic Sufis, though he himself belonged to the mystical school of Abd al-Qadir al-Jili.
Ibn Taymiyya's thought exercised significant influence on Muhammad ibn Abd al-Wahhab (died 1792), who, with the assistance of Ibn Saʿud, founded Wahhabism, an ideology that has sustained the Saudi state during the last two centuries. Saudi Arabia remains the principal country that applies Hanbali law. Nevertheless, the writings of ibn Taymiyya and ibn Abd al-Wahhab still continue to influence the Muslim reform and religious movements in the Middle East, from Rashid Rida (died 1935) to the Muslim Brotherhood.
What is Taqleed
Taqlid literally means "to follow someone", "to imitate someone". In Islamic legal terminology it means "to follow the mujtahid in religious laws." Before you start following the opinions of a mujtahid in the Sharia law, you have to ascertain that he has the required expertise and that he is of upright character.
Necessity of Taqleed
It is not always unreasonable to follow others and to hold uncritical faith in them. We can logically distinguish four possible forms of imitation:
that of an ignorant person by an ignorant person;
that of a learned person by a more learned person;
that of an ignorant person by a learned person;
that of a learned person by a less learned person.
It is quite clear that the first three forms of imitations are unreasonable and can serve no purpose. However, the fourth kind of imitation is obviously not only reasonable, but also necessary and matter of common sense; in our everyday life we follow and imitate others in many things; we like to feel that we are taking the advice of experts in matters outside our own knowledge.
The Qur' an strongly exhorts at least a group of Muslims to devote their time and energy in studying religion. This obligation is of such importance that Allah (SWT) has exempted such persons from the duty of jihad.
He says:
"It is not (right) for the believers to go forth all together (for jihad). So why should not a party from every section of them (the believers) go forth to become learned in the religion?..." (Quran 9:124).
Sharia Law in the 21st Century
Islamic civilization since the time of Prophet Muhammad (s) until now, is firmly founded on the concept of ‘rule of Divine law.’ Even though throughout the Islamic history kings and caliphs have contradicted this rule of law based on secular aspects such as racism, nationalism and tribalism but the concept remains in Islamic or Shariah law and have been practiced more often than not. Even still today Muslim countries such as Malaysia, Indonesia, Bangladesh and many others have contradicted this philosophy and reality of divine law.
Even though people will not believe in a practical law of Islam nonetheless governance by it is not impossible. In a secular state people do not necessarily believe or agree to all laws but they however must obey them as part of being under the jurisdiction. Any attempt to change the system in a criminal manner may label him or her as treasonous.
Islamic government and Shariah law do not have many examples except Islamic Republic of Iran and partially Saudi Arabia. The reason for this is colonialism and its legacy. Western governments have supported despots in Muslim countries as far back as colonialism. They never honored the hope and aspirations of self-rule for Muslims, most recent example is the coup against President Morsi. This has created mass suffering for Muslims in their existence resulting in a broken social, economic, political and intellectual existence. Even Iran is under constant sanctions and attacks. A country’s political and legal development and maturity depends on stability and non-interference by foreign powers.
However, Sharia Law has managed the greatest empires from east to west and created environment for Islamic golden age and so it can also manage modern Muslim states. The only thing needing is the will of the Muslim rulers to adopt it and adhere by it like Islamic Republic of Iran did in 1979. Our will to adopt it will shape not only our destiny but the destiny of the world!
Reference
www.al-islam.org
http://www.islam4u.com/ar
https://www.shiaresearch.com/
http://www.khamenei.ir/
http://dar-alifta.org
https://islamqa.info/en
http://www.oxfordislamicstudies.com
