Introduction

The core of all monotheistic religions is the belief on one God who is the sole creator and ruler
of the universe. The logical consequence of this belief is to expect the same God to be the only
legislator. All laws worthy of name must therefore originate with HIM. Islam, however, is the
only monotheistic religion that satisfies this logic by providing a comprehensive legal
framework, which is not limited to personal and moral laws as is the case with Judaism and
Christianity. By contrast, Islam has its own personal, civil, criminal, mercantile, evidence,
constitutional, and international law. Islamic law, therefore, is more like the modern international
law in terms of its applicability and inclusion of positive law. Yet it differs from the modern
international law in the sense that the main source of law is divine in nature and is not based on
human reasoning alone.
Another feature of Islamic law that differentiates it from the other religious laws is that it is
evolutionary in nature and allows certain modification with the contextual changes. This
flexibility is important in making the universal and all-time application of Islamic law possible.
However, the essence of the Islamic law which is based on divine revelation is not subject to
change that provides it a uniformity and standardization. Islam maintains this balance between
the flexibility and standardization by developing its law from two sources: the primary source of
divine revelation (Quran and Sunna) and the secondary source of human reason (Ijtihad).
Quran
The Qur'an is the holy scripture of Islam, believed by Muslims, irrespective of sects, to be the
direct and unaltered word of Allah and the primary source of Islamic law. However, the Quran is
not a book of law. The main purpose of Quran is to awaken in man the higher consciousness of
his relation with Allah and the universe, and only 3% of the Quranic text deals with legal
matters. Therefore, it would be wrong to argue that Quran can provide complete legal guidance
to the Muslims. Instead, it ought to be treated as the main constitution of Islam which serves
provides the basic and general guidance for developing the Islamic legal system.
Sunnah and Ahadit
The Sunnah is the next important source, and is commonly defined as "the traditions and
customs of Muhammad" or "the words, actions and silent assertions of him". The authority of
Sunnah is derived from the Quran as it emphasizes on many places that Muslims should follow
the actions and orders of Prophet (PBUH). Furthermore, during his lifetime, Prophet (PBUH)
himself made it clear that his traditions (along with the Qur'an) should be followed after his
death. After Visal of Prophet (PBUH), the Sunnah was recorded in the form of Ahadits. The
overwhelming majority of Muslims consider the sunnah or Ahadits to be essential supplements
to and clarifications of the Quran. This is because the Qur'an contains many rules for the
behavior expected of Muslims but there are no specific Quranic rules on many religious and
practical matters. Muslims believe that they can look at the Sunnah of Prophet (PBUH) to
discover what to imitate and what to avoid.
However, there is debate on whether the Sunnah stands on equal footing with the Quran or
should be considered as inferior to Quran as a source of law. This debate mainly initiated in the
later period of Islamic history when questions were raised on the authenticity of these traditions.
Ijtihad (Human Reason)
Ijtihad, known as juristic reasoning, include the non-revealed sources of Islamic law and relies
on human reason. It can take many forms like analogical reasoning (Qiyas), Juristic preferences
(Istihsan), consideration of public interest (Istislah), general consensus of learned (Ijma) and
customs of the local population (urf). Historically, Qiyas (analogy) was the most common form
of Ijtihad. Because it was mainly the deduction of the divine revelation, it was the surest way of
developing law within the guidance of primary sources. But analogy has its own issues as in
some cases analogical extension of a ruling to a different context can result in controversial
results. Therefore, need was felt to develop some other ways to exercise human reasoning. Ijma,
was therefore developed which is basically the consensus of all learned persons. Its authenticity
was based on a hadith of Prophet (PBUH) that majority of people from my Umma will never
agree on error. Imam Abu Hanifa, developed the doctrine of juristic preferences (Istihsan) for
cases where analogical reasoning can result in compromise of the ideals of justice. However,
Shafaii school reject the use of Istihsan and only allow Ijma to be followed in such cases.
Similarly, Hanafi school also consider the local customs to be one source of law, if they are not
violating any Shariah rules. Other schools, however, raise objections on treating urf as as formal
soruce. In the Maliki school of law, Public interest (Istihsan ) is also believed to be an important
source of law but other schools only recognize its importance under certain conditions.
It is important here to explain the difference among the Sunni and Shiite schools with regard to
the use of Ijtihad. The notion of Ijtihad was developed by the Sunni jurists and it was adopted by
Shiite faqih only after the disappearance of twelfth Imam. In Shiite belief there was a
continuation of divine guidance through the infallible Imams (AS) who represented the absolute
authority in religious affairs after the Prophet (PBUH). The statements, acts and approvals of the
Imams (AS) were considered as an authority and part of the Sunnah. Clearly with such a belief
the Shiite did not have a necessity for Ijtihad during the presence of an infallible Imam.
Furthermore, currently majority of Sunni jurists recognized the closure of gate of Ijtihad after
the establishment of Four Schools of Fiqh in the tenth century. The Shiite jurists, however,
believed that ijtihad is a collective obligation of all Muslims in the absence of Imam. Thus after
the occultation of Imam Mehdi (the twelfth and final Imam) they were forced to solve the new
problems by the use of deduction. However, many of the scholars of the time did not refer to
their practice of deducing the laws from the available legal sources as Ijtihad, because of their
misconception that Sunni scholars consider Ijtihad to be equal to Quran and Sunna. With time,
however, they adopted the term Ijtihad to refer to this practice and developed a system of
mujtahid who was believed to be the representative of Imam in his absence. Over the years, the
Shia community in different Muslim countries institutionalized the Ijtihad by establishing centers
of religious studies called Hawza which also became the center of legislation. They also
developed a hierarchy of Islamic jurists with Maraja-e-Taqleed having the supreme legal
authority and a form of communal leadership.
Shariah and Fiqh
As provided above, Islamic law originates in two major sources: divine revelations (primary
source) and human reason (secondary source). For this purpose, there are two distinct
terminologies to refer to the two branches of Islamic law: Shairah and Fiqh. Shariah bears a
stronger affinity with the divine revelation, comprising Quran and Sunnah, while Fiqh is mainly
the product of human reasons based on the interpretation of the divine revelations. Since fiqh is
largely a product of speculative reasoning, it does not command the same authority as Shariah
which is mainly contained in the divine sources of law.
Shariah is also wider in its scope as compared to fiqh. Thats because it comprises the totality of
guidance that Allah has revealed to Prophet (PBUH). Therefore, it not only includes the law but
also theology and moral teachings. It gives rulings regarding the practical duties of a Muslim
including prayers, which are hard to be implemented through force and relies heavily on the faith
of the person. Fiqh, by contrast, is concerned with legal rules that are enforceable through a state
system. It does not include those general guidelines on morality that are not legally enforceable.
It is important here to understand that the moral values and dogma included in the Shariah are
the foundation of Islamic practical law and, therefore, fiqh is in fact the practical manifestation
of those values.
The rules of Fiqh are the deductions from the primary sources of Islamic law based on
independent reasoning and intellectual extension, called ijtihad. They can be divided into two
main types with respect to the amount of reasoning used in the deduction. The first category of
rules of fiqh includes those that are conveyed clearly in the Quran and Sunnah, such as rules of
inheritance, prohibition of usury, monetary laws of Zakat, and so forth. These rules are self-
evident and do not require much interpretation. These rules are, therefore, are the overlapping
area between Fiqh and Shairah. The second category of rules are not derived directly from Quran
and Sunnah but are formulated through the exercise of independent reasoning. However, not
everyone is allowed to exercise this reasoning for the development of law and only jurists who
have fulfilled certain requirements are eligible to formulate such rules. The differences among
the schools of Islamic law mainly revolve around the latter rules of fiqh.
Traditionalists versus Rationalists Debate
In the eight century, the Islamic jurists divided into two schools of thoughts with regard to the
use of primary versus secondary sources of Islamic law. The traditionalists (ahl al-hadith)
believed Quran and Sunnah (traditions) to be the sole valid sources of Islamic law. On the other
hand, the rationalists, who called themselves ahl al-ray, consider the use of reasons and jurists
opinion to be important in absence of reliable ahadith. This division was the outcome of the
territorial expansion as Traditionalists were residing mainly in Makkah and Medina, the site of
Shariah development, where there was abundance of reliable ahadiths that could be used for
legislation. However, the majority of rationalists were living in Iraqi cities of Basra and Kofa,
where the reliability of the available sources was questionable due to the large distance between
Iraq and Hijaz-e-Muqadas. So the jurists from the Iraqi cities had to turn to analogy because of
their circumstances.
The four major Sunni schools of thought also have certain degree of inclination to either
traditionalist or rationalist school of law depending on the city where these schools emerged.
Since Imam Abu Hanifah was born in the city of Kofah and spent most of his life in Iraq, he is
more inclined to rationalistic school. The Hanafi School of Fiqh, presently having the largest
following advocate legal reasoning by analogy (qiyas) and have liberal stance over the use of
juristic preferences and local customs as sources of law. On the other hand, Maliki School was
founded by Imam Malik bin Anas who was residing in Hijaz follows traditionalists ideas and
only allow Medinan consensus (Ijma) to answer the question left unanswered by Quran and
Sunnah. Despite its traditionalists leaning, the Maliki School over time has embraced a number
of important doctrines that are inherently versatile and its jurisprudence is in many ways more
open than that of other legal school. For instance, it is the only school that has accepted almost
all the subsidiary sources of Shariah.
Muhmmad ibn Idris al-Shafii is also believed to be from the traditionalist camp but he tried to
strike a middle course between the two schools. By his time, the debate has reached to that point
where it became important to establish a common methodology for all schools of law. His efforts
resulted in the systemization of usul-ul-fiqh, based on the four sources of Islamic law namely,
Quran, Sunna, Qiyas and Ijma, which were to be used in the same order. Despite his strong
emphasis on Quran and tradition, the inclusion of Ijma and Qayas in the usul-ul-fiqh did not
satisfy the uncompromising traditionalists and lead to the formation of another School of fiqh,
i.e. Hanbali School. The Hanbali School preferred not to rely on human reason and base their
fiqh, as much as possible, on Quran and Sunnah alone. The School was not much popular until
the eighteenth century when the Wahabi and Salafi movements in Arabian Pennisule gave it a
fresh impetus.
Comparison with sources of International law