CHAPTER 3: ISLAMIC JURISPRUDENCE

Introduction
Islamic Jurisprudence (Usul al-Fiqh; which literally means the roots of Islamic Law)
refers to a branch of knowledge which deals with the methods of reasoning to
deduce Islamic law from the sources. The methods of reasoning may take in the
form of rules of interpretation or in the forms of analogy (Qiyas), juristic preference
(Istihsan), presumption of continuity (Istishab), blocking the wrong means (Sadd al-
Zara`i’) and the principle of interest (Maslahah). The study of Islamic Jurisprudence
is to serve as a systematic aid in the rules-deduction process undertaken by the
Muslim jurists, i.e, to regulate the process of ijtihad (the process of legal rules
deduction) by the Muslim jurists. Thus, it lays down the methodology of legal rules’
deduction. The two primary and transmitted sources of Islamic Law are the Qurʾān
and the Sunna (Prophetic traditions and practices). This combination of the two
crucial sources of Islamic Law is seen as a link between reason and revelation.
Indeed, the marriage 9 between these two sources has resulted in the emergence of
Islamic Law.

The Qurʾān is considered the most sacred and important source of Islamic Law,
which contains verses related to god, human beliefs and how a particular believer
should live in this worldly life. The human conduct that should govern the believers’
life, which is clearly stated in the Qurʾān, is indeed the domain of Islamic Law. The
Qurʾān comprises about five hundred legal verses that explicitly set out legal rulings
that need to be applied by all believers. ..

The second primary and transmitted source of Islamic Law is the Sunna, which
represents the Prophet Mohammad’s (peace be upon him) deeds and sayings,
which were formulated in the form of narratives and became known as Prophetic
Ḥadīth. The Sunna also comprises a number of legal provisions that must be applied
by all believers of Islam. Certain legal rulings in these transmitted Islamic sources
are definitive. In other words, the law-giver (God) has formulated them in such a way
which does not need personal legal reasoning and is not open to different
interpretations as they are clear and definitive. Conversely, there exists a corpus of
legal contents stated in both the Qurʾān and the Sunna, the application of which
requires reasoning. The law-giver who has formulated certain legal rulings stated in
the Qurʾān and the Sunna in such a way that never accepts two different
interpretations, could have also done the same with regard to the rest of legal
contents laid down in the aforementioned Islamic sources. However, there has been
a pivotal reason behind making a huge bulk of legal contents mentioned in the
Qurʾān and the Sunna open to legal reasoning. This flexibility in the law qualifies it to
be legally valid for all legal cases regardless of time and place as it is amenable to
development and change, … Furthermore, the difference in the interpretation of a
particular legal issue is deemed amongst jurists a kind of mercy. The de facto corpus
of legal contents stated in the Qurʾān and the Sunna, the application of which
demands independent legal reasoning leads us to another source of Islamic Law
known as legal reasoning.

Legal Reasoning

Legal reasoning (ijtihād) is an untransmitted source of Islamic Law, whose

emergence is due to the fact that Islamic jurists could not always interpret the
language of the Qurʾān and that of the Sunna in the same way arriving at the same
legal result, rather they frequently differ in their interpretations of certain Qurʾānic
verses and particular Prophetic traditions, reaching different legal rulings. This is
owing to the fact that the law-giver has deliberately set out a number of legal rulings
in these two revealed legal sources, and formulated them in such a way that makes
them open to reasoning and juristic interpretation so that the law becomes legally
valid on a permanent basis and is susceptible to development as new legal issues
emerge. Hallaq (Hallaq, W.B. 1984. Was the gate of ijtihad closed? International
Journal of Middle East Studies 16(1): 3–41) points out those certain terms in the
Qurʾān and the Sunna can have more than a single legal interpretation. Metaphorical
lexical items, for instance, need to be interpreted to 10 convey specific legal
meanings. Hence, Muslim jurists develop a corpus of certain linguistic rules in an
attempt to surmount such problems. One crucial aim of exercising his personal
reasoning is that the jurist would establish a particular legal norm for each legal case
he confronts.

Interpretation of Islamic Law

As stated above, the two primary sources of Islamic Law are the Qurʾān and the
Sunna. These two revealed legal sources have contained certain definitive legal
rulings, which require no legal reasoning from the part of the jurist, rather need to be
applied as they are. The Qurʾān and the Sunna have also comprised legal contents,
the implementation of which demands legal reasoning from the side of the jurist. This
legal reasoning points to the maximum effort exerted by the jurist to interpret and
apply the rules pertaining to the origins of jurisprudence (ʾuṣūl alfiqh), in quest for the
appropriate legal ruling that best fits the legal case in question. In deed, a huge bulk
of Islamic Law is subject to legal reasoning and is dependent thereon. This is owing
to the fact that only limited legal rulings stated in the Qurʾān and the Sunna have a
definitive nature, and the rest of the legal body of Islamic Law is contingent upon the
jurists’ legal reasoning. This is not at all a defect in the law, since the law-giver who
set out definitive legal rulings, was indeed able to enforce a wholly definitive law, the
application of its legal rulings is not subject to any reasoning. However, there have
been important reasons behind this flexible nature of Islamic Law. This very nature of
Islamic Law has made the law flexible and adaptable to all societies and regions.
Moreover, the law has become susceptible to develop and change in different ways.
Its development can be shown through choosing certain legal views that are more
appropriate than others in addressing the legal cases concerned. The development
can go even further than that by creating new legal views as new legal cases
emerge . This aspect does unequivocally make Islamic Law legally valid for all legal
cases regardless of time and place. The importance of the interpretation of Islamic
Law does not lie in the different legal views held by different jurists with regard to a
particular legal case, rather it chiefly resides in the way in which the jurist interprets
the law. When interpreting a particular Qurʾānic verse, for instance, the jurist cannot
interpret it in isolation. He should, however, consider the verse, its legal and linguistic
contexts, its occasion of revelation and all the events that surround the revelation
thereof. In other words, a particular legal text never stands on its own according to
Islamic legal system, but it is with no doubt influenced by a number of events that
scaffold the jurist to extrapolate the most appropriate legal ruling for the legal case in
question. Elements of coherence and intertextuality are of utmost significance and
should always be in the jurist’s mind during the process of interpretation and
extrapolation of legal provisions.
Major Differences with Western Jurisprudence

Islamic jurisprudence exhibits greater stability of values, thought and institutions

compared to the western jurisprudence. It is because Islamic jurisprudence is
primarily concerned with divine sources (albeit it also considers rationality, custom
and morality), whereas western jurisprudence is primarily based on logic and
custom. Principles of western jurisprudence can be upheld or overruled in light of
logical reasons or prevailing custom or socio economic conditions of the society
whereas principles of Islamic law cannot be overruled or changed on the ground of
rationality, custom or prevailing conditions of the society alone because revelation is
the ultimate and final reference. The primary sources of Islamic law (the Qur`an and
the Sunnah) cannot be abrogated and are not subjected to limitations of times and
circumstances. Islamic jurisprudence has a fairly well-defined structure displaying
certainty over its scope and content whereas western jurisprudence suffers
uncertainty and haphazardness over its scope and content. Text books on Islamic
jurisprudence deals with a range of familiar and predictable topics and discussion.
While Julius Stone, a western jurist, describes western jurisprudence as “a chaos of
approaches to a chaos of topics, chaotically delimited”.

The Concept of State and Sovereignty in Islam

Sovereignty in Islam is the prerogative of the Almighty God alone. He is the ultimate
arbiter of values and that His will determines good and evil, right and wrong. The
ruler, the people are vicegerent of God entrusted with the obligation to implement the
rules of God on the earth. Thus, the authority of rulers and people is not absolute; it
is limited and subjected to the authority of God. Western jurisprudence considers the
authority of people as an absolute authority which is not the case in the Islamic
jurisprudence. As far as implementation of law is concerned, the Parliament or
legislative assembly of a western state, being a sovereign authority, can introduce or
abrogate laws as it may deem fit, whereas a legislative body of an Islamic state
cannot introduce or abrogate the Qur`an and the Sunnah, although it may introduce
or abrogate laws which are based purely on the consideration of interest (maslahah)
provided that the interest is approved by Islam.
Major themes of Islamic Jurisprudence

– It is a divine system, based on the revelation as contained in the Qur`an and the
Sunnah, whereas as western jurisprudence is based more on rationality which is
subjective.

– It deals and concerns not only with the success in the world but also the success in
the hereafter. Therefore, Islamic jurisprudence considers administration of justice as
a pre-requisite for obtaining the pleasure of God hence, the success in the hereafter

– Apart from the purpose of achieving tranquility and order in the society and
preserving the rights and well-fare of the people, the administration of justice is also
seen as a form of obedience and worship to God deserving rewards.

– At the end of the case, Islamic jurisprudence purports to submit the people to the
will and guidance of God and to release them from their desire and temptation.