Principles of Islamic Jurisprudence - Primary Sources

Primary Sources

The Qur'an has always been regarded as the primary legal source of Islam, the speech of Allah. It has been transmitted through numerous chains (mutawatir) and proven through rational argument.

This has been supplemented by further revelation termed sunnah. It comprises explanations from the Prophet Mohammed in terms of his speech, actions and silences which have been historically compiled and virified through chains of narrations called hadiths. Sunnah is referred to for elaboration of the Quran or for clarification of a matter that is not mentioned in the Quran and is second in prioritisation to Quran.

The Muslim jurists have found that some revelation has been captured through collective agreements expressed after the death of the Prophet through consensus of his companions which were transmitted over the ages. These are compiled as instances of consensus of the companions (ijma al-sahaba).

Only when these failed to provide the authority sought did jurists resort to interpretation ijtihad.

In the very early days of Islam Muslim authorities tended to rely on their own opinions to establish their interpretation of what a prescribed law should be for any given situation not founded on the Qur'an, a practice known as ra'y.

The jurist ash-Shafi'i, however, preferred to rely solely on traditions from the prophet and thereafter on the method known as qiyas (analogy) where interpretations were to be derived from comparisons with relative subjects dealt with in the Qur'an or the traditions.

It is now the scholarly consensus, amongst both orientalist and traditional scholarship, that the following is a myth: "Once Shafi'i's school of law was fully established together with the other schools founded by Ahmad ibn Hanbal, Abu Hanifa and Malik, the "door" of ijtihad was closed and it was considered that ijma had been reached on all necessary points of law (though the schools differ in many matters to this day but mostly on minor points of interpretation). Accordingly, Islamic jurisprudence has changed little for centuries and is based fundamentally on the four sources mentioned above. There is much debate and critique as to whether closing the gates of ijtihad was acceptable and whether it contributed to the intellectual and civislisational decline of the Muslims." Wael Hallaq is widely credited for decisively discrediting this myth in the western world, whereas others such as Qasim Zaman continue to show how the Ulema continued to actively engage in Ijtihad. However, there is a valid debate over the degree to which the Ulema remained active in such endeavours ever since colonialism and modernity intruded Muslim lands. In fact, faced with such drastic change, there are certain cases that do show the Ulema to be initially dismissive of sociopolitical realities and hence lagging in their response- Nevertheless eventually finding legal stratagems to solve dilemmas. A case in point is the issue of women's divorce in the time of Ashraf Ali Thanvi.

In the Shi'a schools, they have continued with ijtihad to the present day. They however disputed the methodology of compilation of narrations of sunnah and also limited consensus of the companions to consensus of the family of the Prophet (ijma ahl al-bayt)