Principles of Islamic banking and finance/PIBF201/Islamic jurisprudence/Methodology

As discussed earlier, the Qur'an provides basic guidelines for different aspects of life. The Sunnah of the Prophet further explains many of those guidelines. It is also a source of knowledge describing his teachings, commands and decisions made on different religious, social and commercial issues that appeared during his prophetic life. Together they form 'divine Islamic law' or Shari'ah".Islamic scholars of later generations developed methods of making Islamic laws on issues for which no direct or clear reference could be found in the Qur'an or Sunnah. The body of laws created by them is called fiqh or Islamic jurisprudence and those who created them, faqih. The philosophy of deriving laws from sources is called usul ul fiqh or principles of Islamic jurisprudence.

Methodology of Islamic Jurisprudence

Fiqh or Islamic jurisprudence is the human understanding of the Shariah (divine Islamic law)expanded and developed by interpretation of the Qur'an and Sunnah by Islamic jurists and implemented by the rulings of the jurists on questions presented to them.

Figuratively, fiqh means: knowledge about Islamic legal rulings from their sources. So, fiqh's figurative definition is taken from its literal one in the sense that deriving religious rulings from their sources necessitates the Faqih to have a deep understanding in the different discussions of jurisprudence. He must look deep down into a matter and not suffice himself with just the apparent meaning. A person who only knows the appearance of a matter is not a faqih. Whereas Shariah is immutable and infallible, fiqh is fallible and changeable. Fiqh is distinguished from usul al-fiqh, the methods of legal interpretation and analysis. Fiqh is the product of application of usul al-fiqh, the product of human efforts at understanding the divine will.[]

The most important of these methods are ijma and qiyas.

Ijma

Ijma could be defined as the unanimous agreement of the credible and authoritative Islamic religious scholars (mujtahidun in Arabic), of the Muslim community of any period following the demise of the Prophet Muhammad on any matter. However, various schools of thought within Islamic jurisprudence may define the consensus to be that of the first generation of Muslims only; or the consensus of the first three generations of Muslims; or the consensus of the jurists and scholars of the Muslim world, or scholarly consensus; or the consensus of all the Muslim world, both scholars and laymen.

Ijma is one of the four recognized sources of Islamic law. This method can be utilized where the Quran and Sunnah (the first two sources) are silent on a particular issue. Following the demise of the Prophet, his Companions used to consult each other over the problems they encountered, and the community accepted their collective agreement. After the Companions, this leadership role passed on to the next generation, the Successors (tabi'un) and then to the second generation of Successors. When these latter differed on a point, they naturally referred to the views and practices of the Companions and the Successors. In this way, a fertile ground was created for the development of the theory of ijma.

The essence of ijma lies in the natural growth of ideas. It begins with the personal ijtihad (intellectual struggle) of individual jurists and culminates in the universal acceptance of a particular opinion over a period. Differences of opinion are tolerated until a consensus emerges, and in the process, there is no room for compulsion or the imposition of ideas upon the community.

Ijma enhances the authority of rules which are of speculative origin. Speculative rules do not carry a binding force, but once an ijma is held in their favor, they become definite and binding. And lastly, ijma` represents authority. Once an ijma is established it tends to become an authority in its own right, and its roots in the primary sources are gradually weakened or even lost. It then becomes common practice to quote the law without a reference to the relevant sources. It is partly due to the significance of ijma` that the incentive to quote the authority tends to weaken.

Qiyas

Qiyâs is a method that uses analogy – comparison – to derive Islamic legal rulings for new developments.

Qiyâs can be defined as taking an established ruling from Islamic Law and applying it to a new case, in virtue of the fact that the new case shares the same essential reason for which the original ruling was applied.

Qiyâs, therefore, is a method that Muslim jurists use to derive a ruling for new situations that are not addressed by the Qur’ân and Sunnah, like many new developments of our age and like the customs of people not encountered in Arabia during the time of the Prophet (peace be upon him). By way of qiyâs, these issues can be referred back to those that are explicitly mentioned in the sacred texts.

When we know the reason why something in Islamic Law is obligatory, preferred, permitted, disliked, or forbidden, then if something else shares the same reason, it can be given the same legal ruling.

Other Methods of Deriving Islamic Laws

Apart from ijma and qiyas there are some other method that are used to deduce Islamic laws. They are:

Urf

Urf or custom. In a pure linguistic term, urf refers to any common practice irrespective of whether it is regarded as something good or bad by the community. However, juristically, it refers exclusively to the common practice which has been established as good by the testimony of reason and which has become acceptable to people's disposition.

Custom is considered a source of law as long as it is not in conflict with a higher source of law (Qur’an and Sunnah). Within this framework, it is the specific legal context that will determine the applicability of a custom as a source of law. It is important to point out that although the Qur’an provides a universal worldview, it accepts the custom of a place if it does not go against the teachings of the primary sources. This is why during the period of Qur’anic revelation, many of the prevailing customs of Arabia were allowed to continue, some modified and others completely forbidden by the Prophet.

Any discontinuation of a common practice in a community will definitely cause hardships to the people unless the practice is a source of injustice or it was generally regarded as something bad but still continued in the absence of any individual or collective authority.

It can be argued that the question of urf in Islamic law must be continually evaluated on the basis of the existing social realities and social practices with due concern for fairness and justice. This point leads to another concept that is used in framing Islamic laws.

Maslahah Mursalah

Maslahah Mursalah or Consideration of Public Interest. A law could be made in consideration of public interest if it is harmonious with the objectives of Shar'ah, it secures benefit or prevents a harm. Furthermore, the primary sources of law neither provide any evidence for its validity or otherwise.

Ijtihad

Ijtihad or Personal Reasoning. According to Mohammad Kamali, one of the leading scholars in contemporary literature on Principles of Islamic Jurisprudence, "Ijtihad is the most important source of Islamic law next to the Qur'an and Sunnah". The difference between Ijtihad and the revealed sources of Shari'ah, according to him, is that the former is a continuous process of development whereas the divine revelation and prophetic legislation ended with the demise of the Prophet. Ijtihad remains the main instrument of interpreting the divine message and relating it to the changing conditions of the Muslim communities in its aspirations to attain truth, salvation and social justice.(Kamali,1998; Chapter 19 )

Kamali emphasizes that Ijma, Qiyas, Urf themselves are, in a sense, manifestation of Ijtihad.