•USHUL FIQH 4 •THE SOURCES OF HUKM •CONTENT

THE SOURCES OF HUKM

A. The Primary Sources:

1. The Qur’an

2. The Sunnah

3. Ijma’ (Consensus of Legal Opinión)

•A. The Primary Sources:
1. The Qur’an

The Qur’an is the Book revealed to the Messenger of Allah, Muhammad (peace be upon him) as written in the masohif (sheets) and transmitted to us from through tawatur (an authentic continuous narration) without doubt.

The entire ummah agreed that the Qur’an is the primary source for the ahkam of Allah. It is, therefore, binding upon the jurist to have recourse to it and to rely upon it for the discovery of the law in each case that he faces.

•Legal Strength and Indication of Ahkam in the Qur’an

The Qur’an indicates the ahkam in two grades of strength as follows:

1.Indications that are qat’i (definitive) with respect to sanad (transmission) and definitive with respect to meaning. This is like the words “half” or “hundred” in the verses of the Qur’an. 2.Indications that are definitive with respect to sanad, but are dhanni (probable) with respect to meaning. This is like “Rub your heads with water” (Qur’an 5:6), it is probable that the meaning is the entire head or part of it. •The Kinds
of Ahkam in the Qur’an

1. Ahkam pertaining to ‘aqaid (tenets of faith). These are like belief in One God, His Angels, Books, Prophets and the Day of Judgement. The discipline dealing with these is that of Tauhid.

2. Ahkam pertaining to the disciplining and strengthening of the self. These rules deal with Qur’anic ethics. The discipline that deal with them are ethics and tasawwuf.

3. Rules of conduct (pertaining to the words and acts of the subject). This category covers the entire field of fiqh. They are devided into two types:

A. Rules related to ibadat (worship). The purpose of these rules is to establish the relationship of the individual with his Creator.

B. All those rules that relate to conduct other than worship. This area is called muamalat by the jurist. It covers the entire of substantive and procedural law. It includes private and public law.

•2. The Sunnah

Sunnah=> well-known path.

The sunnah is what was transmitted form the Messenger of Allah (peace be upon him) of his words, acts, and (tacit) approvals.

•Kinds of Sunnah •Kinds of the Sunnah with respect to the Channels of the Ahkam 1.Sunnah Qauliyyah: The saying of the Prophet (peace be upon him) through which he intended the laying down of the law or the explanation of the ahkam. This is like “Innamal a’maalu bin niyyat” (The nature of acts is dependent upon the underlying intentions). 2.Sunnah Fi’liyyah: The acts of the Prophet (peace be upon him) having a legal content, like his prayer, fasts, and hajj. 3.Sunnah Taqiriyyah: The comission of certain acts, by word or deed, by some Companions and the maintenance of silence by the Prophet without expressing disapproval. An example of this type is the statement of Mu’adz bin Jabal when he was sent to Yemen and the Prophet asked him how he will decide cases. •Kinds of the Sunnah with respect to its Modes of Transmission: 1.Hadith Muttasil: Hadith that chain of narration is complete. Hadith in which the narrators are mentioned from the beginning of the sanad upto the Messenger of Allah, and no narrator is missing. Its types as follows:

A. Hadith Mutawatir: Hadith that is related by such a large number of people that their agreement to propagate a falsehood cannot be conceived. This is like hadith: Man kadzaba ‘alayya muta’ammidan falyatabawwak maq’adahu minan nar (He who intentionally attributes a falsehood to me should prepare his abode in the Fire)

B. Hadith Masyhur: Hadith that the number of whose reporters do not reach the level of tawatur in the first generation. An example of this is the tradition about the prohibition of marrying the maternal or paternal aunt of an existing wife.

C. Hadith Ahad: Hadith that is reported by one or two or a number of persons whose not reach the level of tawatur from the beginning of its chain upto its end when all traditions were recorded. This is like hadith Laa dharara walaa dhirara (No injury is to be caused and none is to be borne).

2.   Hadith Mursal or Munqati’: Hadith that is not muttasil in which the names of one or more narrators missing from the chain of narration. It is called Mursal, like a reliable narrator from a later generation saying: “The Messenger of Allah said that …” Here the name of the Companion is missing. If the name of someone other than a Companion is missing, it is called Munqati’.

The Classification Of Hadith: According To The Reliability And Memory Of Reporters

1.   Sahih:

•A Sahih hadith is the one which has a continuous sanad, made up of reporters of trustworthy memory from similar authorities, and which is found to be free from any irregularities (i.e. in the text) or defects (i.e. in the sanad). •By the above definition, no room is left for any weak hadith, whether, for example, it is Munqati’, Mu’dal, Mudhtarib, Maqlub, Shadh, Munkar, Ma’lul, or contains a Mudallis. The definition also excludes Hasan hadith. •

2. Hasan

•A Hasan hadith is one which excels the Da`if but nevertheless does not reach the standard of a Sahih hadith.“

3. Da`if

•Is a hadith which fails to reach the status of Hasan. Usually, the weakness is one of discontinuity in the sanad, in which case the hadith could be Mursal, Mu’allaq, Mudallas, Munqati’ or Mu’dal, according to the precise nature of the discontinuity, or one of reporters having a disparaged character, such as due to his telling lies, excessive mistakes, opposition to the narration of more reliable sources, •

involvement in innovation, or ambiguity surrounding his person.

•The smaller the number and importance of defects, the less severe the weakness. The more the defects in number and severity, the closer the hadith will be to being Maudu` (fabricated). •Similar to the last category above is the case of Isra’iliyat (Israelite traditions), narrations from the Jews and the Christians which were wrongly attributed to the Prophet (may Allah bless him and grant him peace).

•The Role of the Sunnah in relation to the Qur’ân.

1. The Sunnah explains Qur’anic injunctions in detail. All issues related to the prayer, fasting, hajj etc. are explained by the Sunnah.

2. The Sunnah can establish a specific meaning when a number of meanings are possible.

God Almighty says in verse 82 of Sûrah al-An’aam (Chapter 6 of the Qur’ân): “It is those who believe and confuse not their beliefs with dhulm that are in security, for they are on (right) guidance.” Imâm Bukhari relates that some of the Companions of the Prophet, peace be upon him, took the word “dhulm” in its general meaning, i.e. to do injustice, to do

wrong, to sin. So they were troubled and said: “Which of us has not done wrong?” The Prophet, peace be upon him, relieved them of this worry by explaining that “dhulm” here means to commit shirk (i.e. to associate partners with God in worship and/or belief; idol worship; polytheism), as in Surah Luqman: 13: “Indeed, worshipping others besides God is the greatest injustice (dhulm).”

3. The sayings of the Prophet Muhammad (Arabic: ahadith) explain some historical events in detail since they are mentioned only briefly in the Qur‘an.

Surah ‘Abasa: 1-2: “He frowned and turned away, because there came to him the blind man.” Who frowned and turned away, and why? Who was the blind man? The details are furnished by the books of hadith.

4. The Sunnah can specify exemptions from a general injunction.

The Qur‘an declares the flesh of a dead animal and blood as prohibited in Surah al-Ma’idah: 3. The Prophet, peace be upon him, exempted fish and locusts from the term “dead flesh”, and the liver and spleen from “blood”.

5. Deduction of a similar injunction in an analogous case.

Surah an-Nisa’: 23 “Prohibited to you are . . . and two sisters in wedlock at one and the same time.” The Prophet, peace be upon him, declared that to marry a woman as well as her aunt in the same wedlock is also prohibited.

6. The Prophet, peace be upon him, gave additional injunctions in a number of issues. One of the many duties of the Messenger, was to tell the believers what is lawful (halal) and what is unlawful (haram) (See Qur’ân 7:157). For example, he prohibited the flesh of donkeys, dogs, beasts with canine teeth and birds of prey. He also made gold and silk haram for Muslim men, but halal for Muslim women.

•3. Ijma’
(Consensus of Legal Opinion)

Ijma’ is the consensus of Mujtahids (independent jurists) from the ummah of Muhammad (peace be upon him), after his death, in a determined period upon a rule of hukm syar’i (Islamic law).

Types of ijma’:

1.Ijma’ sarih or ijma qauli (Explicit ijma’) 2.Ijma’ sukuti (Tacit ijma’) •The Legal Force
of Ijma’ as a Source 1.The binding strength of explicit ijma’: The majority of jurists agreed upon the rule that explicit ijma’ is qat’i (a definitive) source and it is obligatory to act upon it; its opposition is prohibited. 2.The binding strength of tacit ijma’: The majority of jurists maintained that tacit ijma’ is a legally binding source, but they differed with respect to its strength. Some said that it is a definitive source like explicit ijma’, and these are the Hanafi jurists and Imam Ahmad bin Hanbal. Some of the jurists said tacit ijma’ is dhanni (a probable) source. Among these jurists al-Kharki, the well-known Hanafi jurist and al-Amidi, a later Syafi’i scholar. •The Mustanad (basis) of ijma’

Every ijma’ should have mustanad (basis) for relying upon it. This basis may be from the Qur’an or Sunnah or Maslahah (interest) or qiyas (analogy).

The example of ijma’ that relies on the Qur’an: The ijma’ on marriage being unlawful with grandmothers relies on the verse: “Forbidden unto you (for marriage) are your mothers …)

The example of ijma’ that relies on the Sunnah: The ijma’ on the prohibition of sale of food prior to possession by the buyer relies on the hadith: “Whoever buys food should not sell it until he has taken possession of it”.

The example of ijma’ that relies on the Maslahah: The ijma’ of the Companions on the collection of  the Qur’an into a mushaf.

The example of ijma’ that relies on the Qiyas: The ijma’ of the Companions on the prohibition of pig’s fat as analogized to pork.