THE SOURCES OF LAW

SUMBER2 HUKUM

أدلة األحكام

OUTLINE Introduction

Classification of Sources:a. Originb. Applicationc. Authoritativeness

INTRODUCTION Source = Dalil

Technical Meaning of ‘dalil’A valid examination of which yields transmitted information (hukm)

Dalil is equivalent to:Usul al-Ahkam [The roots of the Ahkam]al-Masadir al-Shar’iyyah li al-Ahkam [Legal sources of the Ahkam]

The evidences of religious law from which the law and legal obligations of the Muslim are derived.

Meaning of Source or DalilProf Kamali in his book “Principles of Islamic Jurisprudence” mentions that Source or Dalil Literally means proof, indication or evidence. Technically it is an indication from which a practical rule of Shari’ah, or a hukm is deduced from. These sources may be text or nass or may be ijtihad or ray’, The sources may also agreed upon by all Muslim jurists or these sources may be disagreed upon among Muslim jurists. The hukm so obtained may also be definitive (qat’i') or it may be speculative (zanni) depending on the nature of the subject, clarity of the text, and the value which it seeks to establish.

CLASSIFICATION OF THE SOURCES Islamic scholars have classified the sources of Islamic law into

various classifications.

Classification according to the origin:

a. Textual sources [al-Nass]b. Non-textual sources [al-Ra’i]

Classification according to the application:a. Agreed upon [Muttafaq ‘alayha]b. Disagreed upon [Mukhtalaf fiha]

Classification according to the authoritativeness:a. Definitive sources [al-Qat’iyyah]b. Probable sources [al-Zanniyyah]

1 -Classification According To The Origin

Al-Nass: al-Qur’an and al-Sunnah.

These two are called ‘textual’ because the Qur’an and the corpus of Hadith are wholly contained between the covers of books, or because the two are the texts of revelation.

al-Ra’y or Ijtihad

The sources which are based on ‘the power of reasoning’ and therefore are non-textual sources because it based on the exercise of human intellect.

The Sources of Islamic Law

2 -Classification According To The Application

Agreed upon [Muttafaq alayha]

Sources in which the scholars of Islamic law are in agreement in utilizing them.

Disagreed Upon [Mukhtalaf fiha]

Sources in which the scholars differ in utilizing them as a basis in deducing the rulings.

SOURCES OF ISLAMIC LAW

ظنيةPROBABLE

قطعيةDEFINITIVE

أدلة األحكامأدلة األحكامTHE SOURCES OF LAW

الثبوتTRANSMISSION

الداللةMEANING

الثبوتTRANSMISSION

الداللةMEANING

3- Classification According To The Authoritativeness

With respect to transmission (Qatiyyah al-Thubut)A source is qat’i (definitive) if it has been reported by a large group of people from a similarly large group of people, who are not the subject of suspicion because they could not have assembled all together to fabricate a falsehood. (tawatur)

With respect to the meaning(Qatiyyah al-Dilalah)A source is definitive when the text of the transmitted dalil (evidence) indicates something about which there can only be one meaning.

3 -Classification According To The Authoritativeness

3-AUTHORITATIVENESS – Cont’d Qat’iyyah al-Thubut wa al-Dilalah

Sources that are definitive with respect to sanad (transmission) and definitive with respect to meaning.

Qat’iyyah al-Thubut, Zanniyyah al-DilalahSources that are definitive with respect to sanad (transmission) but are probable with respect to meaning.

Zanniyyah al-Thubut, Qat’iyyah al-DilalahSources that are probable with respect to sanad (transmission) but are definitive with respect to the implied meaning.

Zanniyyah al-Thubut wa al-DilalahSources that probable with respect to both sanad (transmission) and meaning.

Qat’iyyah al-Thubut wa al-DilalahSources that are definitive with respect to sanad (transmission) and definitive with respect to meaning.

Refers to the texts of the Qur’an and the Sunnah Mutawatirah that convey single meanings.

Example:اني فاجلدوا كل واحد منهما انية والز وال تأخذكم بهما رأفة مائة جلدةالز

ه واليوم اآلخر وليشهد عذابهما طائفة ه إن كنتم تؤمنون بالل في دين اللمن المؤمنين

“The woman and the man guilty of illegal sexual intercourse, flog each of them with a hundred stripes. Let not pity withhold you in their case, in a punishment prescribed by Allah, if you believe in Allah and the Last Day. And let a party of the believers witness their punishment”. [Al-Nur: 2]

3-AUTHORITATIVENESS – Cont’d

Qat’iyyah al-Thubut, Zanniyyah al-DilalahSources that are definitive with respect to sanad (transmission) but are probable with respect to meaning.

Refers to the texts of the Qur’an and the Sunnah Mutawatirah that convey more than one meaning, that is subject to different interpretation.

Exampleذين آمنوا إذا قمتم إلى الص�الة فاغسلوا وجوهكم وأيديكم إلى ها ال يا أي

وأرجلكم إلى الكع�بينوامسحوا برءوسكمالمرافق O you who believe! If you wish to pray, wash your faces, your hands as far as the elbows, partially wipe your heads and your feet as high as the ankles.[al-Maidah: 6]

3-AUTHORITATIVENESS – Cont’d

Zanniyyah al-Thubut, Qat’iyyah al-DilalahSources that are probable with respect to sanad (transmission) but are definitive with respect to the implied meaning.

Refers to the hadiths of the Prophet s.a.w. that were transmitted by one of two individuals in the first three generations.

Example:عن ابن عمر رضي الله عنهما قال: قال رسول الله صلى الله

عليه وسلم: أحلت لنا ميتتان ودمان. فأماالميتتان: فالجراد والحوت، وأما الدمان: فالطحال والكبد.

Two types of dead animal : Grasshopper (Belalang) and Whale (ikan paus): Two tyyes of

blood: Heart (hati) and lung (paru2)

3-AUTHORITATIVENESS – Cont’d

Zanniyyah al-Thubut wa al-DilalahSources that probable with respect to both sanad (transmission) and meaning.

Refers to the traditions that were transmitted by one of two narrators and convey more than one meaning.

Example:The Prophet s.a.w. is reported to have said:

القاتل يرث ال“The killer shall not inherit (from his victim).

A question arises whether the killing here means qatl ‘amd (killing with intention or qatl khata’ or killing by mistake).***The jurists have disagreement in the matter.

3-AUTHORITATIVENESS – Cont’d

CLASSIFICATION OF THE SOURCES Islamic scholars have classified the sources of Islamic law into

various classifications.

Classification according to the origin:

a. Textual sources [al-Nass]b. Non-textual sources [al-Ra’i]

Classification according to the application:a. Agreed upon [Muttafaq ‘alayha]b. Disagreed upon [Mukhtalaf fiha]

Classification according to the authoritativeness:a. Definitive sources [al-Qat’iyyah]b. Probable sources [al-Zanniyyah]

FINISH