It appears that the Maliki jurists never took full advantage of this principle, and many followers of that school consider the doctrine to be too vague and general to be useful in making legal deductions. However, today more and more followers of even other schools show their acceptance of this source.
- “Istidlal and “Istishab” – Istidlal or deduction is an effort to reach at some rule acting on a certain basis. It connotes a special source of law derived from reason and logic. An example of deduction by logic is as follows:
A sale is contract; the basis of every contract is consent; it is necessary, therefore, that consent be the basis of sale.
This source of law is mainly recognised by Malikis and Shafi’is , while Hanafis regard it as only a special mode of interpretation.
Ishtishab literally means permanency. Technically, it is used to denote the things whose existence or non-existence (proven in the past) should be presumed to have remained as such for lack of establishing any change.
Primacy of Al-Quran and Sunnah over the other Sources of Islamic Law- The fundamental text in Islam is the Qur’an, believed by Muslims to be the word of God revealed to the Prophet Muhammad in the seventh century AD. Because the Qur’an commands Muslims to follow the way of the Prophet himself, and therefore his life example, the Sunna is also normative “text” for Muslims. A documented record of his life was not compiled, however, until well after his death. The enterprise involved the complicated task of shifting through fabricated stories and corroborating chains of narration. It ultimately gave rise to a distinct field of scholarship dedicated to the verification and preservation of “Hadith” , the textual record of the Prophet’s Sunna.
Parallel to Hadith scholarship grew the scholarly community of jurists who answered legal questions presented by the growing Muslim community. This happened primarily in the realm of private scholarship, with individual scholars contemplating the source texts and teaching their understandings to students and laypeople seeking legal advice. Over time, the legal methods and conclusions of the most influential scholars evolved into distinct school of thought. Because Muslims never created a formal church, Islamic Legal Orthodoxy formed around those private scholars who distinguished themselves by education, dialectical skill, and popularity with students and the public who consulted them. Over the years, many schools of law emerged as students collected the lectures and legal opinions of influential jurists and popularity with students and the public who consulted them.
Over the years, many schools of law emerged as students collected the lectures and legal opinions of influential jurists and eventually wrote commentaries upon them. With a sufficient number of disciples preserving and expanding the work of a particular jurist ( and especially when accompanied by popular and other external support), that jurist’s corpus of opinions and accompanying legal methodology became known as “maddhab “ (literally, “path, or “road to go”)- a school of Islamic Law.
These madhhabs (which eventually shrunk in number from hundreds to just a few major schools surviving to today) were the means by which the fiqh was produced, preserved and transmitted in Muslim Societies. The body of Islamic Legal Doctrine, simply put in these Madhhabs. Moreover, and especially relevant to our present study, each madhhab has a characteristic legal methodology, reflecting its particular preferences for how to use text, tradition and reason in the search for God’s Law. It is the interpretive methods of these developed madhhabs that form much of the material for the present comparative study.
In the case of Hadith, the Muslim Scholars insist that they came from the Prophet. The only time they deny it is when they are told to swear that what they are saying is true.
It is pretty essential for the scholars to consider Hadiths to be a source of law for a number of reasons:
. Hadiths say they are the inheritors of the Prophet, giving them a great position in the society.
. They think Quran is not clear and detailed despite God’s insistence that it is.
. It is a great way to make Muslims do whatever the scholars want. Considering the following Hadith we can conclude that:-
“My Ummah will not agree on misguidance.”
This is how the scholars explain it:
Al-Mulla’ Ali al- Qaari said: The Hadith indicates that if the Muslims unanimously agree on something, then it must be true, and what is meant is the unanimous agreement of the scholars. The consensus of the common folk does not carry any weight, because it is not based on knowledge.- Mirqaat al- Mafateeh (2/61)
Ash-Shaatibi said: There is no difference of opinion concerning the fact that the agreement of the common folk is of no significance – al- I- tisaam (1/354)
Abu ‘Eesa at- Tirmidhi said in his Sunnah : What is meant by the jamaa’ah (the main body of the Muslims), according to the scholars, is the scholars of fiqh, knowledge and Hadith.
Knowledge/fiqh/Hadiths = agree with sectarian teachings.
Apart from the Qur’an, the Sunnah (or Hadith as it is sometimes used) of the Holy Prophet is considered as one of the primary sources of the Islamic Laws.
“…We have revealed to you that you may make clear to men what has been revealed to them, and that haply they may reflect.” Tanzil- Quran Navigator
TheHoly Prophet was the sole bearer of the Divine message and he was the first teacher and interpreter of the Qur’an . That is to say, the explanations of the Holy Prophet is necessary for the proper understanding of the Qur’an and the Islamic Laws. These explanations of the Holy Prophet are documented in his Hadith. For this reason, therefore, the Hadith of the Holy Prophet and his Household is considered as a source of Islamic Laws.
It says that in the Qur’an [an- Nisaa:80] which means, “whoever obeys the Messenger [Muhammad] then he has obeyed Allah.
These three Ayyahs are sufficient for one to understand why Companions of Prophet Mohammed listened to the things that the Prophet said (SallAllahu alayhi wasallam) and obeyed him. His teachings, commandments, prohibitions, etc. were revelation from Allah, and obeying them meant obeying Allah as well. So the Companions of the Prophet accepted and put into practice everything that they heard from the Messenger of Allah (SallAllahu alayhi wasallam) not only Qur’an, but the other things as well. And this makes perfect sense when you consider that the Qur’an itself is one of the many things that Prophet Muhammad taught (SallAllah alayhi wasallam) .
The two fundamental sources of Islam are the Qur’an (the word of God) and the Sunnah (the example) of the Prophet (peace and blessings be upon him). By Sunnah, we mean the actions, sayings and silent permissions (or disapproval’s) of the Prophet.
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