What is Islamic Law?
Studying Islamic law in the 21st century is not an easy task at all, especially for those who do not have the ability to deal with the Arabic language. By saying so, I do not mean restricting the study of Shari’a and Islam to Arabs or Arabic speakers. Still, I believe that resorting to translated secondary sources alone does not constitute enough foundation for any scholarly work. For instance, if someone wants to study English literature, he must study it in English. If someone wants to write about Islamic Shari’a, he must understand it in its original language.
When reading fiqh treatises, the reader will often deal with a set of rules and arguments with no direct reference to the Quran or the Sunnah. It is true because most of the content of fiqh books is a derived understanding of the Quran and the Sunnah, hereinafter Shari’a sources. Therefore, studying Islamic legal methodologies or what is called Usul Alfiqh, is the key to understanding the sources adequately. Usul Alfiqh cannot be applied to translations as linguistic skills are a prerequisite for applying these methods to Shari’a texts.
Generally speaking, Islamic law or Shari’a law can be divided into two main bodies of rules: Usul Alfiqh, “jurisprudence’s foundations”, and Foru’ Alfiqh “branches of jurisprudence”. Usul Alfiqh can be divided into Shari’a sources or what is known in Arabic as Masadir Alshari’a and Ijtihad or methodologies.
Methodologies are applied to Shari’a sources to develop Foru’ Alfiqh or what we can call fiqh as the final link in the chain. Different from other Shari’a law treatises, I would like to divide the part that deals with Usul Alfiqh in a way that seems to be more logical. When talking about Usul Alfiqh, scholars did not distinguish between sources and methodologies of Islamic jurisprudence and described methodologies as sources. Such use might not seem appropriate because a source is authentic, give a legal injunction or general guidance on its own, and its functionality should not be based on the existence of another element. That brings us to conclude that the sources of Shari’a are the Quran and the Sunnah only.
The other items in Usul Alfiqh treatises are methodologies because they cannot produce a legal injunction or religious guidance without a reference from the Quran or the Sunnah.
Regarding methodologies, I would like to join all of them under one big category, which I would like to call Ijtihad. The use of Qiyas, Istihsan, Istishab, Almasalih Almorsalam, Sad Alzari’a, Ijma’, Urf, and Sharo’ man Qablana are merely different forms of Ijtihad. For instance, a Qiyas is an Ijtihad, applying Urf or local customs in the absence of guidance from the Quran, and the Sunnah is an Ijtihad and so on.
In the coming few articles, I will illustrate all the sources and methodologies mentioned above.