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Introduction

The core of all monotheistic religions is the belief on one God who is the sole creator and ruler

of the universe. The logical consequence of this belief is to expect the same God to be the only

legislator. All laws worthy of name must therefore originate with HIM. Islam, however, is the

only monotheistic religion that satisfies this logic by providing a comprehensive legal

framework, which is not limited to personal and moral laws as is the case with Judaism and

Christianity. By contrast, Islam has its own personal, civil, criminal, mercantile, evidence,

constitutional, and international law. Islamic law, therefore, is more like the modern international

law in terms of its applicability and inclusion of positive law. Yet it differs from the modern

international law in the sense that the main source of law is divine in nature and is not based on

human reasoning alone.

Another feature of Islamic law that differentiates it from the other religious laws is that it is

evolutionary in nature and allows certain modification with the contextual changes. This

flexibility is important in making the universal and all-time application of Islamic law possible.

However, the essence of the Islamic law which is based on divine revelation is not subject to

change that provides it a uniformity and standardization. Islam maintains this balance between

the flexibility and standardization by developing its law from two sources: the primary source of

divine revelation (Quran and Sunna) and the secondary source of human reason (Ijtihad).

Quran

The Qur'an is the holy scripture of Islam, believed by Muslims, irrespective of sects, to be the

direct and unaltered word of Allah and the primary source of Islamic law. However, the Quran is

not a book of law. The main purpose of Quran is to awaken in man the higher consciousness of

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his relation with Allah and the universe, and only 3% of the Quranic text deals with legal

matters. Therefore, it would be wrong to argue that Quran can provide complete legal guidance

to the Muslims. Instead, it ought to be treated as the main constitution of Islam which serves

provides the basic and general guidance for developing the Islamic legal system.

Sunnah and Ahadit

The Sunnah is the next important source, and is commonly defined as "the traditions and

customs of Muhammad" or "the words, actions and silent assertions of him". The authority of

Sunnah is derived from the Quran as it emphasizes on many places that Muslims should follow

the actions and orders of Prophet (PBUH). Furthermore, during his lifetime, Prophet (PBUH)

himself made it clear that his traditions (along with the Qur'an) should be followed after his

death. After Visal of Prophet (PBUH), the Sunnah was recorded in the form of Ahadits. The

overwhelming majority of Muslims consider the sunnah or Ahadits to be essential supplements

to and clarifications of the Quran. This is because the Qur'an contains many rules for the

behavior expected of Muslims but there are no specific Quranic rules on many religious and

practical matters. Muslims believe that they can look at the Sunnah of Prophet (PBUH) to

discover what to imitate and what to avoid.

However, there is debate on whether the Sunnah stands on equal footing with the Quran or

should be considered as inferior to Quran as a source of law. This debate mainly initiated in the

later period of Islamic history when questions were raised on the authenticity of these traditions.

Ijtihad (Human Reason)

Ijtihad, known as juristic reasoning, include the non-revealed sources of Islamic law and relies

on human reason. It can take many forms like analogical reasoning (Qiyas), Juristic preferences

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(Istihsan), consideration of public interest (Istislah), general consensus of learned (Ijma) and

customs of the local population (urf). Historically, Qiyas (analogy) was the most common form

of Ijtihad. Because it was mainly the deduction of the divine revelation, it was the surest way of

developing law within the guidance of primary sources. But analogy has its own issues as in

some cases analogical extension of a ruling to a different context can result in controversial

results. Therefore, need was felt to develop some other ways to exercise human reasoning. Ijma,

was therefore developed which is basically the consensus of all learned persons. Its authenticity

was based on a hadith of Prophet (PBUH) that majority of people from my Umma will never

agree on error. Imam Abu Hanifa, developed the doctrine of juristic preferences (Istihsan) forcases where analogical reasoning can result in compromise of the ideals of justice. However,

Shafaii school reject the use of Istihsan and only allow Ijma to be followed in such cases.

Similarly, Hanafi school also consider the local customs to be one source of law, if they are not

violating any Shariah rules. Other schools, however, raise objections on treating urf as as formal

soruce. In the Maliki school of law, Public interest ( Istihsan ) is also believed to be an important

source of law but other schools only recognize its importance under certain conditions.

It is important here to explain the difference among the Sunni and Shiite schools with regard to

the use of Ijtihad. The notion of Ijtihad was developed by the Sunni jurists and it was adopted by

Shiite faqih only after the disappearance of twelfth Imam. In Shiite belief there was a

continuation of divine guidance through the infallible Imams (AS) who represented the absolute

authority in religious affairs after the Prophet (PBUH). The statements, acts and approvals of the

Imams (AS) were considered as an authority and part of the Sunnah. Clearly with such a belief

the Shiite did not have a necessity for Ijtihad during the presence of an infallible Imam.

Furthermore, currently majority of Sunni jurists recognized the closure of gate of Ijtihad after

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including prayers, which are hard to be implemented through force and relies heavily on the faith

of the person. Fiqh, by contrast, is concerned with legal rules that are enforceable through a state

system. It does not include those general guidelines on morality that are not legally enforceable.

It is important here to understand that the moral values and dogma included in the Shariah are

the foundation of Islamic practical law and, therefore, fiqh is in fact the practical manifestation

of those values.

The rules of Fiqh are the deductions from the primary sources of Islamic law based on

independent reasoning and intellectual extension, called ijtihad. They can be divided into two

main types with respect to the amount of reasoning used in the deduction. The first category of

rules of fiqh includes those that are conveyed clearly in the Quran and Sunnah, such as rules of

inheritance, prohibition of usury, monetary laws of Zakat, and so forth. These rules are self-

evident and do not require much interpretation. These rules are, therefore, are the overlapping

area between Fiqh and Shairah. The second category of rules are not derived directly from Quran

and Sunnah but are formulated through the exercise of independent reasoning. However, not

everyone is allowed to exercise this reasoning for the development of law and only jurists who

have fulfilled certain requirements are eligible to formulate such rules. The differences among

the schools of Islamic law mainly revolve around the latter rules of fiqh.

Traditionalists versus Rationalists Debate

In the eight century, the Islamic jurists divided into two schools of thoughts with regard to the

use of primary versus secondary sources of Islamic law. The traditionalists (ahl al-hadith)

believed Quran and Sunnah (traditions) to be the sole valid sources of Islamic law. On the other

hand, the rationalists, who called themselves ahl al- ra y, consider the use of reasons and jurists

opinion to be important in absence of reliable ahadith. This division was the outcome of the

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emphasis on Quran and tradition, the inclusion of Ijma and Qayas in the usul-ul-fiqh did not

satisfy the uncompromising traditionalists and lead to the formation of another School of fiqh,

i.e. Hanbali School. The Hanbali School preferred not to rely on human reason and base their

fiqh, as much as possible, on Quran and Sunnah alone. The School was not much popular until

the eighteenth century when the Wahabi and Salafi movements in Arabian Pennisule gave it a

fresh impetus.

Comparison with sources of International law