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The Sources J.Schacht And Fyzee Notes

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The sources of Islamic Law - Joseph Schacht and FYZEE

Joesph Schact - An introduction to Islamic law----

As a result of development, the classical theory teaches that Islamic law is based on four principles or 'roots': The Quran, the Sunnah of the prophet which is incorporated in the recognised traditions, the consensus (ijma) of the scholars of the orthodox community, and the method of reasoning by analogy (qiyas). Shaf had called Quran and the Sunnah the two principles and considered ijma and qiyas subordinate to them, Tabari recognises three usul: Quran, Sunnah as expressed in traditions from the prophet and ijma, which for him is absolutely decisive; beside these he places qiyas. The later Hanbalis too, whilst treating qiyas as a recognised principle, avoid putting it formally on the same level as the other usul, although istihsan and istislah are admitted to the rank of controversial principles. The fnal admission of qiyas to the 'classical' group of four usul is the result of a compromise, on the lines envisaged by shafi, between the old, unrestricted use of ra'y and the rejection of all human reasoning in religious law. Malik and other early authorities of the maliki school, too, are known to have exercised istihsan in a number of cases; the maliki school, however, prefers the method of istislah, 'having regard for the public interest (maslaha), a consideration which differs only in name and not in kind from the reasoning of the hanafs to which essentially the same qualifcation applies. The shaf's and the hanbali's too use istislah. The exact defnition of ijma has always remained controversial. The Maliki's recognise, beside the general consensus of the scholars, the consensus of the ancient scholars of Medina, the town of the prophet and, according to them, and the true home of his Sunnah. The concept of judicial practice (amal) had been prominent in theory of the ancient school of Medina, and the practice of Medina continued to play a minor part in the legal theory of the Maliki School. At one point, the maliki doctrine in Morocco upheld the principle that judicial practice prevails over the best attested opinion and it allowed a number of institutions rejected by strict Maliki doctrine. This western maliki amal is not customary law; it is an alternative doctrine valid as long as it is felt advisable to bring custom within the orbit of the shariah, and it mirrors, on a different plane, is predecessor, the amal of Medina. Nevertheless, it is true that Islamic law including the Maliki School, ignores custom as an official source of Islamic law. Custom also serves occasionally as the basis of istihsan or istislah. As a point of historical fact, custom contributed a great deal to the formation of Islamic law, but the classical theory of Islamic law was concerned not with its historical development but with the systematic foundation of the law, and the consensus of the scholars denied conscious recognition to custom. About the same time that the movement of the traditionists gave rise to the Hanbali School, Dawud ibn Khalaf founded the Zahiri School of law, the

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