Name : Giwangga Moch.

Fernanda

Student ID : 017201900021

Batch : 2019

Subject : Family & Islamic Law

FINAL EXAMINATION OF ISLAMIC LAW

THE ACTUAL PROBLEM OF ISLAMIC LAW OR ISLAMIC JURISPRUDENCE

First of all, the actual problem of Islamic Law or Islamic Jurisprudence can be started
with discussing the two primary and transmitted sources of Islamic Law are the Qur’an and
the Sunnah. This combination of the two crucial sources of Islamic Law is seen as a link
between reason and revelation. In fact, the marriage between these two sources gave rise to
Islamic law. The Qur’an is considered the most sacred and important source of Islamic Law,
which contains verses related to god, human beliefs and how a particular believer should live
in this worldly life. The human conduct that should govern the believers life, which is clearly
stated in the Qur’an, is indeed the domain of Islamic Law. The Qur’an comprises about five
hundred legal verses that explicitly set out legal rulings that need to be applied by all
believers. Even non-legal verses in the Qur’an do support the establishment of the legal
system of Islam, as will be expounded.

The second primary and traditional source of Islamic law is the Sunnah, which depicts
the actions and sayings of the Prophet Mohammed, formulated in the form of a story and
becoming known as the Prophetic Hadith. The Sunnah also comprises a number of legal
provisions that must be applied by all believers of Islam. Certain legal rulings in these
transmitted Islamic sources are definitive. In other words, the lawgiver has formulated them
in such a way which does not need personal legal reasoning and is not open to different
interpretations as they are clear and definitive.

Conversely, there exists a corpus of legal contents stated in both the Qurʾan and the
Sunnah, the application of which requires reasoning. The law giver who has formulated
certain legal rulings stated in the Qurʾan and the Sunnah in such a way that never accepts two
different interpretations, could have also done the same with regard to the rest of legal
contents laid down in the aforementioned Islamic sources. However, there has been a pivotal
reason behind making a huge bulk of legal contents mentioned in the Qurʾan and the Sunnah
open to legal reasoning. This flexibility in the law qualifies it to be legally valid for all legal
cases regardless of time and place as it is amenable to development and change. Furthermore,
the difference in the interpretation of a particular legal issue is deemed amongst jurists a kind
of mercy. The de facto corpus of legal contents stated in the Qurʾan and the Sunnah, the
application of which demands independent legal reasoning leads us to another source of
Islamic Law known as legal reasoning.

Legal reasoning is an untransmitted source of Islamic Law, whose emergence is due

to the fact that Islamic jurists could not always interpret the language of the Qurʾan and that
of the Sunnah in the same way arriving at the same legal result, rather they frequently differ
in their interpretations of certain Qurʾan verses and particular Prophetic traditions, reaching
different legal rulings. This is owing to the fact that the law-giver has deliberately set out a
number of legal rulings in these two revealed legal sources, and formulated them in such a
way that makes them open to reasoning and juristic interpretation so that the law becomes
legally valid on a permanent basis and is susceptible to development as new legal issues
emerge. Points out that certain terms in the Qurʾan and the Sunnah can have more than a
single legal interpretation. Metaphorical lexical items, for instance, need to be interpreted to
convey specific legal meanings. Hence, Muslim jurists develop a corpus of certain linguistic
rules in an attempt to surmount such problems. One crucial aim of exercising his personal
reasoning is that the jurist would establish a particular legal norm for each legal case he
confronts.

Acts according to the Sharia fall within five different legal norms. The first is
represented by the prohibited category, which demands punishing the doer after committing a
prohibited act. The second is the obligatory category, which entails punishment on account of
failure to perform an act whose performance is deemed obligatory in the eyes of Islamic Law.
Other categories are the recommended, permissible and abominable. If the person performs
the abominable and not the recommended category, he/she shall not be punished. However,
the person, by performing the recommended and leaving the abominable, shall be rewarded
in the hereafter. The permissible category involves neither permission, nor prohibition, a
matter which entails neither reward, nor punishment. Hence, when the jurist confronts a
Qurʾan verse or a Prophetic tradition which may include an imperative or prohibitive form,
he is required to specify within which of the five legal norms or categories the legal ruling of
the verse and/or the tradition falls Consensus Related to legal reasoning is another source of
Islamic Law known as consensus, which refers to the agreement of jurists, living in a
particular age, on a specific legal ruling of a particular act, after being subject to different
legal views and opinions. Consensus has to be founded on the Qurʾan or the Sunna.
Consensus plays a crucial role in ratifying and ascertaining legal rules which may have been
grounded in probable evidence. If there exists a particular consensus on a specific probable
evidence, such evidence can never be subject to error. Consequently, it can safely be argued
that consensus is chiefly based on rules which are grounded in particular methods of
reasoning. However, it is worth nothing that the legal cases upon which there has been
consensus are indeed limited within Islamic Law, though such legal cases have acquired
special importance on account of being subject to this extraordinary source of law. Such legal
cases cannot be stated here due to space restrictions.

Analogy categorized within the realm of legal reasoning is another legal source of
Islam referred to as analogy. This source of law is not deemed a material legal source, the
legal content of which can be depended upon by the jurists. However, it is a legal source that
can offer ways which can be utilised by the juris to reach legal norms. Analogy is composed
of four crucial components. The first is represented by the new case which demands a legal
ruling; the implementation of one of the five legal norms stated above. The second is the
original case which may be mentioned in the Qurʾan or the Sunna, or accepted by consensus.
The third deals with the attribute to the new case as well as the original one. The last
component resides in the legal norm that serves as a legal ruling in the original case, and is
applied to the new case on account of the de facto similarity between the original as well as
the new cases

Preference is a particular legal practice exercised by jurists, which falls within the
sphere of legal reasoning. It is deemed an inference made on the basis of a revealed text,
though gives rise to a different legal result from that arrived at by analogy. The main
difference between analogy and preference may lie in the fact that while the reasoning behind
analogy falls chiefly within the large body of the law with no exception allowed, the
reasoning underpinning preference, on the other hand, is to find a particular exception
through the jurist’s selection of a revealed text that allows this very exception. A clear
example for this is a person who has eaten in the day of Ramadan mistakenly. The reasoning
behind analogy dictates that the person has to compensate for that day as there is no
exception as to whether the person has eaten in the day of Ramadan intentionally or
otherwise. Conversely, reasoning via preference does not demand compensation since the
person has not eaten intentionally, rather he has done so mistakenly. It is worth Islamic Law:
Its Sources, Interpretation and the pointing out that the reasoning underpinning preference is
based on a valid Prophetic tradition and does therefore supersede the reasoning behind the
drawn analogy. Not all preference exceptions are founded on revealed texts, some of which
are based on consensus, while others are grounded in the principle of necessity.