All medieval Muslim jurists rejected arbitrary opinion, and instead developed various secondary sources, also known as juristic principles or doctrines, to follow in case the primary sources (i.e. the Qur'an and Sunnah) are silent on the issue.
Ijma (Consensus) The ''ijma' '', or consensus amongst
Muslim jurists on a particular legal issue, constitutes the third source of Islamic law. Muslim jurists provide many
verses of the Qur'an that legitimize ''ijma' '' as a source of legislation. Muhammad himself said: • "My followers will never agree upon an error or what is wrong", • "God's hand is with the entire community". In history, it has been the most important factor in defining the meaning of the other sources and thus in formulating the doctrine and practice of the Muslim community. This is so because ''ijma' '' represents the unanimous agreement of Muslims on a regulation or law at any given time. There are various views on ''ijma'
among Muslims. Sunni jurists consider ijma' '' as a source, in matters of legislation, as important as the Qur'an and Sunnah. Shiite jurists, however, consider ''ijma' '' as source of secondary importance, and a source that is, unlike the Qur'an and Sunnah, not free from error. ''Ijma' '' was always used to refer to agreement reached in the past, either remote or near. Supporters of the practice of
qiyas will often point to passages in the Qur'an that describe an application of a similar process by past Islamic communities. According to supporters of the practice, Muhammad said: "Where there is no revealed injunction, I will judge amongst you according to reason." Further, supporters claim that he extended the right to reason to others. Finally, supporters of the practice claim that it is sanctioned by the
ijma, or consensus, amongst
Muhammad's companions. Thus the issue of analogical reason and its validity was a controversial one early on, though the practice eventually gained acceptance of the majority of Sunni jurists. The success and expansion of Islam brought it into contact with different cultures, societies and traditions, such as those of
Byzantines and
Persians. With such contact, new problems emerged for Islamic law to tackle. Moreover, there was a significant distance between
Medina, the Islamic capital, and the Muslims on the periphery on the Islamic state. Thus far off jurists had to find novel Islamic solutions without the close supervision of the hub of Islamic law (back in Medina). During the
Umayyad dynasty, the concept of
qiyas was abused by the rulers. The
Abbasids, who succeeded the Umayyads defined it more strictly, in an attempt to apply it more consistently.
Imam Malik accepted
qiyas as a valid source of legislation. For him, if a parallel could be established between the effective cause of a law in the primary sources and a new case, then analogical deduction could be viable tool. Malik, however, went beyond his adherence to "strict analogy" and proposed pronouncements on the basis of what jurists considered was "public good". Juristic preference is defined as: • A means to seek ease and convenience, • To adopt tolerance and moderation, • To over-rule analogical reason, if necessary. Though its main adherents were Abu Hanifa and his pupils (such as Abu Yusuf), Malik and his students made use of it to some degree. The source was subject to extensive discussion and argumentation, and its opponents claimed that it often departs from the primary sources.
Reason Shi'ite jurists maintain that if a solution to a problem can not be found from the primary sources, then
aql or reason should be given free rein to deduce a proper response from the primary sources. The process, whereby rational efforts are made by the jurist to arrive at an appropriate ruling, when applied is called
ijtihad (literally meaning "exerting oneself"). Shi'ite jurists maintain that qiyas is a specific type of ijtihad. The Sunni Shafi' school of thought, however, holds that both qiyas and ijtihad are the same. Sunni jurists accepted ijtihad as a mechanism for deducing rulings. They, however, announced an end to its practice during the thirteenth century. The reason for this was that centers of Islamic learning (such as
Baghdad,
Nishapur, and
Bukhara) had fallen into the hands of the Mongols. Thus, the "doors to ijtihad", were closed. Later in Sunni history, however, there were notable instances of jurists using reason to re-derive law from the first principles. One was
Ibn Taymiyya (d. 728/1328), another was
Ibn Rus̲h̲d (Averroes d. 595/1198). A lawyer who is qualified to use this source is called a
mujtahid. The founders of the Sunni
madhabs (schools of law) were considered such lawyers. All
mujtahid exercise at the same time the powers of a
mufti and can give
fatwa. Some
mujtahid have claimed to be
muj̲addid, or "renewer of religion." Such persons are thought to appear in every century. In Shi'ite Islam they are regarded as the spokespersons of the hidden Imam. Sharia recognizes customs that prevailed at the time of Muhammad but were not abrogated by the Qur'an or the tradition (called "Divine silence"). Practices later innovated are also justified, since Islamic tradition says what the people, in general, consider good is also considered as such by
God. According to some sources, urf holds as much authority as ijma (consensus), and more than qiyas (analogical deduction). Urf is the Islamic equivalent of "
common law". Local custom was first recognized by Abū Yūsuf (d. 182/798), an early leader of the Ḥanafī school. However, it was considered part of the Sunnah, and not as formal source. Later, al-Sarak̲h̲sī (d. 483/1090) opposed it, holding that custom cannot prevail over a written text. According to Sunni jurisprudence, in the application of local custom, custom that is accepted into law should be commonly prevalent in the region, not merely in an isolated locality. If it is in absolute opposition to Islamic texts, custom is disregarded. However, if it is in opposition to analogical reason, custom is given preference. Jurists also tend to, with caution, give precedence to custom over doctoral opinions of highly esteemed scholars. Shi'ite scholars do not consider custom as a source of jurisprudence, nor do the Hanbalite or Zahirite schools of Sunni jurisprudence. ==See also==