Introduction

               ‘The literal meaning of sharia is ‘the road to watering hold’,

                the clear, right or straight path to be followed. In Islam, it

                came to mean the divinely mandated path, the straight path,

                the straight path to Islam, that Muslim were to follow, God’s

                will or law. However, because the Quran does not provide an

                exhaustive body of law, the desire to discover and delineate

                Islamic Law in a comprehensible and consistent fashion led

                to the development of the science of law, or jurisprudence

                (fiqh). Fiqh, ‘understanding’, is that science or discipline that

                sought to ascertain, interpret, and apply God’s will or guidance

                (shariah) as found in the Quran to all aspects of life’             

Thus for any idea to arise certain customs and usages other than economic factors are relevant. This is especially true for law as it is for any other social science.  Thus the Islamic legal system as is well known had its origin in Arabia and has been developed by Arabia jurists, and we should, therefore, naturally expect to find on it the impress of Arabia’s social history and the Arab mind and character.  In other words the ground works of Islamic legal system, like that of other legal systems, is to be found in the customs and   usages of the people among whom it grew and developed.

The sources are four: The Quran, the Sunna, the ljmaand Qiyas.   They are referred as “roots” of Islamic jurisprudence.   The first two Quran and Sunna are wholly developed in the life time of the Prophet [PBUH] and Quran is the supreme source of the Islamic law. While the Holy Quran and the Sunnah comprises the primary sources, the Al-Ijma and Al-Qiyas are known as secondary sources

Ouran- The First Primary Sources of the Shera

“The Quran is the Book of God. It is the eternal, uncreated, literal word of God sent down from heaven, revealed one final time to the Prophet Muhammed as guide for humankind”

The Quran, which consists of 114 chapters of 6,000 verses, has been revealed to the Prophet (PBUH) over a period of 22 years. Its chapters are arranged according to length, not chronology. The longer chapters, which represent the later Medinian revelations, precede the shorter ones representing the earlier Meccan revelation to Mohammed.

Quran means ‘reading’ or recitation and is derived from the word qar’a which literally means ‘to read’. The Quran also calls itself by alternative means such as Kitab (Book), Huda (Guide), Furqan (Distinguished) and Dhikr (Remembrance)

Quran is held to consist of revelations made by Allah to the Prophet (PBUH). Now the question is how that made possible? Dunn-Mascetti gives us the answer.

Mohammed took to spending nights in a hill cave near Mecca. There he pondered the problems which were afflicting Mecca: tribal solidarity was breaking up, and rich merchants preferred to pursue individual (interests) rather than fulfill their duties towards the more unfortunate ones. One day Mohammed heard a vision saying to him ’You are a Messenger of God’. This was the beginning of vocation as Prophet of God. From this time onwards, at frequent interval until his death, he received ‘revelation’-messages that came directly from God. In about 650 CE the messages were collected and written down in the Koran, the sacred scriptures of Islam   

Finally but mainly, Quran can be divided into two:   the oldest one dating from Mecca; that is the first period of the prophet’s life time, contains religious matters which are written in a poetical, often lyrical style while the Medians chapters have much of political and legal nature. These differences correspond to two periods; when the movement began at Mecca; as purely religious and moral reaction against pagan society and ended in Medina with the establishment of a new political – religious community.

Sunna (Hadis): The Second Primary Source of the Shera

Sunna was regarded in the ancient times among the Arab society as a determinant norm in the conduct of life of the individual and of society.    So this concept is not invented by the Muslims, for it was already well known to the ancient pagans of the period before Islam.  Islam, however, changed the concept and meaning of this ancient term to mean anything that could be proven to have been the practice of the Prophet [PBUH] and his oldest disciples. Slight difference exists between Sunna and Hadis. “The Sunna is restricted to the conduct of the Prophet Muhammed (PBUH), specially his expressed opinion, deeds and tacit approvals” Thus, while the former one refers to the life and teachings of the Prophet (PBUH), the latter one is their classification, collection and codification.          

This source was necessitated for decision of the often raising question, for the solution of which no direct revelation was forthcoming, or certain points had to be explained and made clear.  Thus the Prophet [PBUH] made pronouncements on these matters. They are equally regarded, however, as sacred as Quran though they are communicated orally by the prophet, while the Quran is “a revelation made in God’s own words”.

Ijma (consensus)

The third source of shera is Ijma which is “the infallible consensus of the community”. The Prophet (PBUH), during his life time discussed, approached and considered new problems that arose with his companions. The Prophet (PBUH) also consulted his close companions on issues that were not directly supported by the revelations but which sought their advice and guidance on application of those revelations to various matters. The methodology to utilizing and arriving at this application was the doctrine of Ijma or consensus at all.     

This  was  necessitated for the reason that  fresh facts and  new circumstances arose for  which  no provision has existed in the Quran or hadith – specially as the affairs of the  community became more complex with the growth of Islamic empire.  Thus to meet these changes theQuran and the hadith had to be interpreted.  And   only that interpretation and application of the Quran and Hadith were correct, provided these interpretations were accepted by consensus.

An interesting question may be raised here: How was possible to attain the consensus of the community? In other words how consensus constitutes authortive interpretation?  First  it was  tried in vain the  consensus of the community to be  expressed or shown as consensus of  the  companions of Muhammad or of the old authorities of  Median but  such limitation was found to be too restrictive and therefore  abandoned  .

On the other hand, it can not be left completely to the instinctive feelings of the masses.  Thus “the term was defined as the agreed opinion and teachings of the acknowledged Islamic jurist – theologians of a given period.”    Thus it is safe, if we say.  ljma  is used [other than the foundation  of  Shera ] as means of  attaining the  ever changing needs of  different places and  periods through interpreting the  Quran and Sunna.

Qiyas (Judicial Reasoning)

Despite the fact that all the three sources are used still there may exist a gap, which has to be filled. This is true for all other legal systems. For a judge may not deny rendering a decision on the ground that there are gaps.  Thus in the Shera the device to fill this gap is Qiyas.  As the name indicates it means an inductive process governed by the rules of logic. “It is … extending the principles contained in the sources discussed above, and thereby covers cases not expressly covered. It should be noted, however that as a source, judicial reasoning occupies a subordinate position o the first three sources discussed above, and can not contradict the rules established by them.”

In order to do this the judge has two alternatives:  if he can not give solution through applying Quranand Sunnahe looks into another similar cases in order to search whether a rule can be deducted or not; or he will see to it “whether a solution can be derived from the totality of the law, considering it carefully as a whole and applying to the case in question the solution which corresponds best to the general spirit of the law.

Therefore, the sources of Islamic law are Quran, Sunna [Hadith] Ijma andQiyaswhich are the integrated whole of Islamic legal system. Thus whenever cases arise one has first to resort to the Quran and if the case is not resolved with the help of Quran help can be obtained from the other three sources respectively. Meaning “… right judgment can be arrived at through four sources:  the express words of the book [Quran], unanimously recognized traditions (hadith), logical reasoning [Qiyas] and consensus of the community [jjma]”.

The Pre-Islamic Period

The place where Islam was born is Arabian Peninsula. This country has a land of one million square miles (or 625,000 squares Kms) which is mainly dominated by desert and steppe areas. It was inhibited by Bedawin tribes who were nomads and pastoralists. They were moving from place to place looking water and pasture for their flocks of sheep and camels. The community was based on tribe that consisted of descendants of the same blood and was bound not only together through blood but also a strong almost unbreakable sense of fraternity.

The tribe had rules which held it together. These rules differ from tribe to tribe so we may say there were no uniform set of laws. This task was left to be accomplished by Islam as we will discuss next.

The Period of the Prophet (PBUH)

To understand this period it is worthy to know about the life of the Prophet Mohammed (PBUH) very briefly. The Prophet was born in 570 A.D.  He lost his father and mother at his child hood. For that reason he was looked after by his grandfather who died when the Prophet was eight. In spite of all those lose the Prophet was strong hearted.

In 595 AD at the age of 25 he married a rich widow named Khadijah who was not simply a wife. Rather she was a disciple. Another woman who played an important role in Islam was Aisha. It seems why Attallah. N. wrote” Central to the Story of the birth of Islam are two remarkable women; Khadijah, the Prophet’s first wife and disciple, and Aisha, the girl who became his youngest wife and the source for much of hadith”

Prophet Mohammed received the first revelation through the Angel Jibril (Gabriel) in 610A.D. First he started teaching Islam to his friends and family. Then in 613 A.D he started teaching in public. This brought him opposition which led to the boy-cott of the Hashim, Muhammed’s clan. The purpose of that boy-cott was organized to isolate him and expose him for attack.

This led him to seek a suitable place to spread the message without obstacles. Therefore in 620 A.D, he began consultation with clans in Medina to facilitate his move there. Consequently he was visited by 12 men from Medina in 621 A.D. Again in 622 A.D he was visited by a group of 75 persons who declared their support for him and his message.  This resulted in his migration from Mecca to Medina in 622 A.D. This period of departure and emigration of Mohammed and his followers from Mecca to Medina is known as thehijirahto Muslims [PBUH], and is the starting point of Islamic history.

The Period of the Caliphs (Khalifs)

The prophet (PBUH) died in 632. The period of the caliphs followed. It was between 632-661 A.D. Four caliphs accessed the Prophet (PBUH). They were Abu baker (573-634 AD), Umar (584-644 AD), Uthman (577-656 AD) and Ali (600-661 AD). Now we will discuss each caliph at a time very briefly.

Abu baker

We are not going to discuss the life history Abu baker in detail. What we will do is we will discuss what were the measure things attributed by him to Islam which we will do, as well, for other caliphs. It is worth to raise one point related with the appointment of Abu baker. Some historians say that the Prophet (PBUH) had selected Abu-Baker to precede him after his death. For this argument they mention the fact that the Prophet (PBUH) shortly before his death selected Abu-Baker to lead the Muslims in one of the most important religious functionaries (Friday Prayer)

Others say this is against the very essence of democracy that exists in Islam. They argued that the prophet left this open. For “Abu baker’s designation as a leader was symbolized by the offering of  baya (Oath), a handclasp used by the Arabs to seal a contract, in this case an oath of obedience and allegiance The reason why the Sahaba (Companions of the Prophet) gave this baya was for the Sahaba Knew him to be the best among them.

He also demonstrated that by accomplishing the following;

He took up on himself the task of collecting the Quran. During the life time of the Prophet the text of the Quran was preserved.

In memories

Inscription on such material as stones wood and bone

He quenched the insurgency that had arisen immediately after the Prophet’s (PBUH) death

Islam expanded to lands of Syria, Iraq and Palestine.

 He ordered the codification and collection of the traditional sayings (Hadith) of the Prophet (PBUH) before they were forgotten with the sands of time.

Umar

He was the second caliph who stepped into the seat of leadership that was vacated when Abu baker died in Medina in 634 AD. Before we enumerate the task he accomplished it is worth to mention one point about Umar which describes how he was fearsome among his tribes. Al-Misri writes “(I) bn Masud later observed, “(W) e were not able to pray by the Kaaba until Umar became Muslim”

The following tasks were undertaken by him

Egypt and all Arabian Peninsula were added to the dominions of Islam.

12,000 Mosques were built

He related about 537 Hadith, from the Prophet (PBUH).

Dated Islamic events from the year of the Hijirah

Uthman

He was the third caliph who received the caliphate shortly after Omar’s death in AH 23. Some of the tasks accomplished by Uthman were

Much of the Balkans, Cyprus and much of the North Africa were added to the dominions of Islam.

The task of collection, verification and systematic compilation of the Holy Quran which was commenced with Abu baker was completed. Thus written copies were compiled in to one single volume. This copy was sent to all sectors of the Islamic world.

He had related 146 Hadith from the Prophet (PBUH)

Ali

He was the fourth and the last caliph. He was born in 600 AD in Mecca. He was the cousin of the Prophet (PBUH) who latter arranged a marriage between Ali and his daughter Fatima whom he cherished and adored

Ali transferred the capital city from Mecca to Kufa when he took office in AH.35. Some of his attributes were he:

He was among the learnt ones among the companions

He related hundreds of Hadith

He was a diplomat and states man of the highest echelon and showed familiarity of the highest order in the political administrate in social and legal duties a governing body owed to its people.

The Period of Umayyad

In the previous sections we have seen how Islam brought its domain into vast areas during the caliphate period. Thus, people within the Islamic Empire became aware of the importance, force and wielding that political power could bring. Among many factors, that was then one that led to the establishment of the Umayyad governance which was first established by Mu’a Wiyah. The Umayyad dynasty stayed on power from 661 AD to 750AD.

During this period significant progress was made in Islamic Law. The public law sphere was standardized, codified and established while the private law spheres remained diverse. The first Islamic Jurisprudence schools, whose main purposes were to spread and teach the message of Islam, were established

The Period of the Abbasids

The Abbasids, who are the Prophet’s (PBUH) cousins, came to the throne in 750 AD. They did that with the help of the Persians. They accused the Umayyad for distortion and dilution of the Islamic Law to suit the exigencies of the times without a proper consideration and due regard to the basic tenets of Islam. What are the achievements in Islam?

A scholarly theology evolved where in the articles and principles of Islamic faith and the Attributes of Allah were examined and conversed about, in order to ascertain the Unity of Allah the Most High.

The doctrine of constitutionalism was created. Thus every community was represented by a council of state.

Legal scholars were encouraged to respect, examine and deduce the mode of operation of the law within the Muslim Community,

Traditions of the Prophet (PBUH) were collected and the jurisprudence of the sources of Islamic Law were codified and written.

The Quran was analyzed.

This resulted in the birth of four notable Sunni schools of legal thoughts. These are:

The school of Abu Haifa (700-795 Ad)

The school of Malik ibn Anas (713-795AD)

The school of Mohammed ibn-Idris Ash Shafi (767-820Ad)

The school of Ahmad Ibn-Hanbli (780-855Ad)

In the next two consecutive chapters we will discuss the Sources of Islamic Law and then the school of legal thoughts.

The word comes from the Latin term juris prudentia, which means "the study, knowledge, or science of law." This signifies that like any other social study, law can also be studied scientifically or systematically. In modern law jurisprudence is understood as a term that embraces spectrum of questions about the nature and purpose of law and responses made to them.

Overview

Our last discussions focused on the general significance and application of registration of real property. In this section, an attempt will be made to consider the understanding and coverage of the registration of real property in our country. Both the strong sides and limitations will be highlighted, considering both the legislative framework and practices.