Sources of Shari'ah and Family Law

Islamic Religious Studies · WAEC and JAMB · SS2 and SS3

Shari'ah is the body of guidance that governs a Muslim's relationship with Allah and with other people, and it is drawn from defined sources in a defined order. WAEC sets the four main sources with the hadith of Mu'adh, and then tests family law through marriage, divorce, iddah and inheritance.

What you need to know

Shari'ah is the complete way of life prescribed by Allah, covering worship, personal conduct, family, trade, crime and governance, while fiqh is the understanding of it reached by qualified scholars through study of its sources. The scholars describe the purposes of Shari'ah, the maqasid, as the protection of five things, namely religion, life, intellect, lineage and property, and rulings are understood as serving those ends.
The first source is the Qur'an, which is decisive wherever it speaks clearly. The second is the Sunnah of Prophet Muhammad (peace be upon him), which explains the Qur'an, restricts what is general in it, and adds rulings not mentioned in it.
The third source is ijma, the agreement of the qualified scholars of a generation on a point of law, and the fourth is qiyas, reasoning by analogy, in which a new case is given the ruling of an established one because they share the same effective cause, as when a new intoxicant is prohibited on the basis of the prohibition of khamr.
Supplementary sources recognised by some schools include istihsan, juristic preference; istislah or masalih mursalah, consideration of public interest; urf, accepted local custom where it does not contradict the texts; istishab, presumption of continuity; the opinion of a companion; and sadd adh-dhara'i, blocking the means to a forbidden end.
The hadith of Mu'adh ibn Jabal, sent by the Prophet as judge to Yemen, is the classical proof of this order. Asked how he would judge, he said by the Book of Allah; if he found nothing there, by the Sunnah of the Messenger; and if nothing there, he would exert his own judgement, and the Prophet approved.
The four surviving Sunni schools of law are the Hanafi, founded on the teaching of Abu Hanifah; the Maliki, on that of Malik ibn Anas; the Shafi'i, on that of Muhammad ibn Idris ash-Shafi'i; and the Hanbali, on that of Ahmad ibn Hanbal. The Maliki school is the one historically followed in most of northern Nigeria.
Acts are classified in five categories: fard or wajib, obligatory; mandub or sunnah, recommended; mubah, permitted; makruh, disliked; and haram, forbidden. Knowing this scale prevents the common error of treating every recommended act as compulsory.
Marriage, nikah, is a contract and not a sacrament, and it is strongly encouraged. Its essential elements are the offer and acceptance, ijab and qabul, made in one sitting; the consent of both parties; the wali or guardian of the bride, required in the Maliki and Shafi'i view; two witnesses of good character; and the mahr, the dower, which is the wife's own property and not a payment to her family.
Certain marriages are forbidden: to close blood relatives and to those related by fostering or by marriage within the prohibited degrees; to a woman already married or still in her iddah; and while in the state of ihram. The walimah, the marriage feast, is the recommended public announcement.
Polygyny is permitted up to four wives on the condition stated in Surah An-Nisa that the husband deals justly between them, and the same verse directs that one is the course for a man who fears he cannot be just. The husband owes maintenance, housing and kind treatment; the wife owes obedience in what is lawful and care of the home; and the Prophet said that the best of men is the best to his family.
Divorce is permitted but strongly disliked, and a well-known report describes it as the most hateful of the lawful things in the sight of Allah. Before it, the Qur'an directs that the couple seek reconciliation, including the appointment of an arbiter from his family and one from hers.
The forms of dissolution are talaq pronounced by the husband, which in its proper form is revocable so that he may take her back during the iddah; khul, in which the wife obtains release, normally by returning the dower; faskh, annulment by a judge for a cause such as failure of maintenance, cruelty or a defect; and the special cases of zihar and li'an. The Qur'an orders that divorced women be released with kindness and not kept in order to harm them.
Iddah is the waiting period after a marriage ends. For a divorced woman who menstruates it is three cycles, and three months where she does not; for a widow it is four months and ten days; and for a pregnant woman it lasts until she delivers. Its purposes are to establish whether she is pregnant, to allow time for reconciliation in revocable divorce, and to show respect in the case of a death.
Custody of young children, hadanah, is given in the first place to the mother while the conditions for it hold, with maintenance remaining the father's duty. Inheritance is governed by Surah An-Nisa, and the estate is applied in order to funeral expenses, then debts, then any bequest of up to one third which may not be made in favour of an heir, and then the fixed shares: a husband takes one half where there is no child and one quarter where there is; a wife one quarter where there is no child and one eighth where there is; a single daughter one half and two or more daughters two thirds between them, while where there are sons the share of a male is that of two females; and the mother takes one sixth where there are children or several siblings and one third otherwise.

Key terms

Shari'ah: The divinely ordained way of life for Muslims, covering worship, morals, family, commerce and government.
Ijma: The consensus of the qualified scholars of a period on a question of Islamic law, binding once established.
Qiyas: Analogical reasoning, extending the ruling of a case covered by the texts to a new case sharing the same effective cause.
Ijtihad: The exertion of a qualified jurist's effort to derive a ruling from the sources where no clear text settles the matter.
Mahr: The dower given by the husband to the wife at marriage, which becomes her own property.
Iddah: The prescribed waiting period observed by a woman after divorce or the death of her husband before she may remarry.
Khul: Dissolution of marriage sought by the wife, usually in return for giving back her dower.

Worked examples

State the primary and secondary sources of Shari'ah and explain the hadith of Mu'adh ibn Jabal in relation to them.

Name the sources in order and say which are primary and which are secondary.
Explain each briefly with an example of how it works, especially qiyas.
Narrate the hadith of Mu'adh accurately, including the Prophet's reaction.
Draw the conclusion the jurists draw from it about the order of recourse.

Answer: The sources of Shari'ah are ranked in order. The two primary sources are the Qur'an and the Sunnah. The Qur'an is the word of Allah and is decisive wherever its ruling is clear, as in the prohibition of riba and the shares of inheritance. The Sunnah, the sayings, actions and approvals of Prophet Muhammad (peace be upon him), explains the Qur'an, gives detail to what is general in it such as the manner and number of the prayers, and establishes rulings the Qur'an does not mention. The two main secondary sources agreed upon by the majority are ijma, the consensus of the qualified scholars of a generation on a legal question, and qiyas, analogy, by which a new matter is given the ruling of an established one because the effective cause is the same, so that a newly produced intoxicating substance is prohibited on the analogy of khamr. Further supplementary sources accepted in varying degrees include istihsan, juristic preference; masalih mursalah, consideration of public interest; urf, local custom that does not contradict the texts; istishab, presumption that an existing state continues; and sadd adh-dhara'i, blocking the means to what is forbidden. The hadith of Mu'adh ibn Jabal supports this order. When the Prophet sent him to Yemen as a judge, he asked him how he would decide a case. Mu'adh replied that he would judge by the Book of Allah. The Prophet asked what he would do if he found nothing in it, and Mu'adh said he would judge by the Sunnah of the Messenger of Allah. Asked what he would do if he found nothing there either, Mu'adh said that he would exert his own judgement and spare no effort, and the Prophet struck his chest and praised Allah for guiding the messenger of His Messenger to what pleases Him. Jurists take this as proof that recourse is first to the Qur'an, then to the Sunnah, and only then to reasoned effort, which is ijtihad and from which qiyas and the other secondary sources develop.

Describe the essential requirements of a valid marriage in Islam and state the rights and duties of the husband and the wife.

State clearly that marriage in Islam is a contract, since that frames every requirement that follows.
List the essentials one by one: consent, offer and acceptance, guardian, witnesses, dower, absence of impediments.
Mention the walimah and the recommendation of publicity.
Then split the rights and duties into those of the husband and those of the wife, keeping them parallel.

Answer: Marriage in Islam is a solemn contract, not a sacrament, entered into for companionship, chastity and the lawful continuation of the family. Its essential requirements are: the free consent of both the man and the woman, since a marriage contracted against a woman's will may be set aside; a clear offer and acceptance, ijab and qabul, expressed in the same sitting and understood by those present; the wali, the bride's guardian, who concludes the contract on her behalf, a requirement in the Maliki and Shafi'i schools; two competent witnesses of good character; the mahr, the dower agreed and given by the husband, which belongs to the wife alone and not to her parents; and the absence of any impediment, so the parties must not be within the prohibited degrees of blood, fostering or affinity, the woman must not be married to another or still in her iddah, and neither may be in the state of ihram. The walimah, a feast after the marriage, is strongly recommended as the public announcement, and the Prophet encouraged making the marriage known. The husband's duties and the wife's rights are: to provide maintenance in food, clothing and housing according to his means; to treat her kindly and live with her honourably, since the Prophet said the best of men is the best to his wife; to protect her honour and keep her secrets; and, where he has more than one wife, to deal justly between them in provision and time. The wife's duties and the husband's rights are: to obey him in what is lawful, obedience never extending to disobedience of Allah; to guard his property, his honour and his children; to care for the home and family; and to be faithful to him. Both are owed mutual kindness, consultation in family affairs and the conjugal right, and the Qur'an describes them as garments for each other, which expresses protection, closeness and mutual covering of faults.

The mistake to avoid

Candidates reverse the order of the sources or add qiyas before ijma, and some present urf or istihsan as if they ranked with the Qur'an and Sunnah. In family law the most frequent error is describing the mahr as bride price paid to the woman's family; the mahr belongs to the wife herself. Candidates also state the iddah of a widow as three months; it is four months and ten days, while three cycles or three months applies to divorce, and a pregnant woman's iddah ends at delivery.

In the exam

Source questions almost always want the four main sources in order with a short explanation of each, and the hadith of Mu'adh is worth learning because it is the standard evidence. For family law, learn the essentials of the marriage contract as a numbered list, the forms of divorce with the difference between talaq, khul and faskh, and the three iddah periods, since these are the details that carry marks. Keep inheritance answers to the order of payment and the main fixed shares rather than attempting complicated calculations.