My Blog
View all entries from My Blog >
Saudi Arabia
May 14, 2007
| | |
Allah has willed to make the Sharî`ah of Islam (its canonical code of doctrine and law) the final Sharî`ah for Creation, just as He has willed to make it the most complete and perfect Sharî`ah. It exists in a form that guarantees its continued existence and vitality, one that is relevant to mankind in every age and in every locality. It fulfills all the needs of humanity in all circumstances. Islamic Law, which is the basis and spirit of the Sharî`ah, has remained in its pristine state, strong and persevering, in spite of the all the revolutions and changing circumstance that the Islamic Nation has been exposed to for the past fourteen centuries. Beyond its permanence, constancy, and responsiveness to the spirit of civilization and the advancement of knowledge, Islamic Law has its own clearly distinct character. In this study, we will attempt to give the reader a general understanding of Islamic Law, its unique characteristics, its sources, and its historical development. The Meaning of "Islamic Law" The Arabic word for Islamic Law, “fiqh”, originally meant “understanding and knowledge.” After the coming of Islam, the word “fiqh” took on a more specific meaning, that of religious knowledge, on account of it being the most important and noble form of knowledge. The earliest Islamic scholars used the word “fiqh” in this sense. Islamic knowledge, at that time, generally meant knowledge of the Qur’ân and Sunnah. Allah’s Messenger (peace be upon him), in one hadîth, said:May Allah assist a man who hears a hadîth and memorizes it until he relates it to others, because often he is carrying fiqh to a person who has greater understanding than he does, and often the one carrying fiqh is not a faqîh (i.e. capable of understanding it).It is clear from this hadîth that Allah’s Messenger (peace be upon him) used the word fiqh to refer to his words. This hadîth shows us that a faqîh is a person who possesses clear knowledge of his religion derived exclusively from the meanings of the sacred texts. He is someone who is capable of drawing from the texts the legal injunctions, lessons, and benefits that they contain. We get this from the statement: “…because often he is carrying fiqh to a person who has greater understanding than he does, and often the one carrying fiqh is not a faqîh.” By mentioning “a person who has greater understanding than he does”, the Prophet (peace be upon him) meant someone who is more capable of understanding from the texts Allah’s intended meaning, His injunctions, and His legislations. By mentioning “…and often the one carrying fiqh is not a faqîh” he meant a person who is not capable of deriving from the texts the injunctions and other knowledge that they contain. The scholars of fiqh from the generation of the Companions and their successors were erudite and deservedly well known. Yahyâ b. Sa`îd al-Ansârî, who met the junior Companions of the Prophet (peace be upon him) and their senior successors, said: All of the fiqh scholars of our land who I have met would refer back to the sacred texts every second moment of the day.The statements of the fiqh scholars would be taken from the hadîth. From what we read of the statements of the Companions and the generations that followed them, we know that they were people who possessed a clear understanding of Allah’s religion and that they took their fiqh directly from Allah and His Messenger (peace be upon him). These were the most evident characteristics of the fiqh scholars. Allah’s Messenger (peace be upon him) said, indicated some of their characteristics: The lengthiness of a man’s prayer and the shortness of his sermon is an indication of his fiqh.Abû al-Dardâ’, the eminent Companion (may Allah be pleased with him), said A sign of a person’s fiqh is that he fulfills his needs so he can then carry out his prayer with a heart free from distraction.Ibn Mas`ûd, another eminent Companion (may Allah be pleased with him), said A sign of a man’s fiqh is that when he does not know something, he says: “Allah knows best.”Fiqh in the view of the earliest generations, comprised every aspect of the religion, not focusing on any particular aspect. The fiqh scholar, therefore, referred to the one who possessed knowledge of dogma as well as the one who possessed knowledge of law and to the one who possessed knowledge of the affairs of the heart as well as the one who possessed knowledge of outward action. This is why Abû Hanîfah entitled his tract on Islamic belief al-Fiqh al-Akbar (The Greatest Fiqh). In his era, fiqh comprised Theology, Law, and Spirituality. This is the reason why al-Hasan al-Basrî said: The fiqh scholar is the one who turns away from the world desiring the next life, who has clear knowledge of his religion, is constantly engaged in the worship of his Lord, is humble, avoids exposing the shame of other Muslims and seeking their wealth, and who gives advise to them.Fiqh is formally defined as: knowledge of Islamic Law. To be more precise, it is: knowledge of the injunctions of the Sharī`ah that deal with outward practice, specifically the actions of those who are legally accountable. With this definition, it can be seen that Theology and Spirituality are not considered to be a part of Fiqh. The most comprehensive and precise definition of Fiqh that clearly reflects the perspective of the jurists is: “Knowledge of the injunctions of the Sharī`ah that deal with outward practice, derived from their specific proofs.” An analysis of this definition follows: 1. “Fiqh” is a proper noun, referring to a discipline with a specific subject matter and equally specific principles. The fiqh studied by the jurists – who are the scholars of fiqh according to this definition – in their books, researches, and legal opinions, is not a science where qualitative judgments take precedence over reason or where feelings take precedence over facts 2. Fiqh is “knowledge of the injunctions of the Sharî`ah.” The injunctions of the Sharî`ah are those injunctions that are derived from the revealed texts. This clause excludes judgments based on the dictates of reason like the knowledge that the universe is temporal and that one is half of two. It also excludes verdicts taken from the use of specific terminology. An injunction of the Sharî`ah is a rule prescribed by the Divine Lawgiver for a certain matter. This injunction might outline a specific type of legal accountability, like that of obligation or prohibition. In this case, it is called a ruling of accountability. It might also be devoid of accountability, like a ruling that something is legally valid or invalid. In this instance, it is known as a set ruling. 3. Fiqh is the knowledge of the injunctions of the Sharî`ah “that deal with outward practice.” This clause shows that the injunctions that fiqh is concerned with are those that pertain to the outward actions of people, both in their worship and their daily interactions with each other. This excludes issues and injunctions pertaining to belief and dogma, as well as those pertaining to spiritual development and reform, for none of these injunctions concern outward actions. Instead, they fall under the domain of Theology and Ethics respectively. 4. The definition mentions that knowledge of the injunctions of Fiqh is “derived from their specific proofs.” This means that the only injunctions that are considered in the science of Fiqh are those that are derived from the well-known sources of Islamic Law. The jurist is the one who derives each and every ruling from its proper piece of evidence. Islamic Law – or Fiqh – is not set down by any national government, but is Divine legislation derived from religious sources. The “specific proofs” intended are the individual proofs that come from the Qur’ân and Sunnah, like Allah’s words: Forbidden for you are carrion, blood, and the flesh of swine.And the words of His Messenger (peace be upon him): Gold and silk are permissible for the women of my nation but not for the men.The specific proofs can be contrasted by the general proofs that are the concern of the scholars of Jurisprudence who investigate what types of sources can be used as evidence in Islamic law, such as the Qur’ân and Sunnah, consensus, and juristic analogy. The injunctions dealt with by the Sharî`ah can be broken into three categories: 1. That which relates to Islamic beliefs. This includes the injunctions relating to Allah’s essence and attributes, His Messengers, His books, and the Day of Judgment and all the events that follow, like the reckoning of deeds and recompense. This type of injunction is the domain of Theology. 2. That which relates to spiritual development and reform. This includes those injunctions that deal with the virtues that a person must adorn himself with, like honesty, integrity, keeping promises, courage, altruism, humility, good conduct with others, pardon, and forgiveness. It also deals with the base qualities that a person must avoid at all costs, like lying, deception, breach of promise, cowardice, stinginess, selfishness, pride, bad conduct with others, as well as other qualities that degrade a person’s moral makeup. These issues are dealt with in the study of Islamic Ethics. 3. That which relates to the regulation of the outward behavior of people. This includes the injunctions pertaining to the conduct of the human being with respect to his Creator, like the injunctions relating to prayer, fasting, zakâh (alms tax), and the Hajj pilgrimage. It also includes the injunctions concerning the interactions between people, such as those pertaining to commerce, lease transactions, marriage, and divorce. Likewise, it includes the injunctions pertaining to the individual and the state in both war and peace, among other things. The science that specializes in these issues is known as fiqh (Islamic Law). It is clear from this breakdown that the Sharî`ah is more general than fiqh and that fiqh is completely contained within the Sharî`ah. The Subject Matter of Islamic Law Islamic Law is a comprehensive system covering the human being’s relationship with his Creator, with his fellow human beings, and with his society and nation. It also deals with the relationship between nations in both war and peace. Most jurists divide the study of Islamic Law into two broad categories: Devotional Law and Transaction Law.This division is built upon the fact that the injunctions dealt with by each of these two categories have quite different and distinct primary objectives. Devotional Law deals with the injunctions that have as their primary objective attaining nearness to Allah, showing Him gratitude, and seeking eternal reward in the Hereafter. This includes prayer, fasting, Hajj, jihâd, zakâh, and the fulfillment of covenants. Transaction Law, on the other hand, deals with realizing worldly benefits and regulating human activity, both on the individual and societal level. This covers many branches of law, including Commercial Law and Personal Law. Devotional Law also differs from Transaction Law in that Devotional Law is generally beyond the scope of human reason. There is no way for man to understand the ultimate objectives behind the injunctions except that they constitute the worship of Allah. As for Transaction Law, its injunctions are generally understandable, and human reason is often able to ascertain the intent behind them. Because of this, people who lived in times when there was no divine guidance were still able to use their faculties of reason to develop legislation. When Islam came, it reaffirmed more than a few of these laws that they used to govern themselves with. Scholars of Islamic Law do not take the distinction between these different branches of law very far – in contrast to scholars of secular law – because, in their view, such distinctions do not yield any real benefit. In Islamic Law, there are no procedural differences for establishing different kinds of legal rights. There is practically one judicial procedure for all. The judge passes judgment in every case brought before the court, without any distinction being made between property matters – for instance – and anything else. In spite of this, we find that Islamic Law comprehends all branches of modern Law, general and specific. It investigates matters of International Law when dealing with issues relating to war, its methods, purposes, and results, and when dealing with issues pertaining to the relationship between the Islamic state and others. Some of these questions can be found collected under the heading of “Campaigns and Military Expeditions”. All the books of Islamic Law, irrespective of the school of thought they were written for, give these issues a thorough treatment. Some jurists also prepared specialized works on this subject, most notably the works of Muhammad b. al-Hasan al-Shaybânî. The Islamic jurists, in works that range from concise to comprehensive, have investigated all four forms of modern Law that deal with internal affairs – Constitutional Law, Administrative Law, Commercial Law, and Criminal Law. There are chapters in the Islamic Law books devoted to Criminal Law. They come under the heading of “Crime, Prescribed Punishments, and Discretionary Punishments.” The Islamic jurists investigated Fiscal Law in various places in their general legal works, under such headings as “The Zakâh Tax”, “Tariffs”, “Land Tax”, and “Tax on Discovered Treasure” as well as others. These issues have been dealt with in specific essays as well, such as Kitâb al-Kharâj (The Book of Land Tax) by Abû Yûsuf, the Chief Justice in the era of the Caliph Hârûn al-Rashîd. This same topic, in more general terms, is dealt with when discussing the injunctions relating to the state treasury, its sources of revenue, the types of wealth it deals with, and how that wealth is to be allocated. Constitutional Law defines the form that government is to take, the relationship between the various political authorities within it, and the distribution of special powers between them. Administrative Law constitutes a body of statutes that regulates the activities of executive authority in performing its duties and assuring that such activities are carried out in a harmonious way. The books of Islamic Law do not refer to these branches of Law by these terms. Instead, it places all of these injunctions under the heading of “Islamic Politics” or “Injunctions Pertaining to Political Authority”. Books have been written specifically on this topic, like al-Ahkâm al-Sultâniyyah (Injunctions Pertaining to Political Authority) by al-Mâwardî (d. 450 A.H.). The subsidiary branches of Law have also been dealt with. Civil Law is dealt with as a branch of Transaction Law, whether dealing with individuals or property. With respect to Commercial Law, the Islamic jurists of old had dealt with the issues that were relevant to their needs under such headings as “Partnerships”, “Limited Partnerships” and “Bankruptcy”. Thereafter, they made custom the deciding factor in business practices. The reason for this is the simplicity of the business environment at that time. Commerce was not as diversified and complex as it is today. Lastly, we find that the Islamic jurists, under such headings as “Lawsuits”, “Judicial Decisions”, and “Testimony”, have dealt with the Code of Procedure, the statutes regulating the judicial process in its application of Civil and Commercial Law. We can see how fiqh – Islamic Law – covers every domain of human activity, whether it be on the level of the individual, the society, or the international arena. As for those issues that Islamic Law does not cover in particular, it deals with them in broad terms, making it possible for the particulars of the law to be ascertained in light of general, flexible principles. Distinctive Characteristics of Islamic Law Anyone who follows Islamic Law or studies it carefully will find that it is distinguished by certain characteristics and unique qualities that are not shared by any other legal system. These characteristics have allowed it to enjoy stability, growth, and relevance for over fourteen centuries. It shall remain so until Allah repossesses the Earth and everyone upon it. The reason for this is that the Sharî`ah has a permanent and global character, because it is the final, divinely revealed Sharî`ah for the whole world, and because the religion of Islam is the last in the line of divinely revealed religions. It is, thus, necessary for the Sharî`ah to have certain unique qualities that afford it the continuity and stability it needs to deal with the ever-changing requirements of human life over vast stretches of time and space.Before discussing the most important of these distinguishing features, we wish to point out that Islamic Law is much broader in scope and much more complete than any man-made code of law. Islamic Law covers all aspects of Law covered by man-made “positive” law as well as other issues that such man-made laws do not touch upon. For this reason, one orientalist was of the opinion that there is no exact equivalent to the term “fiqh” in any Western language. There is nothing strange about this, because Islamic Law derives its principles and tenets from the Book of Allah that was sent down by the Most Wise, the Most Praiseworthy Creator, a Book that cannot be approached by falsehood from any angle. Islamic Law, with its distinctive features, is unprecedented in the history of Law. Islamic Law is the broadest, most comprehensive system of legislation in the world. It was applied, through various schools of thought, from one end of the Muslim World to the other. It also had a great impact on other nations and cultures. Many nations of the world borrowed their own legal systems from Islamic Law by way of contact with Islamic Spain, Sicily, Turkestan, Bukhara, and the Balkans. In today’s time, it is considered one of the sources of world law. Some of the unique characteristics of Islamic Law are the following: 1. Nobility of purpose. Every system of law has an objective behind it that it seeks to fulfill. The principles that it follows are established with the sole aim of realizing this objective. This objective varies from culture to culture. It also varies due to the changing aims and objectives of those in power who have legislative authority. For this reason, changes and amendments are commonplace, as nations employ law as a means of directing their citizenry to certain objectives. Likewise, the state employs law as a means of achieving certain limited goals where the political authority has no other means at its disposal to bring them to realization. In short, law becomes the obedient donkey of the state, bearing its burdens and following its directions. Islamic Law, on the other hand, is not shaped by society. Quite the contrary, society is shaped by it. This is because man did not create it, but in fact, recreates himself in conformity to it. Islamic Law is not limited to regulating the interrelationships between individuals in society. It, first and foremost, regulates the relationship between the individual and the Creator by legislating different forms of worship like prayer, fasting, zakâh, and Hajj. Moreover, it defines the rights and obligations each individual has with respect to others, so that the potential harm any individual might cause for others is effectively negated. In this regard, Allah’s Messenger (peace be upon him) said: “There should be no harm and no harming of others.” In short, Islamic Law aims at a great objective: that of realizing the benefits and best interests of both the individual and society and warding off what is to their detriment, giving preference neither to the needs of the individual nor to those of society as a whole. 2. Islamic Law is divine revelation. All the injunctions of Islamic Law are revelation from Allah, so the one who is legislating for mankind is their Creator who knows best what will be of benefit to his creation in both this world and the next. He knows the psychological makeup of the human being, what will be in harmony with it, and what will clash with it. Allah says: Does the One who created not know, and he is the Gentle, the All-Aware.Man-made law, on the other hand, is the product of the human intellect that has limited powers and is subject to deficiency and error. This is the reason that the intellect can never truly comprehend the human soul and what is in harmony with the nature that Allah has placed within it. Therefore, the legislations that come from human effort may not always be suitable for human nature. 3. Applying the injunctions of Islamic Law constitutes obedience to Allah. Following the injunctions of Islamic Law is a way of worshipping Allah and earning His reward. Likewise, disobeying the Law amounts to disobedience of Allah and is a way of deserving of His wrath. Some forms of transgression have prescribed punishments that are supposed to be carried out in this world. Others hold the threat of punishment in the Hereafter. It is, thus, possible for us to say that the individual Muslim is always acting as an overseer policing himself out of fear of Allah. It is on this basis the character of the individual and society is built. As for man-made laws, the impetus to obey them is the fear of reprisal from the political authority, not the hope of attaining blessings and rewards from Allah. Likewise, disobedience to such laws does not instill a feeling of wrongdoing as long as it goes unnoticed by the authorities. Thus, there is nothing to discourage the use of deception to assert a legal claim against someone else, because whatever the judge rules will be deemed permissible or forbidden, in the most absolute sense, on the basis of his judgment. 4. Islamic Law holds the distinction of being comprehensive and general in its scope. It comes to regulate three different factors: the relationship between the individual and his Lord, the relationship between the individual and himself, and the relationship between the individual and others. Devotional Law deals with the first of these through its legislation of different forms of worship, like prayer and fasting. The relationship between the individual and himself is handled by injunctions like those dealing with dietary laws, those regulating personal dress, and everything else that is legislated for the purpose of protecting the individual, his mind, and his body. The relationship between the individual and others is regulated by Transaction Law and the prescription of punishments to be carried out in this world by the political authorities. It covers such things as marriage, buying and selling, leasing, retribution, fixed punishments, discretionary punishments, legal verdicts, and testimony. The regulation of all three of these concerns assures that Islamic Law deals with every aspect of human life. In Islamic Law, this is expressed in terms of the five necessities: life, religion, reason, honor, and property. All Islamic legislation can be referred back to the preservation of one or more of these five necessities. If we compare Islamic Law in this respect to any of the man-made legal systems, we will find that the latter only deal with the relationship between the individual and others. As for the individual’s relationship with himself –who can often be his worst enemy – and his relationship with his Creator –who brought him into existence and submitted the rest of Creation to his needs to facilitate his worship of The notion of “separation of church and state” is rejected by the Sharî`ah that has Islamic Law as one of its fundamental components. Ethics is likewise a fundamental principle. The comprehensiveness of Islamic Law also manifests itself in its direct concern for every stage in an individual’s life. From the time that he is in the womb until the time that he is born, then throughout his infancy, adolescence, adulthood, and old age, and even up to his death and beyond, Islamic Law protects and safeguards the rights of the human being. It assures these rights, even when the individual is unable to assert them for himself, like when he is in the womb, or is in his infancy, or is beset by senility, or after death. It, likewise, protects the rights of the rational adult without any discrimination. Islamic Law is also concerned with the future of the human being, not only in this worldly life, but also in the eternal life to come, by enjoining acts of worship that must be carried out by every believer in this faith. Man-made laws are not even concerned with this worldly life except in a limited framework, so there is no reason to discuss them with reference to what is before or after this life. 5. Stability and permanence in principles and flexibility in application. Islamic Law rests upon a set of stable, unchanging principles derived from the Qur’ân and Sunnah. The texts of the Qur’ân and Sunnah have been most carefully and accurately recorded and preserved. Most of these texts contain general injunctions for legislation without going into the precise details relating to application. This affords the jurist broad powers of discretion that allow him to take ever-changing circumstances into consideration. The Islamic political system is a good example. The religious texts give a general outline of how it is supposed to be, which includes such things as justice between the citizenry, obedience to political authority, consultation between Muslims, and cooperation in righteous conduct. At the same time, the texts leave the application of this general outline to practical circumstances that require a measure of flexibility. The important thing is that the outlined objectives of Islamic government are realized, not the manner in which they are carried out or the different forms that this might take, so long as the injunctions imposed by the sacred texts and the principles of the Sharî`ah are not violated. In carrying out the objectives of the Sharî`ah, there is a great degree of flexibility and a tremendous capacity for development. There is nothing to prevent the appearance of new injunctions that were previously unknown, in response to changing requirements. The jurists refer to this as the principle that legal injunctions change with the changing of time and place. With this principle, Islam leaves the door to juristic discretion open, allowing the jurist to refer all the matters that the texts are silent about back to similar issues where the texts have given a ruling. Added to this is the fact that, in Islamic Law, customary practice and the consideration of the general welfare are two important secondary sources of legislation. These two sources are themselves, quite capable of keeping the injunctions harmonious with the cultural environment in which they occur. The permanence and stability of these basic principles and the flexibility allowed in their application give Islamic Law a distinction not shared by any other modern legal system, because most of these other systems, while they attempt to respond to the needs of the day through continuous revision and reform, are sorely in need of a measure of substance and of sound principles, so that change and reform do not lead to the demise of their basic principles and fundamentals. The foundations and principles of most of these legal systems are exposed to change and substitution so much that they become the targets of sport and corruption for those who are in a position to set down such legislation. 6. The absence of difficulty and the limitation of imposition. Islamic Law does not impose any obligations of great severity or difficulty. Nothing in Islamic Law is overly burdensome. Whoever scrutinizes the injunctions of Islamic Law will find within them a clear tendency towards alleviating difficulties. He or she will also find that all obligations that have been imposed, from the onset, have had leniency and ease taken into consideration for the ones who must carry them out. Allah has commanded that every legally accountable person must perform prayer five times a day, no individual prayer requiring more than a few minutes. The one who is unable to stand is permitted to sit. There is an equal degree of leniency in fasting. Fasting is obligatory for one month out of the year. The difficulty in carrying it out does not reach the level of any real hardship. In spite of this, breaking the fast is permitted for the one who is traveling or is ill. Consumption of meat that has not been properly slaughtered is forbidden, but may be eaten in cases of dire necessity. Expiations have been provided to compensate for certain sins. There are many other things that point to the fact that Islamic Law aims at achieving ease and removing difficulties in its legislation, so that people will not find themselves incapable of fulfilling their obligations and so that their resolve will not become weak in fulfilling that which has been enjoined upon them for their own benefit. The obligations imposed by Islamic Law are few. They can all be learned in a short period of time. They do not have many particulars and secondary factors to consider, making it easy to know them. This is attested to by Allah’s words: O you who believe, do not ask about things that if they were made clear to you would cause you harm. If you ask about them when the Qur’ân is being revealed, they will be made clear to you. Allah has forgiven them, and Allah is Forgiving, Forbearing. Those before you asked about them then became disbelievers.Allah Almighty had forbidden the people from delving into issues and becoming severe with them so that this would not cause certain injunctions to become obligatory that otherwise would not have been made compulsory. This would have led to a greater number of obligations that the people would be incapable of carrying out. This would have caused them to fall into ruin. This verse alludes to the fact that Allah intended to make the number of obligations small in order to make carrying them out easy for us and so that we would not fall into undue hardship. 7. The richness and fullness of Islamic Law. Anyone who studies Islamic Law will find that it contains an abundance of material and a wealth of ideas. This is evident in the various opinions of the jurists and the number of schools of thought. In spite of their large number, their differences, and diversity, none of them go outside the general scope of the Sharî`ah. You will find in Islamic Law that, for example, there are four major orthodox schools of thought, and you will find that in each school of thought there are a number of opinions attributed to the school’s founder and his students. Moreover, there are the numerous other schools of thought from the earliest generations of Islamic scholars. All of this should make the reader realize that Islamic Law is not limited to the opinions of one scholar or those of a specific group of people. Quite the contrary, it is a collection of opinions that ultimately all stem from the Qur’ân and Sunnah. This richness is one of the factors that give Islamic Law the ability to develop, grow, and respond to the growth of human civilization. It prevents Islamic Law from becoming rigid and stagnant. This diversity, in reality, stems from disagreement in understanding the same body of textual evidence, so it is a form of disagreement that offers diversity, not antagonism and contradiction. The richness of Islamic Law manifests itself in the encyclopedic books where its injunctions are recorded in great precision and detail, treating even the most rare cases and sometimes even posing hypothetical situations that have not yet occurred, so that the injunctions will be readily available when they do. Added to this, the jurists have explored the general tendencies in Islamic Law by studying the injunctions, then deriving general axioms from their patterns, so that these patterns could be used as guidelines for legal decisions. This has become a field of study on its own. In turn, the numerous injunctions that were studied were themselves derived on the basis of other rules outlined in the separate discipline of Islamic Jurisprudence, which deals with the methods by which legal injunctions can be derived from their original sources. Stages in the Development of Islamic Law The Prophet (peace be upon him) did not leave this world until after the edifice of the Sharî`ah was completed and its basis and general principles fully outlined. This has been established by a clear text from the Qur’ân:Today, I have perfected for you your religion and completed my favor upon you and have chosen for you Islam as your religion.At the same time, the Prophet (peace be upon him) did not leave for his Companions a fully codified Law. He left them with only a collection of principles and general rules and a number of specific injunctions and judicial verdicts that are found in the Qur’ân and Sunnah. This would almost have been sufficient for them if the authority of Islam had not spread beyond the confines of the Arabian Peninsula and met with circumstances and customs that the Muslims had never before encountered. When this happened, they disagreed on how these new factors fit in with the general principles of Islamic Law, its injunctions, and its objectives. That which is contained in the Qur’ân was a set of principles, the understanding of which was capable of being broadened and advanced with the broadening of the scope of human thought and the appearance of the new circumstances that Islam had to deal with when it came in contact with other cultures and customs. At this point in time, the Muslim scholars began to investigate issues and, in a religious light, derive laws for the circumstances of a more informed life. This advancement in the organization of Islamic Law was the result of the work of the Caliphs and those that followed them in accordance with what was suitable for the circumstances. In the newly opened territories where foreign peoples began entering the fold of Islam in droves, there was a pressing need to instruct them in the things that they were ignorant of and to clearly define the injunctions of the Sharî`ah. It was also necessary to apply these injunctions in a way that would properly regulate human interaction and clearly define the peoples’ rights. In this way, Islamic Law advanced over the ages, each successive generation contributing to its growth, until it became a great and awesome edifice, regulating in detail every type of human interaction and relationship. One who follows the historical development of Islamic Law will observe that it passed through different stages with respect to its formation, growth, and development over the past fourteen centuries. The writings in Law for every school of thought have seen development since the era of their founders, passing through different styles, from commentaries on original texts, to summaries and abridged works, and then to the great legal encyclopedias. Thereafter, writings began in the field of defining general axioms of Islamic Law that included comparing and grouping injunctions according to patterns evident in the legislations. The field of Comparative Law also developed, as well as Legal Theory, the codification of definitions, and the formulation of formal legal codes. It is possible to outline the stages of development that Islamic law passed through by dividing it into the following seven stages: 1. The prophetic era, comprising the life of the Prophet (peace be upon him). This era saw the completion of the edifice of the Sharî`ah and the completion of the religion. 2. The era of the rightly guided Caliphs and the period that followed it up to the middle of the first century A.H. This period and the one that preceded it are considered the preliminary stage for the codification of Islamic Law. 3. From the middle of the first century A.H. to the beginning of the second. At this stage, Islamic Law became a distinct science of its own that scholars would specialize in. Schools of thought were formed in this period, which is the stage that Islamic Law as a science was established. 4. From the beginning of the second century to the middle of the fourth. During this stage, the codification of Islamic Law was completed. 5. From the middle of the fifth century to the fall of Baghdad at the hands of the Tatars in the middle of the seventh century. At this stage, the writings in the field of Islamic Law started to become rigid and beset by blind following. 6. From the middle of the seventh century to the to the beginning of the modern era. This stage is one of weakness with regard to the methodologies employed in the codification of Islamic Law. 7. From the middle of the thirteenth century A.H. to the present day. During this period, studies in Islamic Law broadened considerably, especially in the field of Comparative Law and in the critical study of the major classical works in the field. The Sources of Islamic Law What we mean by “the sources of Islamic Law” are the types of evidence that the Lawgiver set down as valid proofs for the injunctions. The jurists unanimously agree upon some of these types of evidence, these being the Qur’ân, the Sunnah, and juristic consensus. The majority of scholars also recognize juristic analogy as a fourth source of evidence.Added to this are secondary forms of evidence like juristic discretion, customary practice, and the consideration of general welfare. Before discussing these sources of Law in depth, it is appropriate to make it clear that all of them, in actuality, have their origins in one source, that being the Qur’ân. Every source of Law coming after the Qur’ân is derived from it. For this reason, al-Shâfi`î, the founder of one of the four orthodox schools of thought, used to say: “The injunctions must be derived only from the sacred texts or related back to them.” Al-Shâfi`î did not recognize anything except the sacred texts or referring issues back to them. Furthermore, he recognized juristic analogy as the only valid way of referring new issues back to the texts. Other leading jurists had a broader view of what could be considered a means of referring issues back to the texts, adding all the other possible secondary sources of Law. We shall first discuss the primary sources of Islamic Law – the Qur’ân, Sunnah, juristic consensus, and juristic analogy. Thereafter, we shall deal with the secondary sources – juristic discretion, the consideration of general welfare, and customary practice. The sources of Islamic law are as follows: 1. The Qur’ân: This is the origin of all Islamic legislation. It sets forth the fundamentals of the Sharî`ah, clarifying its principle teachings. It clarifies beliefs in great detail and discusses forms of worship and legal matters in broad terms. It fulfills the role in Islamic Law that a constitution fulfills for the man-made laws of nations. It is the model for the Prophet (peace be upon him) and those who come after him. This is why the Qur’ân is considered the source of all legislation, even though its role as a “constitution” for Islamic Law limits it to clarifying injunctions in only general terms, rarely dealing with particular details. The reason for this is that these particulars are innumerable; their exposition would draw the Qur’ân away from its primary objectives and its eloquence. The general orders for such things as prayer and the Zakâh tax are given in the Qur’ân, without the manner of performance being dealt with. This is then expounded by the words and practices of the Prophet (peace be upon him) as recorded in the Sunnah. Likewise, the Qur’ân, in general terms, orders that contractual obligations be carried out, asserts the permissibility of trade, and prohibits interest. It does not stipulate which types of contracts are valid and must be fulfilled and which types are invalid. This has been taken up by the Sunnah. Sometimes the Qur’ân deals with the particulars of its injunctions. It does so with regard to inheritance, the divorce procedure due to an accusation of adultery, certain prescribed punishments, and the prohibited degrees of marriage, among other injunctions that do not change with the passage of time. The generality of Qur’ân’s texts provides another important distinction with respect to Civil Law, as well as to the political and social order. It allows for the texts to be understood and applied in various ways, all of which are accommodated by the wording of the texts, making the injunctions capable of responding to the requirements of the general welfare over the course of time without departing from the fundamentals and objectives of the Sharî`ah. Due to their generality, the texts of the Qur’ân need the Prophetic Sunnah to clarify them, so their injunctions can be carried out in the manner and to the limit intended under various, particular circumstances. For this reason, the Qur’an alludes to the Sunnah when it comes to these details, by declaring: Whatever the Messenger gives you, then take it, and whatever he forbids you, then leave it alone.On this basis, the Sunnah becomes the key to understanding the Qur’ân. The Muslims all agree that the Qur’ân is a source of legislation and that its injunctions must be followed. They also agree that it is the first source to be referred to and that nothing else should be referred to except if the needed injunction is not found therein. It is also accepted that the meaning of its words are in some case unambiguous in it’s meaning, having only one possible interpretation, and that in other cases multiple interpretations are possible. 2. The Sunnah: This term is used to refer to the statements, actions, and tacit approvals of the Messenger (peace be upon him). With this meaning, it is synonymous with the word “hadîth”. We might also use the word Sunnah to mean the practical application of the injunctions during the prophetic era. The Sunnah comes after the Qur’ân in its ranking as a source of Islamic Law, as it comes to clarify what the Qur’ân leaves ambiguous or difficult to understand, qualify what the Qur’ân leaves unqualified, and bring up issues that the Qur’ân does not mention. An example of the latter is the grandmother’s share of inheritance, for it is established that the Prophet (peace be upon him) ruled that the grandmother receives one sixth of the estate. The Sunnah shows itself to be subsidiary to the Qur’ân in another way, for the Sunnah, in addition to its role of providing explanation and clarification, never departs from the Qur’ân’s general principles even when it sets forth injunctions that the Qur’ân does not mention. The texts of the Qur’ân and the general principles that they outline are, in truth, the authoritative points of reference for everything contained in the Sunnah. The Sunnah, in turn, is necessary and indispensable for the proper understanding and application of the Qur’ân, even though the Sunnah contains, in addition, some material that is not necessary for this understanding. Since the era of prophetic relation came to an end with the death of the Messenger (peace be upon him), the Sunnah has been transmitted to us by way of narrators. Only the narrations whose authenticity can be established according to the most stringent conditions are acceptable as proof for legislation in Islamic Law. The scholars of the Sunnah expended great efforts in the classification of the prophetic hadîth into sahîh (authentic), hasan (good), da`îf (weak), and mawdû` (fabricated). Only the first two are acceptable as proof in Islamic Law. The most prominent and reliable works in the Sunnah are Sahîh al-Bukhâri, Sahîh Muslim, Sunan Abî Dawûd, Sunan al-Nasâ’î, Sunan al-Tirmidhî, and Sunan Ibn Mâjah. Likewise, the Muwatta’ of Mâlik and the Musnad of Ahmad b. Hanbal hold a position of importance with the scholars of Hadîth and Islamic Law. There is no disagreement about the Sunnah being one of the sources for Islamic legislation. It holds a position secondary to that of the Qur’ân in that the Qur’ân takes precedence in providing proof for legislation. When a jurist looks for a ruling on a certain matter, he looks to the Qur’ân first. If he finds the desired injunction therein, he applies it. If not, he takes recourse to the Sunnah. This order of precedence is indicated by the following discussion that the Prophet (peace be upon him) had with Mu`âdh: The Prophet (peace be upon him) asked: “How will you judge if the position is given to you?”Is has been related that the Caliph `Umar wrote to the judge Shurayh: “You should judge according to the Book of Allah, and if you do not find what you need in the Book of Allah, then judge according the Sunnah of Allah’s Messenger.” It is not known that anyone took exception to this. 3. Juristic Consensus: This refers to the unanimous agreement of the jurists of a given era on a legal ruling. It makes no difference whether the jurists are from the era of the Companions after the death of the Messenger (peace be upon him) or any era thereafter. Consensus is a very strong source of evidence for establishing the injunctions of Islamic Law. It comes after the Sunnah in rank. The proof for its validity is drawn from a number of verses and hadîth that show the unanimous statement of the people of knowledge is in itself a valid proof. The verdicts arrived at by consensus are, in and of themselves, always drawn from the Qur’ân and Sunnah, even though it is possible that the hadîth that formed the basis of the jurists’ consensus did not reach us. This is because it is inconceivable that the reliable scholars of Islam would ever come to agreement on an issue on the basis of personal inclination without there being a proof from the sacred texts establishing it. For this reasons, scholars of later generations, when investigating the possibility of consensus, look for the presence of the consensus and the reliability of how it has been reported without concerning themselves with the textual evidence behind it. If it were necessary to look for the textual proof for every case where consensus took pace, then juristic consensus would effectively cease to be a valid proof in and of itself. 4. Juristic Analogy: This refers to taking an injunction that applies in one case and applying it in another because they share a characteristic that is the effective cause of the injunction being applied in the first case. Juristic analogy ranks as the fourth source of Islamic legislation, though its effects are more widespread and far-reaching than that of juristic consensus due to the fact that so many injunctions in Islamic Law are based upon it. The reason for this is that the issues where consensus has taken place are few, since there is no way that it could occur after the earliest eras of Islamic history. The reason for this is that the scholars have become scattered all over the world and have not been able to engage in mutual consultation. This is not the case for juristic analogy, because it does not require unanimous agreement. Quite the contrary, each jurist uses analogy according to his own, personal reasoning for every new situation that has not been previously addressed by the Qur’ân, Sunnah, or consensus. It should not go unnoticed that the Qur’ân and Sunnah are necessarily limited in the number of issues that they can directly address. At the same time, the number of new occurrences and expected future occurrences knows no limit. There is no way for Islamic legal injunctions to be established for every new development and every possible transaction except by way of applying the methods of reason, at the forefront of which is that of analogy. Analogy is the most widely applied and versatile sources for extrapolating specific injunctions to deal with new issues confronted by Islamic Law. The sacred texts generally state the effective cause and the rationale for most of the injunctions that they establish. This facilitates applying these injunctions in new but similar cases that make their appearance in every age. The texts of the Qur’ân are mostly of a general and universal nature, as we have seen. This has opened the doors to analogous reasoning, allowing cases that the texts have not treated to be referred back to those that the texts have dealt with decisively by applying the textually established injunctions wherever their effective causes are evident. The cases handled by way of analogy in Islamic Law are too numerous to count. The greater portion of Islamic legislation is made up of these cases. Analogy continues to be used for every new issue that is not directly addressed by the sacred texts. For example, the texts that deal with injunctions pertaining to an agreement of sale are more than those that deal with a lease agreement. Consequently, the jurists, by way of analogy, took many of the injunctions referring to sales and applied them to lease agreements due to the fact leasing is essentially the sale of rights and benefits. Likewise, the texts deal at length with the injunctions pertaining to the guardians of orphaned minors, detailing their rights, responsibilities, and capabilities. The jurists, by way of analogy, applied the same injunctions to the executors of endowments, due to the similarities in their duties. They also derived many of the injunctions pertaining to endowments themselves from those that the texts had established for bequests. The Secondary Sources of Islamic Law There are other acceptable means of deriving Islamic legal injunctions, besides the four primary sources. The Qur’ân and Sunnah have given indication that these sources are also to be considered as legitimate means of establishing legislation, except that they play a subsidiary and subordinate role to that of the four primary sources. For this reason the majority of scholars do not count them as distinct sources of law, but merely as extensions of the primary ones. We shall deal with the two most important of these secondary sources: consideration of general welfare and customary practice. 1. Consideration of General Welfare (Istislâh): This is establishing injunctions on the basis of broad aspects of human welfare (maslahah mursalah in Arabic) neither expressly considered nor rejected by the sacred texts. This consideration must remain within the confines of the general consideration for human welfare evident in the Sharî`ah with its concern for attaining that which is beneficial and avoiding that which is harmful. The sacred texts and the principles of the Sharî`ah clearly indicate the necessity of taking these factors into consideration when regulating all aspects of human life, though they do not pinpoint the specific ways in which these issues might be made manifest. That is why the consideration is of “broad aspects” of human welfare, since they have not been strictly defined. If, on the other hand, the specific means of realizing an issue of welfare is enjoined by the texts themselves – like the recording and preservation of the Qur’ân or the importance of reading and writing – then it is an injunction established by the texts and is not considered as an issue falling under the principle of considering the general welfare. Likewise, if the texts indicate that the consideration of a certain aspect of general welfare is rejected – like the preservation of life that might be achieved by surrendering to the enemy, for example – then it is outside the scope of the Sharî`ah, for it has been rejected on account of a greater manifestation of human welfare that takes precedence over it – in this case, protecting the honor and might of the Islamic nation. In general, we can say that the factors that encourage a jurist to consider the general welfare are the following: a. Attaining that which is beneficial: This means attaining that which society needs so that human life can be maintained in the best, most dignified manner. b. Avoiding that which is harmful: This entails avoiding those things that can cause detriment either to the individual or to society, regardless of whether this harm is of a material nature or a moral one. c. Preventing wrongdoing: This entails preventing the means by which the commands of the Sharî`ah are neglected or its prohibitions are violated, even if only unintentionally. d. Changing times: This refers to the changing circumstances people find themselves in. Each of these four factors requires the jurist to resort to considering the general welfare in order to produce new injunctions that can effectively carry out the general objective of the Sharî`ah to establish society in the best manner possible. A good example of the application of this principle is an act initiated by the second Caliph, `Umar b. al-Khattâb. He established the general registry for the armed forces to set their salaries and their terms of service. He then established registries for other purposes. In the same vein are the traffic laws of today that came in response to the demands of the automobile and were set down in order to preserve life and prevent collisions and accidents. 2. Customary Practice (`Urf): The Arabic word `urf refers to that which is well known, widely accepted, and regarded as correct among those of sound mind. We find it used in the Qur’an in the following verse: Show forgiveness, enjoin what is good (al-`urf), and turn away from the ignorant ones.According to our definition, it should be clear that something should not be considered customary practice if it is not consistently applicable to all or most of the members of a given population. This means that the majority of the people must take it into consideration and act on it basis, like the custom today in Syria that only one-third of the dowry stipulated by the woman in the marriage contract is due immediately, the other two-thirds being due only upon death or divorce. Thus, it is imperative for the custom to be the general assumption shared by the majority of the people. If it is not the practice of at least the vast majority of the population, then it will only be counted as an act of individual discretion. Jurists of modern, Positive Law take customary practice as one of the most important sources of law, taking from much of their Common Law and setting much of it down in statutory form in order to remove any ambiguity as to what is considered legitimate customary practice and what is not. Likewise, Islamic Law reaffirmed a good number of the rights and practices that were known to the Arabs before Islam. It also modified or prohibited a good number of those practices and came with completely new injunctions as well. In this way, it completely regulated the rights and obligations of people in their societal lives on the basis of their needs and interests, always tending toward the best method and solution. The Divine Law, in its civil injunctions, seeks only to provide for the best interests of the people and to preserve their rights; thus, it reaffirms those aspects of customary practice that are in harmony with this objective and with its methods and principles. The majority of scholars use a statement related from `Abd Allah b. Mas`ûd – one of the greatest jurists from among the Companions of the Messenger (peace be upon him) – as a proof for the status of customary practice in Islamic Law: “Whatever the Muslims see as good is seen by Allah as good.” The efforts of the Islamic jurists are in agreement with respect to recognizing customary practice, even though they differ greatly in the extent to which they use it. The jurists – especially those of the Hanafî school of thought – have given customary practice considerable weight in establishing and limiting the rights of people in the domain of legal transactions and other aspects of social behavior. The Hanafî jurists considered customary practice an important principle and a great source of legislation for establishing rights and obligations wherever it does not contradict the sacred texts. Customary practice to them is a valid proof for establishing binding legislation wherever any other proof is not present. It can even take precedence over juristic analogy, because applying an injunction based on analogy in conflict with custom might be cause undue hardship. In this case, the Hanafî concept of juristic discretion comes into play, which allows for the circumvention of analogous reasoning in some instances. If, on the other hand, customary practice violates a sacred text commanding some other form of behavior, then the custom is rejected. This includes practices such as consuming usury and the custom of imbibing alcoholic beverages on certain occasions. Practices such as these are rejected outright because they are clearly prohibited by the sacred texts. |
More entries: Women in Islam (6), Islamic Law
