The Role Of Sunnah In Islamic Jurisprudence Theology Religion Essay

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1st Jan 1970 Theology Reference this

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Literally, Sunnah means a clear path or a beaten track but it has also been used to imply normative practice, or an established course of conduct. It may be a good example or a bad, and it may be set by an individual, a sect or a community.

In pre-Islamic Arabia, the Arabs used the word ‘Sunnah’ in reference to the ancient and continuous practice of the community which they inherited from their forefathers.

The Sunnah, according to the scholars of hadeeths, is everything that has been related from the Messenger (SAW), of his statements, actions, tacit approvals, personality, physical description, or biography.  It does not matter whether the information being related refers to something before the beginning of his prophetic mission, or after it. The statements of the Prophet include everything the Prophet said for various reasons on different occasions. The actions of the Prophet include everything that the Prophet did that was related to us by his Companions.  This includes how he made ablutions, how he performed his prayers, and how he made the Hajj pilgrimage.

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The tacit approvals of the Prophet includes everything that his Companions said or did that he either showed his favor towards or at least did not object to.  Anything that had the tacit approval of the Prophet is as valid as anything that he said or did himself.

An adequate answer to the question as to whether the Sunnah is a mere supplement to the Qur’an or a source in its own right necessitates an elaboration of the relationship of the Sunnah to the Qur’an is tried in the following paragraphs:

The Holy Quran is the foundation of Islamic Law.  It is the miraculous speech of Allah that was revealed to the Messenger, may the mercy and blessings of Allah be upon him, by way of the angel Gabriel.  It has been transmitted to us with so many chains of authority that its historical authenticity is unquestionable.  It is written down in its own volume, and its recitation is a form of worship.

As for the Sunnah, it is everything besides the Holy Quran that came from Allah’s Messenger.  It explains and provides details for the laws found in the Holy Quran.  It also provides examples of the practical application of these laws.  It is also either direct revelation from Allah, or decisions of the Messenger that were then confirmed by revelation.  Therefore, the source of all the Sunnah is revelation.

The Holy Quran takes precedence over the Sunnah in two ways.  For one thing, the Holy Quran consists of the exact words of Allah, miraculous in nature, down to the last verse.  The Sunnah, however, is not necessarily the exact words of Allah, but rather their meanings as explained by the Holy Prophet (SAW).

The Position of the Sunnah in Islamic Law

During the Messenger’s lifetime the Holy Quran and Sunnah were the only sources of Islamic Law.

The Holy Quran provides the general injunctions that formed the basis of the Law, without going into all the details and secondary legislation, with the exception of a few injunctions that are established along with the general principles.  These injunctions are not subject to change over time or with the changing circumstances of the people.  The Holy Quran, likewise, comes with the tenets of belief, sets down acts of worship, mentions the stories of the nations of old, and provides moral guidelines.

The Sunnah comes in agreement with the Holy Quran.  It explains the meanings of what is unclear in the text, provides details for what is depicted in general terms, specifies what is general, and explains its injunctions and objectives.  The Sunnah also comes with injunctions that are not provided by the Holy Quran, but these are always in harmony with its principles, and they always advance the objectives that are outlined in the Holy Quran.

The Sunnah is a practical expression of what is in the Holy Quran.  This expression takes many forms.  Sometimes, it comes as an action performed by the Messenger.  At other times, it is a statement that he made in response to something.  Sometimes, it takes the form of a statement or action of one of the Companions that he neither prevented nor objected to.  On the contrary, he remained silent about it or expressed his approval for it.

The Sunnah explains and clarifies the Holy Quran in many ways.  It explains how to perform the acts of worship and carry out the laws that are mentioned in the Holy Quran.  Allah commands the believers to pray without mentioning the times that the prayers had to be performed or the manner of performing them.  The Messenger clarified this through his own prayers and by teaching the Muslims how to pray.  He said: “Pray as you have seen me praying.”

Allah makes the Hajj pilgrimage obligatory without explaining its rites.  Allah’s Messenger explains this by saying:

“Take the rites of Hajj from me.”

Allah makes the Zakat obligatory without mentioning what types of wealth and produce it is to be levied against.  Allah also does not mention the minimum amount of wealth that makes the tax obligatory.  The Sunnah, though, makes all this clear.

The Sunnah specifies general statements found in the Holy Quran.  Allah says:

“Allah commands you regarding your children: to the male, a portion equal to that of two females…” (Holy Quran 4:11)

This wording is general, applying to every family and making every child an inheritor of his or her parents.  The Sunnah makes this ruling more specific by excluding the children of Prophets.  Allah’s Messenger (SAW) said:

“We Prophets leave behind no inheritance.  Whatever we leave behind is charity.”

The Sunnah qualifies unqualified statements in the Holy Quran.  Allah says:

“…and you find no water, then perform tayammum (dry ablution) with clean earth and rub therewith your faces and hands… (Holy Quran 5:6)

The verse does not mention the extent of the hand, leaving the question of whether one should rub the hands up to the wrist or the forearm.  The Sunnah makes this clear by showing that it is to the wrist, because this is what Allah’s Messenger did when he performed dry ablution.

The Sunnah also comes emphasizing what is in the Holy Quran or providing secondary legislation for a law stated therein.  This includes all the hadeeths that indicate that Prayer, the Zakat, fasting, and the Hajj pilgrimage are obligatory.

An example of where the Sunnah provides subsidiary legislation for an injunction found in the Holy Quran is the ruling found in the Sunnah that it is forbidden to sell fruit before it begins to ripen.  The basis for this law is the statement of the Holy Quran:

Do not consume your property amongst you unjustly, except it is a trade among you by mutual consent.

The Sunnah contains rulings that are not mentioned in the Holy Quran and that do not come as clarifications for something mentioned in the Holy Quran.  An example of this is the prohibition of eating donkey flesh and the flesh of predatory beasts.  Another example of this is the prohibition of marrying a woman and her aunt at the same time.  These and other rulings provided by the Sunnah must be adhered to.

The Obligation of Adhering to the Sunnah

A requirement of believing in Prophet-hood is to accept as true everything that Allah’s Messenger (SAW) said.  Allah chose His Messengers (SAW) from among His worshippers to convey His Law to humanity.  Allah says:

“…Allah knows best with whom to place His Message…” (Holy Quran 6:124)

Allah also says:

“…Are the Messengers charged with anything but to convey the clear Message?” (Holy Quran 16:35)

The Messenger is protected from error in all of his actions.  Allah has protected his tongue from uttering anything but the truth.  Allah has protected his limbs from doing anything but what is right.

Allah has safeguarded him from showing approval for anything contrary to Islamic Law. 

In conclusion, it may be said that both sides are essentially in agreement on the authority of Sunnah as a source of law and its principal role in relationship to the Qur’an. They both acknowledge that the Sunnah contains legislation which is not found in the Holy Quran. The difference between them seems to be one of interpretation rather than substance. The Qur’anic ayat on the duty of obedience to the Holy Prophet (SAW), and those which assign to him the role of the interpreter of the Qur’an, are open to variant interpretations. These passages have been quoted in support of both the views, that the

Sunnah is supplementary to the Qur’an, and that it is an independent source. The point which is basic to both these views is the authority of the Holy Prophet (SAW) and the duty of adherence to his Sunnah. In the meantime, both sides acknowledge the fact that the Sunnah contains legislation which is additional to the Qur’an. When this is recognized, the rest of the debate becomes largely redundant.

He (SAW) is the most beautifully complete of Allah’s Creations.  This is clear from how Allah describes him in the following verses of Holy Quran:

“By the star when it sets.  Your companion has neither gone astray nor has he erred.  Nor does he speak of his own desire.  It is only revelation that has been revealed.” (Holy Quran 53:1-4)

QUESTION:

Kamali asserts that “The essential unity of Sharia’ah’ lies in the degree of harmony that is achieved between revelation and reason. Ijtihad is the principal instrument of maintaining this harmony”. Discuss how personal reasoning (Ijtihad) has helped to develop Islamic jurisprudence?

ANSWER:

1. Introduction:

Ijtihad played an important role in the development of Islamic legal theory. The aim of this essay is to discuss the concept of Ijtihad in the development of the Islamic legal theory. Thus it will not be out of place to give a brief introduction of the concept of Ijtihad.

2. Ijtihad:

The Arabic word Ijtihad is derived from the ‘Juhud’ which means ‘expending of maximum effort in the performance of an act’. In Islamic jurisprudence Ijtihad means the effort made by the Mujtahid in seeking knowledge of the Ahkam (Rules) of the Sharia’ah through interpretation. (Nyazyee, Ch. 14: P. 263).

This definition implies the following:

That the Mujtahid should expend the maximum effort, that is, he should work to the limits of his ability so much so that he realize his inability to go any further.

That, the person expending the effort should be a Mujtahid. An effort expended by non-Mujtahid is of no consequence, because he is not qualified to do so.

The effort should be directed towards the discovery of the Rules of the Sharia’ah that pertain to the conduct.

The method of discovery of the Rules should be through interpretation of the texts with the help of other sources. This excludes the memorization of such Rules from the books of Fiqh or their identification by the Mufti. Thus, the activity of the Faqih and the Mufti cannot be called Ijtihad.

3. The Three Modes of Ijtihad:

The Jurists in general practice three types or modes of Ijtihad. In reality, the activity of the jurist cannot be split up into separate modes. Ijtihad is single seamless process, but for simplification and ease of understanding this activity is divided into three types as follows;

In the first mode, the Jurist stay as close to the text as he can. He focuses on the literal meaning of the texts, that is, he follows the plain meaning Rule.

When the first mode of literal construction is exhausted by the Jurists, he turns to syllogism, which is Qiyas. This mode is confined to strict types of analogy. These are called Qiyas Al-Ma’na and Qiyas Al.illah.

The second mode of Ijtihad is confine to the extension of the law from individual texts, while in the third mode the reliance is on all the texts considered collectively. This means legal reasoning is undertaken more in the line with the spirit of the law and its purposes rather than the confines of the individual texts.

4. Role of Ijtihad in the development of Islamic legal theory.

Early notion of Islamic legal theory and the concept of Ijtihad:

At the time of the Holy Prophet (SAW) the only source of the Sharia’ah was revelation. That revelation had two types, one was the direct speech of Allah, namely the Holy Quran, and the other was indirect speech of Allah which the Holy Prophet (SAW) expressed in his own words, that is termed as Sunnah of the Holy Prophet (SAW).

The Holy Quran by nature is implicit. It does not provide details of each and every individual case, rather it describes general principles, examples etc. the Holy Prophet (SAW) used to explain and implement those principles and general rules in individual cases, that is Sunnah of the Holy Prophet (SAW), in that sense the Sunnah is the explanation of the Holy Quran, though as it is mentioned earlier that explanation was also directed by the God.

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Although as it is mentioned earlier that the only source of law at that time was revelation, but some time the Holy Prophet (SAW) practiced Ijtihad in its narrow sense in the absence of reveled rule(s) as the Holy Prophet (SAW) said, ‘when I do not receive a revelation I adjudicate among you on the basis of my opinion’ (Abu Dawud, 1984:1017). However, the difference of that Ijtihad with ordinary Ijtihad bil ray is that whenever, He (SAW) mistook, a verse would be revealed in order to inform him the correct decision. For instance, once the Holy Prophet (SAW) was asked by a woman about the rule of dhihar. The Holy Prophet (SAW) answered her “I don’t think that the rule is different from that of divorce”. Then Allah revealed verses regarding the hukum of dhihar, which was not similar to divorce and then the hukum of dhihar had been corrected.

The companion of the prophet used to do Ijtihad at that time also. When the Prophet was not available or when the Prophet sent them to somewhere, they use to do Ijtihad in the absence of explicit Qur’anic verse or Sunnah of the Prophet. They use to interpret the verses of the Quran and the Sunnah of the Prophet as well as in cases of completely new issues they use to do Ijtihad on the basis of the principles of Sharia’ah. The advantage of them was if they mistook they could correct themselves by asking the Prophet or Allah would revealed the correct rule(s). Therefore, Sharia’ah was very much based on the revelation at that time, i.e. either Allah would reveal the hukum of a certain mas’ala or He would approve the decision(s) of the Prophet and his companions or He would disapproved and correct their decision(s). Hence, despite the fact that the practice of Ijtihad was started from that time, but it did not get the status of a source of Islamic legal theory then.

Development of Islamic legal theory and the concept of Ijtihad:

After the death of the Holy Prophet (SAW), the gate of revelation has been closed for ever. Therefore, in order to deal with new problems, the companions of the Holy Prophet (SAW) used to depend on the Ijtihad. However, it did not substitute the Holy Quran and Sunna at all, rather whenever they faced a new phenomenon regarding which they did not know any Qur’anic verse or Sunnah of the Holy Prophet (SAW), they used to ask the other companions whether they knew any Hadith of the Holy Prophet (SAW) concerning that. They used to do Ijtihad in the absence of the revealed rule and whenever they found any Hadith regarding that case they use to abandon their Ijtihad and followed that Hadith.

Because of the quick expansion of the Muslim world in first century, a huge number of people embraced Islam. A number of the companions of the Holy Prophet (SAW) migrated to different places in order to teach the new Muslims the science of Islam. People gathered around them to learn Islam. Through their teaching they created groups of scholars. Those groups were the producers of the different schools of thought.

Two distinctive trends of thought emerged at that time, namely Ahl al-Ray and Ahl al-Hadith. The trend of Ahl al-ray can be traced back to the second caliph Hazrat Umar (RA) and a renowned companion Hazrat Abdullah ibn Mas’ud (RA), whereas the trend of Ahl al-Hadith can be traced back from two renowned companions and scholars Hazrat Zaid Bin Thabit and Hazrat Abdullah Bin ‘Umar (RA) (Abdur Rahim,2003:55). Ahl al-ray are those who depend on personal opinion (Ijtihad bil ray) in order to solve the problems and analyze the Ahkam of Sharia’ah and extract the major causes of those in order to draw out those to new phenomena’s. Ahl al-Hadiths are those who depend on only authentic evidences. There strategy is to express exactly what is in the authentic narrations. They do not involve in causation of the Ahkam of Sharia’ah and extend those to new phenomena’s. Nevertheless, the more the Muslims faced new problems the more the former trend became prominent, because of their wide practice of Ijtihad they could solve the new phenomena’s better than Ahl al-Hadith School of thought. However, Ahl al-Hadith school of thought did not completely deny or overlook the concept of Ijtihad. Ijtihad also played a big role in the development of that school of thought. However, their concept of Ijtihad was narrower than that of Ahl al-Ray as discussed in the following section of the essay. Hence, it could be said that by the end of first century, Ijtihad became an important source of Islamic jurisprudence through the practice of it by the companions of the Holy Prophet (SAW) and their followers, although there were difference of opinion among them about the definition, scope and way of practice of it.

Institutionalization of Islamic legal theory and the role of Ijtihad in it:

The last companion of the Holy Prophet (SAW) died in the end of the first hijra. Around that time the process of institutionalization and compilation of Islamic jurisprudence started. The notion of Madhhad (School of thought) emerged at that time in different places. Although there were countless Madhhabs, but, apart from four Madhhabs others are not existed now a day.  We will discuss here the development of those four Madhhabs and the concept of Ijtihad in those.

Hanafi school of thought: Hanafi school of thought is based on the jurisprudence of Imam Abu Hanifa. The Usul of Imam Abu Hanifa as he describes, is as follow:

“If I find any hukum in the Holy Quran, I confined myself with that. If I do not find that there, I accept Sunnah of the Holy Prophet (SAW) which has come to me through authentic narrators. When I do not find that in the Holy Quran and in the Sunnah, I follow the opinion of the companions meaning their general consensuses. In case of their disagreement with each other I accept or abandon which ever I want, but I do not prefer others opinion over theirs’. In case of the opinion of others, I have the right of Ijtihad as well as they have”.

The Maliki School of thought: The Maliki Madhhad is based on the jurisprudence of Imam Malik (93-179 A.H.). The method of his jurisprudence which is the method of Maliki Madhhad as well is that, in order to find out the hukum of a certain issue he first used to look in the Holy Quran, if it is not available in the Holy Quran then he used to look it in the Sunnah of the Holy Prophet (SAW). Similarly if the Quran describes the principle or indirect hukum of the issue he also used to search the Sunnah in order to find out the details of that. He used to consider the practice of Ahl-Medina as Mutawatir Hadith. If he did not find the solution in the Holy Quran or in Hadith he would refer to the general consensus of the companions who were known as faqih, if there were no general consensus regarding that matter then he would follow the individual opinions of the companions or would do Qiyas. If it was an abstract matter where there is no room for Ijtihad bil ray then he would follow the opinion of a companion, else he would prefer Ijtihad bil ray.

Al-Shafi School of thought: Imam Al-Shafi emerged during the period of the compilation of the above mentioned two school of thought’s jurisprudence. He is credited as the inventor of Usul al Fiqh. However, Kamali argues that the Usul al-Fiqh was existed before but until the time of Al-Shafi it was not in a form of science. Imam Al-Shafi authored a book regarding the principles and rules of jurisprudence namely Al-Risalah, which is considered as the first book on Usul al-Fiqh (Kamali, 1991:3, 4). The motivations which prompted Al-Shafi to introduce the usul al-Fiqh are some inconsistencies which he observed in the discourses of his predecessors. He mentioned those in the beginning of his book kitabul Umm.

It is appear from the reform activity of Al-Shafi that the objective of that was to make the Ijtihad systematic and to demolish the tendency of unconditional imitation of the predecessors Fatwas and hence to reopen and widen the scope of Ijtihad. Although, he excluded Ray from the category of Ijtihad, especially he was critical about Istihsan, and emphasized more on qias but he made the point clear that he is against ‘the following of one’s personal whim and amounts to unjustified legislations.

Conclusion:

In conclusion, it can be argued that Ijtihad played an important role in the development of Islamic legal theory. It appears from the essay that some of the school of thought emerged as a reaction against Taqlid or blind imitation of predecessors and the objective of them was to reopen and widen the gate of Ijtihad.

QUESTION:

In Islamic legal theory the law preceded society and is considered to be eternal as Allah. Explain, how today’s states, with elected governments and independent judiciaries apply these rules of law.

ANSWER.

Introduction:

The Holy Quran is a complete code for mankind and provides guidance for man in all walks of his life. It has its own concepts of ethics, politics, economics and sociology.

It is an irony of fate that, now a days the demand for the enforcement of the Islamic law has come to surrounded by such a thick mist of misgivings that a mere reference to it raises a storm of criticism not only in non Islamic but even in Islamic countries also. Thus for instance, the questions are asked: Can a centuries old legal system be adequate to fulfill the requirements of our modern state and society.

To be sure, these questions are not the outcome of any antagonism towards Islam but mostly of sheer ignorance which must quite naturally breed suspicion.

The first task, therefore, is to explain to people the meaning and applications of Islamic Law, Its objectives, its Spirit, its Structure and its categorical and unchangeable injunctions along with the reasons of their permanence.

They should also be informed of the dynamic element of Islamic Law and how it guarantees the fulfillment of ever increasing needs of the progressive human society in every age.

Islamic Law:

The establishment of political authority which may enforce Islamic Law requires a Constitutional Law and Sharia’ah clearly laid down its fundamentals. The Sharia’ah has provided answers to the following basic questions of Constitutional Law.

What is the basic theory of the state?

What is the source of the authority of its legislation?

What are the guiding principles of state policy?

What are the qualifications of the ruler of an Islamic State?

What are the objectives of an Islamic state?

In whom does the sovereignty reside and what are the different organs of the state?

What is the mode of distribution of power between different organs of the state, viz.: Legislature, the Executive and the Judiciary?

What are the conditions of Citizenship?

What are the rights and duties of Muslim Citizens and what are the rights of non Muslim citizen?

The guidance which the Sharia’ah has provided in respect to these questions constitutes the Constitution of Islam.

Besides laying down the fundamentals of Constitutional Law, the Sharia’ah has also enunciated the basic principles of Administrative Law. Beside that there are precedents in administrative practice established by Holy Prophet (SAW) and the first four rightly guided Caliphs of Islam (Khulfah-e-Rashidin). For instance, the Sharia’ah enumerates the sources of income permissible for an Islamic State and those which are prohibited. It also prescribes the avenues of the expenditure. It lays down rules of conduct for Police, the Judiciary and Administrative machinery.

Elected Governments and Islamic Law:

The Holy Quran and Holy Prophet (SAW) encourage Muslims to decide their affairs in consultation with those who will be affected by that decision. The concept of consultation is known as SHURA in Islam. Shura is an Arabic word for “consultation”.

Majlis al-Shura and a Parliament

Many traditional Sunni Islamic Jurists agree that to be in keeping with Islam, a government should have some form of council of consultation or Majlis al Shura, although it must recognize that sovereignty belongs to ALLAH ALMIGHTY and not the people. Jurists have written that members of the Majlis should satisfy following three conditions:

They must be just,

They have enough knowledge Islamic Injunctions to distinguish a good caliph from a bad one, and

They have sufficient wisdom and judgment to select the best caliph.

Many contemporary Muslims have compared the concept of Shura to the principles of western parliamentary democracy. For example: What is the Shura principle in Islam?

It is predicated on three basic precepts. First, that all persons in any given society are equal in human and civil rights. Second, those public issues are best decided by majority view. And third, that the three other principles of justice, equality and human dignity, which constitute Islam’s moral core, are best realized, in personal as well as public life, under Shura governance.

Judiciary and Islamic Laws:

Islam is the religion that Allah wants for mankind from the time that He sent Holy Prophet (SAW) shows great concern for the judicial system and those appointed to carry out its responsibilities. Islam prescribes for it many legal injunctions. How else could it be, when Islam is the religion of mercy, equality, and justice? It is the religion that comes to free people from worshipping Creation and bring them to the worship of Allah. It is the religion that comes to remove people from oppression and iniquity and bring them to the highest degree of justice and freedom.

Allah’s Messenger (SAW) was the greatest of judges. He used to act in the capacity of judge in the city of Medina, which was the first Islamic state. He used to appoint people to be judges in other cities

In the era of the Rightly Guided Caliphs, the head of state continued to be the one to appoint judges, govern their affairs, protect their independence, and keep the governors and political appointees and even the Caliphs subject to the judge’s verdicts. Hazrat Umar bin al-Khattâb (R.A.), the second Caliph, was the first person to make the judge an independent entity, distinct from the Caliph and the governors.

So it was Islam that not only called for independent Judiciary but also the first religion and state that actually setup the independent Judiciary.

Conclusion:

The Islamic Law, the Law which Holy Prophet (SAW) delivered unto mankind for all times to come, this Law admits of no difference between man and man except in faith and religion. Those religious and social systems and political and cultural ideologies which differentiate between men on grounds of Race, Country or colour, can never become universal creeds or world ideologies for the simple reason that one belonging to a certain race cannot get transformed into another race, one born in certain country cannot tear asunder his entity from that place, nor can the whole world condense into one country, and the colour of negro, a Chinese and a white man cannot be changed. Such ideologies and social systems must remain conned to one race, community, or country. They are bound to be narrow, limited and nationalistic and cannot become universal.

Islam, on the other hand, is universal ideology. Any person who declares belief in LA ILAHA ILLALLAH MUAMMAD-UR-RASULLULLAH enters the pale of Islam and entitles himself to the same rights as those of other Muslims. Islam makes no discrimination on the basis of race, country, colour, language, or the like. Its appeal is to the entire humanity and it admits of no narrow minded discriminations.

This law is eternal. It is not based on the customs or traditions of any particulars people and is not meant for any particular period of human history. It is based on the same principles of the nature on which man has been created. And as that nature remains the same in all periods and under all circumstances, the law based on it unalloyed principles should also be applicable to every period and under all circumstances. And this universal and eternal religion is Islam.

Literally, Sunnah means a clear path or a beaten track but it has also been used to imply normative practice, or an established course of conduct. It may be a good example or a bad, and it may be set by an individual, a sect or a community.

In pre-Islamic Arabia, the Arabs used the word ‘Sunnah’ in reference to the ancient and continuous practice of the community which they inherited from their forefathers.

The Sunnah, according to the scholars of hadeeths, is everything that has been related from the Messenger (SAW), of his statements, actions, tacit approvals, personality, physical description, or biography.  It does not matter whether the information being related refers to something before the beginning of his prophetic mission, or after it. The statements of the Prophet include everything the Prophet said for various reasons on different occasions. The actions of the Prophet include everything that the Prophet did that was related to us by his Companions.  This includes how he made ablutions, how he performed his prayers, and how he made the Hajj pilgrimage.

The tacit approvals of the Prophet includes everything that his Companions said or did that he either showed his favor towards or at least did not object to.  Anything that had the tacit approval of the Prophet is as valid as anything that he said or did himself.

An adequate answer to the question as to whether the Sunnah is a mere supplement to the Qur’an or a source in its own right necessitates an elaboration of the relationship of the Sunnah to the Qur’an is tried in the following paragraphs:

The Holy Quran is the foundation of Islamic Law.  It is the miraculous speech of Allah that was revealed to the Messenger, may the mercy and blessings of Allah be upon him, by way of the angel Gabriel.  It has been transmitted to us with so many chains of authority that its historical authenticity is unquestionable.  It is written down in its own volume, and its recitation is a form of worship.

As for the Sunnah, it is everything besides the Holy Quran that came from Allah’s Messenger.  It explains and provides details for the laws found in the Holy Quran.  It also provides examples of the practical application of these laws.  It is also either direct revelation from Allah, or decisions of the Messenger that were then confirmed by revelation.  Therefore, the source of all the Sunnah is revelation.

The Holy Quran takes precedence over the Sunnah in two ways.  For one thing, the Holy Quran consists of the exact words of Allah, miraculous in nature, down to the last verse.  The Sunnah, however, is not necessarily the exact words of Allah, but rather their meanings as explained by the Holy Prophet (SAW).

The Position of the Sunnah in Islamic Law

During the Messenger’s lifetime the Holy Quran and Sunnah were the only sources of Islamic Law.

The Holy Quran provides the general injunctions that formed the basis of the Law, without going into all the details and secondary legislation, with the exception of a few injunctions that are established along with the general principles.  These injunctions are not subject to change over time or with the changing circumstances of the people.  The Holy Quran, likewise, comes with the tenets of belief, sets down acts of worship, mentions the stories of the nations of old, and provides moral guidelines.

The Sunnah comes in agreement with the Holy Quran.  It explains the meanings of what is unclear in the text, provides details for what is depicted in general terms, specifies what is general, and explains its injunctions and objectives.  The Sunnah also comes with injunctions that are not provided by the Holy Quran, but these are always in harmony with its principles, and they always advance the objectives that are outlined in the Holy Quran.

The Sunnah is a practical expression of what is in the Holy Quran.  This expression takes many forms.  Sometimes, it comes as an action performed by the Messenger.  At other times, it is a statement that he made in response to something.  Sometimes, it takes the form of a statement or action of one of the Companions that he neither prevented nor objected to.  On the contrary, he remained silent about it or expressed his approval for it.

The Sunnah explains and clarifies the Holy Quran in many ways.  It explains how to perform the acts of worship and carry out the laws that are mentioned in the Holy Quran.  Allah commands the believers to pray without mentioning the times that the prayers had to be performed or the manner of performing them.  The Messenger clarified this through his own prayers and by teaching the Muslims how to pray.  He said: “Pray as you have seen me praying.”

Allah makes the Hajj pilgrimage obligatory without explaining its rites.  Allah’s Messenger explains this by saying:

“Take the rites of Hajj from me.”

Allah makes the Zakat obligatory without mentioning what types of wealth and produce it is to be levied against.  Allah also does not mention the minimum amount of wealth that makes the tax obligatory.  The Sunnah, though, makes all this clear.

The Sunnah specifies general statements found in the Holy Quran.  Allah says:

“Allah commands you regarding your children: to the male, a portion equal to that of two females…” (Holy Quran 4:11)

This wording is general, applying to every family and making every child an inheritor of his or her parents.  The Sunnah makes this ruling more specific by excluding the children of Prophets.  Allah’s Messenger (SAW) said:

“We Prophets leave behind no inheritance.  Whatever we leave behind is charity.”

The Sunnah qualifies unqualified statements in the Holy Quran.  Allah says:

“…and you find no water, then perform tayammum (dry ablution) with clean earth and rub therewith your faces and hands… (Holy Quran 5:6)

The verse does not mention the extent of the hand, leaving the question of whether one should rub the hands up to the wrist or the forearm.  The Sunnah makes this clear by showing that it is to the wrist, because this is what Allah’s Messenger did when he performed dry ablution.

The Sunnah also comes emphasizing what is in the Holy Quran or providing secondary legislation for a law stated therein.  This includes all the hadeeths that indicate that Prayer, the Zakat, fasting, and the Hajj pilgrimage are obligatory.

An example of where the Sunnah provides subsidiary legislation for an injunction found in the Holy Quran is the ruling found in the Sunnah that it is forbidden to sell fruit before it begins to ripen.  The basis for this law is the statement of the Holy Quran:

Do not consume your property amongst you unjustly, except it is a trade among you by mutual consent.

The Sunnah contains rulings that are not mentioned in the Holy Quran and that do not come as clarifications for something mentioned in the Holy Quran.  An example of this is the prohibition of eating donkey flesh and the flesh of predatory beasts.  Another example of this is the prohibition of marrying a woman and her aunt at the same time.  These and other rulings provided by the Sunnah must be adhered to.

The Obligation of Adhering to the Sunnah

A requirement of believing in Prophet-hood is to accept as true everything that Allah’s Messenger (SAW) said.  Allah chose His Messengers (SAW) from among His worshippers to convey His Law to humanity.  Allah says:

“…Allah knows best with whom to place His Message…” (Holy Quran 6:124)

Allah also says:

“…Are the Messengers charged with anything but to convey the clear Message?” (Holy Quran 16:35)

The Messenger is protected from error in all of his actions.  Allah has protected his tongue from uttering anything but the truth.  Allah has protected his limbs from doing anything but what is right.

Allah has safeguarded him from showing approval for anything contrary to Islamic Law. 

In conclusion, it may be said that both sides are essentially in agreement on the authority of Sunnah as a source of law and its principal role in relationship to the Qur’an. They both acknowledge that the Sunnah contains legislation which is not found in the Holy Quran. The difference between them seems to be one of interpretation rather than substance. The Qur’anic ayat on the duty of obedience to the Holy Prophet (SAW), and those which assign to him the role of the interpreter of the Qur’an, are open to variant interpretations. These passages have been quoted in support of both the views, that the

Sunnah is supplementary to the Qur’an, and that it is an independent source. The point which is basic to both these views is the authority of the Holy Prophet (SAW) and the duty of adherence to his Sunnah. In the meantime, both sides acknowledge the fact that the Sunnah contains legislation which is additional to the Qur’an. When this is recognized, the rest of the debate becomes largely redundant.

He (SAW) is the most beautifully complete of Allah’s Creations.  This is clear from how Allah describes him in the following verses of Holy Quran:

“By the star when it sets.  Your companion has neither gone astray nor has he erred.  Nor does he speak of his own desire.  It is only revelation that has been revealed.” (Holy Quran 53:1-4)

QUESTION:

Kamali asserts that “The essential unity of Sharia’ah’ lies in the degree of harmony that is achieved between revelation and reason. Ijtihad is the principal instrument of maintaining this harmony”. Discuss how personal reasoning (Ijtihad) has helped to develop Islamic jurisprudence?

ANSWER:

1. Introduction:

Ijtihad played an important role in the development of Islamic legal theory. The aim of this essay is to discuss the concept of Ijtihad in the development of the Islamic legal theory. Thus it will not be out of place to give a brief introduction of the concept of Ijtihad.

2. Ijtihad:

The Arabic word Ijtihad is derived from the ‘Juhud’ which means ‘expending of maximum effort in the performance of an act’. In Islamic jurisprudence Ijtihad means the effort made by the Mujtahid in seeking knowledge of the Ahkam (Rules) of the Sharia’ah through interpretation. (Nyazyee, Ch. 14: P. 263).

This definition implies the following:

That the Mujtahid should expend the maximum effort, that is, he should work to the limits of his ability so much so that he realize his inability to go any further.

That, the person expending the effort should be a Mujtahid. An effort expended by non-Mujtahid is of no consequence, because he is not qualified to do so.

The effort should be directed towards the discovery of the Rules of the Sharia’ah that pertain to the conduct.

The method of discovery of the Rules should be through interpretation of the texts with the help of other sources. This excludes the memorization of such Rules from the books of Fiqh or their identification by the Mufti. Thus, the activity of the Faqih and the Mufti cannot be called Ijtihad.

3. The Three Modes of Ijtihad:

The Jurists in general practice three types or modes of Ijtihad. In reality, the activity of the jurist cannot be split up into separate modes. Ijtihad is single seamless process, but for simplification and ease of understanding this activity is divided into three types as follows;

In the first mode, the Jurist stay as close to the text as he can. He focuses on the literal meaning of the texts, that is, he follows the plain meaning Rule.

When the first mode of literal construction is exhausted by the Jurists, he turns to syllogism, which is Qiyas. This mode is confined to strict types of analogy. These are called Qiyas Al-Ma’na and Qiyas Al.illah.

The second mode of Ijtihad is confine to the extension of the law from individual texts, while in the third mode the reliance is on all the texts considered collectively. This means legal reasoning is undertaken more in the line with the spirit of the law and its purposes rather than the confines of the individual texts.

4. Role of Ijtihad in the development of Islamic legal theory.

Early notion of Islamic legal theory and the concept of Ijtihad:

At the time of the Holy Prophet (SAW) the only source of the Sharia’ah was revelation. That revelation had two types, one was the direct speech of Allah, namely the Holy Quran, and the other was indirect speech of Allah which the Holy Prophet (SAW) expressed in his own words, that is termed as Sunnah of the Holy Prophet (SAW).

The Holy Quran by nature is implicit. It does not provide details of each and every individual case, rather it describes general principles, examples etc. the Holy Prophet (SAW) used to explain and implement those principles and general rules in individual cases, that is Sunnah of the Holy Prophet (SAW), in that sense the Sunnah is the explanation of the Holy Quran, though as it is mentioned earlier that explanation was also directed by the God.

Although as it is mentioned earlier that the only source of law at that time was revelation, but some time the Holy Prophet (SAW) practiced Ijtihad in its narrow sense in the absence of reveled rule(s) as the Holy Prophet (SAW) said, ‘when I do not receive a revelation I adjudicate among you on the basis of my opinion’ (Abu Dawud, 1984:1017). However, the difference of that Ijtihad with ordinary Ijtihad bil ray is that whenever, He (SAW) mistook, a verse would be revealed in order to inform him the correct decision. For instance, once the Holy Prophet (SAW) was asked by a woman about the rule of dhihar. The Holy Prophet (SAW) answered her “I don’t think that the rule is different from that of divorce”. Then Allah revealed verses regarding the hukum of dhihar, which was not similar to divorce and then the hukum of dhihar had been corrected.

The companion of the prophet used to do Ijtihad at that time also. When the Prophet was not available or when the Prophet sent them to somewhere, they use to do Ijtihad in the absence of explicit Qur’anic verse or Sunnah of the Prophet. They use to interpret the verses of the Quran and the Sunnah of the Prophet as well as in cases of completely new issues they use to do Ijtihad on the basis of the principles of Sharia’ah. The advantage of them was if they mistook they could correct themselves by asking the Prophet or Allah would revealed the correct rule(s). Therefore, Sharia’ah was very much based on the revelation at that time, i.e. either Allah would reveal the hukum of a certain mas’ala or He would approve the decision(s) of the Prophet and his companions or He would disapproved and correct their decision(s). Hence, despite the fact that the practice of Ijtihad was started from that time, but it did not get the status of a source of Islamic legal theory then.

Development of Islamic legal theory and the concept of Ijtihad:

After the death of the Holy Prophet (SAW), the gate of revelation has been closed for ever. Therefore, in order to deal with new problems, the companions of the Holy Prophet (SAW) used to depend on the Ijtihad. However, it did not substitute the Holy Quran and Sunna at all, rather whenever they faced a new phenomenon regarding which they did not know any Qur’anic verse or Sunnah of the Holy Prophet (SAW), they used to ask the other companions whether they knew any Hadith of the Holy Prophet (SAW) concerning that. They used to do Ijtihad in the absence of the revealed rule and whenever they found any Hadith regarding that case they use to abandon their Ijtihad and followed that Hadith.

Because of the quick expansion of the Muslim world in first century, a huge number of people embraced Islam. A number of the companions of the Holy Prophet (SAW) migrated to different places in order to teach the new Muslims the science of Islam. People gathered around them to learn Islam. Through their teaching they created groups of scholars. Those groups were the producers of the different schools of thought.

Two distinctive trends of thought emerged at that time, namely Ahl al-Ray and Ahl al-Hadith. The trend of Ahl al-ray can be traced back to the second caliph Hazrat Umar (RA) and a renowned companion Hazrat Abdullah ibn Mas’ud (RA), whereas the trend of Ahl al-Hadith can be traced back from two renowned companions and scholars Hazrat Zaid Bin Thabit and Hazrat Abdullah Bin ‘Umar (RA) (Abdur Rahim,2003:55). Ahl al-ray are those who depend on personal opinion (Ijtihad bil ray) in order to solve the problems and analyze the Ahkam of Sharia’ah and extract the major causes of those in order to draw out those to new phenomena’s. Ahl al-Hadiths are those who depend on only authentic evidences. There strategy is to express exactly what is in the authentic narrations. They do not involve in causation of the Ahkam of Sharia’ah and extend those to new phenomena’s. Nevertheless, the more the Muslims faced new problems the more the former trend became prominent, because of their wide practice of Ijtihad they could solve the new phenomena’s better than Ahl al-Hadith School of thought. However, Ahl al-Hadith school of thought did not completely deny or overlook the concept of Ijtihad. Ijtihad also played a big role in the development of that school of thought. However, their concept of Ijtihad was narrower than that of Ahl al-Ray as discussed in the following section of the essay. Hence, it could be said that by the end of first century, Ijtihad became an important source of Islamic jurisprudence through the practice of it by the companions of the Holy Prophet (SAW) and their followers, although there were difference of opinion among them about the definition, scope and way of practice of it.

Institutionalization of Islamic legal theory and the role of Ijtihad in it:

The last companion of the Holy Prophet (SAW) died in the end of the first hijra. Around that time the process of institutionalization and compilation of Islamic jurisprudence started. The notion of Madhhad (School of thought) emerged at that time in different places. Although there were countless Madhhabs, but, apart from four Madhhabs others are not existed now a day.  We will discuss here the development of those four Madhhabs and the concept of Ijtihad in those.

Hanafi school of thought: Hanafi school of thought is based on the jurisprudence of Imam Abu Hanifa. The Usul of Imam Abu Hanifa as he describes, is as follow:

“If I find any hukum in the Holy Quran, I confined myself with that. If I do not find that there, I accept Sunnah of the Holy Prophet (SAW) which has come to me through authentic narrators. When I do not find that in the Holy Quran and in the Sunnah, I follow the opinion of the companions meaning their general consensuses. In case of their disagreement with each other I accept or abandon which ever I want, but I do not prefer others opinion over theirs’. In case of the opinion of others, I have the right of Ijtihad as well as they have”.

The Maliki School of thought: The Maliki Madhhad is based on the jurisprudence of Imam Malik (93-179 A.H.). The method of his jurisprudence which is the method of Maliki Madhhad as well is that, in order to find out the hukum of a certain issue he first used to look in the Holy Quran, if it is not available in the Holy Quran then he used to look it in the Sunnah of the Holy Prophet (SAW). Similarly if the Quran describes the principle or indirect hukum of the issue he also used to search the Sunnah in order to find out the details of that. He used to consider the practice of Ahl-Medina as Mutawatir Hadith. If he did not find the solution in the Holy Quran or in Hadith he would refer to the general consensus of the companions who were known as faqih, if there were no general consensus regarding that matter then he would follow the individual opinions of the companions or would do Qiyas. If it was an abstract matter where there is no room for Ijtihad bil ray then he would follow the opinion of a companion, else he would prefer Ijtihad bil ray.

Al-Shafi School of thought: Imam Al-Shafi emerged during the period of the compilation of the above mentioned two school of thought’s jurisprudence. He is credited as the inventor of Usul al Fiqh. However, Kamali argues that the Usul al-Fiqh was existed before but until the time of Al-Shafi it was not in a form of science. Imam Al-Shafi authored a book regarding the principles and rules of jurisprudence namely Al-Risalah, which is considered as the first book on Usul al-Fiqh (Kamali, 1991:3, 4). The motivations which prompted Al-Shafi to introduce the usul al-Fiqh are some inconsistencies which he observed in the discourses of his predecessors. He mentioned those in the beginning of his book kitabul Umm.

It is appear from the reform activity of Al-Shafi that the objective of that was to make the Ijtihad systematic and to demolish the tendency of unconditional imitation of the predecessors Fatwas and hence to reopen and widen the scope of Ijtihad. Although, he excluded Ray from the category of Ijtihad, especially he was critical about Istihsan, and emphasized more on qias but he made the point clear that he is against ‘the following of one’s personal whim and amounts to unjustified legislations.

Conclusion:

In conclusion, it can be argued that Ijtihad played an important role in the development of Islamic legal theory. It appears from the essay that some of the school of thought emerged as a reaction against Taqlid or blind imitation of predecessors and the objective of them was to reopen and widen the gate of Ijtihad.

QUESTION:

In Islamic legal theory the law preceded society and is considered to be eternal as Allah. Explain, how today’s states, with elected governments and independent judiciaries apply these rules of law.

ANSWER.

Introduction:

The Holy Quran is a complete code for mankind and provides guidance for man in all walks of his life. It has its own concepts of ethics, politics, economics and sociology.

It is an irony of fate that, now a days the demand for the enforcement of the Islamic law has come to surrounded by such a thick mist of misgivings that a mere reference to it raises a storm of criticism not only in non Islamic but even in Islamic countries also. Thus for instance, the questions are asked: Can a centuries old legal system be adequate to fulfill the requirements of our modern state and society.

To be sure, these questions are not the outcome of any antagonism towards Islam but mostly of sheer ignorance which must quite naturally breed suspicion.

The first task, therefore, is to explain to people the meaning and applications of Islamic Law, Its objectives, its Spirit, its Structure and its categorical and unchangeable injunctions along with the reasons of their permanence.

They should also be informed of the dynamic element of Islamic Law and how it guarantees the fulfillment of ever increasing needs of the progressive human society in every age.

Islamic Law:

The establishment of political authority which may enforce Islamic Law requires a Constitutional Law and Sharia’ah clearly laid down its fundamentals. The Sharia’ah has provided answers to the following basic questions of Constitutional Law.

What is the basic theory of the state?

What is the source of the authority of its legislation?

What are the guiding principles of state policy?

What are the qualifications of the ruler of an Islamic State?

What are the objectives of an Islamic state?

In whom does the sovereignty reside and what are the different organs of the state?

What is the mode of distribution of power between different organs of the state, viz.: Legislature, the Executive and the Judiciary?

What are the conditions of Citizenship?

What are the rights and duties of Muslim Citizens and what are the rights of non Muslim citizen?

The guidance which the Sharia’ah has provided in respect to these questions constitutes the Constitution of Islam.

Besides laying down the fundamentals of Constitutional Law, the Sharia’ah has also enunciated the basic principles of Administrative Law. Beside that there are precedents in administrative practice established by Holy Prophet (SAW) and the first four rightly guided Caliphs of Islam (Khulfah-e-Rashidin). For instance, the Sharia’ah enumerates the sources of income permissible for an Islamic State and those which are prohibited. It also prescribes the avenues of the expenditure. It lays down rules of conduct for Police, the Judiciary and Administrative machinery.

Elected Governments and Islamic Law:

The Holy Quran and Holy Prophet (SAW) encourage Muslims to decide their affairs in consultation with those who will be affected by that decision. The concept of consultation is known as SHURA in Islam. Shura is an Arabic word for “consultation”.

Majlis al-Shura and a Parliament

Many traditional Sunni Islamic Jurists agree that to be in keeping with Islam, a government should have some form of council of consultation or Majlis al Shura, although it must recognize that sovereignty belongs to ALLAH ALMIGHTY and not the people. Jurists have written that members of the Majlis should satisfy following three conditions:

They must be just,

They have enough knowledge Islamic Injunctions to distinguish a good caliph from a bad one, and

They have sufficient wisdom and judgment to select the best caliph.

Many contemporary Muslims have compared the concept of Shura to the principles of western parliamentary democracy. For example: What is the Shura principle in Islam?

It is predicated on three basic precepts. First, that all persons in any given society are equal in human and civil rights. Second, those public issues are best decided by majority view. And third, that the three other principles of justice, equality and human dignity, which constitute Islam’s moral core, are best realized, in personal as well as public life, under Shura governance.

Judiciary and Islamic Laws:

Islam is the religion that Allah wants for mankind from the time that He sent Holy Prophet (SAW) shows great concern for the judicial system and those appointed to carry out its responsibilities. Islam prescribes for it many legal injunctions. How else could it be, when Islam is the religion of mercy, equality, and justice? It is the religion that comes to free people from worshipping Creation and bring them to the worship of Allah. It is the religion that comes to remove people from oppression and iniquity and bring them to the highest degree of justice and freedom.

Allah’s Messenger (SAW) was the greatest of judges. He used to act in the capacity of judge in the city of Medina, which was the first Islamic state. He used to appoint people to be judges in other cities

In the era of the Rightly Guided Caliphs, the head of state continued to be the one to appoint judges, govern their affairs, protect their independence, and keep the governors and political appointees and even the Caliphs subject to the judge’s verdicts. Hazrat Umar bin al-Khattâb (R.A.), the second Caliph, was the first person to make the judge an independent entity, distinct from the Caliph and the governors.

So it was Islam that not only called for independent Judiciary but also the first religion and state that actually setup the independent Judiciary.

Conclusion:

The Islamic Law, the Law which Holy Prophet (SAW) delivered unto mankind for all times to come, this Law admits of no difference between man and man except in faith and religion. Those religious and social systems and political and cultural ideologies which differentiate between men on grounds of Race, Country or colour, can never become universal creeds or world ideologies for the simple reason that one belonging to a certain race cannot get transformed into another race, one born in certain country cannot tear asunder his entity from that place, nor can the whole world condense into one country, and the colour of negro, a Chinese and a white man cannot be changed. Such ideologies and social systems must remain conned to one race, community, or country. They are bound to be narrow, limited and nationalistic and cannot become universal.

Islam, on the other hand, is universal ideology. Any person who declares belief in LA ILAHA ILLALLAH MUAMMAD-UR-RASULLULLAH enters the pale of Islam and entitles himself to the same rights as those of other Muslims. Islam makes no discrimination on the basis of race, country, colour, language, or the like. Its appeal is to the entire humanity and it admits of no narrow minded discriminations.

This law is eternal. It is not based on the customs or traditions of any particulars people and is not meant for any particular period of human history. It is based on the same principles of the nature on which man has been created. And as that nature remains the same in all periods and under all circumstances, the law based on it unalloyed principles should also be applicable to every period and under all circumstances. And this universal and eternal religion is Islam.

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