Shari'ah Intelligence

The Basic Principles and Objectives of Islamic Jurispudence An Introduction to Usul Al-Fiqh and Maqasid Al-Shari’ah

Acknowledgements. 6

Foreword …………………………………………………………………………………………………………………..8

Preface  ……..……………………………………………………………………………………………………………..12

Endorsements…………………………………………………………………………………………   15

Introduction  …………………………………………………………………………………………………………………..21

Welcome To The Course! 24

SECTION 1: REPRESENTING THE MESSENGER: A CONSISTENT METHODOLOGY. 25

Lesson 1:          Objectives And Expectations. 25

Lesson 2:          What Is Usul Al-Fiqh?. 28

Lesson 3:          The Evolution Of Usul Al-Fiqh. 32

Lesson 4:          Let’s Review! 36

Lesson 5:          Shari’ah Rulings. 38

SECTION 2: IN THE SEARCH OF THE STRAIGHT PATH: THE MUJTAHID’S TOOLS AND PRINCIPLES. 44

Lesson 6:          Sources Of Evidence In Islamic Law.. 45

Lesson 7:          Primary Sources. 46

Lesson 8:          Let’s Review! 49

Lesson 9:          Secondary Source: Ijma’ 51

Lesson 10:       Secondary Source: Qiyas. 57

Lesson 11:       Secondary Source: Ra’i Al-Sahabi 61

Lesson 12:       Secondary Source: ‘Urf And Aadat 63

Lesson 13:       Secondary Source: Istishab. 67

Lesson14:        Secondary Source: Amal Ahl Al-Madinah. 71

Lesson 15:       Secondary Source: Shar’u Man Qablana. 75

Lesson 16:       Secondary Source: Al-Masalih Al-Mursalah. 78

Lesson 17:       Secondary Source: Istihsan. 83

Lesson 18:       Secondary Source: Sadd Al-Dhara’i 90

Lesson 19:     On The “Safety-Net” Principles And Tools Of Ijtihad – Protecting The Spirit Of Shari’ah. 95

Lesson 20:       Comparing The Schools Of Jurisprudence. 100

Lesson 21:       Let’s Review! 104

SECTION 3: IN SEARCH OF CERTAINTY. 105

Lesson 22:       Fiqh And Shari’ah – Any Difference?. 105

Lesson 23:       To Speak In God’s Name. 110

Lesson 24:       Degrees of Certainty in the Use Of Proofs. 113

Lesson 25:     Degrees of Certainty In Authenticity Of Texts. 118

Lesson 26:       Degrees of Certainty In The Meaning Of Texts. 131

Lesson 27:       Let’s Review! 137

SECTION 4: SEPARATING THE ETERNAL FROM THE HISTORICAL: THE SUNNAH vs. SEERAH.. 139

Lesson 28:       What Is The “Sunnah”?. 139

Lesson 29:       Ibn Ashur’s Classification Of “Prophetic Intent” in Legislation. 144

SECTION 5: CODE OF THE MUJTAHID: TERMS OF ENGAGEMENT WITH REALITY. 150

Lesson 30:       Maxims Of Islamic Jurisprudence. 150

Lesson 31:       A Fundamental Maxim For Usul Al-Fiqh. 168

Lesson 32:       Differences Over Exceptions –Bid’ah. 172

Lesson 33:       Agreements And Disagreements. 181

Lesson 34:       Permutations Of Certainty And Speculation In Authenticity And Meaning. 187

Lesson 35:       Let’s Review! 198

SECTION 6: THE AIMS AND OBJECTIVES OF SHARI’AH: KEEPING THE END IN MIND.. 199

Lesson 36:       What Is Maqasid Al-Shari’ah?. 201

Lesson 37:       Application Of Maqasid Among The Sahabah. 207

Lesson 38:       Maqasid In Ibadat And Mu’amalat 211

Lesson 39:       Answering “Why”. 221

Lesson 40:       Scholars’ Endorsements OF Maqasid. 223

SECTION 7: MAQASID AS A COMPASS ON THE MAP OF USUL AL-FIQH.. 226

Lesson 41:       Regulating Usul Al-Fiqh Through Maqasid. 226

Lesson 42:     Neccessity And The “Safety-Net Principles”. 235

SECTION 8: ENGAGING DIVERSITY IN THE SEARCH FOR TRUTH.. 278

Lesson 43:       Reconciling Different Opinions. 251

Lesson 45:       Let’s Review! 275

Lesson 46:       The Finale With Apologies. 278

Appendix I ……………………………………………………………………………….……………………………280

Appendix II ………………………………………………………………………………………….282

Glossary Of Terms 299

Afterword  …………………………………………………………………………………………………………..306

Appreciation and gratitude from the Da’wah institute of Nigeria (DIN) goes firstly to our Creator, Allah (S.W.T), for enabling us to compile this course, Shariah Intelligence: The Basic Principles and Objectives of Islamic Jurisprudence, an introduction to the methodology of getting to know and understand His Will better. May His peace and blessings be upon His Last Messenger of Compassion, Muhammad (pbuh).

We are profoundly grateful to the National President of the Islamic Education Trust (IET), Dr. Sheikh Ahmed Lemu OFR., whose vision gave birth to this noble idea of helping people develop a better understanding of the classical juristic approaches to the interpretation of religious texts. He has continued to provide wise guidance and support to the Da’wah Institute.

To the Director General of the IET, Hajiya B. Aisha Lemu, Salatu E. Sule, Sakinah Alhabshi, and Asiya Nimali Rodrigo, we express our profound gratitude for your attention to detail and wonderful suggestions regarding contents and structure.

We also thank all the volunteer trainers, facilitators and participants from within and outside Nigeria who have over the years worked with the Da’wah Institute of Nigeria (DIN) for their many insights and contributions that have added the greatest value and volume to the relevance of this course material. They were the “experimental ground” for the development of this course from its humble beginnings when it was referred to as “The Ethics of Disagreement”, then as “The Width of the Straight Path”, and then “Appreciating Diversity in Muslim Scholarship”.

Our sincere and special gratitude is also due to all the scholars, intellectuals and academicians who honoured our request to review the first manuscript and make suggestions on its improvement. We pray that they are pleased with the final outcome, and that Allah is pleased with them. Most prominent of these include among others: Prof. Muhammad Tabiu and Dr. Salisu Shehu of the Bayero University Kano (BUK); Prof. A. O. Omotosho and Dr. Abdurazaq A. Alaro of the University of Ilorin (Unilorin); Prof. Isah Maishanu of Usman Danfodio University Sokoto (UDUS); Dr. Ibrahim Suleiman, Dr. Muhammad Birnin Kudu and Dr. Ahmad Dogarawa of the Ahmadu Bello University (ABU) Zaria; Dr. Abdulhamid Badmos (Ilorin); and Engr. Basheer Adam Aliyu (Kano).

Subsequent editions of this material have been reviewed by more scholars, Heads of Departments and lecturers of Islamic Law and of Islamic Studies from various universities and other tertiary institutions in Nigeria. These include Prof. Sulaiman Jamiu, Prof. Yahya Ibraheem Yero, Prof. Tijani Abdulwahab, Prof. Iysa Ade Bello, Dr. Aisha Garba Habib, Dr. Abdulfatah Kola Makinde, Dr. Abdulkadir A. Mubarak, Dr. Abdullahi Adamu Sulaiman, Dr. Ahmad Muhammad Gusau, Dr. Aliyu Dahiru Muhammad, Dr. Mujahid A.S. Ameenuddeen, Dr. Rasheed AbdulGaniy, Dr. Safiyanu Ishiaku, Dr. Said Ahmad Khalid, Dr. Shaykh Luqman Jimoh, Dr. Usman Muhammad Shu’aib (Zunnurain), Abdulhakeem Abdulghaniy, Abdulkarim Oyedele Kilani, Abdullahi Bello Umar, Abubakar Usman, Adam Ali Adam, Ahmad Aliyu, Aliyu Ibrahim Kofar Sauri, Basheer Abdlateef Oladimeji, Chiroma Tahir, Dahiru Inuwa Ibrahim, Dauda Muhammad, Haruna Muhammad Rabiu, Lawal Musa Kagara, Mahmoud Ibrahim, Mal. Abdullahi Abubakar Lamido, Muhammad Nasir Abdulaziz, Nasir Abdulrahim Ahmad, Salisu Yakubu, Sanusi Muhammad, Shehu Yusufu Birnin Tudu, Yahaya Suleiman, Yusuf Mashood Dagbo, Zainab Kabir Ahmad and Zubaida Tijjani Ahmad.

May Allah bless your knowledge long after you are gone. Whatever mistakes still remain in this material are the sole responsibility of the Da’wah Institute of Nigeria.

Finally, we offer our profound thanks and indebtedness to the Research and Training Department of the Da’wah Institute of Nigeria who put this material together – Isma’il Abdulkadir, Muhammad Attahiru, Teslim Adeyemo, Ibrahim Bello, Yahya D. Muhammad, Bashir Mundi, Umar Ikhilor, Aliyu Badegi, and our Research Coordinator, Muhammad Nuruddeen Lemu. We thank Teslim Adeyemo in particular for suggesting the name “Shari’ah Intelligence”.

We also thank Brother Lim Jooi Soon and his team at the Interactive Dakwah Training (IDT) Malaysia for the countless training opportunities we had to share and sharpen our knowledge, understanding and presentatnion skills with a very diverse audience.

To the Management and Staff of the Da’wah Institute of Nigeria and the Islamic Education Trust, we say thank you for your continuous support and cooperation.

To all we say Jazakumullahu Khairan.

Wassalamu alaikum wa rahmatullahi wa barakatuh

 

Ibrahim Ayobami Yahya

(Director, Da’wah Institute of Nigeria, Minna)

December, 2015.

Like many other Muslim activists and thinkers, I have devoted a lot of time to clarifying misunderstandings about Islam not just among non-Muslim communities but also within the Muslim Ummah. One of the greatest challenges to gaining a better understanding of Islam is the lack of understanding about the fundamental objectives of Shari’ah and the tools of juristic reasoning or ijtihad.

While a simple rational and text-based answer is sufficient to dispel misconceptions for most non-Muslims, some Muslim scholars employ technical but unreasonable arguments backed up by the opinion of some respected scholars that make it more difficult for many people to accept a simple, faith-based answer to a challenging question. Acceptance is even more difficult when teachers are of the conviction that in order to respect the Islamic scholarly heritage and maintain consistency, there is no need to look beyond the pronouncements of their preferred scholars and School of Juristic Thought (madhhab), even when it is clear that these particular opinions do not help in achieving the higher objectives of Shari’ah – i.e. justice, compassion, wisdom and good – as effectively as other opinions, when the present realities of an increasingly globalized world are considered more seriously.

Despite their popularity, most public speakers in the Ummah are unable to handle many conscience-disturbing or faith-shaking questions. These popular leaders and preachers are often out of their depth when faced with matters regarding the application of contemporary fiqh (Islamic jurisprudence) to their present context – especially in the area of social transactions (mu’amalat). This is more so where there are clear differences of opinions among scholars, or where the consideration of the present context and consequences matter significantly in the determination of the ruling or fatwa given by scholars.

There is dire need for an effective way of addressing this challenge. Discussions or questions need answers and scholarly fatwas that are sensitive to cultural or social realities, such as those faced by Muslim minorities or more globalized communities. These are communities where Muslims come from different cultural backgrounds and whose families follow different Schools of Islamic law or Jurisprudence (or madhahib), sometimes without even knowing what a School of Juristic Thought (madhhab) actually is. Many such young Muslims are not connected to competent traditionally-trained local scholars, who in turn do not or cannot join the online discourses of the “cyber Ummah.” As a result, searches on “Sheikh Google” and “Mufti YouTube” quickly issue answers on behalf of Islam, including answers developed by islamophobes, with no concern for the context of the questioner or person concerned. The answers that are learned by Muslims and non-Muslims using these means have resulted in disturbing misunderstandings and gross distortions of Islamic teachings, values and principles.

 

The Ethics and Protocols of Disagreement

The rampant misinformation spread via social media and internet websites appears to be typically void of traditional Islamic Ethics of Disagreement and managing dissent. This critical subject is well explored in two highly recommended books: Taha Jabir al-Alwani’s Ethics of Disagreement in Islam, and Yusuf Al-Qaradawi’s Islamic Awakening: Between Rejection and Extremism.

Through the study of Ethics, Muslims may understand the importance of respect, courtesy and humility when handling the diversity of opinions among Muslim scholars. It emphasises that unity is not uniformity and, therefore, differences of opinion do not imply disunity. This is very important for both young and older Muslims to comprehend. We must not allow differences on less fundamental issues to erode mutual trust, cooperation and unity, especially in the face of some of our priorities and current challenges as an Ummah.

Yet, many youth appear to be challenged by the concept that two or more differing opinions held by scholars could both or all be correct. In the minds of such youth, opinions or rulings that are derived from the authentic text of the Qur’an or Sunnah should be mathematically definitive – with one right answer, everything else being wrong. People who think in this way believe that if we do not identify some opinions as wrong, then we are tolerating falsehood and heretical innovations (bid’ah) for the sake of peace.

This premise makes a false analogy between the field of Jurisprudence and the field of Mathematics. In Jurisprudence, there are some teachings of Islam that are definitive and accepted by a consensus of scholars. However, in many other cases, Jurisprudence can better be compared to the field of Medicine, where multiple methods of treatment are valid. In this analogy, doctors may all agree on a diagnosis but they may offer differentprescriptions based on their medical model[1], the patient’s medical history, the treatments available and their potential interaction with other medications being taken by the patient. Islamic Jurisprudence and the use of Ijtihad (juristic reasoning) is similar in its flexibility and ability to match “prescriptions” to varying contexts while still achieving the objectives (maqasid) of individual and communal well-being.

Young Muslims should know, therefore, that the work of a jurist is more like that of a Doctor than a Mathematics Professor. The qualifications of a jurist make him/her different from a scholar of the Qur’an (Mufassir) or a scholar of Hadith (Muhaddith). Traditionally, only a Faqih, Mufti or Mujtahid would be qualified to issue religious verdicts (fatwas), and not a Muhaddith, Mufassir or anyone else. This is because a jurist is more knowledgeable and qualified in the use of analogy (qiyas), consensus (ijma’), “public interest” (maslahah), juristic discretion (istihsan), etc. The use of these principles is not the specialisation or forte of the Mufassir or Muhaddith. Sadly, neither Google nor YouTube identify what the specialisations of online speakers and writers are.

 

The case for “Shari’ah Intelligence”

In the days I was a student of Islamic history, Arabic and Law, there was no internet. We had to travel in search of the right teachers. These days, not only do people find teachers and mentors online, some believe they can become scholars online. Internet websites and books are great tools of knowledge and make the work of teachers easier to access if you are unable to travel to them. It is still important to remember, however, that these tools are insufficient for scholarship as they do not provide the rigorous analysis and critical evaluation that is expected under the guidance of a qualified supervisor.

A little of the right type of learning can, nonetheless, intellectually vaccinate a person from falling into a lizard’s hole. While we may find it difficult to test the competence of a good doctor, it is not as difficult to identify an incompetent or fake one. A little knowledge of the fact that doctors must ask questions about the onset and duration of an illness before prescribing medications can assist in identifying a doctor who is not doing his job properly. To understand what ijtihad actually entails and how to identify those individuals who are not qualified to perform it calls for an introductory level of understanding in the field of Usul al-Fiqh and its sister, Maqasid al-Shari’ah.

This is why a basic level of “Shari’ah Intelligence” is so important. Young people find the subject of Ethics of Disagreement much easier to digest after they have understood how different “prescriptions” for a condition exist among practitioners, and why it is important for such different treatments to be made available. Basic Shari’ah Intelligence should vaccinate a person from a preacher who attempts to sow discord by labelling those who hold different opinions as “kuffar” (rejecters of Truth), “hypocrites” or “traitors”.

If we are to use the language of our IT age, this course enables a participant to “download” the “operating system” that allows him/her to develop “compatibility” with the methodologies used by the classical jurists and their Schools of Juristic Thought in reaching verdicts (fatwas). Through downloading the limited version of “Shari’ah Intelligence”, a participant will be able to understand, to a significant extent, the appropriateness and relevance of the arguments of scholars, both past and contemporary, on a given topic. Participants will be able to discern the methods used by a credible jurist as distinct from the approaches of someone who specialises in another branch of Islamic knowledge or has no specialisation at all. Moreover, participants will be able to appreciate Muftis and Mujtahids who negotiate Usul al-Fiqh with Maqasid al-Shari’ah to provide Islamic opinions on the most challenging issues of contemporary life.

My prayer is that this course will help participants to be more grounded in this field and generate even greater interest in it as we strive for a more peaceful world. I pray it would help in making us more humble in our intellectual pursuits, more respectful of human diversity, more curious about our weaknesses, more fair and compassionate in our dealings with others, more balanced in our opinions, more committed to living Islam with purpose, and more sincere in our readiness to please Allah alone.

May the peace and blessings of Allah be upon us all.

 

 

Dr. Sheikh Ahmed Lemu, OFR

Former Grand Kadi, Shari’ah Court of Appeal,

Minna, Niger State, Nigeria

(2014 King Faisal Prize-Winner for Service to Islam)

[1] A medical model based on nutrition may lead to a different prescription from a medical model based on pharmaceutical drugs, acupuncture or traditional medicine.

The Da’wah Institute of Nigeria (DIN) of the Islamic Education Trust (IET) was established for the primary purpose of building the capacity of da’wah workers, Islamic organisations and Muslim professionals by providing them with relevant information and effective methodologies for delivering the message of Islam, promoting greater peaceful coexistence and contributing to social progress. The achievement of this mission naturally requires the collaboration of intra-faith and inter-faith organisations and networks to identify critical knowledge and skill gaps, and ways to bridge them.

One of the most serious challenges to a better understanding of Islam is the insufficiency of effective and authoritative clarification of many misconceptions which both Muslims and non-Muslims have about Islam. The DIN’s maiden programme for training trainers in tackling critical misconceptions about Islam has been titled the “Train-the-Trainers Course in Islam and Dialogue for Peaceful Co-existence” – usually abbreviated as the “TTC”. The research work and training materials of the Da’wah Institute are reviewed and polished-up by specialist scholars and hundreds of Islamic activists from various parts of the globe.

Nearly two decades of surveys have been carried out by DIN on commonly misunderstood topics and areas of concern within Islam. A major objective of these surveys is to identify the issues that Muslims and those involved in inter-faith work find most challenging to respond to. The surveys are administered to university and secondary school students, new Muslims and da’wah activists, Muslims who have distanced themselves from the Muslim community, those who have left Islam, school teachers, inter-faith workers, organisers of Islamic events, lecturers of Islamic Studies and others.

These surveys typically ask respondents which Islamic principles or beliefs (or those of other Muslims) would they describe as “faith-shaking”, “doubt-creating”, “bigoted”, “unfair”, “unjust”, “not in line with compassion”, “unreasonable”, “dogmatic”, “outdated”, “embarrassing to discuss”, “conscience-disturbing”, “extremist”, “repellant and repulsive to sensible non-Muslims”, “frustrating to answer”, “makes people become defensive” and “drives new Muslims away”. Feedback from our surveys have come from over 20 countries on all continents – including Sudan, Kenya, Tanzania, Finland, the United Kingdom, Estonia, the United States, Australia and New Zealand, Malaysia, Singapore, Sri Lanka, Qatar, Bahrain, and of course, Nigeria.

The results of these surveys converged mainly, but not exclusively, around interfaith relations, gender equity, the concept of jihad, terrorism, Shari’ah and Islamic law, apparently “irregular” hadith, various aspects of the personal and public life of the Prophet Muhammad (ﷺ), and common critiques of God and organised religion. These consistently showed up as the areas of greatest intellectual challenge for Muslims who respond to the arguments of various shades of Muslim extremists, non-Muslim critics of Islam, islamophobes, atheists, and especially online Christian Evangelical polemicists. To our surprise, over 95% of “faith-shaking” questions are repeated in every country. Teenagers ask the same questions as adults. More significantly, Muslim activists, entrepreneurs and event organisers are disturbed by the same questions.

The top 150 globally challenging questions identified by DIN are researched and reviewed periodically. The DIN Research Team has focused on obtaining the best answers that have been developed by specialist scholars, both past and present. DIN has ensured, with the support of several advisory scholars, that clarifications are grounded in the traditional sciences and methodologies of Usul al-Fiqh, while respecting the objectives (Maqasid) of Shari’ah in the context of contemporary realities. The DIN Research Unit has discovered that, interestingly, most of the best responses of contemporary specialist-scholars to specific questions are neither new nor original, but have been articulated centuries earlier by scholars from various schools and contexts.

SHARI’AH INTELLIGENCE” is a new course resulting from the need to handle the distortions of faith experienced by contemporary Muslims which arise from the lack of understanding or neglect of Usul al-Fiqh (Principles of Jurisprudence) and Maqasid al-Shari’ah (Higher Objectives of the Islamic Path). These are fields that guide and regulate the conduct of ijtihad or “juristic reasoning” when responding to new realities and challenges. The role of Usul al-Fiqh is to design a consistent methodology and protocols by which a jurist can best represent the Prophet Muhammad (ﷺ) in any societal situation or context, especially when the text of the Qur’an and Sunnah are either inconclusive or silent. Competence in this critical field qualifies a scholar to become proficient to give religious verdicts (as a Mufti) or even become a distinguished juris consult (Mujtahid).

The term “Shari’ah Intelligence” was conceived to refer to the unique knowledge and skills required to think in a manner faithful to the objectives and approaches of the Shari’ah. Shari’ah Intelligence is, in this way, similar to the term “Emotional Intelligence” in that the knowledge and skills used to develop the intelligence must be learned. A number of good books on Usul al-Fiqh and Maqasid al-Shari’ah have been written in English by scholars such as Mohammad Hashim Kamali, Jasser Auda, Umar Faruk Abd-Allah, Khaled Abou El-Fadl, Tariq Ramadan, Taha Jabir Al-Alwani and a few others. Most of these books may be described as a much deeper introduction to the subject than this present course material. Yet even the books written by the scholars mentioned above only brush over the surface of a dynamic and sophisticated intellectual legacy.

This course does not qualify a participant as anything but being a learner. The eminent Shaykh Abdullah bin Bayyah once said that the field of Usul al-Fiqh and Maqasid is a large city. If this is so, then going through this course will be like taking a hurried walk through the main street of the city with quick glimpses down the side strees – a quick introduction to a highly expansive territory. Nonetheless, we believe that the glimpse we get is worth the walk. And Allah knows best.

May our journey be blessed!

 

Muhammad Nuruddeen Lemu

(Director, Research and Training, Da’wah Institute of Nigeria,

Islamic Education Trust, Minna)

December, 2015.

“This is an excellent piece of pedagogy, made in a simplified yet a very accurate, very illustrative, and very comprehensive way. I sincerely greet everybody who participated in producing this course and teaching it. May you be blessed.

A course on Shariah is more accurately described as a course on the Fiqh that explains the Shariah and its Fiqhi Schools/Madhahib, and theories/Usul. But Fiqh today falls between two extremes, “literalists” and “liberalists”. On the literal side, some people sanctify the letter of the ijtihad/reasoning of scholars of old times, even though their reasoning was subject to their place, time and circumstances. At the other extreme, some liberals try to “deconstruct” Fiqhi studies altogether or label them as void of wisdom, hence overlooking a rich Islamic juridical scholarship that has been growing for fourteen centuries.

The best way to study Fiqh is to differentiate in a balanced way between the divine revelation and the human understanding, the fixed principles and the variable fatwas, what should be taken literally and what could be critiqued, and matters of true consensus and matters of different opinions.

This book does exactly that.”

 

Prof. Jasser Auda

Professor of Maqasid Al-Shariah

Executive Director, Maqasid Institute, London

Head of Dawah, International Union for Muslim Scholars, Qatar

 

The book is a good attempt at presenting issues of maqasid al-Shari’ah and usul al-Fiqh in a concise and clear manner with examples and elaborations relevant to our time. I recommend it for both teachers and students of Islamic Studies.”

Prof. Isa Muhammad Maishanu

Department of Islamic Studies,

Uthman Danfodio University, Sokoto

 

 “The “Shari’ah Intelligence” manual is a unique and simple presentation of a most highly technical field of all the Islamic juridical sciences, to wit: Ilmy al-usulul Fiqh, and Maqasid al-Sharee’ah. It blends the classical discourse with the modern academic methodology of presentation of knowledge in plain language. This focal was successfully accomplished without compromising the flair of the original juristic discussions on usul and maqasid.”

Dr. Usman Muhammad Shuaibu (Zunnurain)

Head of Department,

Department of Islamic Law,

Bayero University Kano

 

“The book Shari’ah Intelligence is very relevant to contemporary Muslims. It came at a time when many scholars gave verdicts against the intention of Shari’ah, due to lack of proper knowledge of the Maqasid of the Shari’ah.”

Dr. Safiyanu Ishiaku

Department of Religious Studies,

Gombe State University

 

“Most works on the subjects of Usul al-Fiqh and Maqasid al-Shari’ah are in Arabic. Of the few ones in English on these subjects, Shari’ah Intelligence is about the most comprehensive one that both lecturers and students of Islamic Studies and Islamic Law will find very useful.”

Dr. Shaykh Luqman Jimoh

Associate Professor of Islamic Studies.

Kwara State University

 

“The book is excellent and a very good material for lecturers and students of tertiary institutions.”

Dr. Rasheed AbdulGaniy

Ag. Head, Department of Religious Studies,

Gombe State University

“The knowledge of Maqasid al-Shari’ah is an indispensible requirement for the students and lecturers of Islamic Studies in Nigerian universities.”

Prof. Yahya Ibraheem Yero

Head of Department of Religious Studies and

Deputy Dean,

Faculty of Human Management and Social Sciences,

Federal University Kashere, Nigeria

 

“Shari’ah Intelligence is a very educative and comprehensive book on Maqasid and Usul-al-Fiqh. I believe it will be beneficial to academics, students as well as all other Muslims. I recommend each and every one of you to read it.”

Dr. Aisha Garba Habib

Dean Students’ Affairs,

North-West University, Kano

 

The book “Shari’ah Intelligence” is a valuable edifice for student of Shari’ah, Usul al-Fiqh and Maqasid al-Shari’ah. I hereby recommend the book for our undergraduate, graduate and post-graduate students.

Abdulkarim O. Kilani

Head of Department, Islamic Studies,

College of Education, Akwanga

 

“There is no time the ummah needs “Shari’ah Intelligence” more than this time when Islamophobia makes some non-Muslims misinterpret Islam and perceive it as static, and that it cannot tackle the challenges faced by humanity in the 21st Century. “Shari’ah Intelligence” shows how to demonstrate the relevance of Islam in our time.”

Dr. Aliyu Dahiru Muhammad

International Institute of Islamic Banking and Finance,

Bayero University, Kano

 

“I want to use this medium to endorse and recommend this book “Shari’ah Intelligence” to all and sundry because of the enormous and diverse knowledge of Shari’ah that is embedded in it. The book is worth reading by all Muslims and non-Muslims because it is actually very educative for everybody.

Dr. Abdullahi Adamu Sulaiman

Head of Department, Islamic Studies,

Nasarawa State University, Keffi

 

“The book is good for teachers of Islamic Law alongside with the students of Islamic law.”

Mr. Adam Ali Adam

Faculty of Law,

Kogi State University, Anyigba

 

 

“I have gone through this book “Shari’ah Intelligence” and I found it to be a useful book for learning and teaching of Maqasid al-Shari’ah. It is recommended for various institutions to be used in teaching their students of Islamic Studies, Islamic Law and other related courses.”

Dr. AbdulFatah Kola Makinde

Senior Lecturer,

Obafemi Awolowo University, Ile-Ife

 

“Shari’ah Intelligence is a must-read book especially for those interested in da’wah work, teaching or learning Islamic Studies and Islamic law. It is also a pre-requisite reference material for those specializing in Islamic Finance and Economics. In fact, I recommend this book to every one interested in understanding the purpose and objectives of the Shari’ah.”

Dr. Ahmad Bello Dogarawa

Islamic Finance Consultant and Head of Department,

Department of Accounting,

Ahmadu Bello University, Zaira

 

“For those with a penchant for knowledge about the dynamics, excellence and general workings of the Shari’ah, they have got a sophisticated answer in “Shari’ah Intelligence”. Rich in content, unique in style, convincing in arguments, penetrating in logic and apt in examples; the book presents most of the important aspects of its subject matter using simple and logical style.

“It is no doubt a unique addition to the ever growing literature on Maqasid al-Shari’ah which no scholar, student, judge, Muslim activist, da’wah worker, or researcher on Islam can afford not to have.”

Abdullahi Abubakar Lamido

Deputy Director Training,

International Institute of Islamic Thought (IIIT), Nigeria Office,

International Institute of Islamic Banking and Finance (IIBF),

Bayero University Kano

 

“I love this book “Shari’ah Intelligence” …a well-chosen title. A scholar’s manual, a guide for the student of learning and a stabilizer for today’s youth who have become “Shuyuukh” of circumstance with the burning passion to propagate deen.

Sheikh Shareef Mayaleeke

Director of Studies,

Ad-Dawah Islamic Education Centre, Ijebu-Ode, Nigeria

 

 

“This training manual “Shari’ah Intelligence” is indeed irresistible, not just because of the rare and moving candor of its presentations, but its timeliness and potency to correct lots of misconceptions and put da’wah in its proper perspectives.”

Dr. Owoyele Jimoh Wale

Tai Solarin University of Education, Ijagun

Ijebu-Ode, Nigeria

 

“The appropriation of this “Shari’ah Intelligence” can never in any sense be over-emphasized because of its irresistible need in the present age of knowledge and intellectual challenges. The uniqueness of Allah’s guidance in the holy Qur’an must not be hidden.”

Shaikh Abdur-Rasheed Folajuwon Mayaleeke

The Nigerian Supreme Council for Islamic Affairs (NSCIA)

Chairman, Ogun State chapter

 

“Shari‘ah Intelligence is a literature material of immense value. I found the contents very comprehensive and highly stimulating. The reader wants to keep its pages open until he drifts into slumber. Nor does he want to part with the book even after perusing the last page. It gives all the vital information anybody may seek to know about Shari‘ah: from the maqasid to usul al-fiqh, the sources of Shari’ah and the mujtahid factor. Issues are discussed in simple language thus making it easy to understand even for beginners and non-Muslims. The reviews at the end of each section serve as reminders and quick reference points in future. Shari’ah Intelligence is not designed to gather dust on the shelves, nay, it is a mobile companion for every Muslim and sine qua non among Shari’ah literature materials.”

 

Prof. Ishaq Akintola

Professor of Islamic Eschatology

Lagos State University

 

 

 

 

…and all praise belongs to Allah!

Shari’ah Intelligence: The Basic Principles and Objectives of Islamic Jurisprudence” is also known as “TTC 001”. It is the primer for all other “TTC” courses conducted by the Da’wah Institute of Nigeria. The course focuses on an introduction to the Principles of Islamic Jursiprudence (Usul al-Fiqh) and the Objectives (Maqasid) of Shari’ah and its relevance for contemporary societies.

Usul al-Fiqh refers to the way in which rules of law and jurisprudence are inferred and extracted from their Islamic sources. Its study involves the sources of evidence, tools for interpretation and maxims that guide legislation. Usul al-Fiqh is the canonised science that regulates the practice of formulating opinions in the name of Islam (ijtihad).

The term Maqasid refers to the aims, higher intents and objectives of Islamic principles or Shari’ah. The field of Maqasid al-Shari’ah is concerned with the wisdom behind the rulings of Shari’ah. The Maqasid are those good ends that the law aims to achieve by blocking or opening certain means.

Together, these fields provide tools for scholars to navigate their path as they seek to represent the Prophet (ﷺ) when determining what is in harmony with the teachings of Islam. This becomes especially important where the Qur’an and Sunnah are silent or ambiguous, and where ijtihad is therefore needed. Understanding the basics of this field enable the student to also understand and appreciate better the path followed by scholars as they formulate their various rulings and verdicts.

The Shari’ah Intelligence course has been divided into 2 parts. Both parts cover 46 lessons in all. Part 1 covers Usul al-Fiqh (The Principles of Islamic Jurisprudence) and is comprised of Section 1-5; Part 2 covers Maqasid al-Shari’ah and is comprised of Section 6 – 8.

The first section is titled “Representing the Messenger: A Consistent Methodology”. It outlines the evolution of a consistent methodology of Islamic jurisprudence from the period of the Prophet’s Companions to the period of the Followers of the Successors of the Prophet’s Companions. This section ends with a description of five to seven categories of liability in the Shari’ah.

The second section, “In Search of the Straight Path: The Mujtahid’s Tools and Principles”, covers 12 “sources” of evidence used to formulate Islamic law. This section also discusses similarities and differences between the Schools of Jurisprudence with regard to the evidence and tools each School considered  or ‘considers’ valid for legal deduction.

The third section, “In Search of Certainty” highlights the great moral weight of declaring an action compulsory (fard) or prohibited (haram), and that doing so on the basis of uncertainty is tantamount to assuming equality with the Ultimate Law-giver, which effectively is an act of ascribing divinity to other than Allah (shirk). The section elaborates that a significant degree of certainty needs to be obtained on both the level of the authenticity or credibility of texts or “sources” and on the level of the meanings or implications of those “sources” of law.

In the fourth section, “Separating the Eternal from the Historical”, distinction is made between the terms “Sunnah” and “Seerah”. Ibn Ashur’s categorisation of 12 types of “Prophetic intent” is also explored to demonstrate how jurists may consider the various acts of Sunnah with different degrees of legal relevance. This helped the jurists in reducing the error of generalizing the legislative implications of hadith that were context-specific and not intended by the Prophet (ﷺ) to be applied outside those contexts.

Section five is on the “The Code of the Mujtahid: Terms of Engagement with Reality” and describes some important maxims of Jurisprudence as well as disagreement among scholars over the concept of blameworthy innovation (bid’ah). This section ends the Usul al-Fiqh part of the course. Participants would by this stage have a basic comprehension of the classical or traditional approaches to legal deduction in Shari’ah, and how differences in legal rulings between scholars are often a direct result of the diversity of acceptable methods within Usul al-Fiqh.

The second part of the course begins with section six, “The Aims and Objectives of Shari’ah”. This section discusses what the Maqasid are, their authority and importance in jurisprudence, and the extent to which they may be applied in both devotional worship and social dealings.

Section seven’s “Maqasid as a Compass on the Map of Usul al-Fiqh” explains that despite the importance of Usul al-Fiqh in Shari’ah, Maqasid al-Shari’ah plays anoverarching role as it directs the application of Usul al-Fiqh within any given society or context. This helps in ensuring that the clear objectives and higher purposes of the Qur’an and Sunnah are not undermined by juristic reasoning (ijtihad) and the scholars’ interpretations of the various sources of legislation, but serve as a compass by giving guidance to juristic undertakings.

The last section is on “Engaging Diversity in the Search for Truth”. It ties previous sections together by providing guidance for the reconciliation or management of different opinions. This section re-affirms the importance of humility and curiosity in seeking answers to the Truth, of respecting dissent and the need to maintain ties of fellowship and brotherhood that reach across divergent methods and opinions as contemporary scholars strive to find solutions to the various challenges facing humanity, thereby respecting the wise and compassionate flexibility of Islamic legal thought.

Assalamu ‘alaikum, and welcome to the Shari’ah Intelligence Course. We are very pleased to have you on board!

We live in an age dominated by instant information. At the click of a button, we receive a deluge of data – some accurate, some inaccurate.  The onslaught of divergent opinions and analyses, combined with our lack of time to digest it all, can wreak havoc on our faith. Globalisation, the internet and travel have made it more commonplace to meet people with different opinions and experiences which influence how they and we perceive Islam and its teachings. We are sometimes left confused and frustrated, wishing there was some way to understand exactly how all the rulings that are said to constitute Shari’ah fit together and to understand the place of Shari’ah rulings in our current milieu. This course was designed to do just that.

Shari’ah Intelligence is the ability to navigate the often complex and divergent opinions that stem from scholars of different generations and Schools of Juristic Thought. This course helps to build a greater appreciation about how competent Muslim jurists understand the Shari’ah and use its principles to formulate methods of deriving general and specific rulings.

Hundreds of Muslims in Nigeria, Malaysia and Australia have already taken this course. These participants have reported feeling more confident in their understanding of Shari’ah and its place in the modern world. They have also reported being more comfortable reading about, and having discussions with, people who hold different or even new opinions.

As human beings, there are undoubtedly mistakes that we have missed detecting. If you discover any of these or wish to suggest any additions or modifications, kindly send us an email at dawahinstitute@gmail.com to inform us so that we may take prompt action.

May Allah reward you for your intention and guide us all in our understanding!

The major objectives of this course are:

  • To introduce Muslim activists, students, academics and those involved in da’wah to the classical methodologies of juristic reasoning and the formulation of fatwas.
  • To enable participants understand why scholars differ in their verdicts.
  • To assist those new to Islamic jurisprudence understand the nuanced language and terminologies used by scholars, and how to be more precise in articulating their questions for the consideration of scholars, and in critiquing of the arguments and answers given.
  • To equip participants with the necessary knowledge for identifying verdicts which have not been formulated using classical methodologies.
  • To explain how scholars reconcile their opinions with the higher purposes and intents of the Shari’ah.
  • To empower participants with knowledge of what actions may be taken when scholars differ on a particular issue.
  • To understand why Muslims should have greater respect for diversity of opinions and multiple approaches to derivation from texts.

 

 

 

Discussion Question:

  1. Discuss with colleagues your personal objectives for attending this course and what you expect to benefit from it. Write down some of the most important of these.

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2. Fill in the following table with at least five things you already know about the Basic Principles (Usul al-Fiqh) and the Objectives (Maqasid) of Islamic Jurisprudence, and five additional things you want to know. At the end of the course, you may also add five new things you have learned in the last column.

I already know: I want to know:  

I have learned:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The literal meaning of usul al-fiqh is “roots” or “foundations” (usul) of Islamic jurisprudence and understanding (fiqh). Without “roots”, there would be no deep understanding and no well-directed development of the field of Law or Jurisprudence (Fiqh).

  • Usul al-Fiqh refers to the well-organized, all-inclusive and organically structured legal methodology for extracting legal judgments from the established legal sources, namely, the Qur’an and the Sunnah of the Prophet Muhammad (ﷺ).[1]
  •  Technically, Usul al-Fiqh means “the fundamental principles of Islamic law.… (It) expounds principles and methodology by means of which rules of law and jurisprudence are inferred and extracted from their sources. It involves the study and formulation of rules of interpretation, obligation, prohibition and global principles, ijtihad.”[2]
  • Usul al-Fiqh provides the ground-rules for respectful interaction between reason and revelation.
  • Usul al-Fiqh generates consistent methodologies of interpretation of Islamic sources that regulate the practice of ijtihad (juristic reasoning) used by a jurist (mujtahid)[3] or School of Juristic Thought (madhhabs).[4]

Ijtihad refers to the intellectual endeavour by individual jurists to extract solutions to individual and societal problems that are not explicitly addressed in the texts of the Qur’an or Sunnah. It is the vehicle by which rules of behavior not explicitly addressed to new and evolving situations are determined. It is what a Mujtahid does. Ijtihad is exercised through the earlier consensus of jurists (ijma’), analogy (qiyas), juristic preference (istihsan), public interest (maslahah), and customs (‘urf), etc.

According to Kamali, “Ijtihad is the most important source of Islamic law next to the Qur’an and the Sunnah. The main difference between ijtihad and the revealed sources of the Shari’ah lies in the fact that ijtihad is a continuous process of development whereas divine revelation and prophetic legislation discontinued upon the demise of the Prophet. In this sense, ijtihad continues to be the main instrument of interpreting the divine message and relating it to the changing conditions of the Muslim community in its aspirations to attain justice, salvation and truth.” [5]

  • Usul al-Fiqh is a science that enables contemporary legal verdicts (fatwas) to be issued by councils of scholars who are responsible for responding to contemporary challenges.[6]
  • It is a science that facilitates the analysis and evaluation of fatwas, to ensure that the Prophet () is accurately represented by a scholar or jurist (faqih[7], mujtahid or mufti).[8]
  • Usul al-Fiqh is, therefore, a science which ensures that the Ummah is protected from fanciful interpretations and heretical innovations (bid’ah).

According to Professor Mohammad Hashim Kamali,

The principal objective of Usul al-Fiqhis to regulate ijtihad and to guide the jurist in his effort at deducing the law from its sources. The need for the methodology of Usul al-Fiqhbecame prominent when unqualified persons attempted to carry out ijtihad, and the risk of error and confusion in the development of Shari’ah became a source of anxiety for the ulema. The purpose of Usul al-Fiqhis to help the jurist to obtain an adequate knowledge of the sources of Shari’ah and of the methods of juristic deduction and inference. Usul al-Fiqh also regulates the application of qiyas, istihsan, istishab, istislah, etc., whose knowledge helps the jurist to distinguish as to which method of deduction is best suited to obtaining the hukm shar’i of a particular problem. Furthermore, Usul al-Fiqh enables the jurist to ascertain and compare strength and weakness in ijtihad and to give preference to that ruling of ijtihad which is in close harmony with the nusus” (i.e., texts of the Qur’an and Sunnah).[9]

So, while ijtihad is WHAT the jurist does, Usul al-Fiqh guides or regulates HOW and WHY it is done.

Reason and Revelation: Eyes and Light

Imam Abu Hamid al-Ghazali described the relationship between reason and revelation as similar to that between the eyes and light. To insist on using ones’ intellect or reason without the aid of revelation is similar to a person moving around with their eyes open but in the dark. In a similar vein, to insist on following the guidance of revelation without the assistance of reason, is similar to a person moving around in broad daylight, with their eyes shut. Both reason and revelation are gifts from Allah to guide us, so both should be used together to gain true insight. The synthesis of reason and revelation is the basis of ijtihad, and ijtihad is regulated by Usul al-Fiqh.

 

From this perspective, Ijtihad is seen as the point of convergence between reason and revelation.

 

  • In Fiqh, we learn the values or rulings regarding desirability (e.g. compulsory, recommended or merely permisible) or undesirability (e.g. discouraged or forbidden) that Islamic Jurisprudence or law places on various beliefs and actions – “the Shari’ah Rulings” – al-Ahkam al-Shar‘iyyah. This will be covered in more depth in Lesson 5.
  • Usul al-Fiqh enables scholars to deduce with a reasonable degree of certainty what level of desirability or undesirability to assign to every aspect of our lives, based on the guidance of divine revelation (Qur’an), its implementation in the life of the last Prophet (i.e. the Sunnah) or Ijtihad.

So, while the study of Fiqh (and fatwahs) focuses on the “answers” and “verdicts”, Usul al-Fiqh focuses on the “equations” and how they are derived and applied under various contexts.

In the “Islamic Sciences” sound reason plays a critical role in at least 5 major areas or fields:

  1. The verification of the historical authenticity of information/revelation – Is it really from God or from His Prophet?;
  2. the understanding of the meaning and implications of the Arabic language of revelation;
  3. the appreciation of the wisdom and purposes of revelation;
  4. the thoughtful and correct application of its guidance to achieve its objectives; and in
  5. the defence of truth against falsehood using better arguments and superior reasoning.

 

 

DISCUSSION QUESTIONS:

  1. What is meant by the term Ijtihad?
  2. What is meant by Usul al-Fiqh?
  3. What is the relationship between Usul al-Fiqh and Ijtihad?
  4. What is the difference between Fiqh and Usul al-Fiqh?
  5. What are some goals of Usul al-Fiqh?
  6. Explain why Usul al-Fiqh is important.
  7. Why is it detrimental to engage in Fiqh without understanding Usul al-Fiqh?
  8. Explain Abu Hamid Al-Ghazali’s metaphor for the relationship between reasoning and revelation.
  9. Discuss 5 roles of reasoning in the Islamic Sciences.
  10. What is an example of a contemporary issue that warrants an Islamic legal ruling?
  11. Have all online fatwas been developed using the formulations of Usul al-Fiqh?

 

[1] Wan Azhar Wan Ahmad, Public Interests (Al-Masalih Al-Mursalah) in Islamic Jurisprudence: An Analysis of the Concept in the Shafi’i School, ISTAC & IIUM, Kuala Lumpur, Malaysia, 2003, p.91.

[2] Tariq Ramadan, Radical Reform: Islamic Ethics and Liberation, Oxford University Press, Oxford, 2009, p.360.

[3] See the qualifications of a mujtahid in the discussion on “Scholars and their Specialisations ” in Lesson 43.

[4]Ibid.; Abdul Hakim Murad, Understanding the Four Madhhabs, The Muslim Academic Trust, Cambridge, 1999; Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, the Islamic Text Society, Cambridge, 2003, p.1-4

[5] Muhammad Hashim Kamali, Principles of Islamic Jurisprudence, the Islamic Text Society, Cambridge, 2003, p.468.

[6] Musa bin Muhammad bin Yahya al-Qarni, Murtaqa al-Usul IlaTarikh Ilm al-Usul, p.5, Madina, 1414 AH

[7] A specialist in Islamic Jurisprudence (Fiqh)

[8] Ibn Qayyim, I’lam al-Muqaqi’in, vol. 1, p.10

[9] Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, the Islamic Text Society, Cambridge, 2003, p.4

  1. The Generation of Sam’i – of listeners, eye witnesses: This was the generation of the Companions of the Prophet (ﷺ) who saw, heard and lived with him. They witnessed the revelation and application of the Qur’an and Sunnah. They observed how he handled cases that were not responded to directly by revelation. They had the entire Qur’an transcribed. Many of the Companions spread out into the rest of the Ummah after the death of the Prophet (ﷺ) to teach and guide people. This period lasted till approximately the end of the first Hijrah
  1. The Generation of Jam’i – of gatherers, collectors: This was the generation of the students of the companions of the Prophet. They were taught by the Companions who learned directly from the Prophet (ﷺ). They gathered what they learnt from the companions in book form. They were the Tabi’in (the Followers of the Companions of the Prophet (ﷺ).[1]
  2. The Generation of Fiqh and Usul al-Fiqh – of analysts and jurists: This is the time of the Successors or Followers of the Followers of the Companions of the Prophet (ﷺ), the Tabi’u al-Tabi’in. It was during this period that a codified system of analysing Islamic law was developed, based on what the Tabi’u al-Tabi’in heard from their teachers who were taught by the companions of Prophet (ﷺ). While earlier jurists employed well-developed principles and methodologies that guided their juristic reasoning (ijtihad), the first writing and articulation of Usul al-Fiqh[2] as an independent science was done by Imam Shafi’i.

Fiqh is an Arabic term which literally means “deep understanding” but has come to denote the broad field of Islamic Jurisprudence. The great jurists, Imam Nu’man bin Thabit Abu Hanifa (d. 150 AH), Imam Malik bin Anas (d. 179 AH), Imam Muhammad bin Idris Shafi’i (d. 204 AH) and Imam Ahmad bin Hanbal (d. 241 AH) were scholars of Fiqh. The chart below shows their line of teachers.

The chart below shows the lapse of time between the Prophet Muhammad (ﷺ)’s life and period of the development of Fiqh, derived using Usul al-Fiqh. Imam al-Bukhari and Imam Muslim were not well known as fuqaha[1]but as later compilers and authenticators of oral and written traditions (Hadith).

[1] Plural of faqih – a specialist in Islamic Jurisprudence. Though some scholars regard Imam Bukhari as also being a Mujtahid. See Gibril Fouad Haddad, The Four Imams and their Schools, Muslim Academic Trust, London, UK., nd., p.iix

[1] The words “successors” and “followers” as in “Followers of the Successors” are used interchangeably.

[2] Shaykh Abdallah Bin Bayyah, The Legal Philosophy of Islam (Qawa’id al-Fiqhhiyyah), trnsl., Hamza Yusuf, CD lecture series in Zaytuna Institute, Al-Hambra Productions, California, USA., 2000; Musa bin Muhammad bin Yahya al-Qarni, Murtaqa al-UsulIlaTarikhIlm al-Usul, Medina, 1414 AH, p.5; Mohammad Akram Laldin, Introduction to Shari’ah and Islamic Jurisprudence, 2nd ed. CERT, Kuala Lumpur, 2008, p.155-221; Jasser Auda, Maqasid al-Shariah as Philosophy of Islamic Law, IIIT, Herndon, 2008, p.60-75.

Terminology:

In this section, we will review all the terms we have come across so far. How many can you remember?  Test yourself by covering the definitions on the right hand side.

 

TERMS MEANING/EXPLANATION
1.       Generation of Sam’i Generation of “listeners”, eyewitnesses, Companions
2.       Generation of Jam’i Generation of “gatherers”, collectors (of hadith), Successors of the Companions
3.       Tabi’un Followers of the Companions of the Prophet
4.       Tabi’u al-Tabi’in Followers of the Successors of the Companions of the Prophet
5.       Fiqh         Literally, deep understanding; technically, Islamic Jurisprudence
6.       Usul al-Fiqh       Literally, the roots of Islamic Jurisprudence; technically, the study of the principles, proofs and methodologies through which Islamic rulings are inferred
7.       Ijtihad Juristic reasoning, to deduce rulings that are not explicitly stated in the Qur’an and Sunnah
8.       Mujtahid A distinguished jurist; one who is qualified to engage in ijtihad
9.       Madhhab A school of juristic thought. School of legal theory or law
10.  Fatwa A religious answer, verdict or ruling given by amujtahid or a mufti
11.  Faqih A specialist in Islamic Jurisprudence (Fiqh)
12.  Mufti A scholar authorised to give specific religious answers or verdicts (fatwas) for the people of a geographical area
13.  Bid’ah Innovations, usually blameworthy innovations in religion or heresy
14.  Ahkam al-Shar‘iyyah Value-judgments or rulings of the Shari’ah

 

 

DISCUSSION QUESTIONS:

  1. List the 3 main historical phases in the evolution of Usul al-Fiqh and their main topics and contributions to the field.
  2. Would it be correct to describe Imam Shafi’i as the founder of Usul al-Fiqh?
  3. List the 4 major Sunni Imams in their chronological order.

 

Issues requiring a religious ruling or verdict (hukum or fatwah) are processed by scholars using the methodology and tools of Usul al-Fiqh. The products of this process are their “Shari’ah rulings” (or Al-Ahkam al-Shar‘iyyah or Al-Ahkam Al-Taklifiyyah) which determine the level of accountability, and legal or moral responsibility of a believer on a particular issue. These rulings only apply to Muslims with legal responsibility – i.e. one who is above the age of maturity, free from bondage, and is of sound mental health. These “Shari’ah rulings” (Al-ahkam al-Shar’iyyah) are the terms used to describe the value and degree of desirability or otherwise of a thing or action.

The rulings are broadly classified into the following categories[1]:

  1. Fard or Wajib – compulsory, obligatory, and sinful if omitted. This category is the opposite of haram which is sinful if committed. Some of these are individual obligations (fardu ‘ayn) while others are social or collective obligations (fardu kifaya).

Examples include the five daily prayers, giving zakat, being just, telling the truth, fulfilling responsibilities, keeping oaths, burying the dead, ensuring security, basic education, and avoiding haram, etc.

  1. Mustahab or Mandub – Recommended, encouraged, liked, praiseworthy, rewarded if performed but not punished if omitted. It is the opposite of makruh.[2]

Examples include supererogatory (nafilah) prayers and fasting outside Ramadan, tree-planting, charity (sadaqa), forgiveness, greeting others, marriage, cleanliness, and supporting good initiatives, etc. It also comprises ‘instruments’ and acts that facilitate attainment of a fard/wajib, such as being in a state of wudu’outside the times for salat, match-making for marriages, building mosques, and memorizing the Qur’an.

  1. Mubah or Ja’iz – Permissible, neither encouraged nor discouraged. Most issues and acts belong to this category because the legal premise or assumption underpinning any issue in Islam is that of permissibility, and also because the texts of the Qur’an and Sunnah are silent on many specific issues.[3] This premise of assumed or original permissibility is expressed by scholars in a legal maxim as: al-asl fi al-ashya al-ibahah – “the original premise of things is that of permissibility” – which is in turn based on the authority of numerous texts of the Qur’an and Hadith.[4]

The intention behind an act that is ordinarily mubah or ja’iz and the consequences of such an act may, however, elevate that act to the category of mustahab or relegate it to makruh (see definition below).

Examples of areas considered ja’iz include choice in some technological innovations, games, entertainment and leisure, cultural dishes and cuisine, cultural dressing; choice of health care systems, security systems, educational systems, political systems, architecture, ethnic names and languages, etc. – These are all permissible by default, so long as nothing in them contradicts clear Islamic injunctions or objectives. As mentioned earlier, whatever facilitates or leads to the attainment of goodness or benefit (maslahah) or an objective (maqasid) of Shari’ah will be encouraged (mustahab).

  1. Makruh – Discouraged, disliked but tolerated, rewarded if omitted but not punished if committed. It is the opposite of mustahab.[5]

Examples include over-eating, untidiness, having bad breath, miserliness, disputation, and avoiding mustahab.  It also comprises ‘instruments’ and acts that facilitate haram.

  1. Haram – Forbidden, prohibited, and sinful if committed. This category is the opposite of Fard. In common usage, it is also the opposite of halal which means permissible.

Examples include murder, theft, riba (usury/interest), shirk (associating partners with God), extra-marital sexual relations, back-biting, deception, gambling, injustice, ethnocentrism, racism, corruption, intoxication, terrorism, arrogance, ingratitude, cruelty to animals, insults, wastefulness, avoidance of fard (obligatory) responsibilities, etc.

The term halal may be used to refer to the first 4 categories as these are all permitted to varying degrees.

In Islamic legal law, greater attention is paid to the category of fard /wajib and that of Haram, as these entail a sin by omission or commission respectively. As a rule, courts are only concerned about legal breaches that fall under these two categories. However, considerable scope is granted to individual governments to determine what is enforceable in a society’s legislation and what is not. Not everything that is regarded as haram (in worship or social transactions) for example is regarded as a penal or punishable offence by a court. It should be noted that rewards and penalties for most actions in Islam are left with Allah.

Ideally, Muslims should take an interest in rulings for their own personal development and the wisdom and benefit that such prescriptions offer.  With greater spiritual growth, believers focus not just on what is Fard and Haram, but on avoiding the category of makruh and doing more actions in the category of mustahab/mandub.

 

Hanafi Classification: Seven Rulings

The five categories listed above are broadly accepted by all madhhabs. In the Hanafi School’s classification, however, there are two additional rulings based on distinctions within two categories.

 

For example, there is a nuanced distinction between fard and wajib. Fard is established only by conclusive evidence from explicitly clear (qat’i al-dilalah) and undisputedly authentic text (“qat’i al-wurud” or “qat’i al-thubut”) i.e., from the Qur’an or multiple-chained (mutawatir) hadith. Wajib, however, may be established by indefinite evidence in meaning (zanni al-dilalah) and/or text of probable (zanni) authenticity – i.e., from single-chained (ahad) hadith. This distinction between multiple-chained and single-chained hadith is significant because the latter does not provide absolute certainty of knowledge (ilm al-yaqeen).[6] The combinations of qat’i and zanni as applied to al-thubut/al-wurud and al-dilalah will be discussed in more details in Lesson 34.

As with all the other Schools of Jurisprudence (madhahib) the Hanafis regard the 5 daily prayers as belonging to the category of fard. They however regard the witr prayer (after the night prayer – ‘Isha) as wajib, while others regard it as mustahab or nafilah.[7]

 

The Hanafi School also distinguishes between 2 types of Makruh: makruh tahrimi and makruh tanzihi. The more serious is makruh tahrimi which is considered a minor sin if committed. This category can be established by single-chained hadith (hadith ahad, also referred to as khabr wahid). Haram in the Hanafi classification is only established by the Qur’an or hadith mutawatir that meets the requirements of certainty. Makruh tanzihi is similar to the “makruh” in the classification of most of the other jurists, and is not sinful if committed.[8]

Below is the common Hanafi classification[9]:

  1. Fard – compulsory, obligatory with absolute certainty and sinful if omitted
  2. Wajib – necessary, sinful if omitted
  3. Mustahab or Mandub – encouraged, liked
  4. Mubah – permissible, neither encouraged nor discouraged
  5. Makruh Tanzihi – discouraged, disliked but tolerated, not sinful
  6. Makruh Tahrimi– wrongful, sinful if committed
  7. Haram – Forbidden, prohibited with absolute certainty and sinful if committed

 

 

 

 

 

 

 

 

DISCUSSION QUESTIONS:

  1. What is the relationship between Usul al-Fiqh and the Ahkam al-Shar‘iyyah?
  2. List the 5 main value judgments (Ahkam al-Shariyyah) and give 3 examples of each.
  3. What is the main distinguishing feature of the Fard and Haram category? What do they have in common and why are they important in legal law?
  4. What do Mustahab and Makruh have in common and how are they differing?
  5. In Hanafi Fiqh, list 2 possible differences between Fard and Wajib.
  6. What is the difference between Makruh Tanzihi and Makruh Tahrimi?
  7. What are the major differences between Makruh Tahrimi and Haram?
  8. Explain the differences between a Fatwa and a Hukmu Shar’i.

[1] Muhammad bin Salih bin al-Uthaimeen, al-Usul min ‘Ilm al-Usul, Egypt, 2001, p.7

[2] Mohammad Akram Laldin, Introduction to Shari’ah and Islamic Jurisprudence, 2nd ed. CERT, Kuala Lumpur, 2008, p.12.

[3] Mohammad Akram Laldin, Introduction to Shari’ah and Islamic Jurisprudence, 2nd ed. CERT, Kuala Lumpur, 2008, p.13.

[4] As will be discussed in more detail in Lesson 31.

[5] Muhammad bin Salih ibn al-Uthaimeen, al-Usul min Ilm al-Usul, Medina, 1426 AH p.12; Imam al-Haramayn al-Juwayni, Matn al-Waraqat, 1996 Dar al-Samai’, Riyadh, n.d.,  p. 7; Mohammad Akram Laldin, Introduction to Shari’ah and Islamic Jurisprudence, 2nd ed. CERT, Kuala Lumpur, 2008, p.13; etc.

[6] Abdullah bin Yusuf al-Judayy, TaysirUsul al-Fiqh, p.34; Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, the Islamic Text Society, Cambridge, 2003, p.421; Mohammad Akram Laldin, Introduction to Shari’ah and Islamic Jurisprudence, 2nd ed. CERT, Kuala Lumpur, 2008 p.13; Ahmad Hasan, The Principles of Islamic Jurisprudence: The Command of the Sharia and Juridical Norm, Adam Publishers, New Delhi, 2005, p.38, 40-77, 130-133.

[7] Ibn Rushd, Bidayat al Mujtahid,vol.1

[8] Ahmad Hasan, The Principles of Islamic Jurisprudence: The Command of the Sharia and Juridical Norm, Adam Publishers, New Delhi, 2005, p.133

[9] Mohammad Akram Laldin, Introduction to Shari’ah and Islamic Jurisprudence, 2nd ed. CERT, Kuala Lumpur, 2008p.13; See also Musharraf Hussain, The Five Pillars of Islam, Kube Publishing, 2012, p. 29-31,  for another more nuanced Hanafi classification into 11 categories. Imam al-Haramayn al-Juwayni, a Shafi’i jurist presents 7 categories. See Mahmud Adam, Introductory Studies in Usul al-Fiqh: An Annotated Translation of Imam Al-Haramayn’s Waraqat, The Imam Shafi’i Bookstore, London, 2014, p.3.

Islamic Jurisprudence uses primary and secondary sources of evidence to formulate law. These are also called legislative tools.When primary sources contain indefinite meanings, secondary sources and tools may be used to provide evidence for a ruling. The various schools of Juristic thought (Madhhabs) differ regarding which secondary tools they endorse to provide evidence and how the endorsed tools are ranked in terms of prominence.

 

A chart of ‘evidence’ and classification according to their endorsement (in principle) within the Schools of Islamic law: Source: Jasser Auda, Maqasid al-Shariah as Philosophy of Islamic Law, IIIT, Herndon, 2008, p.77

DISCUSSION QUESTIONS:

  1. List those sources of Shari’ah (or evidences) which all scholars agree to in principle.
  2. List those evidences or sources of Shari’ah on which some scholars or schools of juristic thought differ upon in principle regarding their validity or credibility.
  1. Qur’an: This is the untainted Word of God revealed to the Prophet Muhammad (ﷺ) and preserved in the original Arabic language. There is a complete unanimity among all Schools of Juristic Thought (Hanafi, Maliki, Shafi’, Hanbali, Zahiri, Zaydi, Ibadi, Ja’fari, Mu’tazili, etc.) that the “Uthmani version” of the Qur’an is multiple-chained and authentic in its entirety. In other words, it has so many independent chains of narrators that it is humanly impossible for it to have been a forgery. Other reports of variant readings or versions (Shadhdhah) are regarded as single-chained hadith with only presumptive authenticity or authority (zanni al-thubut).[1]

Scholars who specialize in the science and interpretation (tafsir) of the meaning of the Qur’an are called Mufassirun.

  1. Sunnah: This refers to the tradition or practice of the Prophet Muhammad (ﷺ) as preserved mainly in the authenticated hadith narrations. These hadith narrations are the main carriers, sources or conveyors of the Sunnah. These covers the records of the Prophet’s actions, sayings, tacit (silent or implied) approval of the action and sayings of others along with his methodology.

Scholars who specialize in the authentication and sciences of the hadith are called Muhaddithun. They usually determine the authenticity of hadith based on a number of criteria which include: the soundness of the chain of reporters or narrators (isnad), the reliability/integrity of the individual narrators (adalat al-rawi), reliability of the memories of the narrators (dabt al-rawi) and the contents (matn) of the hadith.[2]

There is unanimity among jurists and the various Schools of Juristic Thought (madhahib) in the acceptance of the authority of multiple-chained (Mutawatir) hadith as a definitive source of the sunnah. Jurists differ, however, on the authority of authentic (sahih) single-chained (Ahad) hadith.[3] This will be discussed in more detail in Lesson 25.

According to Umar Faruk Abd-Allah, “The relation between the legal content of the Sunna and its textual and non-textual sources – connected and disconnected hadiths, post-prophetic reports (athar), and praxis (‘amal) – is one of the most fundamental issues in the historiography of Islamic legal origins. All the early schools acknowledged the authority of the sunna but differed widely regarding the methods they used to determine what its content was and how it should be determined.”[4]

For Malik and Abu Hanifa in particular, knowledge of the Sunnah – which was arrived at through various means – was the criterion against which hadiths were judged, interpreted, accepted, or rejected – not the reverse. They judged the contents of hadith by standards independent of their semantic content (matn).[5]

Traditionally therefore, there were those scholars that were regarded as “scholars of hadith” as distinct from “scholars of the Sunnah”. Yet other even greater scholars were regarded as scholars of both hadith and sunnah.[6]

The differing categories and legal implications of the Prophet’s Sunnah (tradition) and its distinction from Seerah (Prophetic history or biography) will also be discussed in greater detail in Lessons 28 and 29.

 

 

DISCUSSION QUESTIONS:

  1. How do scholars regard the authenticity or authority of variant readings or versions of the Qur’an?
  2. What is the difference between a Mufassir and a Muhaddith?
  3. List 4 out of the major criteria of assessing the reliability of hadith narrations by scholars of hadith.
  4. What type of hadith do all scholars of the various schools of jurisprudence regard as the most authoritative and why?

[1] Jasser Auda, Maqasid al-Shariah as Philosophy of Islamic Law, IIIT, London, 2008, p.77-79; Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, The Islamic Text Society, Cambridge, 2003, p. 54-55.

[2] For further reading see: Ibn Kathir, al-Baith al-Hathith, al-Maktabah al-Shamilah, version 3.13, p. 1; Abd-Rahman ibn Abi Bakr al-Suyuti, Tadrib al-Rawi, Maktbat al-Riyadh al-Haditha, in al-Maktabah al-Shamela version 3.13, p. 63; Jamaldeen Al-Qasimi, Qawa’id al-Tahdith, in al-Maktabah al-Shamelah, p. 34; Mohammed Hashim Kamali, A Textbook of Hadith Studies, The Islamic Foundation, Leicester, 2005; Gibril Fouad Haddad, Sunna Notes: Studies in Hadith and Doctrine, vol. 1, AQSA Publications, 2006; M.M. Al-Azami, Studies in Hadith Methodology and Literature, Indianapolis, Indiana, USA: American Trust Publications, 1977; Studies in Early Hadith Literature. Indianapolis, Indiana, USA: American Trust Publications, 1978; Jonathan A. C. Brown, Hadith: Muhammad’s Legacy in the Medieval and Modern World, Oneworld, Oxford, 2009

[3] For a very enlightening and detailed discussion of the various views regarding the importance, authority use of authentic single-chained or solitary (hadith ahad) among different Schools of Jurisprudence and scholars, see Umar F. Abd-Allah Waymann-Langraf, Malik and Medina: Islamic Legal Reasoning in the Formative Period, Brill, Leiden, The Netherlands, 2013, p.107-129.

[4] Umar F. Abd-Allah Waymann-Langraf, Malik and Medina: Islamic Legal Reasoning in the Formative Period, Brill, Leiden, The Netherlands, 2013, p.97. More discussion on “praxis (‘amal)” or the “Practise of the People of Medina” (‘amal Ahl al-Madinah) is done in Lesson 14.

[5] Umar F. Abd-Allah Waymann-Langraf, Malik and Medina: Islamic Legal Reasoning in the Formative Period, Brill, Leiden, The Netherlands, 2013, p.96.

[6] According to Ibn Mahdi, Sufyan ath-Thawri was an imam in hadith but not in sunnah; Al-Awza’i was an imam in Sunnah but not in hadith; as for Malik, however, Ibn Mahdi holds that he was an imam in both hadith and Sunnah. In this report hadith and Sunnah are clearly conceived of as two quite different things. Cited in ‘Umar FaruqAbd-Allah, Malik’s Concept of ‘Amal in the Light of Maliki Legal Theory, (unpublished PhD. Thesis), The University of Chicago, Illinios, 1978, p.76.

 

Terminology:

Let’s review the additional terms we have learned. How many can you remember?  Test yourself by covering the definitions on the right hand side.

 

TERMS MEANING/EXPLANATION
1.            Fard/Wajib Compulsory, obligatory and sinful if omitted
2.            Mustahab/Mandub Recommended, encouraged, and rewarding act
3.            Mubah/Ja’iz Permissible, neither encouraged nor discouraged
4.            Makruh Discouraged, disliked but tolerated
5.            Makruh Tanzihi Discouraged, disliked but tolerated. (Technical a Hanafi terminology)
6.            Makruh Tahrimi Highly discouraged, bearing a high probability (zanni) of sin. (Technical a Hanafi terminology)
7.            Halal Permissible, falling anywhere within the range of compulsory to recommended to discouraged. Not haram.
8.            Haram Forbidden, prohibited and sinful if committed. Not halal. Opposite of fard/wajib.
9.            Nafilah Supererogatory acts of worship
10.       Riba Usury/interest
11.       Shirk Associating partners with God, polytheism
12.       Al-asl fi al-ashya al-ibaha The legal premise/assumption regarding any issue is permissibility
13.       Qat’i al-dilalah Unambiguous, categorical and explicitly clear (qat’i) meaning and implication (dilalah) of text
14.       Qat’i al-wurud/Qat’i al-thubut Definitive, certain, categorical or undisputedly (qat’i) authentic and reliable text or narration (wurud/ thubut)
15.       Zanni al-dilalah (Text)of indefinite, speculative or presumptive (zanni) meaning or implication (dilalah)
16.       Ilm al-yaqeen Knowledge/truth (‘ilm) regarding which there is absolute certainty  (yaqeen)
17.       Hadith ahad/Khabr wahid Literally, lone-narrator, solitary or single-chained hadith. Hadith with less independent chains than Hadith Mutawatir.
18.       Hadith mutawatir Independent multiple-chained hadith of certain or undoubted authenticity
19.       Tafsir The science and interpretation of the meaning of the Qur’an
20.       Mufassirun Scholars who specialize in tafsiror commentary of the Qur’an
21.       Seerah Prophetic history or biography
22.       Muhaddithun Scholars who specialize in the authentication and sciences of  hadith
23.       Isnad Chain of narrators (of hadith)
24.       Adalat al-rawi Reliability, integrity and credibility of an individual narrator
25.       Matn Text or contents (of a hadith narration)

 

 

DISCUSSION QUESTIONS:

Find a partner to discuss the following questions:

  1. What are some of the differences between the Hanafi School’s legal classification and that of other Schools?
  2. Why do you think some scholars consider there to be a different degree of authority between a Hadith Ahad hadith and a hadith mutawatir?
  3. What is an example of an issue about which a primary source of evidence is explicitly clear?
  4. What is an example of an issue about which a primary source of evidence is indefinite in meaning and more evidence is required?

There are several secondary sources of evidence or tools for Ijtihad (juristic reasoning and deduction of rulings). One is Ijma’: a consensus of opinion. This consensus could mean, to various scholars, either unanimous or majority opinion.[1]

The majority of scholars view ijma’ as a “rational proof” and the third source of Islamic law after the Qur’an and Sunnah when there is an absence of any textual evidence.[2] If ijma’ is resorted to as a third independent authoritative source of legislation and only in the absence of clear textual evidence from the Qur’an or Sunnah, then such an ijma’ must have been arrived at by ijtihad, hence its description as a “rational proof” and described by some as consensus of collective ijtihad (ijtihad jama’iy).[3] There is safety in numbers!

Scholars, however, differ on the definition, the feasibility or way of determining and ascertaining how a “consensus” is reached, the level of certainty it gives, how it was to be used, its authority and binding nature, etc.[4] It is due partly due to their concern over the feasibility of ijma’ that according to the Zahiris and Imam Ahmad ibn Hanbal, ijma’ refers to the consensus of the Companions alone. Imam Malik on the other hand confines ijma` to that of the people of Madinah.[5] According to the Shafi’ jurist Imam al-Haramayn al-Juwayni, Ijma’ is the agreement by the jurists of a generation on a case of Sacred Law, and it is binding upon the next generation.[6]

According to some scholars, a ruling of ijma’ may have reached us by continuous multiple testimony (tawatur) in which case they would regard it as definitely proven (qat’i al-thubut) and similar to the Maliki “Amal of Medina” (to be discussed in Lesson 14).[7] But when ijma’ is transmitted through solitary reports, its authenticity would be open to doubt and therefore of only presumptive authority (zanni al-thubut).[8] Therefore it is not sufficient in the view of these scholars that there exists a claim of ijma’ (of whatever definition and feasibility) on an issue, it is also has to be proven (as with hadith narrations) that such as claim in definitely authentic and corroborated with multiple independent claims.

Some scholars also regard as ijma’ the consensus on issues upon which there is no known dissent concerning the meaning or implication (dilalah) of the text of the Qur’an or Sunnah.[9] Consequently, the determination of whether a particular text is explicitly clear (qat’i) or speculative (zanni) in its meaning and implication (dilalah) is determined by the existence of ijma’ or absence of recognized dissent (khilaf). Ijma’ in this sense therefore has the benefit of giving greater certainty and authority to an interpretation of the text and the rulings or verdicts (fatwa) arrived at. Others would argue that this so-called “ijma’” is merely complete agreement on the interpretation of an existing text of the Qur’an or Sunnah, and not an independent source of jurisprudence or law when the text is silent or ambiguous, which real Ijma’ is described as by the majority of its proponents.

Like the word Sunnah (as we shall see in Lessons 28 and 29), Ijma’ constitutes a loaded, or “complex term”. Attention must therefore be paid to how particular jurists and their schools defined and used it. Moreover the concept of consensus in Islamic legal history must always be juxtaposed against the phenomenon of dissent, which served as the index by which jurists generally determined the contents of their general agreement. Ijma’ could be regarded as the absence of known or recognized dissent. [10]

The authority of ijma’ is often derived from the following evidence:

And anyone who splits off from the Messenger after the guidance has become clear to him and follows a way other than that of the believers, We shall leave him in the path he has chosen, and land him in Hell. What an evil refuge!  (Qur’an 4:115)

…If they would only refer it to the Messenger and those among them who hold authority, those of them who seek its meaning would have found it out from them. (Qur’an 4:83)

O you who believe, obey Allah and obey the Messenger, and those placed in authority over you”. (Qur’an 4:59)

And among those We created is a community which guides by truth and thereby establishes justice (Qur’an 7:181)

Ali was reported to have said that, “I said, O Messenger of Allah; an issue might arise (after you) which has no justification from Qur’an, and which no tradition from you has come to prove.” The prophet () said: “Gather on it (i.e. the new issue) the scholars or he said the true worshippers among the believers, and mutually consult among yourselves, and do not base your judgment of it on one man’s opinions”.[11]

Other hadith include: “My Ummah will not agree on error.[12] Allah’s hand is with community (jama’ah)” [13]; “Those who seek the joy of residing in Paradise will follow the community of Muslims. For Satan can chase an individual, but he stands farther away from two people” [14]; “The hand of God is with the community, and (its safety) is not endangered by isolated oppositions” [15]; “Whoever leaves the community or separates himself from it by the length of a handspan is breaking his bond with Islam”[16]; “Whoever separates himself from the community and dies, dies the death of (People of) Ignorance (jahiliyyah)”[17]; Abdullah Bin Masud said: “Whatever the Muslims consider good is good in the eye of Allah, and whatever they consider evil is evil in the eyes of Allah”.[18]

Having discussed the evidence in the ahadith relating to ijma’, Ahmad Hasan observes that they are inconclusive and do not amount to authoritative textual evidence for Ijma’. “All of them emphasise unity and integration. Some of them are predictive and others circumstantial: They may mean ijma’, or something else.’ Hence the argument that they provide the authority for ijma’ is ‘definitely subjective’. The same author elaborates that: “There was no idea of ijma’ as a doctrine of jurisprudence in the early period; The jurists could not determine a definite meaning for ‘ummah’ or Jama’ah ; and Ahadith which convey a general meaning should not be restricted to a particular point of view.” [19]

 

According to Kamali however, notwithstanding the doubts and uncertainties in the texts (nusus) used to give authority to Ijma’, “the majority of ulema have concluded that the consensus of all the mujtahidun on a particular ruling is a sure indication that the word of truth has prevailed over their differences; that it is due to the strength of that truth that they have reached a consensus. This rational argument in support of ijma’ has been further advanced to the effect that consensus upon a shar’i ruling is bound to be founded on sound ijtihad. In exercising ijtihad, the mujtahid is normally guided by certain rules and guidelines. Ijtihad often consists of an interpretation of the text (nass), or of a rational extension of its ruling. Even in the absence of a nass, ijtihad still observes both the letter and spirit of the sources which the mujtahid has mastered through his general knowledge. Since ijtihad is founded on sound authority in the first place, the unanimous agreement of all the mujtahidun on a particular ruling indicates that there is clear authority in the Shari’ah to sustain their consensus. In the event of this authority being weak or speculative, we can only expect disagreement (ikhtilaf), which would automatically preclude consensus. Ijma’ in other words, accounts for its own authority.”[20]

Consequently, while there is a general concensus in principle on the validity and authority of Ijma’, it is when it is to be demonstrated in practise on a specific case that differences of definitions and perspectives on Ijma’ begin to become clearer.

Examples of issues on which some have claimed there is an ijma’ include the opinion that intentional laughter during Salat invalidates the Salat;[21] that intentionally missed prayers must be made up; that a woman’s leadership is prohibited; the punishment for leaving Islam (apostasy) is fixed (hadd) capital punishment; that the pronouncement of talaq (divorce) three times at one sitting is valid as terminal; and that slaughtering an animal without mentioning Allah’s name is unlawful.[22]

It should be noted that, despite the claims by some that an ijma’ exists on these issues, a number of classical jurists have in fact differed on these topics. The claimed Ijma’ on these might therefore simply have meant “consensus due to unknown or unrecognized dissent”.

 

DISCUSSION QUESTIONS:

  1. What is meant by Ijma’ and why is it regarded as a useful secondary source of Shari’ah?
  2. What type of ijma’ do scholars disagree on, if any?
  3. Give at least 3 examples of textual evidence used in justifying the authority of ijma’.
  4. Why do you think some scholars (such as IbnTaimiyyah) would regard ijma’ as a form of ijtihad, or consensus of collective ijtihad (al-ijtihad al-jama’i)
  5. Give examples of issues on which there is genuine consensus (ijma’) among all scholars and give reasons why such a consensus would be regarded as an example of ijma’.

[1] Tariq Ramadan, Radical Reform: Islamic Ethics and Liberation, OUP, Oxford, 2009, p.361; Jasser Auda, Maqasid al-Shariah as Philosophy of Islamic Law, IIIT, London, 2008, p.109-112

[2] Mohammad Akram Laldin, Introduction to Shari’ah and Islamic Jurisprudence, 2nd ed. CERT, Kuala Lumpur, 2008, p.90

[3] Tariq Ramadan, To Be a European Muslim, The Islamic Foundation, Leicester, 1999

[4] Jasser Auda, Maqasid al-Shariah as Philosophy of Islamic Law, IIIT, London, 2008, p.109-112; Mohammad Omar Farooq, Towards Our Reformation: From Legalism to Value Oriented Islamic Law and Jurisprudence, IIIT, London, 2011, p.141-167; Umar F. Abd-Allah Waymann-Langraf, Malik and Medina: Islamic Legal Reasoning in the Formative Period, Brill, Leiden, The Netherlands, 2013, p.130.

[5] Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, The Islamic Text Society, Cambridge, 2001, p.169

[6] Mahmud Adam, Introductory Studies in Usul al-Fiqh: An Annotated Translation of Imam Al-Haramayn’s Waraqat, The Imam Shafi’i Bookstore, London, 2014, p.28.

[7] The word “Madinah” is spelt differently by various authors – Medina, Madeenah, Medinah, etc.

[8] See Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, The Islamic Text Society, Cambridge, 2001, p.21

[9] Muhammad bin Ibrahim bin al-Mundhir, Al-Ijma’, Dar al-Muslim, 1425 AH

[10] Umar F. Abd-Allah Waymann-Langraf, Malik and Medina: Islamic Legal Reasoning in the Formative Period, Brill, Leiden, The Netherlands, 2013, p.130.

[11] Jalal al-Din al-Suyuti, Jami’i al-Ahadith, Hadith no. 34212. Some Hadith scholars regard this hadith as “weak” (da’if). See Al-Ayni, Umdat al-Qari: SharhSahih al-Bukhari, Al-Maktabah al-Shamila, version 3.13, vol. 24, p.220

[12] Al-Tirmidhi, no. 2167; Ibn Majah, no. 3950; and Abu Dawud, no. 4253 Albani said this hadith is Hasan (“good”) in Silsilat al-Ahadith al-Sahiha, no. 1331

[13] Al-Tirmidhi, no. 2166

[14]Al-Risalah of Imam Shafi’i, p.471 – 476; Al-Umm, Vol. VII, p.191- 193; Al-Mustadrak, vol.1, p.114 – Cited in Ahmad Hassan, Doctrine of Ijma’ in Islam, KitabBhavan, New Delhi, 2nd Ed., 2003, p.40.

[15] Cited in Ahmad Hassan, Doctrine of Ijma’ in Islam, Kitab Bhavan, New Delhi, 2nd Ed., 2003, p.40.

[16]Abubakar Ahmad bin Husain bin Ali Al-Baihaqi, Al-Sunan Al-Kubra, no. 16391, Maktab Dar al-Baz, Makkah, 1414 AH; Sunan Abu Dawud, no. 4760. Albani Said it is authentic in Sahih al-Jamiu al-Saghir, no. 6410.

[17]Sunan Abu Dawud, no. 4760; Sunan al-Tirmidhi, no. 2863; Musnad Imam Ahmad, no. 21460; Abu  Abdullah Al-Hakim, Al-Mustsdrak, no. 259, 408; Abu Nua’im Ahmad bin Abdullahi Al-Asbahani, Hilyat al-Awliya, Dar al-Kitab al-Arabi, Beirut vol. 9, p.58; Abubakar Ahmad bin Husain Al-Baihaqi, Shu’ab al-Iman, Dar al-Kutub al-Ilmiyyah, Beirut, 1410 AH, no. 7495 and in Al-Sunan Al-Kubra, no. 16391, Maktaba Dar al-Baz, Makkah, 1414 AH; Abu al-QasimSulaiman bin Ahmad Al-Maharani, Al-Ma’am al-Awsat, Dar al-Haramayn, Cairo, 1415 AH, no. 3405; Al-Albani authenticated the hadith in TahrimAlatalTarb, p.135, and in Silsilatu al-Ahadith al-Sahiha, no. 984.

[18] See comments of various traditionists (Muhaddithun) on this saying in the annotations of Al–Shaybani’sAl-Muwatta by Abd al-Hayy, p.112 Abu Abdullah Al-Hakim, Al-Mustsdrak, no. 4465. Dar al-Kutub al-Ilmiyyah, Beirut, no.1411 AH; Abu al-QasimSulaiman bin Ahmad Al-Tabarani, Al-Mu’jam al-Awsat, Dar al-Haramayn, Cairo, 1415 AH, no. 3602; Musnad Imam Ahmad, no. 3600; Abdurahman Al-Sakhawi, Al-Maqasid al-Hasana, no. 959.

[19] Ahmad Hasan, The Doctrine of Ijma, p.59-60, cited in Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, The Islamic Text Society, Cambridge, 2001, p.168

[20] Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, The Islamic Text Society, Cambridge, 2001, p.168.

[21] Muhammad ibn Ibrahim ibn al-Mundhir, Al-Ijma’, Dar al-Muslim, 1425 AH, p.38

[22] Mohammad Omar Farooq, Towards Our Reformation: From Legalism to Value Oriented Islamic Law and Jurisprudence, IIIT, London, 2011, p.144-147.

Another secondary source of evidence or tool is Qiyas: analogical reasoning or deduction. This is the practice of basing a new legal ruling on a previous ruling concerning a similar case, given the similarity between the two cases with respect to their underlying basis or occasion. The tool of qiyas identifies a reason (‘illah) evident in the text, or underlying wisdom (hikma) in a previous ruling and then applies it to a related issue.[1] Qiyas also refers to the “application of general rules to particular cases.”[2] Since each particular case is new, the crucial question is whether the unassimilated particular case actually falls under the relevant general rule or whether there is some reason to limit its application in the specific new case.[3]

Analogy (qiyas) is the only form of reason-based legal argumentation (or rational method of ijtihad) accepted by all major Sunni schools that could boast of anything approaching consensus.[4] Each of the 4 major Sunni jurists – Abu Hanifah, Malik, Shafi’i, and Ibn Hanbal – issued legal rulings based on it. Analogy however did not enjoy total consensus as the jurists differed in their methods of applying it, and the restrictions they were willing to use to curtail its strict application.[5]

Scholars differ with regard to the types, condition and the binding nature of qiyas.[6] They generally do not approve of qiyas being applied to issues related to creed (aqidah) and prescribed devotional acts or rituals (ibadah),[7]and they do not regard one who rejects qiyas as a disbeliever. They sometimes differ on what the effective cause (‘illah) or underlying wisdom(hikma)is, and its use when applying qiyas.[8]

An area of concern for scholars is the fact that the use of analogy (qiyas) – and the identification of the illah or hikmah – often implied some degree of conjecture in the implication (zanni dilalah). Its use on the basis of solitary hadith (ahad) or any other source of Shari’ah that was already speculative or presumptive in authenticity or credibility (zanni al-thubut), only increased the degree of conjecture (zanni) involved in arriving at a legal ruling or verdict. Various conditions and restrictions were therefore attached to the use of analogy (qiyas) so as to reduce the level of speculation or uncertainty involved.[9]

Scholars often rely on the following verse and authentic traditions for the authority of qiyas:

It is Allah who has sent down the Book (the Qur’an) in truth, and the balance (i.e. to act justly). And what can make you know that perhaps the Hour is close at hand?” (Qur’an 42:17).

Ibn Uthaymeen comments on the above verse, that the “balance” (mizan) is what is used for measurement and comparison. He further said it implies the validity of analogical deduction (qiyas).[10]

Ibn Abbas (may Allah be pleased with him) reported: “A woman came to the Messenger of Allah (may peace be upon him) and said,‘My mother has died, and a month’s fasting is due from her.’ Thereupon he said, ‘Don’t you see that if a debt was due from her, you would have to pay it?’ She said, ‘Yes (I would pay it on her behalf).’ Thereupon he said, ‘The debt of Allah deserves its payment even more (than the payment of anyone else).’”[11]

 

Abu Hurairah (may Allah be pleased with him) narrated: “A man said, ‘O Allah’s Messenger, my wife has given birth to a black son.’ The Prophet said, ‘Have you any camels?’ He replied, ‘Yes!’ He asked what their colour was. The man replied, ‘They are red.’ He asked, ‘Is there a grey one among them?’ He replied, ‘Yes,’ then asked, ‘Is it perhaps a strain which it has inherited? ‘The Prophet then said (to the man), ‘It is perhaps a strain to which this son of yours has inherited.’[12]

In the first hadith, the Prophet (ﷺ) makes an analogy between the legality of paying off the financial debt of a loved one and the legality of paying of a fasting debt. In the second hadith, the Prophet (ﷺ) makes an analogy between the birth of a camel bearing a different colour to its mother and the birth of a human child bearing a different colour to the child’s parents. Just as the different skin colour of animal offspring is considered normal genetic variation, so is the different skin colour of human offspring not to be considered evidence of foul play.

Examples of laws established on the application of qiyas are the prohibition of narcotics based on the analogy with intoxicating alcohol; or that dog saliva is impure and spoils prayer based on the fact that a hadith requires that a bowl from which a dog drinks should be washed 7 times; and that a killer will not inherit from a will (wasiyyah) even though the hadith only says s/he cannot automatically inherit (mirath) where there is no will.[13]

In order to draw a clearer line between the Sunnah and Qiyas, and so that it does not impinge or encroach upon the Sunnah, even when it appeared clear enough that its use was legitimate and even “a good Sunnah”, scholars such as Ibn Hanbal declared that “There is no qiyas in the Sunnah, and examples are not to be made up for it” (wa laysa fi al-sunnah qiyas, wa la yudrab laha al-amthal).[14]

Ahmad Ibn Hanbal had recourse to the most extensive number of texts of any Sunni Imam, and only resorted to analogy when he had exhausted his textual references and failed to find a relevant precedent in any of them.[15]

The Zahiri School did not accept analogical reasoning or qiyas as one of the valid secondary sources ofShari’ah.

 

DISCUSSION QUESTIONS:

  1. What is meant by Qiyas and explain why it is a useful tool or source in Shari’ah?
  2. Give at least 2 textual evidences used to justify the authority of Qiyas in Shari’ah.
  3. List the minimum components of Qiyas.
  4. Why are some scholars apprehensive of, or reluctant to use qiyas?
  5. Give examples of rulings (or features) arrived at through qiyas.

[1]Gamal Eldin Attia, Towards Realization of the Higher Intents of Islamic Law: Maqasid al-Shari’ah, A Functional Approach, IIIT, London, 2007, p.291; Omar Farooq, Towards Our Reformation: From Legalism to Value Oriented Islamic Law and Jurisprudence, London, 2011, p.168-220.

[2] In other schools (such as the Ja’fari or Imami of the Shi’ah sect) the principle of “transference of ruling” (ta’diyat al-hukum) is invoked.

[3] Umar F. Abd-Allah Waymann-Langraf, Malik and Medina: Islamic Legal Reasoning in the Formative Period, Brill, Leiden, The Netherlands, 2013, p.154.

[4] There is much greater divergence of opinons on the other “rational tools” or reason-based sources of Shari’ah such as istihsan, sadd al-dhara’i and masalih al-mursalah, as we shall see later on in this material.

[5] Umar F. Abd-Allah Waymann-Langraf, Malik and Medina: Islamic Legal Reasoning in the Formative Period, Brill, Leiden, The Netherlands, 2013, p.145-146.

[6] Mohammad Hashim Kamali, Methodological Issue in Islamic Jurisprudence, Arab Law  Quarterly, vol.11, no.1, (1996), Brill Academic Publishers,  P.25-28, available on http://www.jstor.org/

[7] Mohammad Hashim Kamali, Principle of Islamic Jurisprudence, p.191; Abdul WahabKhallaf, Masadir al-Tashri’ al-Islamiy fi ma la Nass fihi,  Kuwait, Dar al-Qalam, 1414 AH, 6th ed., p.26 and 30; Ibn Kathir, Tafsir Ibn Kathir, Dar Tayba, Madinah, 1420 AH, vol.7, p.465; Al-Hasan bin Ali al-Barbahari, Sharh al-Sunnah,Makrabah al-Sunnah, Egypt, 1416 AH, p.28, 47 & 49.

[8] Mohammad Hashim Kamali, Principle of Islamic Jurisprudence, p.274-279; Mohammad Hashim Kamali, Methodological Issues in Islamic Jurisprudence,Arab Law  Quarterly, vol.11, no.1, (1996), Brill Academic Publishers,  p.25-28, available on http://www.jstor.org/; Omar Farooq, Towards Our Reformation: From Legalism to Value Oriented Islamic Law and Jurisprudence, London, 2011, p.168-220.

[9] A discussion of the different approaches used by jurists and their schools in the application of various forms of analogy is beyond the scope of this work. Interested readers could refer to some of the main references used in this material for further reading. See also, Umar F. Abd-Allah Waymann-Langraf, Malik and Medina: Islamic Legal Reasoning in the Formative Period, Brill, Leiden, The Netherlands, 2013, p.145-157.

[10] Ibn Uthaymeen, Al-Usul min Ilm al-Usul, Riyadh, (no date), p.68

[11]Sahih Muslim, no. 2553

[12] “Agreed upon”. Cited in Ibn Qayyim al-Jawziyyah, Ilam al-Muwaqi’inan Rabb al-Alamin, Beirut, Dar al-Fikr, 1374, vol. 1, p.182. Many other prophetic traditions are mentioned by Ibn Qayyim arguing in favour of endorsing qiyas.

[13] Mohammad Akram Laldin, Introduction to Shari’ah and Islamic Jurisprudence, 2nd ed. CERT, Kuala Lumpur, 2008, p.101-102

[14] Umar F. Abd-Allah Waymann-Langraf, Malik and Medina: Islamic Legal Reasoning in the Formative Period, Brill, Leiden, The Netherlands, 2013, p.157.

[15] Umar F. Abd-Allah Waymann-Langraf, Malik and Medina: Islamic Legal Reasoning in the Formative Period, Brill, Leiden, The Netherlands, 2013, p.146.

 

Ra’i al-Sahabi is the reasoning or Opinion of a Companion of the Prophet (ﷺ). This is often discerned from a recorded saying or fatwa of a Companion (sahabi) which has not been contradicted by any other Companion’s opinion.[1]

Some scholars use the following verses to support the authority of Ra’i al-Sahabi:

“O you who believe, obey Allah and obey the Messenger and those in authority among you”. (Quran 4:59)

“And the foremost of those who forsook their homes and emigrated with the Messenger, those who welcomed them and gave them aid and those who followed their example, are the recipients of Allah’s blessings. Allah has been gracious to them. He is well pleased with them and they with Him.” (Quran 9:100)

The Prophet (ﷺ) said, “You must follow my sunnah and that of my rightly−guided successors. Hold to it and stick fast to it. Avoid innovation, for every innovation is a heresy, and every heresy is an error”.[2]

“My companions are like stars. You will be guided by any one of them you follow”[3]

“The best generation is my generation, then those who follow them, and then those who follow them.”[4]

Examples of rulings based on the Opinion of a Companion include the fatwa of ‘Umar bin al-Khattab on the finality of triple-divorce at one instance. During his caliphate (rule), ‘Umar judged that any man who divorced his wife by pronouncing divorce three times on one occasion has divorced her irrevocably. This was a departure from what was known during the time of the Prophet (ﷺ) and Abu Bakr, who preceded him. It is widely understood that he instituted this policy in order to stop men from using utterances of divorce as a means of verbal abuse.[5]

While most scholars regard the opinion of a Companion as a binding source of jurisprudence (or law), others such as Imam Ahmad bin Hanbal (in one of his reported views), the Ash’arites, Abu Hamid Al-Ghazali, Ibn Taimiyyah, Ibn Hazm and the Zahiri School, Al-Subki, the Hanafi scholar Abu al-Hassan al-Karkhi, and Al-Shawkani do not.[6] Ibn Hazm, in fact, prohibited the “imitation of anyone other than the Prophet (ﷺ) including the Companions.”[7]

 

 

DISCUSSION QUESTIONS:

  1. Explain what is meant by Ra’i al-Sahabi and give at least one example
  2. Give at least 3 examples of textual evidence used to justify the authority of Ra’i al-Sahabi.
  3. List some of the classical scholars who did not regard the opinion of a Companion (sahabi) as a binding source of law (Shari’ah).

[1] Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, The Islamic Text Society, Cambridge, 2003, p.313-322; Jasser Auda, Maqasid al-Shariah as Philosophy of Islamic Law, IIIT, London, 2008, p.128-129.

[2]Al-Mustadrak, no.329; Al-Baihaqi, al-Sunan al-Kubrah, no. 20835; Ibn Majah, Sunan Ibn Majah, no. 42; Musnad Imam Ahmad no.17145; Sunan al-Tirmidhi, no.2676; Sunan Ibn Majah, no. 42; Sunan al-Darimi, no.  95.

[3] Abdulrahman Al-Sulami, Adab al-Suhbah, Dar al-Suhbah, no.192; Other Hadith Scholars such as Ibn Hazm, Ibn Hajar, Ibn Mulaaqan, and Al-Albani consider this hadith to be fabricated (mawdu’). For more discussions, see ‘Umar bin Ali bin Mulaqqan, Al-Badr Al-Munir, Dar al-Hijrah, Riyadh, 1425 AH,  vol. 9, p.584; Muhammad Nasirudeen al-Albani, Silsilat al-Ahadith al-da’ifah, Riyadh, 1992, vol. 1, p.144, no. 58; Ahmad bin Ali bn Muhammad Ibn Hajar, Al-Talkhis al-Habir, Dar al-Kutub al-‘Ilmiyyah, 1419 AH, no. 2098; Ali bin Ahmad bin Hazm, Al-Ihkam fi Usul al-Ahkam, Dar al-Hadith, Cairo, 1404 AH, vol.5, p.61.

[4]Sahih al-Bukhari, no. 2652; Sahih Muslim, no. 6635; Sunan al-Baihaqi Al-Kubra, no. 20174; Al-Mustadrak, no. 4871; Sunan al-Tirmidhi, no. 2221.

[5] Muslim, Sahih Muslim, vol.2, p.759; Ahmad, al-Musnad, vol.4, p.314; For a more detailed discussion on the reason for Ibn Taimiyyah’s objections to the position that an intended triple divorce is terminal, see Abdul Hakim I. Al-Matroudi, The Hanbali School of Law and Ibn Taymiyyah: Conflict or Conciliation, Routledge, New York, 2006, p.171–185.

[6] Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, The Islamic Text Society, Cambridge, 2003, p.315-322;Jasser Auda, Maqasid al-Shariah as Philosophy of Islamic Law, IIIT, London, 2008, p.128-129

[7] See Ibn Hazm, Al-Ihkam, p. 539, cited in Jasser Auda, Maqasid al-Shariah as Philosophy of Islamic Law, IIIT, London, 2008, p.129.

Urf and Aadat are cultural norms and customs. This refers to “what is established and practiced by people from their sayings and doings, and not doings.” (Sic.)[1] Regional custom and convention (al-‘urf and al-adah) constitute a valid legal reference and source of law in all Sunni Schools. They however play an especially significantly role in Maliki and Hanafi traditions.[2]

In fact, one of the earliest theories and principles of Islam was that the religion should interfere as little as possible with pre-existing practice. That such practice could and should be followed except where the divine law forbade it or superseded it.

The prominence given to regional or local custom (as a source of Islamic law) reflects the attentions to the general good (maslahah), since sound custom, as a rule, have strong links with the aspirations, identity, needs, and necessities of people in the regions where they live.[3]

According to Imam Al-Shatibi, this approach to local or regional custom is based on Prophetic precedent, because much of the Prophet’s legislation was an affirmation of the sound or good customary practices of pre-Islamic Arabia. The Arabs, like human societies in general, developed many good customs before the advent of Prophetic guidance. Such customs were especially well-suited to their environment and circumstances. The Prophet (ﷺ) affirmed and perfected them, only abolishing those pre-Islamic customs that were unsound or detrimental. For this reason, according to Al-Shatibi, the Prophet (ﷺ) is reported in numerous hadith to have said that the purpose of his mission was to perfect the good moral qualities (makarim al-akhlaq) of the people, and not to obliterate them. Once the Prophet (ﷺ) endorsed pre-Islamic customary conventions, they became technically part of his Sunnah and were incorporated into Medinese praxis (‘amal).[4]

Some scholars use the following textual authorities to support the fact that ‘urf is one of the secondary sources of Shari’ah in the exercise of ijtihad and giving fatwas:

“And you must live with them in recognized/accepted kindness (bil-ma’rufi)…” (Qur’an 4:19)

The Prophet (ﷺ) said,“…You are more knowledgeable (than me) with regard to your worldly affairs (umurudunyakum)….”[5]

In a hadith reported by ‘Aisha, in which Hind, the wife of Abu Sufyan, complained to the Prophet (ﷺ) that her husband was miserly and did not give adequate maintenance for her and her children, the Prophet (ﷺ) said, “Take from his property what may suffice you and your children, according to custom (bi al-ma’ruf)”.[6]

Some commentators of the Sunnah suggested that this last hadith indicates the important role of custom, and that it should be relied upon in matters where the primary sources of Shari’ah do not give exact details.[7]

Moreover, many financial instruments and forms of business dealings such as Al-araya, Salam, Isitisna, Musharaka, and Murabaha, were part of pre-Islamic custom (‘urf) that were acceptable to Islam. The concepts of Jizyah (poll tax or military “exemption tax” on non-Muslims)[8] and dhimmah (non-Muslim protected status) were also originally pre-Islamic and yet accepted though modified by Islam. The names of most of the days of the week, and those of the months of the Hijrilunar calendar were also part of pre-Islamic ‘urf. These examples lend strong support that customs that have no contradiction with Shari’ah ethics are acceptable bases to derive rulings from.

Additional examples of accepted ‘urf include various monetary exchanges or currencies; language and idiomatic expressions; the law of qisas (equitable retribution); public holidays; traditional names; customary rules regarding payment of the dower (mahr) in marriage; traditional titles and administrative systems; etc.[9]

In terms of the use of ‘urf in legislation among the various Schools of Juristic Thought, “the Hanafi and Maliki Schools gave culture (‘urf) greatest reign. In the Maliki School, the authority of cultural norms may be invoked to specify or restrict the application of contrary, general legal precepts on grounds of judicial preference (istihsan)”.[10]The Zahiri School however rejects ‘urf as a source of legislation.[11]

 

 

DISCUSSION QUESTIONS:

  1. Explain the meaning of Urf and ‘Aadah.
  2. What textual evidences are often used to justify the validity of Urf and ‘aadah as sources of Shari’ah.
  3. Give examples of where Urf and ‘aadah have been the basis for legislations by scholars.
  4. Why have some scholars (such as the Maliki and Hanafi) given significant importance to Urf and ‘aadah?
  5. Discuss reasons for some of the differences among scholars on the validity of Urf as a source of legislation.
  6. Mention a school that rejects Urf and ‘Aadah as source of Shari’ah.

[1] Mohammad Akram Laldin, Introduction to Shari’ah and Islamic Jurisprudence, 2nd ed. CERT, Kuala Lumpur, 2008, p.116.

[2] See Qarafi, al-Dhakhirah (Cairo), 1:143, 87-88 – cited in Umar F. Abd-Allah Waymann-Langraf, Malik and Medina: Islamic Legal Reasoning in the Formative Period, Brill, Leiden, The Netherlands, 2013, p.137. For more on ‘Urf and ‘Adah, see Umar F. Abd-Allah Waymann-Langraf, Malik and Medina: Islamic Legal Reasoning in the Formative Period, Brill, Leiden, The Netherlands, 2013, p.137-141.

[3] Abu Zahra, Malik, 420-421 – cited in Umar F. Abd-Allah Waymann-Langraf, Malik and Medina: Islamic Legal Reasoning in the Formative Period, Brill, Leiden, The Netherlands, 2013, p.137.

[4] Al-Shatibi, Al-Muwafaqat, 2:213; Abu Zahra, Malik, 374-375 – cited in Umar F. Abd-Allah Waymann-Langraf, Malik and Medina: Islamic Legal Reasoning in the Formative Period, Brill, Leiden, The Netherlands, 2013, p.137-138.

[5] Sahih Muslim, no. 6277.

[6]Sahih al-Bukhari, (2097);  Sahih Muslim, (4575); Musnad Ahmad bn Hanbal, 24117

[7] Mohammad Akram Laldin, Introduction to Shari’ah and Islamic Jurisprudence, 2nd ed. CERT, Kuala Lumpur, 2008, p.152 citing other authorities.

[8] Dr. Monqiz As-Saqqar, Jizya in Islam, Translated by Hayam Elisawy, Source:
http://www.irfi.org/articles/articles_1051_1100/Jizya_in_islam.htm (visited on 4/12/2013).

[9] Mohammad Akram Laldin, Introduction to Shari’ah and Islamic Jurisprudence, 2nd ed. CERT, Kuala Lumpur, 2008, p.116-123; Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, The Islamic Text Society, Cambridge, 2003, p.369-383; Jasser Auda, Maqasid al-Shariah as Philosophy of Islamic Law, IIIT, London, 2008, p.130-131.

[10] ‘Umar Faruq Abd-Allah, Islam and the Cultural Imperative, A Nawawi Foundation Paper, 2004, note 10, p.13

[11] Ibn Hazm, Al-Ihkam fi Usul al-Ahkam, Dar al-Hadith, Cairo, 1404 AH, vol.7, p.398.

Istihshab is the presumption of continuity of what was previously prescribed.[1] It is a judgment or ruling to the effect that a state of affairs which existed at an earlier time continues to exist now in the absence of evidence to the contrary.[2] Istishab essentially implies that the status quo becomes a source of law in the absence of better reasons to the contrary.

The textual authority for istishab includes:

“It is He who created for you all of that which is on the earth…” (Qur’an 2:29); and, “And He has subjected to you whatever is in the heavens and whatever is on the earth – all from Him…” (Qur’an 45:13) These verses and a number of others have been understood to establish the premise of permissibility of all things created “for” human use. The status quo of permissibility remains, in the absence of anyting to the contrary.

An example of istishab which is also regarded as proof for its validity comes from the Prophet’s teaching of what to do when a person with ablution is in doubt of having spoilt his ablution by passing wind. The Prophet () taught that such person’s ablution was intact unless the flatulence was certain from the perception of its sound or smell.[3]

Istishab is also proven by the fact that the Prophet () asked those who were in doubt of the number of raka’at they had done in salat to assume the minimum number which they were certain about, and compensate by adding what was then missing.[4]

Those who consider istishab as a valid source of law support this positive view of what already exists with rational arguments that human beings have an inborn instinct that the status quo remains until the contrary is proven.[5]

“And they say, ‘None will enter Paradise except one who is a Jew or a Christian.’ That is (merely) their wishful thinking. Say, ‘Produce your proof, if you should be truthful.’” (Qur’an 2:111)

The relevance of this verse to the validity of istishab lies within the last sentence where Jews and Christians are asked to support their claim with a proof before it may be accepted, since whatever differs from the status quo ante (previously existing) and existing rulings must be proven.[6]

These proofs and explanations have been the sources of some legal maxims such as: “The premise in all things is that of permissibility” (al-asl fi al-ashyah al-ibahah); “Certainty is not overruled by doubt” (al-yaqin la yazulu bi al-shakk); “The norm is that the status quo remains as it was before” (al-aslbaqahmakana ‘alamakana).[7]

Example of principles based on istishab include the presumption of an action being permissible until proven prohibited; of innocence until proven guilty; of freedom from responsibility until proven otherwise; of duty until proven fulfilled; of purity until proven impure, etc.[8]

Imam Malik, Imam Ahmad bin Hanbal, most followers of the Shafi’i School and those of the Zahiri consider istishab to be a valid independent source of Shari’ah.[9] Abu Hanifah and the majority of his followers did not consider it an independent source, asserting that just as there should be a textual proof for an issue in the past to be binding, there must be a textual proof for its continuity as well.[10]

DISCUSSION QUESTIONS:

1.                 Explain what is meant by Istishab

2.                 Give examples of textual evidences used to justify Istishab

3.                 Give examples of rulings or principles based on Istishab

4.                 Discuss some of the differing views of scholars on Istishab

 


[1] Tariq Ramadan, Radical Reform: Islamic Ethics and Liberation, OUP, Oxford, 2009, p.361.

[2]Gamal Eldin Attia, Towards Realization of the Higher Intents of Islamic Law: Maqasid al-Shari’ah, A Functional Approach, IIIT, London, 2007, p.288.

[3]Sahih al-Bukhari, no.137; Sahih Muslim, no.98-99.

[4]Sunan Abu Dawud, no.1026; Ahmad, no.11689; Sunan Al-Nasai’, no.1238; Ibn Majah, no.1210.

[5]Abdulkareem bin ‘Ali bin Muhammad al-Namlah, Al-Jami’ li Masa’il Usul al-FiqhWaTatbiqiha ‘ala al-Madhab al-Rajih, Maktabah al-Rushd, Riyadh, 1420, p.376; Abdul Wahab Khallaf, Masadir al-Tashri’ al-Islami Fi ma laa Nass Fihi, Dar al-Qalam, Kuwait, 1414, 6th edition, p.152-153; Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, The Islamic Text Society, Cambridge, 2001, p.386.

[6]Abdulkareem bin ‘Ali bin Muhammad al-Namlah, Al-Jami’ li Masa’ilUsul al-Fiqh WaTatbiqiha ‘ala al-Madhab al-Rajih, Maktabah al-Rushd, Riyadh, 1420, p.377.

[7] Abdul Wahab Khallaf, Masadir al-Tashri’ al-Islami Fi ma la Nass Fihi, Dar al-Qalam, Kuwait, 1414, 6th edition, p.152-153.

[8]Jasser Auda, Maqasid al-Shariah as Philosophy of Islamic Law, IIIT, London, 2008, p.132.

[9] Al-Shawkani, Irshad al-FahulIlaTahqiq al-Haq min ‘Ilm al-Usul, Edited by Ahmad ‘Azw ‘Inayah, Dar al-Kutub al-‘Arabiyyah, Beirut, 1419, vol.2, p.174; Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, The Islamic Text Society, Cambridge, 2001, p.259.

[10] Abdul Wahab Khallaf, Masadir al-Tashri’ al-IslamiFima la Nass Fihi, Dar al-Qalam, Kuwait 1414, 6th edition, p.152. Other sources consulted however, differed on the position of Malik and Hanafi regarding the validity of Istishab as an independent tool. See for example: Al-Shawkani, Irshad al-FuhulIlaTahqiq al-Haq min ‘Ilm al-Usul, Edited by: Ahmad ‘Azw ‘Inayah, Dar al-Kutub al-‘Arabi, Beirut, 1419, vol.2, p.174; M. H. Kamali, Principles of Islamic Jurisprudence, 2001, p.25; Jasser Auda, Maqasid al-Shariah as Philosophy of Islamic Law, IIIT, London, 2008, p. 132; and Abdul WahabKhallaf, Masadir al-Tashri’ al-IslamiFima la Nass Fihi, Dar al-Qalam, Kuwait 1414, 6th edition, p.152.

 

Amal Ahl al-Madinah refers to the tradition and praxis (‘amal) or consensus (ijma’) of the People of Madinah at the time of Imam Malik bin Anas (d.179 AH) and before. These practices are those that were common and known among the people of Madinah, which they had inherited from their ancestors going back to the period of the Prophet ().[1]

For Malik, the Medinan praxis (‘Amal ahl al-Madinah) embodied the soundest and most normative application of the Qur’an and all legal texts. It constituted the living embodiment of the well-established Sunnah, and its authority rested on the fact that the greater body of jurists of Medina recognized its validity.[2] Imam Malik therefore considered the standard practice of the people of Madinah to be more representative of the conduct of the Prophet (), and therefore the Sunnah, than the isolated hadith reports of one or two individuals. In his opinion, this practice represents the narration of thousands upon thousands of people who could trace their understanding ultimately to the Prophet (). It is, in other words, equivalent to a ‘famous’ (Mashhur), or even multiple-chained (Mutawatir) narration.[3]

The Amal Ahl al-Madinah is accepted by only the Maliki School of Juristic Thought (madhhab) as a basis of law, though it has the support of some individual scholars of other Schools. Some of the Hanbali scholars such as Ibn Taimiyyah and Ibn Qayyim also, in principle, recognize the legitimacy of Amal Ahl al-Medina.[4]

According to Muhammad Hashim Kamali, “Imam Malik has gone as far as to equate the amal ahl al-Madinah, that is the customary practice of the people of Madinah, with ijma’. This type of ‘amal (lit.’ practice’) constitutes a source of law in the absence of an explicit ruling in the Qur’an and Sunnah.”[5]

The authority for Amal of Ahl al-Madinah mainly derives from the following evidence:

Qadi ‘Iyad mentions in his Masalik: “It is related that ‘Umar ibn al-Khattab, may Allah be pleased with him, once said on the mimbar, ‘By Allah, I will make things difficult for anyone who relates a hadith which is contrary to the ‘amal of Madinah’.”[6]

Ibn Taimiyyah noted in his treatise on the Amal of Ahl al-Madinah that, “During the time of the three excellent generations, there was no evident innovation in Madinah at all and no innovation issued from it at all regarding the basic premises of the deen, such as emerged from all the other cities.”[7]

It may also be concluded that the Malikis give more authority to the amal of Madinah since up to 10,000 Companions of the Prophet () died in Madinah, and “the seven great Fuqaha (jurists)” were based there as well. The first 3 Caliphs had their headquarters in Madinah[8] from where learned Companions were sent to other places. Madinah was a sanctuary of Islamic studies during the time of the Companions, and therefore became a strong source of Shari’ah for Imam Malik, consolidating his view towards the city’s amal.[9]

For Imam Malik, and the early Maliki scholars, “a solitary hadith which is not supported by Medinese praxis (‘Amal) will simply be discarded. Nevertheless, when solitary hadiths agree with Medinese praxis, they constitute one of the most authoritative types of Medinese praxis and belong to the category later jurisprudents termed “transmissional praxis” (al-‘amal al-naqli).”[10]

“Imam Malik would rely on a solitary hadith on condition that it does not disagree with the practice of the Madinese (ahl al-Madinah).”[11] Ibn al-Qasim and Ibn al-Wahab said, “We saw that, for Malik, amal was stronger than hadith.”[12]

Others like Imam Shafi’i, however, differed with his teacher, Imam Malik, on giving precedence to amal over hadith ahad.[13] The Hanafi also disagree with the Malikis on the concept of the practice of the people of Madinah[14]and scholars like Ibn Hazm of the Zahiri School argued against it.[15]

While Medinan praxis (‘Amal) did contribute most significantly towards “maximizing certainty” in the assessment of authority and implications of legal proofs (adillah), there is no indication however, that Malik (or the Malikis) believed it to be conclusively authoritative, infallible, or universally binding.[16]

Also, while there are instances where positions generally agreed upon in Medina (‘Amal) met with overwhelming dissent in other regions, it is difficult to see how consensus or broad agreement could be reached on any matter on which there was disagreement within Medina. In fact, the respected Hadith scholar and jurist, Sa’id Ibn Abi Maryam (d.224AH/838) contended that consensus was never reached outside Medina on an issue pertaining to the Sunnah that was contrary to the teachings of Malik in Al-Muwatta’. In other words, if there was no consensus in Medina, it was difficult to find it elsewhere.[17]

Examples of Maliki positions that are based on the AmalAhl al-Madinah include some of the weights and measures (sa’ and mudd) used in Madinah for the collection of zakat; the wording of the adhan and iqamah for congregational prayers; the omission of the recitation of basmalah during congregational prayers; the absence of zakat on green vegetables; and praying (salat) with hands down one’s sides (sadl).[18]

 

 

DISCUSSION QUESTIONS:

1.                 Explain the meaning of Amal ahl-al-Madinah

2.                 Give evidences used to justify the validity of Amal ahl-al-Madinah

3.                 Why do you think the Maliki School regards the Amal of Madinah as a better representation of the normative Sunnah of the Prophet and that of the majority of his most respected Companions, than a solitary or single-claimed (ahad) hadith?

4.                 List some examples of rulings reached by use of Amal ahl-al-Madinah

5.                 Discuss some of the reasons for differing opinions regarding the validity of Amal ahl-al-Madinah.

 


[1] Mohammad Akram Laldin, Introduction to Shari’ah and Islamic Jurisprudence, 2nd ed. CERT, Kuala Lumpur, 2008, p.124-126; Jasser Auda, Maqasid al-Shariah as Philosophy of Islamic Law, IIIT, London, 2008, p.129-130. For a comprehensive and scholarly understanding of the ‘Amal of Ahl al-Madinah see ‘Umar FaruqAbd-Allah, Malik’s Concept of ‘Amal in the Light of Maliki Legal Theory, (unpublished PhD. Thesis), The University of Chicago, Illinios, 1978; Yasin Dutton, The Origins of Islamic Law: The Qur’an, the Muwatta’ and Madianan ‘Amal, Routledge, 1999; Dutton, Original Islam: Malik and the Madhhab of Madina, Routledge, New York, 2007; and Ibn Taimiyyah, The Madinan Way: The Soundness of the Basic Premises of the School of the People of Madina, Bookwork, Norwich, 2000.

[2] Umar F. Abd-Allah Waymann-Langraf, Malik and Medina: Islamic Legal Reasoning in the Formative Period, Brill, Leiden, The Netherlands, 2013, p.122.

[3] Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, The Islamic Text Society, Cambridge, 2003, p.103

[4] Mohammad Akram Laldin, Introduction to Shari’ah and Islamic Jurisprudence, 2nd ed. CERT, Kuala Lumpur, 2008, p. 124-126. See Jasser Auda, Maqasid al-Shariah as Philosophy of Islamic Law, IIIT, London, 2008, p.129, and Ibn Taimiyyah, The Madinan Way: The Soundness of the Basic Premises of the School of the People of Madina, Bookwork, Norwich, 2000.

[5]Ibid.,p.372.

[6] Cited in Yasin Dutton, Original Islam: Malik and the Madhhab of Madina, Routledge, London, 2007, p.69.

[7] Ibn Taymiyyah, The Madinan Way: The Soundness of the Basic Premises of the School of the People of Madina, BookWork, 2000, p.8.

[8] Ali, the 4th Caliph, established his headquarters in Kufa.

[9] Ibn Taymiyyah, The Madinan Way: The Soundness of the Basic Premises of the People of Madina, Bookwork, 2000, p.10-24.

[10] Umar F. Abd-Allah Waymann-Langraf, Malik and Medina: Islamic Legal Reasoning in the Formative Period, Brill, Leiden, The Netherlands, 2013, p.126.

[11] Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, The Islamic Text Society, Cambridge, 2003, p.103.

[12]Yasin Dutton, Original Islam: Malik and the Madhhab of Madina, Routledge, London, 2007, p.69.

[13] Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, The Islamic Text Society, Cambridge, 2003, p.63.

[14] ‘Umar Faruq ‘Abd-Allah, Malik’s Concept of ‘Amal in the Light of Maliki Legal Theory, (unpublished PhD. Thesis), The University of Chicago, Illinios, p.337-341

[15] Ibn Hazm, Al-Ihkam fi Usul al-Ahkam, Dar al-Hadith, Cairo, 1404 AH, vol.4, p.597

[16] Umar F. Abd-Allah Waymann-Langraf, Malik and Medina: Islamic Legal Reasoning in the Formative Period, Brill, Leiden, The Netherlands, 2013, p.133.

[17] Umar F. Abd-Allah Waymann-Langraf, Malik and Medina: Islamic Legal Reasoning in the Formative Period, Brill, Leiden, The Netherlands, 2013, p.133.

[18]Abdul Rahman ibn al-Qasim, cited in Sahnun ibn Sa’id, Al-Mudawwana al-Kubra, vol. 1, p.149, Al-Maktabah al-Shamilah, Version 3.13; Ibn Rushd, Bid’ayat al-Mujtahid, The Distinguished Jurist’s Primer, (translated by Imran Ahsan Khan Nyazee), Garnet Publishing Limited, Reading, U.K., 1994; Vol. I, p.151; see more examples of amal in ‘Umar Faruq Abd-Allah, Malik’s Concept of ‘Amal in the Light of Maliki Legal Theory, (unpublished PhD. Thesis), The University of Chicago, Illinios, 1978; p.549-756.

 

Shar’u man Qablana refers to the laws of the people of earlier revelation – Ahl al-Kitab.

According to Kamali:[1]

In a reference to the Torah, the Qur’an confirms its authority as a source of inspiration and guidance: “We revealed the Torah in which there is guidance (huda) and light; and prophets who submitted to God’s will have judged the Jews by the standards thereof” (Al-Ma’idah, 5:44).

It is thus observed that Muhammad, being one of the Prophets, is bound by the guidance that is found in the Torah. Further confirmation for the basic harmony of the divinely revealed laws can be found in the Qur’anic verse (ayah) which, in a reference to the previous Prophets, directs the Prophet of Islam to follow their guidance: `Those are the ones to whom God has given guidance, so follow their guidance [hudahum]’ (al-Anam, 6:90).

Basing themselves on these and similar proclamations in the Qur’an, the ulema agree that all the revealed religions are different manifestations of an essential unity.[2] This is, of course, not to say that there are no differences between them. Since each one of the revealed religions was addressed to different nations at different points of time, they each have their distinctive features which set them apart from the rest. In the area of halal and haram, for example, the rules that are laid down by different religions are not identical. Similarly, in the sphere of devotional practices and the rituals of worship, they differ from one another even if the essence of worship is the same. The Shari’ah of Islam has retained many of the previous laws, while it has in the meantime abrogated or suspended others. For example, the law of retaliation (qisas) and some of the hadd penalties which were prescribed in the Torah have also been prescribed in the Qur’an.[3]

However, the general rule to be stated here is that notwithstanding their validity in principle, laws that were revealed before the advent of Islam are not applicable to Muslims. This is especially so with regard to the practical rules of Shari’ah, that is, the ahkam…. The jurists are also in agreement to the effect that the laws of the previous religions are not to be sought in any source other than that of the Shari’ah of Islam itself; for the rules of other religions do not constitute a binding proof as far as Muslims are concerned. The Shari’ah, in other words, is the exclusive source of all law for Muslims.[4]

In view of the ambivalent character of the evidence on this subject however, the question has arisen as to the nature of the principle that is to be upheld; whether to regard the laws preceding the Shari’ah of Islam as valid unless they are specifically abrogated by the Shari’ah, or whether to regard them as basically nullified unless they are specifically upheld. In response to this, it is said that laws that were introduced in the previous scriptures but which are not upheld by the Shari’ah, and on which no ruling is found in the Qur’an or the Sunnah are not, according to general agreement, applicable to Muslims. The correct rule regarding the enforcement of the laws of the previous revelations is that they are not to be applied to the followers of Islam unless they are specifically upheld by the Shari’ah.[5]

 

DISCUSSION QUESTIONS:

  1. What is meant by Shar’u man Qablana?
  2. Give textual evidence used to justify the validity of Shar’u man Qablana.
  3. List some examples of Shar’u man Qablana.
  4. Discuss some of the differing opinions among scholars regarding the validity of Shar’u man Qablana.

[1] Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, The Islamic Text Society, Cambridge, p. 306-12.

[2] Muhammad Abu Zahara, Usul al-Fiqh, Dar Al-Fikr al-Arabi, Cairo, 1958, p. 241 cited in Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, The Islamic Text Society, Cambridge, 2003, p.306-308.

[3] See Muhammad Abu Zahara, Usul al-Fiqh, Dar Al-Fikr al-Arabi, 1958, p.242 and; Abu al-‘Aynayn Badran, Usul al-Fiqh al-Islami, Mu’assassah Shahab al-Jami’ah, Alexandria, 1984, p.237 cited inMohammad Hashim Kamali, Principles of Islamic Jurisprudence, The Islamic Text Society, Cambridge, 2003, p.306-308.

[4] Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, The Islamic Text Society, Cambridge, 2003, p.306-308.

[5] Abu al-‘Aynayn Badran, Usul al-Fiqh al-Islami, Mu’assassah Shahab al-Jami’ah, Alexandria, 1984, p. 234; Abd al-Hamid Abu al-MakarimIsma’il, Al-Adillah al-MukhtalaffihawaAtharuha fi al-Fiqh al-Islami, Dar al-Muslim, n.d, p. 320, cited in Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, The Islamic Text Society, Cambridge, 2003, p.306-308.

Al-Masalih al-Mursalah(also known as Maslahah or Istislah) is the consideration of “unstated” public interests which may not be explicitly identified in any text in the Qur’an or Sunnah but which are generally agreed upon based on circumstances which arise in human society. They are of three types.

Those masalih (plural of maslaha) – “welfare”, “benefits”, “general good”, “public interests”, “things done for a good purpose”, etc., – that are supported and approved by textual evidence of the Qur’an and Sunnah, are accepted by most scholars, and they usually fall under the discussion or category of “Analogy” (Qiyas), especially when used as the bases for discussing the legal reasons (‘illah) or wisdom (hikmah) behind a textual injunction. These masalih are often described as masalih al-mu’tabarah – i.e., (textually) supported, endorsed or accredited interests.

Those interests (masalih) that contradict or oppose the sources or objectives (maqasid) of Shari’ah are rejected by scholars, and described as al-masalih al-mulgha – textually discredited, rejected or invalid interests.

Those interests or benefits (masalih) that are neither explicitly supported nor rejected by any specific legal text of the Qur’an or Sunnah, but are in line with the objectives (maqasid) of Shari’ah are described as al-masalih al-mursalah. They are masalih because they deal with the acquisition of benefit or utility, and removal of harm or evil. The term mursalah (“unstated”, unrestricted or “untethered”) indicates the absence of direct textual evidence for them.[1]

In its constructive application, the unstated good (al-masalih al-mursalah) is a principle or tool of legal reasoning whereby unprecedented rulings are legislated to secure the best interest of individuals or societies that are without textual precedent. Al-masalih al-mursalah consequently has both a preclusive and a protective application, according to which it suspends normative applications of the law for the welfare of society.[2]

The texts used  to show authority for Maslahah, Sadd al-Dhari’ah and Istihsan are all similar as they  are all connected to the objectives (Maqasid) of Shari’ah. The following texts have been used to support the authority of public interest (Maslahah).

“And We have not sent you, (O Muhammad), except as a mercy to the worlds.” (Qur’an 21:107)

“O Mankind, there has come to you instruction from your Lord and healing for what is in the breasts, and guidance and mercy for the believers” (Qur’an 10:57)

“And strive for Allah with the striving due to Him. He has chosen you and has not placed upon you in the religion any difficulty…” (Qur’an 22:78)

“Allah does not intend difficulty for you…” (Qur’an 5:6)

The Hadith of repositioning the Ka’bah as reported by A’isha that the Messenger of Allah (ﷺ) said, “Had not your people been still close to the pre-Islamic Period of Ignorance, I would have repositioned the Ka’bah and made two doors in it; one for entrance and the other for exit.”[3] (I.e. the Prophet (p) considered the potential consequences of the peoples’ ignorance to social unrest and public interest as a reason or basis for his legislation to not reposition the Ka’bah, which he would otherwise have done).

He also said, “No harm shall be inflicted or reciprocated in Islam.[4]

Muslims are bound by their stipulations unless it be a condition which turns a Haram into halal or Halal into Haram.[5]

A’isha reported that “…whenever the Prophet () was asked to choose between one of two options he chose the easiest of them so long as it did not amount to a sin…[6]

The authority for maslahah also comes from the ijtihad of some companions of the Prophet (ﷺ). Two examples of this are the first and second compilation of the Qur’an during the Caliphate of Abu Bakr and ‘Uthman to ensure its safety, and the burning of the copies of Qur’an which differed from the authentic official copy as ordered by ‘Uthman during his tenure (and approved by other Companions of the Prophet (ﷺ) who were present at that time). In these examples, the interest of preserving the original Qur’an for later generations and non-Companions was the basis for measures taken. Other examples include the second call (Adhan) of Friday prayer added by ‘Uthman due to the increase in the Muslim population of Medina[7]; the declaration by ‘Umar of a triple-divorce pronounced at one occasion to be as irrevocable as three separate divorces[8]; the temporary suspension of divinely-stipulated punishment for theft (hadd al-sariqah) by ‘Umar due to famine[9]; and ‘Umar’s refusal to share some fertile lands conquered by the Muslim soldiers among them as booty because he wanted to preserve the lands for future generations.[10]

More contemporary examples of unstated interests (maslahah) include the paving of roads, the setting up of administrative offices to handle public utilities, the development of traffic rules, environmental laws, taxation systems, food security systems, Geographic Information Systems, modern land tenure systems, the construction of sewers and waste disposal facilities, etc.[11]

While Imam Malik and Imam Ahmad bin Hanbal considered this tool to be a valid independent source of Shari’ah in the absence of contradictory evidence from Qur’an, Sunnah or Ijma’, other Juristic Schools like the Shafi’i[12], Hanafi and Zahiri did not consider it a valid independent source.[13] The Hanafis regard this tool as subsumed and already incorporated under Istihsan[14](discussed further in Lesson 17).

Although “public interest” or the “unstated good” (al-masalih al-mursalah) is not recognized as an independent or distinctive legal principle in Hanafi and Shafi’i legal reasoning, both schools have a pragmatic concern for the general good and attainment of the higher objectives (maqasid) of Shari’ah. Shafi’i for example held that the benefits entailed in al-masalih al-mursalah were amply set forth in Islam’s textual sources. The chief difference therefore between the Shafi’i and Maliki, therefore, was over the issue of the unstated (irsal) aspect of general benefit and the question of which elements pertaining to the general good are not tied down to specific texts or cannot be adequately inferred from them, and hence based on a more abstract perception of the general good.[15]

Al-Shatibi and Al-Qarafi insisted that the purpose of attaining good (masalih) could be theologically attributed to God. They argue that the fact that general benefits are central to the ultimate purposes of Islamic law is not a matter of speculative theology, but is empirically based on the inductive study (istiqra’) of the revealed sources of Prophetic law.[16]

 

 

DISCUSSION QUESTIONS:

  1. What is meant by al-Maslahah al-Mursalah?
  2. What are some of the textual evidences used to justify the consideration of “unstated benefits” (al-masalih al-mursalah)?
  3. How could there be textual evidence for al-masalih al-mursalah, if by definition, these are non-textual or “unstated” by the Qur’an or Sunnah?
  4. Give some examples of the application of al-maslahah al-mursalah in the lives of Companions and in contemporary society.
  5. List some of the differing positions among classical scholars about al-Maslahah al-Mursalah.

[1] Wahbah al-Zuhaili, Usul al-Fiqh al-Islami, 2 vols., Damascus, Dar al-Fikr, 1406/1986, 2:757 – cited in Wan Azhar Wan Ahmad, Public Interests (Al-Masalih Al-Mursalah) in Islamic Jurisprudence: An Analysis of the Concept in the Shafi’i School, ISTAC & IIUM, Kuala Lumpur, Malaysia, 2003, p.6-7.

[2] Abu Zahra, Malik, 390; Al-Zarqa, Fiqh, 1:97-98; Al-Fasi, Maqasid, 138-144; Al-Dawalibi, Madkhal, 99 – cited in Umar F. Abd-Allah Waymann-Langraf, Malik and Medina: Islamic Legal Reasoning in the Formative Period, Brill, Leiden, The Netherlands, 2013, p.174-175.

[3] Al-Bukhari, Sahih al-Bukhari, vol.1, book 3, no. 128.

[4] Ibn Majah, no. 2340

[5] Muslim, Sahih Muslim, no. 3587

[6] Al-Bukhari, Sahih al-Bukhari, no. 3367; Muslim, Sahih Muslim, no. 6190

[7] Muhammad al-Amin bn Muhammad bn al-Mukhtar al-Shinqiti, al-Masalih al-Mursalah, Madinah: Al-Jami’ah al-Islamiyyah, 1410, p.10 & 12; al-Bukhari, Sahih al-Bukhari, vol.6, hadith nos. 201 & 509; vol.9, no.301, Alim 6.0

[8] Muslim, Sahih Muslim, no.3746

[9] Ibn al-Mulaqqan, Al-Badr al-Munir fi Takhrij al-Ahadith Wa al-Athar al-Waqi’ah fi al-Sharh al-Kabir, Saudi Arabia: Dar al-Hijrah, 1425, vol.8, p.679; ‘Atiyyah bin Muhammad Salim, Sharh Bulugh al-Maram, al-Maktabah al-Shamilah, 3.13, 1420, p.12

[10] Al-Bukhari, Sahih al-Bukhari, no.2334; For more examples of the application of al-masalih al-mursalah during the period of the Rightly Guided Caliphs, the Period of the Successors, the Followers of the Successors, etc., see Wan Azhar Wan Ahmad, Public Interests (Al-Masalih Al-Mursalah) in Islamic Jurisprudence: An Analysis of the Concept in the Shafi’i School, ISTAC & IIUM, Kuala Lumpur, Malaysia, 2003, p.17-56.

[11] Gamal Eldin Attia, Towards Realization of the Higher Intents of Islamic Law: Maqasid al-Shari’ah, A Functional Approach, IIIT, London, 2007, p.289.

[12] For a more detailed discussion of the more formal adoption and development the subject of “unstated good” (al-Masalih al-Mursalah) among later scholars of the Shafi’i School, (especially the contributions of Imam al-Haramayn al-Juwayni, Abu Hamid al-Ghazali, and Fakhr al-Din al-Razi), see Wan Azhar Wan Ahmad, Public Interests (Al-Masalih Al-Mursalah) in Islamic Jurisprudence: An Analysis of the Concept in the Shafi’i School, ISTAC & IIUM, Kuala Lumpur, Malaysia, 2003, p.91-132. For further reading, see: Tariq Ramadan, To be a European Muslim, p.78; Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, The Islamic Text Society, Cambridge, 2003, p.362-365.

[13] Abdul Wahab Khallaf, Masadir al-Tashri’ al-Islami Fima la Nass Fihi, Kuwait, Dar al-Qalam, 1414, 6th edition, p.89; Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, The Islamic Text Society, Cambridge, 2003, p.245-247.

[14] Abdul Wahab Khallaf, Masadir al-Tashri’ al-Islami Fima la Nass Fihi, Kuwait, Dar al-Qalam, 1414, 6th edition, p.89.

[15] Umar F. Abd-Allah Waymann-Langraf, Malik and Medina: Islamic Legal Reasoning in the Formative Period, Brill, Leiden, The Netherlands, 2013, p.176

[16] Al-Shatibi, Al-Muwafaqat, 2:6, 1:148; Al-Qarafi, Al-Dhakhira (Cairo), 1:142-143, 72-73; Ibn Rushd, Bidayat al-Mujtahid, 2:5, 38 – cited in Umar F. Abd-Allah Waymann-Langraf, Malik and Medina: Islamic Legal Reasoning in the Formative Period, Brill, Leiden, The Netherlands, 2013, p.177.

Istihsan literally means “to approve or to deem something preferable”. It is derived from “hasana”, which means being good or beautiful.

Technically, istihsan means juristic preference or discretion.This refers to the exercise of juristic discretion in situations which the jusrist deems unique or exceptional and therefore cannot be equitably handled by existing law, or situations where application of the existing law could lead to unfairness or hardship. In the case of the latter instance, istihsan is viewed either broadly or restrictively. In a broad sense, istihsan is a method of exercising personal opinion in order to avoid any rigidity and unfairness that might result from the literal enforcement of the existing law.

In a more restrictive sense, istihsan refers to a decision to refrain from using a ruling given for an analogous situation in favour of another ruling which is more in keeping with the intents of the Law. In other words, juristic preference involves giving human interests and intents of Law priority over the results of analogical deduction (qiyas).[1]Istihsan is meant to ensure that harm or hardship (mafsada) is not created in the normal “logical” application of qiyas or any other legal principles or proofs (adillah).

“Juristic preference” or “discretion” is a fitting description of istihsan, as it involves setting aside an established analogy in favour of an alternative ruling which serves the ideals of justice and public interest in a better way.[2]

Irrespective of the scope of application given to istihsan, a common thread that runs through all renditions of it is as defined by Ibn Rushd in Bidayat al-Mujtahid as “attention (al-iltifat) to the general benefit (maslahah) and justice (al-‘adl).”[3]

Thus, according to Ibn al-‘Arabi, “istihsan is to abandon, in the form of an exception, what is required by the law because applying the existing law would lead to a departure from some of its own objectives.”[4] On a similar note, Al-Shatibi says Istihsan is “putting aside the necessary consequences of a legal directive by way of making an exception to it through granting a special license (tarakhkhus) because of the contradicting (mu’arada) of special circumstances.”[5]

Istihsan is therefore the movement from one source of evidence (such as ijma’, qiyas, etc.) to another different one (such as ‘urf, ra’yi al-Sahabi, etc. )which is more appropriate or suitable to the context under consideration. This more appropriate evidence could be based on consensus (ijma’), custom (urf), “unstated public interest” (maslahah al-mursalah), or the principle of “removal of hardship” (raf’ al-haraj), etc.[6]

The authority for istihsan usually comes from the following Qur’anic verses:

“God intends ease for you, and He does not want to put you in hardship.” (Qur’an 2: 185)

“Those who listen to the word and follow the best of it.” (Qur’an 39: 18)

“And follow the best of what has been sent down to you from your Lord.” (Qur’an 39:55)[7]

The following ahadith have also been quoted in support of istihsan:

 “What the Muslims deem to be good is good in the sight of God.” [8]

 “No harm shall be inflicted or reciprocated in Islam.” [9]

“The best of your religion is that which brings ease to the people.”[10]

Al-Khudari explains that in their search for solutions to problems, the Companions and Successors resorted in the first place to the Qur’an and the normative example of the Prophet (ﷺ), but when they found no answer in these sources, they exercised their personal opinion (ra’y), which they formulated in the light of the general principles and objectives of the Shari’ah.

This is illustrated, for example, in the judgment of ‘Umar ibn al-Khattab in the case of Muhammad ibn Salamah’sneighbour. The Caliph was approached by Ibn Salamah’s neighbor for permission to extend a water canal through Ibn Salamah’s property. The neighbor was granted the request on the ground that no harm was likely to accrue to Ibn Salamah, and extending a water canal was to his manifest benefit.[11]

Istihsan has also been suggested in the ruling of Caliph ‘Umar ibn al-Khattab to waive the hadd penalty of the amputation of the hand for theft during a widespread famine, as well as his ruling to ban the sale of slave-mothers (ummahat al-awlad), and his ban for the Companions to remain married to Jewish and Christian women (kitabiyyat).[12] ‘Umar set aside the established law in these cases on grounds of his assessment of equity, justice and public interest.[13]

‘Umar also judged that zakat be charged on horses during his reign even though the Prophet (ﷺ) explicitly mentioned that there should be no zakat on horses. He did this because at his time circumstances had changed and horses were becoming more valuable than the camels upon which zakat was to be paid. He departed from the hadith because, at his time, it would have been unjust for people with less valuable property (camels) to pay zakat while those with more valuable property (horses) do not pay it.[14] ‘Umar judged that adherence to the wisdom or underlying cause for the initial ruling should be given preference   over adherence to its literal reading.

Another interesting case of istihsan from ‘Umar, concerns the inheritance of two half-brothers. The case concerned a woman who died and left behind her husband, her mother, two half-brothers, and two full brothers. Initially, the Caliph applied the usual ruling, based on an established precedent as evident in the Qur’an and demonstrated by the Prophet (ﷺ). This involved two categories: the Ahl al-farai’d (those whose portion has been designated or fixed in the Qur’an) and ahl al-isabah (the residual heirs). The Ahl al-fara’id have definite priority over the Ahl al-isabah in the distribution of property. Upon this basis, ‘Umar gave one-half of the property to the husband of the deceased woman; one-sixth to her mother, and one-third to the uterine brothers. No portion was given to the half-brothers as they were considered residual heirs.

The half-brothers contested the case saying, “Suppose our father was a donkey (himar), do we not still have the same mother as the deceased?”Consequently, ‘Umar revised his first decision based on the consideration of equity and justice. Then, he found a stronger reason to depart from the established ruling to a new ruling, which he approved of as the better judgment (‘istahsana’). He ordered that the one-third of the property that remained should be distributed equally among both full and half-brothers. This distribution would take place after the deduction of the husband’s and mother’s fixed portions. The case later came to be known as “The Donkey Case (Mas’alat al-Himariyyah)”.[15]

Also, the Hanbali scholar, Ibn Taimiyyah, made use of istihsan to allow a woman in her menstruation to perform the Compulsory Tawaf of Hajj (Tawaf al-ifadah) before leaving for home if the group she went to the Hajj pilgrimage with could not wait for her.[16]

Imam Malik used to say that juristic discretion (istihsan) constituted nine-tenths (90%!) of legal knowledge.[17]

In the Hanafi school, istihsan is often regarded as a form of “inconspicuous analogy” (al-qiyas al-khafi), and there are various types of these.[18] Al-Shatibi argues that juristic discretion (istihsan) is no less a valid form of legal reasoning than analogy (qiyas). It is required, so as to ensure that the law is applied to new circumstances (as in the case of qiyas) with justice and fairness in a manner that is consistent with its overall purpose.[19]

While the Hanafi, Maliki, and Hanbali jurists have validated istihsan as a subsidiary source of law, the Shafi’i, Zahiri and Shi’i (Shi’a) ulama reject it altogether and refuse to give it any credence in their formulation of Usul al-Fiqh.[20] Rather, “in almost all cases where the Hanafis and Malikis have applied istihsan or custom (‘urf), the Shafi’is have resorted to istishab.”[21] The topic of istishab is discussed in more detail in Lesson 13.

One of the most interesting applications of juristic discretion (istihsan) is when it is based on the legal principle of “heeding dissent” (ri’ayat al-khilaf). Scholars would sometimes “heed the dissent” of other prominent jurists by modifying their own opinions, not just for the sake to unity, but out of courtesy and “respect for the other opinion” or school.[22]

According to some authors, almost all instances of istihsan are actually the illustrations for al-masalih al-mursalah.[23]

Istihsan and “Equity”

There is an obvious parallel between the concept of equity (in Western Law) and istihsan. According to Kamali, however, although they bear a close similarity to one another, the two are not identical. “Equity” is a Western legal concept which is grounded in the idea of fairness and conscience, and derives legitimacy from a belief in natural rights or justice beyond positive law. It has been defined as “Primarily fairness or natural justice. A fresh body of rules by the side of the original law, founded on distinct principles, and claiming to supersede the law in virtue of a superior sanctity inherent in those principles. Equity is the body of rules formulated and administered by the Court of Chancery to supplement the rules and procedure of the Common Law.”[24]

Istihsan in Islamic law, and equity in Western law, are both inspired by the principle of fairness and conscience, and both authorise departure from a rule of positive law when its enforcement leads to unfair results. The main difference between them is, however, to be sought in the overall reliance of equity on the concept of natural law, and of istihsan on the underlying values and principles of the Shari’ah. But this difference need not be over-emphasised if one bears in mind the convergence of values between the Shari`ah and natural law. Notwithstanding their different approaches to the question of right and wrong, for example, the values upheld by natural law and the divine law of Islam are substantially concurrent.

Briefly, both assume that right and wrong are not a matter of relative convenience for the individual, but derive from an eternally valid standard which is ultimately independent of human cognizance and adherence. From an Islamic perspective, right and wrong are determined, not by reference to the ‘nature of things’, but because God has determined them as such. [25]

 

 

DISCUSSION QUESTIONS:

  1. What is the meaning of Istihsan?
  2. Give at least 3 texts used by scholars to justify Istihsan as a source of Shari’ah.
  3. Give at least 3 cases of the application of Istihsan in the lives of the Companions.
  4. Give reasons for some of the differences of opinions among jurists on the validity of Istihsan as an independent source of Shari’ah.
  5. What are the similarities and differences between istihsan and “equity” in Common/Western Law?

[1]Gamal Eldin Attia, Towards Realization of the Higher Intents of Islamic Law: Maqasid al-Shari’ah, A Functional Approach, IIIT, London, 2007, p.288; See also, Jasser Auda, Maqasid al-Shariah as Philosophy of Islamic Law, IIIT, London, 2008, p.122-125; Mohammad Akram Laldin, Introduction to Shari’ah and Islamic Jurisprudence, 2nd ed. CERT, Kuala Lumpur, 2008, p.102-107

[2] Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, The Islamic Text Society, Cambridge, 2003, p. 324-325.

[3] Ibn Rushd, Bidayat al-Mujtahid, 2:112 – cited in Umar F. Abd-Allah Waymann-Langraf, Malik and Medina: Islamic Legal Reasoning in the Formative Period, Brill, Leiden, The Netherlands, 2013, p.163.

[4]Al-istihsan huwa tark muqtada al-dalil `ala tariq al istithna’ wa’l-tarakhkhus li-mu’aradah ma yu’arad bihi fi ba’d muqtadayatih.” See Ibn al-Arabi, Ahkam al-Qur’an, II, 57. A discussion of Ibn al-‘Arabi’s definition also appears in Shatibi’s Al-Muwafaqat, (ed. Diraz), IV, 208, cited in Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, The Islamic Text Society, Cambridge, 2003, p. 327-328.

[5] Al-Shatibi, I’tisam, 2:320-321 – cited in Umar F. Abd-Allah Waymann-Langraf, Malik and Medina: Islamic Legal Reasoning in the Formative Period, Brill, Leiden, The Netherlands, 2013, p.162-163.

[6] Hussein Hamid Hassan, Fiqh al-Maslahah wa Tatbiqatuhu al-Mu’asirah, Jeddah, IDB, 1993, p. 55; Al-Shatibi, Al-Muwafaqat, 3:60-76; 4:233-243 – cited in Umar F. Abd-Allah Waymann-Langraf, Malik and Medina: Islamic Legal Reasoning in the Formative Period, Brill, Leiden, The Netherlands, 2013, p.164.

[7] Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, The Islamic Text Society, Cambridge, p. 328-329.

[8] Al-Amidi (Ihkam, I, 241) considers this to be a Hadith but it is more likely to be a saying of the prominent companion, ‘Abd Allah Ibn Mas’ud; see also Shatibi, I’tisam, II, 319.]; cited in Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, The Islamic Text Society, Cambridge, 2003, p.323-350.

[9] Ibn Majah, Sunan, vol.2, p.784, no. 2340; al-Shatibi, Al-Muwafaqat (ed. Diraz), III, 17; Khudari, Tarikh, p. 199, cited in Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, The Islamic Text Society, Cambridge, 2003, p.323-350.

[10]Sarakhsi, al-Mabsut, vol. X, p. 145; Ibn Hanbal, Musnad, Dar al-Fikr: Beirut, vol., V, 22, n.d. cited in Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, The Islamic Text Society, Cambridge, 2003, p.325-326.

[11] Muhammad al-Khudari, Tarikh al-Tashri’ al-Islami, 7th ed., Dar al-Fikr, Beirut, 1981, p.199, cited in Kamali, op. cit.

[12]Umm al-walad is a female slave who has borne a child to her master, and who is consequently free upon his death. A kitabiyyah is a woman who is a follower of a revealed religion, namely Christianity and Judaism.

[13] Ahmad Hasan, The Early Development of Islamic Jurisprudence. Islamic Research Institute, Islamabad, 1970, p.145.

[14] Jasser Auda, Maqasid al-Shariah: A Beginner’s Guide, IIIT, London, 2008, p.12.

[15] Saim Kayadibi, Istihsan: The Doctrine of Juristic Preference in Islamic Law, Islamic Book Trust, Selangor, 2010, p.118-119.

[16] Ali bin Muhammad bin Abbas Ala’udeen, Al-Ikhtiyarat al-Fiqhhiyyat min Fatawa Shaykh aI-Islam Ibn Taimiyyah, Dar al-Iman, Egypt, p.206; Muhammad bin Abu Bakr Ibn Qayyim al-Jawziyyah, I’lam al-Muwaqi’in an Rabb al-Alamin, Maktab al-Kulliyyat al-Azhariyyah,  1388 AH/1968, vol.3, p.13-15.

[17] Al-Shatibi, al-I’tisam, 2:320 – cited in Umar F. Abd-Allah Waymann-Langraf, Malik and Medina: Islamic Legal Reasoning in the Formative Period, Brill, Leiden, The Netherlands, 2013, p.162

[18] Umar F. Abd-Allah Waymann-Langraf, Malik and Medina: Islamic Legal Reasoning in the Formative Period, Brill, Leiden, The Netherlands, 2013, p.168.

[19] Al-Shatibi, Al-I’tisam, 2:320 – cited in Umar F. Abd-Allah Waymann-Langraf, Malik and Medina: Islamic Legal Reasoning in the Formative Period, Brill, Leiden, The Netherlands, 2013, p.163.

[20] Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, The Islamic Text Society, Cambridge, 2003, p.324.

[21] Abu Zahra, Usul al-Fiqh, p. 241, cited in Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, The Islamic Text Society, Cambridge, 2001, p.267. For further reading on Istihsan see Saim Kayadibi, Istihsan: The Doctrine of Juristic Preference in Islamic Law, Islamic Book Trust, Selangor, 2010

[22] Al-Shatibi, Al-I’tisam, 2:329-330 – cited in Umar F. Abd-Allah Waymann-Langraf, Malik and Medina: Islamic Legal Reasoning in the Formative Period, Brill, Leiden, The Netherlands, 2013, p.164-165.

[23] Wan Azhar Wan Ahmad, Public Interests (Al-Masalih Al-Mursalah) in Islamic Jurisprudence: An Analysis of the Concept in the Shafi’i School, ISTAC & IIUM, Kuala Lumpur, Malaysia, 2003, p.46.

[24] Osborn’s Concise Law Dictionary, p. 124; cited in Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, The Islamic Text Society, Cambridge, 2001, p.217.

[25] Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, The Islamic Text Society, Cambridge, 2001, p.217

Sadd al-Dhara’i is a tool that enables preclusion or “blocking the means” to a prohibition. This is used to determine the prohibition of evasive legal devices, or of anything which has the potential of leading to that which is forbidden.[1] The opposite, according to Al-Qarafi, is Fath al-Dhara’i, or “opening the means”.[2] Both tools show a concern for consequences of decisions and the attainment of the objectives (maqasid) of Shari’ah in Islamic Jurisprudence.

The concept of juristic discretion (istihsan) often functions as the opposite of preclusion/“blocking the means” (sadd al-dhara’i). While juristic discretion is used to systematically permit what would not be allowed according to strict application of legal proofs (adillah), preclusion is used to prohibit what systematic application of proofs would ordinarily permit.[3]

The authority for sadd al-dhara’i is derived from the following texts that show a concern for consequences:

“And do not revile those who call upon other than Allah, in case they revile Allah out of spite and ignorance.” (Qur’an 6: 108)

“…and let them (women) not strike (stamp) their feet (on the ground) so as to make known what they conceal of their adornments.” (Qur’an 24: 31)

O you who believe! When the call is proclaimed to prayer on the day of Jummah (Friday), then hasten earnestly to the remembrance of Allah and leave trade. That is best for you, if you only knew.” (Quran 62:9)

According to Kamali, authority is also found for the principle of sadd al-dhara’I in the Sunnah, especially the ruling in which the Prophet forbade a creditor from taking a gift from his debtor lest it became a means to usury and the gift a substitute to riba. The Prophet also forbade the killing of hypocrites (al-munafiqun) and people who were known to have betrayed the Muslim community during battles. It was feared that killing such people would become a means to evil, namely, of giving rise to a rumour that ‘Muhammad kills his own Companions’[4] which would, in turn, provide the enemy with an excuse to undermine the unity of the Muslim community. Consequently, the Prophet put a ban on killing the munafiqun. On a similar note, the Prophet suspended enforcement of the hadd penalty for theft during battles so as to avoid defection to enemy forces. It was for this reason, namely to block the means to an evil, that the army commanders were ordered not to enforce the prescribed (hadd) penalties during military engagements.[5]

An example of sadd al-dhara’i is found in the following hadith:

Narrated by Abdullah bin ‘Amr, the Prophet (ﷺ) said, “It is one of the greatest sins that a man should curse his parents.” It was asked, “O Allah’s Apostle! How does a man curse his parents?” The Prophet said, “The man abuses the father of another man and the latter abuses the father of the former and abuses his mother.”[6]

Another example of sadd al-dhara’i is when the leading Companions permitted inheritance to be received by a divorced woman whose husband had irrevocably divorced her during his terminal illness in order to exclude her from inheritance. The act of instigating a divorce upon one’s death bed was forbidden by the Companions so that a divorce of this kind would not become a means to abuse. It is also reported that during the time of the Caliph ‘Umar ibn al-Khattab, one of his officials, Hudhayfah, married a Jewish woman in al-Mada’in. The Caliph wrote to him saying that he should divorce her. Hudhayfah then asked the Caliph if the marriage was unlawful. To this, the Caliph replied that it was not unlawful but that his example might be recklessly followed by others who might be lured by the beauty of the women of ahl al-dhimmah. The Caliph thus forbade something which the Qur’an had declared lawful so as to block the means to an evil as he perceived it at the time.[7]

It is also supported or expressed in the well-known legal maxim: “Whenever a (particular) harm exceeds (arbata ‘ala) a benefit, the legal injunction must be handed down with a view to (annulling) the harm.”[8]

Yet another example of sadd al-dhara’i is the ruling that seclusion (khalwah) between unrelated members of the opposite sexes is prohibited because it could lead to immoral conduct (fahisha or zina).[9]

According Ibn Qayyim al-Jawziyyah, preclusion (sadd al-dhara’i) constituted one-forth (25%!) of the religious obligation (taklif) of the law.[10] He lists over 90 examples of sadd al-dhara’i rulings by the learned Companions and subsequent generations of scholars.[11]

More contemporary examples of rulings based on sadd al-dhara’i include the prohibition of the various ways through which alcohol consumption is facilitated[12]; the prohibition of transactions that facilitate usury/interest (riba) such as unnecessary “middle-men” in business; the prohibition of the sale of organs or body-parts; the prohibition of individuals carrying weapons on airplanes and other means of transport; and of selling weapons during civil crisis, etc.

While some jurists seem to regard the intent of the action as relevant to its judgment, others only evaluate the action itself and its potential consequences. Hence, in this latter opinion, it is not necessary for the jurist to know for certain the legitimacy of the intention behind the action in question before precluding or “blocking” it. Where the illegitimate intent was explicitly clear, and the consequences of the outwardly permissible action were also illegitimate, then most scholars (including Hanafi and Shafi’i) who objected to Sadd al-dhara’i would regard its usage as legitimate.[13]

According to Kamali,

The ulema are, however, in disagreement over the validity of sadd al-dhara’i`. The Hanafi and Shafi’i jurists do not recognise it as a principle of jurisprudence in its own right, on the grounds that the necessary ruling regarding the means can be derived by recourse to other principles such as qiyas, and the Hanafi doctrines of istihsan and ‘urf. But the Maliki and Hanbali jurists have validated sadd al-dhara’i` as a proof of Shari’ah in its own right. Despite the different approaches that the ulema have taken to this doctrine, the Maliki jurist al-Shatibi has reached the conclusion that the ulema of various schools are essentially in agreement over the conceptual validity of sadd al-dhara’i` but have differed in its detailed application. Their differences relate mainly to the grounds which may be held to constitute the means to something else, and also to the extent to which the concept of sadd al-dhara’i` can be validly applied.[14] Abu Zahrah has reached essentially the same conclusion by observing that the Shafi’i and Hanafi jurists are for the most part in agreement with their Maliki and Hanbali counterparts, and that they differ only in regard to some issues.[15] …It is perhaps well to remember at this point that notwithstanding the application of sadd al-dhara’i’ in respect of opening the means to beneficence (maslahah), it is usually the prevention of evil (mafsadah) that acquires greater prominence in the discussion of this principle.[16]

 

According to another author, “all forms of ijtihad are actually aimed at conformity with the sources and objectives of Shari’ah, either explicitly or implicitly. Therefore, the controversy over the question of istihsan and al-masalih al-mursalah is due to the different terminologies used. As a concept, there is no substantial disagreement among jurists, and the consideration of public interests has been applied by all parties.”[17]

 

DISCUSSION QUESTIONS:

  1. Explain the meaning of Sadd al-Dhara’i’.
  2. Give textual evidence used to justify the use of Sadd al- Dhara’i’ as a secondary source of Shari’ah.
  3. List some examples of the application of Sadd al- Dhara’i’ in the life of the Companions.
  4. Discuss some of the different opinions among scholars on the validity of the Sadd al- Dhara’i’.
  5. What do Istihsan, al-masalih al-mursalah, and sadd al-dhara’i have in common with each other?

[1] Gamal Eldin Attia, Towards Realization of the Higher Intents of Islamic Law: Maqasid al-Shari’ah, A Functional Approach, IIIT, London, 2007, p.291.

[2] Jasser Auda, Maqasid al-Shariah as Philosophy of Islamic Law, IIIT, London, 2008, p.241, 125-127.

[3] Umar F. Abd-Allah Waymann-Langraf, Malik and Medina: Islamic Legal Reasoning in the Formative Period, Brill, Leiden, The Netherlands, 2013, p.162.

[4] Al-Shatibi, Muwafaqat, vol.4, p.62; Shalabi, Fiqh, p.187; cited in Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, The Islamic Text Society, Cambridge, 2003, p.400.

[5] Abu Zahrah, Usul al-Fiqh, p.229; Shalabi, Fiqh, p.187; Isma’il, Adillah, p. 200; cited in Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, The Islamic Text Society, Cambridge, 2003, p.400.

[6] Sahih Muslim, no.273.

[7] Cited in Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, The Islamic Text Society, Cambridge, 2003, p.400

[8] Al-Shatibi, Al-Muwafaqat, 4:272; 1:174 – cited in Umar F. Abd-Allah Waymann-Langraf, Malik and Medina: Islamic Legal Reasoning in the Formative Period, Brill, Leiden, The Netherlands, 2013, p.171.

[9] Al-Bukhari, no. 3006 and 5233; Muslim, no. 3336.

[10] Umar F. Abd-Allah Waymann-Langraf, Malik and Medina: Islamic Legal Reasoning in the Formative Period, Brill, Leiden, The Netherlands, 2013, p.170.

[11]  Ibn Qayyim al-Jawziyyah, I’lam al-Muwaqqi’in, Maktabat Kulliyah al-Azhariyyah, Cairo, 1968, vol.3, p.14-50.

[12] Mu’jam al-Tabarani al-Kabir, vol.11, p.323; Sunnan al-Bayhaqi al-Kubra, Dar al-Baz, 1414 AH, Mecca, no. 10559; Sunnan Abu Dawud, Dar al–Fikr, no. 3674.

[13] Umar F. Abd-Allah Waymann-Langraf, Malik and Medina: Islamic Legal Reasoning in the Formative Period, Brill, Leiden, The Netherlands, 2013, p.171-172.

[14]Al- Shatibi, Muwafaqat, vol.4, p.201.Cited in Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, The Islamic Text Society, Cambridge, 2003, p.401.

[15]Abu Zahrah, Usul, p.227-228.Cited in Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, The Islamic Text Society, Cambridge, 2003, p.401.

[16] Cited in Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, The Islamic Text Society, Cambridge, 2003, p.401.

[17] Wan Azhar Wan Ahmad, Public Interests (Al-Masalih Al-Mursalah) in Islamic Jurisprudence: An Analysis of the Concept in the Shafi’i School, ISTAC & IIUM, Kuala Lumpur, Malaysia, 2003, p.135

For gymnasts, trapeze artists and acrobats in a circus, there is usually a strong safety-net to catch falling performers in case of accidents when something fails. Each School of law developed their own “safety-net principles” to ensure that in their use of the various tools and principles of ijtihad, they had a means of trying to ensure that the spirit and objectives (maqasid) of Shari’ah were always protected and not sacrificed. [1]  These safety-net tools and principles were also useful for cross-checking the quality of ijtihad and making sure that the negative social effects of any weakness in the competence of a scholar were minimised. According to some authors, this protection of the objectives of Shari’ah and minimising the effects of mistaken verdicts by more literalist approaches to the text was one of the major concerns of those jurists and scholars who were (usually, derogatorily) referred to as “People of Considered Opinion” (Ahl al-Ra’yi).[2]

MAQASID PRINCIPLES AND TOOLS: Legal instruments based on inference (istidlal)

Justice cannot be served by the formal application of laws regardless of circumstances and contexts. It is the Jurist who is responsible for assessing the circumstances and deciding whether or not there is a need to make an exception to the law. As agreed upon by all Schools of Jurisprudence, the jurist’s knowledge of what objectives (maqasid) the laws are expected to achieve and in what circumstances or contexts these apply, is what qualifies the jurist to know when there is the need for an exception to the formal application of the law or not. Consequently, the mechanical application of the law can never be a substitute for the sound personal judgement and contextual receptivity of the jurist.

Each of the following 3 reason-based legal instruments – juristic preference/discretion (istihsan), “blocking the means”/preclusion (saddal-dhara’i), and the unstated good (al-masalih al-mursalah) – is used by the jurist to qualify standard precepts, draw exceptions to them, and make unprecedented additions. Al-Qarafi refers to them as “modes of inference” (istidlal) to distinguish them from analogical reasoning (qiyas) which involves specific application of formal text.[3]

Each of these 3 methods of inference has distinctive properties distinguishing it from others as used within a particular School of Jurisprudence (madhhab). There is however, significant overlap in their definitions when compared with their usage in other schools. They sometimes function with such independent authority as to take priority over strict analogical deductions or direct applications of standards, and well-established precepts (or rules). This is especially true whenever the conclusions of such analogies and standard rulings become harmful or otherwise inappropriate due to exceptional circumstances.[4]

Some scholars have referred to these inferential legal instruments as “safety-net principles” in that their principal role is ultimately to protect the objectives (maqasid) of the Qur’an and Sunnah – accruing benefits (maslahah) and preventing harm (mafsadah) – when the application of other tools would appear to fail in this regard. This is also predicated on the juristic conviction that broad standard rules constitute guidelines that must sometimes be qualified, restricted, or suspended under special circumstances to meet the broader purposes for which they were legislated. Such exceptions do not infringe upon the integrity of the standard precepts and rules, but bring to light the proper scope of their legal applications and elucidate their ultimate purpose. In other words, they help define the general rules and prevent their inappropriate application. They have been described as “subsidiary rules of law”.

The focus of these instruments is never on the letter of the law but on its overall purpose as regards specific situations, and they are applied in a systematic manner according to each School’s methodology. Such instruments of inference (istidlal) carry the implication that God instituted His laws for the well-being (maslahah) of society and individuals. In other words, human beings were not made for the law. The law was made for human beings.[5]

For the jurist to follow his conscience in the analysis of such matters is not arbitrary, indiscriminate, or subjective, but constitutes prudent and informed judgment based on profound meditation of the law in its totality. It is an attempt to discover the rationale of utility or benefit (maslahah), which is believed to be the spirit that informs the entire juridical system. This role of reasoning is what some scholars and schools are not comfortable about, hence their objection to the authority or validity of all or some of the reason-based instruments of istidlal – which some regarded as essentially arbitrary.[6]

There was therefore a concern that the apparently abstract nature of the “unstated good” (al-masalih al-mursalah) might allow the law to be manipulated to undercut the purposes (maqasid) of the law and introduce detrimental innovations.[7]

To minimize this danger, jurists set down various stipulations for the application of the “unstated good” from as early as the time of Imam Malik.[8]

For example, some scholars would first consider the degree of immediate need (hajah) or necessity or “point of suitability” and “appropriateness” (tanasub) required before principles of inference (istidlal) – such as the unstated good, preclusion, etc. – may be resorted to.[9]

They also did not regard rulings based on inferential (istidlal) “safety-net principles” of discretion (istihsan), preclusion (sadd al-dhara’i) and unstated good (al-masalih al-mursalah) as having intrinsic permanence like other well-established principles and sources of Islamic law.

In Al-Qarafi’s explanation of this lack of permanence or fixity in inferential rulings, he asserts that precepts, judgments, and rulings of the law fall into 2 categories:

  • Those that are ends in themselves (maqasid), and
  • Those that are means to ends (wasa’il).

Rulings based on unstated good (al-masalih al-mursalah) for example, pertain exclusively to means (wasa’il) and are legally valid only as long as they continue to secure the ends (maqasid) for which they were originally legislated.[10]

As mentioned earlier, “all forms of ijtihad are actually aimed at conformity with the sources and objectives of Shari’ah, either explicitly or implicitly. Therefore, the controversy over the question of istihsan and al-masalih al-mursalah is due to the different terminologies used. As a concept, there is no substantial disagreement among jurists, and the consideration of public interests has been applied by all parties.”[11]

DISCUSSION QUESTIONS:

  1. Explain what you understand by the term “Safety-net Principles”. In what ways are these principles or tools of ijtihad similar to a “safety-net”?
  2. What are the major “Safety-net Principles”? What are other terms for some of these same tools?
  3. Why could the “Safety-net Principles” also be referred to as “Maqasid Principles”?
  4. Why do you think some scholars would describe Qiyas, Istishab, and the “Safety-net Principles” as “methodological procedures” and not as “sources” of Shari’ah?
  5. When considering the “Safety-net Principles”, why is the letter of the law not regarded as important as “the overall purpose as regards specific situations and applied in a systematic manner according to each School’s methodology”?
  6. In what way would you agree or disagree with the following statement: “human beings were not made for the law. The law was made for human beings!”
  7. Discuss some measures taken by jurists to ensure that the “Safety-net Principles” are not manipulated to undercut the purposes (maqasid) of the law and introduce detrimental innovations.
  8. In what ways do the “Safety-net Principles” lack the intrinsic permanence or fixity unlike other well-established principles and sources of Islamic law?

[1] The term “Safety-net principles” was coined by Sheikh Dr. Sherman A. Jackson, “Fiction and Formalism: Toward a Functional Analysis of Usul al-Fiqh, in Studies in Islamic Legal Theory, Leiden, Brill, 2002, p.195 – cited in Umar F. Abd-Allah Waymann-Langraf, Malik and Medina: Islamic Legal Reasoning in the Formative Period, Brill, Leiden, The Netherlands, 2013, p.158-159. The DIN researchers and editors of this material believe it is a very appropriate metaphor for capturing the functions of these “maqasid tools” of ijtihad.

[2] … As opposed to “People of Narration” (Ahl al-Hadith or Ahl al-Athar). Very often, when applied to jurists, “considered opinion” (ra’yi) as used in the early formative period of Islamic jurisprudence, was a “composite term”. It included various methods of legal reasoning, especially juristic preference or discretion (istihsan), preclusion or blocking the means (sadd al-dhara’i), and the unstated public good (masalih al-mursalah). In the Maliki School, it also included reference to the praxis or practice (‘amal) of Medina. In the opinion of some scholars, Ijtihad was usually broader than ra’yi as it included the consideration of other tools or sources of law. See, Yasin Dutton, The Origins of Islamic Law: The Qur’an, the Muwatta’, and Medinan ‘Amal, p.34; cited in Umar F. Abd-Allah Waymann-Langraf, Malik and Medina: Islamic Legal Reasoning in the Formative Period, Brill, Leiden, The Netherlands, 2013, p.4. For a brief and interesting discussion of the context and approaches of the two “groups”, see also Jasser Auda, Maqasid al-Shariah as Philosophy of Islamic Law, IIIT, London, 2008, p.63-64.

[3] It should be borne in mind, that other tools or legal instruments of ijtihad that are concerned with realising and protecting the general good (maslahah) or objectives (maqasid) of Shari’ah include analogy (qiyas), presumption of continuity (istishab) and local custom (‘Urf) as discussed elsewhere in this material.

[4] Umar F. Abd-Allah Waymann-Langraf, Malik and Medina: Islamic Legal Reasoning in the Formative Period, Brill, Leiden, The Netherlands, 2013, p.157-158.

[5] Umar F. Abd-Allah Waymann-Langraf, Malik and Medina: Islamic Legal Reasoning in the Formative Period, Brill, Leiden, The Netherlands, 2013, p.159.

[6] Umar F. Abd-Allah Waymann-Langraf, Malik and Medina: Islamic Legal Reasoning in the Formative Period, Brill, Leiden, The Netherlands, 2013, p.159.

[7] Ibn Rushd, Bidayat al-Mujtahid, 2:28 – cited in Umar F. Abd-Allah Waymann-Langraf, Malik and Medina: Islamic Legal Reasoning in the Formative Period, Brill, Leiden, The Netherlands, 2013, p.177.

[8] See Al-Shatibi, I’tisam, 2:311-314, 283-287, 307-312 – cited in Umar F. Abd-Allah Waymann-Langraf, Malik and Medina: Islamic Legal Reasoning in the Formative Period, Brill, Leiden, The Netherlands, 2013, p.177.

[9] Umar F. Abd-Allah Waymann-Langraf, Malik and Medina: Islamic Legal Reasoning in the Formative Period, Brill, Leiden, The Netherlands, 2013, p.178

[10] Al-Qarafi, Al-Dhakhira (Cairo), 1:143-146; Ibn Rushd, Bidayat al-Mujtahid, 1:162 – cited in Umar F. Abd-Allah Waymann-Langraf, Malik and Medina: Islamic Legal Reasoning in the Formative Period, Brill, Leiden, The Netherlands, 2013, p.178.

[11] Wan Azhar Wan Ahmad, Public Interests (Al-Masalih Al-Mursalah) in Islamic Jurisprudence: An Analysis of the Concept in the Shafi’i School, ISTAC & IIUM, Kuala Lumpur, Malaysia, 2003, p.135

NOTE: The diagrams above represents the dominant position of the early Jurists especially as it applies to the Shafi’i and Hanbali Schools. Some fundamental modifications to the methodology of these Schools’ tools occurred later in their history as a result of the contributions of some significant scholars such as Imam al-Juwayni,Imam al-Ghazali and al-‘Izz bin Abdu Salam in the Shafi’i School and other scholars such as Ibn Taimiyyah and Ibn Qayyim in the Hanbali School.

While the content of the tables above may represent a particular School of Juristic Thought (Madhhab), it does not capture the nuances and diversity of opinions within each School. Two non-Sunni Schools of Juristic Thought have also been listed in the comparison. The majority of Sunni scholars give no regard to the ideological (aqidah) and juristic (fiqhi) positions of other non-Sunni sects of Islam, as they consider them as not being representative of the correct practice of the Prophet (ﷺ) and the majority of his greatest Companions. The four major Sunni Schools of Juristic Thought (madhhabs) are the Hanafi, Maliki, Shafi’i, and Hanbali Schools.

The foundational juristic principles (usul al-fiqh) of the non-Sunni Schools are presented here purely for the academic purpose of highlighting the key similarities and differences in their approaches and methodologies. It is not the purpose of this work to delve into the other areas of similarities or differences, or why the Sunni Schools are regarded as more authoritative.

An increasing number of contemporary scholars in each School are giving more credence and authority to those tools of Ijtihad that are related  to the attainment of the objectives (Maqasid) of Shari’ah, especially after the contributions to Usul al-Fiqh by Abu Ishaq al-Shatibi in his Muwafaqat[1]

 

SOME POINTS OF REFLECTIONS ON THE SCHOOLS AND THEIR METHODOLOGIES

  • No school of Islamic law is more textual than the Hanbali School in its attempt to find narrative precedents for legal rulings including post-Prophetic (athar) reports. The use of other sources of law was often only a last resort. “The Hanbali School stands alone alongside the Maliki in its formal endorsement of (juristic) discretion (istihsan), preclusion (sadd al-dhara’i), and unstated good (masalih al-mursalah), even if it narrows their scope.”[2]
  • “Malik and Abu Hanifa were circumspect regarding solitary (ahad) hadith whenever they regarded their legal implications to be irregular (shadhdh) in terms of the normative precepts and principles of the law. They required that soundly transmitted solitary hadith be corroborated by other sources of law before their content could be validated as constituting legal norms. This was their way of “maximizing certainty”. For the Maliki School, the Medinan praxis (‘Amal) was the chief criterion against which solitary hadith – like other legal texts – were evaluated.” It therefore provided a way for overcoming the epistemological uncertainties (regarding the understanding of the meaning and implications) of single-transmitted reports.[3]
  • Imam Al-Shafi’i “did not deny the element of conjecture (zanni) implicit in solitary hadith. He acknowledged that there were epistemological problems associated with legal arguments based on solitary hadith, but regarded such problems as secondary when compared to the divine imperative to follow the Prophetic command”. This Qur’anic injunction to follow the Prophet (ﷺ) was “understood to imply an adherence to the overt meanings of authentic solitary hadith transmissions regardless of the implications of their content as gauged against the broader principles and precepts of the law in its normative sources.”[4]

 

DISCUSSION QUESTIONS:

  1. In hierarchical order, list the first 5 or 7 sources/tools of Shari’ah used by each of the following schools of Juristic Thought:
  2. Hanafi
  3. Maliki
  4. Shafi’i
  5. Hanbali
  6. Zahiri
  7. Ja’fari/Zaidi
  8. Discuss some contemporary examples of convergence and “mixing of opinions” (talfiq) between various Schools based on their concern for Maqasid, and what tools of ijtihad would be used to justify this (talfiq).
  9. In what ways would you describe the various “secondary sources” or tools of ijtihad regarded as differing methods of getting closer to or capturing the Sunnah in new or uncertain situations?

[1]  Jasser Auda, Maqasid al-Shariah as Philosophy of Islamic Law, IIIT, London, 2008, p.20-21

[2] Umar F. Abd-Allah Waymann-Langraf, Malik and Medina: Islamic Legal Reasoning in the Formative Period, Brill, Leiden, The Netherlands, 2013, p.97-98.

[3] Umar F. Abd-Allah Waymann-Langraf, Malik and Medina: Islamic Legal Reasoning in the Formative Period, Brill, Leiden, The Netherlands, 2013, p.112-113.

[4] Umar F. Abd-Allah Waymann-Langraf, Malik and Medina: Islamic Legal Reasoning in the Formative Period, Brill, Leiden, The Netherlands, 2013, p.113.

DISCUSSION QUESTIONS:

Find a partner to discuss the following:

  1. Explain and give one example of a ruling that is based on each of the following secondary sources of evidence of Shari’ah:
  2. Ijma
  3. Qiyas
  4. Ra’i al-Sahabi
  5. Maslahah
  6. Istihsan
  7. Saddal-Dhara’i
  8. ‘Urf
  9. Istishab
  10. AmalAhl al-Madinah
  11. How are Istihsan and Maslahah similar, and how do they differ?

Though the terms Fiqh and Shari’ah are often used interchangeably, and their meanings may overlap depending on a particular scholar’s definition or perspective, there are some significant differences in their definitions and implications that need to be emphasised.[1]

In the search for certainty regarding the will of Allah, it is important to distinguish Shari’ah from Fiqh, so as to make clearer the line between the immutable, eternal divine guidance of Allah (the Lawgiver, Shari’) through His Prophet (ﷺ) (referred to as the Shari’ah), and the fallible, mutable, human attempts to extract laws from that divine source (referred to as Fiqh) and carried by a jurist (Faqih).

This distinction makes it possible and therefore legitimate to review, renew (islah/tajdid), and, where necessary, challenge Fiqh and fatwas, while remaining cognizant of and loyal to those injunctions that are clearly from the Shari’ah. The distinction also emphasizes the need for scholars and students to be more cautious of mistakenly speaking in God’s name especially in the subject of Fiqh (jurisprudence and laws) or so-called “Shari’ah Laws”. The absence of a clear distinction between the two terms has regrettably also led to accusations of apostasy and heresy on issues that are related to fallible ijtihad and fiqh.

Detailed differences between the Shari’ah and Fiqh are as follows:

  1. Shari’ah is the body of revealed injunctions found both in the Qur’an and Sunnah and it includes the following three main components: al-ahkam al-i’tiqadiyyah or aqidah (the sanctions/values relating to beliefs), al-ahkam al-akhlaqiyyah (the sanctions/values relating to moral and ethics) and al-ahkam al-amaliyyah (sanctions/values relating to worship and acts of devotion, along with the mundane sayings and doings of the individuals and his relations with others). Al-ahkam al-amaliyyahis also called Fiqh. From this perspective, Fiqh is one component of the Shari’ah.
  2. Shari’ah may be envisaged as a wide circle including all human actions, but Fiqh is a narrower circle, confined to what are commonly understood as human actions which have legal implications.
  3. Shari’ah is fixed and unchangeable, whereas certain rulings of Fiqh change according to changes of the circumstances under which they are applied.
  4. The Shari’ah is contained within revelations in which knowledge may only be obtained from the Qur’an or Sunnah. In Fiqh, the power of reasoning (ijtihad) is stressed, and deductions based upon knowledge are continuously referred to with approval.[2]

Within the Islamic Sciences (Ulum al-Deen) there are many specialists. The most important of these are the Mufassirun (who specialize in the sciences and commentaries of the Qur’an), Muhaddithun (who specialize in the Sciences, authenticity and commentaries of Hadith literature), and the Fuqaha (who specialize in law and jurisprudence). Less well-known but no less important are the Usuliyyun, Mujtahidun and Muftis. The Usuliyyun are concerned with the fundamental principles, protocols, procedures and methodologies of using evidence and proofs (adillah) from the Qur’an, Sunnah, Ijma’, Qiyas, Maslahah, Sadd al-Dhara’i, and the other tools and principles of ijtihad. Those qualified to use the tools of the Usuliyyun to derive rulings representative of the Prophet (ﷺ) are known as Mujtahidun. A Mujtahid who is knowledgeable of his local priorities and realities is usually qualified to become a Mufti. These are jurists responsible for performing ijtihad for their specific contexts and issuing religious verdicts (fatwas) accordingly.

 

 

 

 

The following diagram shows the relationships between Shari’ah, Usul al-Fiqh and Fatwas/Fiqh:

Source: Da‘wah Institute of Nigeria, 2013

In the diagram above, the relationship between Shari’ah and Fiqh is represented by a tree and its parts. The roots in the soil represent the Shari’ah and its primary sources of legislation – the Qur’an and Sunnah. The trunk and branches represent the tools and methodologies (Usul al-Fiqh and Maqasid) used by scholars to derive rulings or ‘fruit’ (fatwas) in the realm of Jurisprudence (Fiqh). To use a pharmaceutical analogy, the primary sources constitute the raw ingredients of a medicine, the methodology and tools are how industrial pharmacists process the raw ingredients into a consumable product, and the resulting medication is dispensed by doctors.  The manufactured medicine may at times be out of date or result in adverse side effects which warrant an alternative prescription. In other words, the relevance of a fatwa would depend on its quality (or the methodological tools of its extraction), the societal context and its ability to effectively achieve the objectives (Maqasid) of Shari’ah – of bringing benefit (maslahah) or removing harm (mafsada).

It should be borne in mind however, that as with other fields of human endeavor, a few scholars could specialize in more than one of the inter-related disciplines of the Islamic Sciences.

 

 

DISCUSSION QUESTIONS:

  1. Why are the terms “Fiqh” and “Shari’ah” often confused with each other?
  2. Discuss some of the major differences between fiqh and shari’ah.
  3. In what sense would you describe Shari’ah as divine and Fiqh as human?
  4. Use the metaphor of a fruit tree to describe the differences between Shari’ah, fiqh, usul al-fiqh and fatwa.
  5. Use the metaphor of some roles of professionals in the healthcare industry to explain the roles and specialization of scholars such as: Mujtahid, Mufassir, Faqih, Muhaddith and Mufti,
  6. Can you come with another metaphor for describing the roles and specialisations mentioned in No. 5?

[1] Laldin, Mohammad Akram, Introduction to Shari’ah and Islamic Jurisprudence, 2nd ed. CERT, Kuala Lumpur, 2008, p.8; Mohammad Omar Farooq, Towards Our Reformation: From Legalism to Value Oriented Islamic Law and Jurisprudence, London, 2011, p.17-19; Kemal A. Faruki, Islamic Jurisprudence, Adams Publishers, Delhi, 1994, p.12-19; Jasser Auda, Maqasid al-Shariah as Philosophy of Islamic Law, IIIT, London, 2008, p.59-60.

[2] Mohammad Akram Laldin, Introduction to Shari’ah and Islamic Jurisprudence, 2nd ed. CERT, Kuala Lumpur, 2008, p.8.

Speaking in God’s name refers to saying something that is attributed to Him and hence giving that information the weight of divine authority. Speaking with the authority of God (i.e. in His name) or in the name of the Prophet (ﷺ) is a weighty responsibility; taking it on without acquiring the qualification to do so has grave consequences. Credentials are not easily acquired and require great intellectual striving over many years and across several fields. Even after an individual has acquired the credentials to issue an opinion, his or her authority can only be accepted if there is sufficient evidence or proofs of certainty that the opinion fairly represents Allah or His Prophet (ﷺ). Indeed, the evidence serves as the authority and not necessarily the individual, though the individual must be qualified to apply that authority.

To contradict the Lawgiver (Allah) or to speak in His name without any authority is an act of shirk since such a person is elevating himself to the status of the Lawgiver.[1] Committing shirk is considered in Islam as the greatest sin against Allah (Qur’an 4:48; 5:72).

According to Ibn Taimiyyah and others, the early Muslims (Salaf) and great scholars were very careful in declaring things prohibited (Haram) or a religious obligation (Fard/Wajib) if they did not have clear and certain evidence to back their conclusions.[2] The great scholars were also aware that:

  • Lying about God or about the Prophet (ﷺ) is a great sin – Qur’an 7:33; 2:79. The Prophet said, “Whoever lies against me deliberately has prepared a seat for himself in Hell.”[3]
  • The great scholars of Islamic heritage recognized the importance of distinguishing the divine teachings of the Qur’an and Sunnah (Shari’ah) from fallible human intellectual efforts at extracting rulings (istinbat) and juristic reasoning (ijtihad) that produceFiqhand[4]
  • Scholars were also afraid of committing heresy or deviant innovations (bid’ah) as the Prophet (ﷺ) warned,“…Every innovation is deviance…and leads to hell.”[5]
  • Islam is surrender to Allah’s will and not a scholar’s will. The Qur’an and Sunnah warn against uncritical acceptance and following of the opinions of scholars in matters of religion – Qur’an 9:31.
  • In order to not equate their own opinion with attempts to ascertain an opinion representative of Allah and His Prophet (ﷺ),they recognized the importance of certainty and avoidance of doubt.[6]
  • It, therefore, was imperative for scholars to find verifiable (and peer-reviewable) ways of distinguishing what was an “absolute truth” from a relative truth in their understanding and application of the Qur’an and Sunnah in their various contexts.
  • All principles, evidences, classifications, tools and methodologies employed by jurists are used with the intent of objectively “maximizing the certainty” with which they believe they best represent the will of God, and the Sunnah of the Prophet (ﷺ) in a particular context, and also assessing and articulating the extent of subjectivity or speculation involved .

DISCUSSION QUESTIONS:

  1. Why are scholars concerned about the certainty for authority to speak in Allah’s name?
  2. What is wrong or dangerous about speaking in God’s name without the prerequisite authority?

[1] Yusuf al-Qaradawi, The Lawful and the Prohibited in Islam, Salimiah, 1992, p.21-24

[2] Cited in Yusuf Al-Qaradawi, The Lawful and the Prohibited in Islam, Salimiah, 1992, p.18-21; See also Arif Ali Khan et al., eds., Encyclopaedia of Islamic Law, Vol. 3: Islamic Law in Practice, Kuala Lumpur: Crescent News(KL) SdnBhd, 2006, p.127-128.

[3]Sahih al-Bukhari, no. 1229; Sahih Muslim, no. 4; Sunan Abu Dawud, no. 3653; Sunan Ibn Majah, no. 30; Sunan al-Tirmidhi no. 2659; Sunan Al-Darimi, no.231; Shu’ab Al-Iman, no. 7557; Sahih Ibn Hibban, no. 31; Musnad Imam Ahmad, no. 3847; Musnad Al-Bazzar, no. 970; Musnad Al-Shihab, no. 556; Musnad Al-Tayalisi, no. 342; Musannaf Ibn Abi Shaybah, no. 26239; Musannaf Abdul-Razzaq, no. 10445.

[4] Mohammad Akram Laldin, Introduction to Shari’ah and Islamic Jurisprudence, 2nd ed. CERT, Kuala Lumpur, 2008,  p.8;Jasser Auda, Maqasid al-Shariah as Philosophy of Islamic Law, IIIT, London, 2008, p.56-60.

[5]Musnad Imam Ahmad, no. 17144; Sunan Abu Dawud, no. 4609; Sahih Ibn Hibban, no.5; Sahih Ibn Khuzaima, no.1785; Abu Abdullah Muhammad bin Abdullah Al-Hakim, AlMustadrak, Dar Al-Kutub al-Ilmiyyah, 1411 AH, vol.1, p.176, hadith no.332.

[6] Yusuf al-Qaradawi, The Lawful and the Prohibited in Islam, Salimiah, 1992, p.21-24; Jasser Auda, Maqasid al-Shariah as Philosophy of Islamic Law, IIIT, London, 2008, 194-196.

In any search for the truth, there is a concern for the degree or level of certainty in deciding whether or not the truth on a matter has actually been arrived at. Regarding the certainty that jurists need in order to determine, formulate laws or categorise an action as being Fard /Wajib or Haram (i.e. to be able to speak in God’s name), there is a recognition of the need for a significant degree of certainty concerning both the historical authenticity and credibility of the texts (or proofs/tools used), and also the meaning and implications arrived at from these sources. This in turn affects the rulings or value-judgement (hukum) arrived at by the jurist.

Otherwise without a consistent systematic methodology of arriving at greater certainty, there is a real fear of speaking in God’s name without the prerequisite authority thereby committing shirk, as earlier discussed.

Literally, dalil (plural of adillah) means proof, indication or evidence. Technically it is an indication in the sources from which a practical rule of Shari’ah, or a hukm is deduced.[1]  The hukm so obtained may be definitive (qat’i’) or it may be speculative (zanni) depending on the nature of the subject, clarity of the text, and the value which it seeks to establish.[2]

The proofs or evidences of Shari’ah (adillah Shar’iyyah), and the laws or values (ahkam) that regulate the conduct of the responsible adult Muslim (mukallaf), are the two principal themes of Usul al-Fiqh. Of these two, however, the former (adillah) is by far the more important as, according to some ulema, the ahkam are derived from the adillah and are therefore subsidiary to them.[3] In the terminology of Usul al-Fiqh, adillah Shar’iyyah usually refers to four principal proofs, or sources of the Shari’ah, namely the Qur’an, Sunnah, consensus and analogy. Dalil in this sense is synonymous with asl, hence the four main sources of Shari’ah are known both as adillah and usul.[4]

Basically, jurists were concerned about certainty as it applied to 2 major issues. Firstly, it was about AUTHENTICITY; how certain were they that a particular text or proof (dalil) was trustworthy and authentic? Secondly, it was certainlty regarding the MEANING AND IMPLICATIONS; how certain were they that the meaning and implication of that text or proof was correct and true to the will of Allah? If they were absolutely certain about any of these they regarded such texts or proofs and their implications as “definitive” or Qat’i. If they were less certain, these were regarded as “speculative”, “presumptively authoritative” or Zanni.

 

  1. Authenticity (thubut or wurud) of the texts of Qur’an and Hadith, etc.

The term “thubut” (lit. “firm”) refers to the level of reliability of transmission (wurud), and credibility and trustworthiness in the authenticity of the text or proofs (adillah). Such a text or “source” may have a level of authenticity that is definitely proven and regarding which there is consensus, definitiveness, categorical authoritativeness and absolute certainty (Qat’i). In this case the text or proof is regarded as being “Qat’i al-Thubut” or “Qat’i al-Wurud” – i.e. “certain or definite authenticity and transmission”. There is a consensus among all Schools that this applies to Qur’an and multiple-chained (Mutawatir) Hadith.[5] There is no consensus among scholars that this definitiveness or level of credibility and certainty applies to any other of the proofs (or adillah Shar’iyyah).

Where the adillah are less certain in credibility than these two definitive sources and the level of certainty regarding them is therefore only presumptive, speculative or probable (zanni), the proof is regarded as being “Zanni al-Thubut” – i.e. “of probable or speculative authenticity” anly only “presumptively authoritative”.[6] This is the case with single-chained (ahad) hadith[7], Ijma’[8], qiyas and other tools of ijtihad or proofs that do not give knowledge of certain authenticity (ilm al-yaqin) and are not sources of absolute truths in the view of most jurists. The “Secondary Sources” of law contain a measure of speculation and are all regarded zanni al-thubut in their credibility, integrity and reliability.[9]

While there are differing conditions and degrees of certainty regarding authenticity or credibility of any text or proof (adillah), these are the two major categories of concern for the purpose of an introduction to the subject matter – qat’i al-thubut and zanni al-thubut.

 

  1. Meaning and implications (dilalah) of texts of Qur’an and Hadith, etc.

In their search for certainty regarding the correct understanding of the will of God from the Qur’an or from its implementation in the tradition (Sunnah) of the Prophet (ﷺ), scholars have also ranked their interpretation of the meanings and implications of the proofs (adillah) according to different levels of certainty.

 

The term “Dilalah” refers to the meaning and implication, or what is understood from a text. The meaning and implication (or dilalah) of the text may be categorically clear and unambiguous, such that there is consensus and absolute certainty (Qat’i) regarding how it is understood.  Such a text has only one meaning and admits of no other interpretations. In this case the meaning (dilalah) is considered as being “Qat’i al-Dilalah” – “certain or definite meaning”. Where the understanding or meaning is less certain and therefore only presumptive, speculative or probable (zanni) because other valid alternative interpretations are possible, the meaning is regarded as being “Zanni al-Dilalah” – “probable or speculative meaning”. While there are differing conditions and degrees of certainty regarding the meaning and implications of any text or proof (adillah), these are the two major categories of concern for now – qat’i al-dilalah and zanni al-dilalah.

 

In the discussion of the qat’i and zanni, the Qur’an and Sunnah are seen as complementary and integral to one another. The reason is that the speculative (zanni) implication of a text of the Qur’an can be made definitive by the Sunnah and vice versa. The zanni of the Qur’an may be elevated into qat’i’ by means of corroborative evidence in the Qur’an itself or in the Sunnah. Similarly, the zanni of the Sunnah may be elevated into qat’i’ by means of corroborative evidence in the Sunnah itself or in the Qur’an. And then the zanni of both the Qur’an and Sunnah may be elevated into qat’i by means of a conclusive ijma’, especially the ijma of Companions.[10]

 

The different conditions required by various Schools and scholars for determining when a text or proof is zanni or qat’i is sometimes complicated and beyond the scope of this material. Suffice it to say therefore that it is not always self-evident whether a text is qat’i’ or zanni as this too may be open to interpretation.[11]

Mustapha al-Zarqa asserts that in Maliki jurisprudence, the more conjectural (zanni) the precept, legal instruction or “source” is, the more strongly applied the criterion for further qualifying it by reference to the general good (maslahah).[12] As we shall see later on in this material, the concerns for the real positive or negative consequences of making value-judgements (hukum) and of their verdicts for specific contexts (fatwas) affect the final conclusions of scholars on various issues.

 

 

DISCUSSION QUESTIONS:

  1. How did scholars try to determine the difference between what they were absolutely and relatively certain about regarding the will of Allah in their formulations of Islamic jurisprudence?

[1] Ministry of Awqaf and Religious Affairs, Al-Mausu’at al-Fiqhiyya al-Kuwaitiyya, Dar al-Salasil, Kuwait, Vol.21, p.22

[2] Amidi, Ihkam, I. 9; Badran, Usul, P. 46, Hitu, Wajiz, p. 99; cited in in Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, The Islamic Text Society, Cambridge, 2001, p.19

[3] It is, according to Kamali, perhaps in view of the central importance of these two topics to usul al-fiqh that al-Amidi defines the latter as the science of the “Proofs of fiqh (adillah al-fiqh) and the indications that they provide in regard to the ahkam of the Shari’ah”. Amidi, Ihkam, I, 7; Badran, Usul, P. 36; cited in Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, The Islamic Text Society, Cambridge, 2001, p.19

[4] According to Kamali, “Some fuqaha have drawn a distinction between dalil and amarah (lit. sign or allusion) and apply dalil to the kind of evidence which leads to a definitive ruling or that which leads to positive knowledge (‘ilm). Amarah on the other hand is reserved for evidence or indication which only leads to a speculative ruling. (Al-Amidi, Al-Ihkam, vol.1, p.9) In this way, the term ‘dalil’ would only apply to the definitive proofs, namely the Qur’an, Sunnah and ijma’, and the remaining proofs which comprise a measure of speculation, such as qiyas and istihsan, etc., would fall under the category of amarat.” Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, The Islamic Text Society, Cambridge, 2001, p.19-20

[5] Abu Muhammad Abdullahi bin Ahmad al-Maqdisi Ibn Qudama, Raudat al-Nazir wa junta al-Munazir, Muhammad bn Saud University, Riyadh, 1399AH, p.94; Ibn Najar, Abulbaqai, Muhammad bn Ahmad, Sharh al-Kaukab al-Munir, Maktabat al-Ubaikan, 1418AH, Vol.2, p.217

[6] Umar Faruq Abd-Allah, Living Islam with Purpose, Nawawi Foundation, 2007,  p.7

[7] As will be discussed more detail in Lesson 25, the solitary or single-chained (ahad) Hadith is of speculative authenticity and therefore falls under the category of speculative (zanni) proofs. See Shawkani, Irshad, p. 47; Badran, Usul, p. 53; Hitu, Wajiz, p. 305 – cited in Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, The Islamic Text Society, Cambridge, 2001, p.21. Though the Zahiri School regard Hadith Ahad as being qat’i al-thubut once it is reliably authentic (sahih).

[8] According to some scholars, a ruling of ijma’ may have reached us by continuous multiple testimony (tawatur) in which case they would regard it as definitely proven (qat’i al-thubut) and similar to the Maliki “Amal of Medina”. But when ijma’ is transmitted through solitary reports, its authenticity would be open to doubt and therefore zanni al-thubut. See Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, The Islamic Text Society, Cambridge, 2001, p.21. On the absence of an agreed definition of Ijma’ and reasons why others do not regard it as an independent valid proof, see Lesson 9 on Ijma’ in this material.

[9] According to Kamali, “Some fuqaha have drawn a distinction between dalil and amarah (lit. sign or allusion) and apply dalil to the kind of evidence which leads to a definitive ruling or that which leads to positive knowledge (‘ilm). Amarah on the other hand is reserved for evidence or indication which only leads to a speculative ruling. (Al-Amidi, Al-Ihkam, vol.1, p.9) In this way, the term ‘dalil’ would only apply to the definitive proofs, namely the Qur’an, Sunnah and ijma’, and the remaining proofs which comprise a measure of speculation, such as qiyas and istihsan, etc., would fall under the category of amarat.” See Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, The Islamic Text Society, Cambridge, 2001, p.19-20.

[10] Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, The Islamic Text Society, Cambridge, 2001, p.34

[11] Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, The Islamic Text Society, Cambridge, 2001, p.31. A discussion of how exactly various scholars try to resolve apparently conflicting (ta’arud) evidences and proofs (adillah) is beyond the scope of this material. Those interested in this broad and complicated field may consult any of the major references of Usul al-Fiqh cited in this material.

[12] Cited in Umar F. Abd-Allah Waymann-Langraf, Malik and Medina: Islamic Legal Reasoning in the Formative Period, Brill, Leiden, The Netherlands, 2013, p.92-93.

The authenticity of a text (thubut or wurud) determines the levels of certainty, reliability, trustworthiness and authority that the text or proof is given. The more authentic a text is, the higher its authority. Inauthentic texts have no authority. This may be applied to the primary sources as follows:

  1. Qur’an [1]

The authenticity of the Qur’an is certain and, therefore, gives absolute certainty of truth (ilm al-yaqeen). This is an area of consensus among all Muslim scholars and Schools of Juristic Thought. Denial of the authenticity of any text of the Qur’an is regarded as a rejection of faith (kufr).

While the text of the Qur’an is absolutely authentic (qat’i al-thubut), the meaning and implications of the text may be either absolutely certain (qat’i al-dilalah) or speculative and open to alternative interpretations (zanni al-dilalah). This is discussed in more detail in Lesson 26.

  1. Sunnah [2]

The hadith narrations are the major vehicles that carry the Sunnah.[3] The scholars of the sciences of hadith generally classify the authority and authenticity of the hadith according to 5 major criteria:[4]

  1. The reference to a particular authority (Qudsi – sacred; Marfu’ – elevated; Mauquf – stopped; and Maqtu–severed);

 

  1. The chains or links of narration (isnad) and whether they are interrupted or not (Musnad – supported; Mursal – hurried; Muttasil – continuous; Munqati’ – broken; Mu’dal – perplexing; and Mu’allaq – hanging);[5]
  2. The nature of the text and the isnad (ZiyadatuThiqah – addition by a reliable reporter; Munkar – denounced; and Mudraj – interpolated)
  3. The reliability and memory of the reporters (Sahih – sound; Hasan – good; Da’if – weak; and Maudu’ – fabricated or forged)
  4. The number of reporters in each stage of the isnad, or the number of independent chains (Mutawatir – consecutive or multiple-chained; and Ahad or Khabar wahid – isolated or single chained. The Ahad category also include Mash’hur – famous; Aziz – “strong”/rare; and Gharib – strange).

Hadith Mutawatir are those hadith with multiple, independent chains of narrators through the first 3 generations after the Prophet, that are numerous enough to provide an “absolute certainty” of truth. A Hadith Mutawatir is one which is reported by such a large number of people that they cannot be expected to all conspire together on a lie. This type of hadith is considered as the most authentic type of hadith, and is considered by the majority as being next to or (by a few) on the same level as the Qur’an in terms of historical authenticity.[6] These hadith are understood to give certainty of authenticity (qat’i al-thubut or qat’i al-wurud). The teachings of such hadith, when explicitly clear and certain (qati’ al-dilalah) are regarded as “essential to Islam”, and their rejection implies disbelief (kufr)[7] in the opinion of the majority of scholars.[8]

Mutawatir could be based on “multiple chains with the same wording” (Mutawatir bi al-lafz) or multiple chains with differing wording that show that a particular action was done or approved of by the Prophet (ﷺ). This latter form is referred to as Mutawatir bi al-ma’na (“multiple-chained of the same meaning”) and most Hadith Mutawatir belong to this category.

The “multiple chains with the same wording” (Mutawatir bi al-lafz)  are comparatively very few in number. Some have estimated that this type of mutawatir may amount to only a few dozen hadith. The majority of hadith mutawatir belong to the second category (“multiple-chained of the same meaning/implication but different wordings” – Mutawatir bi al-ma’na) and cover mainly those actions on which nearly all Muslim groups and sects agree such as the number of raka’ats in prayers, their approximate timing, fundamental rites of fasting and hajj, etc. that are not explicitly clear from the Qur’an. [9]

A Hadith Ahad is one which is narrated by people whose number does not reach that of the Mutawatir.[10] Scholars differ on exactly how many chains are needed to qualify a hadith as Mutawatir. Some say as few as 4, while others require up to 70.[11]

Hadith Ahad could be or 3 types based on the number of independent chains of narrators – Mash-hur, Aziz or Gharib. A “famous”, “well-known” or “popular” (mash-hur) hadith is one reported by 3 or more narrators at every stage in the chain (isnad). A scarce/rare but “strong” (aziz) hadith is one reported by only 2 narrators at any stage in the chain. A “strange” (gharib) hadith is one where there is only one narrator reporting it at some stage of the chain during the first 3 generations.[12] Among Hadith Ahad therefore, a hadith that was Mash-hur was more authoritative than one that was Aziz. The lone-narrator (Gharib) hadith from among the Ahad category was the least authoritative among the authentic or sound (Sahih) hadith narrations.[13]

 

Hadith Ahad provide evidence that is not as certain and authoritative as Mutawatir. [14] They do not provide ilm al-yaqeen (certainty of truth) but do offer some probability or presumptive authority (zann).[15] Hence, the majority of Schools of Juristic Thought and scholars do not regard them as authoritative enough for the purpose of establishing fundamental beliefs (aqidah) since these require absolute certainty of knowledge and cannot be based on conjecture, whether speculative, probabilistic or presumptive. This position is supported by the Qur’an which firmly asserts, “Verily, conjecture avails nothing against the truth”(53:28).[16] Consequently, a Hadith Ahad also cannot “abrogate” the Qur’an[17] and may not, on their own be used as a basis of declaring someone to be a disbeliever (kufr) if he or she does not accept it.[18]

The distinction between Hadith Mutawatir and Hadith Ahad has implications on the authenticity of the hadith, and therefore the authority it holds to determine law. For most scholars of the sciences of hadith, the classification into Mutawatir and Ahad was purely academic. Since such scholars are not concerned with the determination of law, a hadith was considered authentic if it was confirmed Sahih (sound or reliable and authentic) even if it had only one single chain of narrators and even if it conflicted with other proofs (adillah) or “secondary sources” law. For jurists or scholars of Usul al-Fiqh and Mujtahid Imams (Usuliyyun), however, who dealt with other forms of evidence (such as Ijma’, Qiyas, Amal of Madinah, Istihsan, etc.), the number of independent chains of a hadith significantly affected the level of certainty and reliability of a hadith and its authority especially when it conflicted with (or was not corroborated by) other evidence or “sources” of law (adillah).

As mentioned earlier on, “All the early schools acknowledged the authority of the sunna but differed widely regarding the methods they used to determine what its content was and how it should be determined.”[19]

The majority of jurists, however, agree that Hadith Ahad may establish a rule of law, provided that it is related by a reliable narrator and the contents of the report are not repugnant to sound reason.[20] Most scholars have held that Hadith Ahad engender speculative (zanni) knowledge. They however have differed on the legal implications of acting upon them – whether it is obligatory (fard/wajib), recommended (mustahab) or merely permissible (mubah). In the event that other supporting evidence can be found in its favour or if there is nothing to oppose its contents, then the majority regard acting upon a Hadith Ahad as obligatory.[21]

The authentic or “soundly transmitted connected solitary hadith (hadith al-ahad al-musnad al-sahih) was the crux of contention between the Shafi’i and the jurists of the formative and post-formative Maliki and Hanafi traditions.”[22]

 

The authority of Hadith Ahad among Mujtahid Imams (Distinguished Jurists) and their Schools of Juristic Thought [23]

When discussing the position of any school of juristic thought, it should be noted that there are usually differences of opinion even within each school, and what is presented by various authors as the “opinion of a school” is often only a representation of the dominant or majority opinion in that particular school. In other words, there are often overlapping opinions or positions between the various schools of jurisprudence and among some of their scholars. The following list contains prevailing or dominant opinions about the authority of Hadith Ahadin each of the major Sunni schools of juristic thought:

  • Hanafi School – A Hadith Ahad with no other supporting evidence only makes a thing wajib or makruh tahrimi but not fard or haram.[24] In the Hanafi School, a Hadith Ahad cannot qualify (takhsis) the Qur’an.[25]
  • Maliki School – An Ahad narration with no other supporting evidence is regarded as ‘irregular’ (shadhdh) and only makes a thing makruh or mustahab.[26] It can make a thing haram or fard if it is supported by the Amal of Madinah or Qiyas, etc.[27] Imam Malik used to exercise great caution towards isolated hadith that have irregular and unusual (shadhdh) meanings and implications.[28]
  • Shafi’i and Hanbali Schools – A Hadith Ahad on its own can make a thing Fard/Wajib or Haram.[29]
  • For most Schools of Juristic Thought (Hanafi, Maliki, Shafi’i, and most of the Hanbali), but not the Zahiri School, the Hadith Ahad on their own cannot be used to establish essential creed (aqidah), due to the element of speculation (zann) in them.[30]

According to Umar F. Abd-Allah, later Maliki jurists often interpreted their school’s position after a more textually referential type of reasoning which held that solitary (ahad) hadiths may provide authoritative legal knowledge if they are congruent with and supported by other sources (or adillah) and principles of law, one of which would be Medinan praxis (‘Amal).[31] Later Maliki scholars, such as Qadi ‘Iyad consider a Hadith Ahad that does not conflict with Amal of Madinah as binding.[32]

While Malik gauged solitary (ahad) hadith against Medinese praxis (‘Amal), Abu Hanifa critiqued those same hadith in terms of their harmony or incongruity with the standard textual norms that were the basis of his jurisprudence. In Hanafi jurisprudence, the solitary hadith did not constitute sufficient valid proof for establishing the Prophetic Sunnah. The Hanafis however did differ over the criteria they used to determine regularity and irregularity (shudhudh) in solitary hadith.[33]

 

When Hadith Ahad Conflicts with other Evidence[34]

  • For the Hanafi scholars, Istihsan, Qiyas[35] and Ijma’ (theoretically) are more authoritative than Ahad
  • For Maliki scholars, Amal of Madinah, Istihsan/maslahah, and Qiyas are more authoritative than Ahad[36] Imam Malik would rely on a solitary Hadith only on the condition that it did not disagree with the practice of the Madinese (Amal Ahl Al-Madinah).[37]
  • Shafi’i scholars view Ijma’and Qiyas as more authoritative than a Hadith Ahad.[38]
  • For Hanbali scholars a Hadith Ahad is considered more authoritative if it conflicts with any other evidence, with the sole exception of the Qur’an or Hadith Mutawatir.[39] According to Ibn Qayyim, Ahmad bin Hanbal granted precedence to sound hadith over practice (‘amal), opinion (ra’i), analogy (qiyas), the opinion of the companions and silent consensus (ijma’ sukuti).[40]

The concern by some scholars for irregular (shadhdh) solitary (ahad) hadith which appear to contradict the clear aims or purposes of the Qur’an, is also based on the warning and advice attributed to the Prophet (p): “Hadiths shall be divulged from me in great numbers. Whatever comes down to you from me that is in accordance with the Qur’an is from me, but whatever comes down to you from me that contradicts (yukhalifu) the Qur’an is not from me”.[41] According to Umar F. Abdullah, Abu Zahra also links Malik’s attitude to solitary (ahad) hadith to his concern for the general good (maslahah).[42]

According to Umar F. Abd-Allah, Imam Shafi’i is reported to have said, “If a hadith is authentic, it is the School (madhhab) that I follow”, and “If a hadith is authentic, take my (contrary) School’s (position) and dash it against the wall”. According to Al-Qarafi, if by this Shafi’i means that he will follow the implications of authentic hadith whenever there are no other legal arguments conflicting with their implications, then there is no difference between him and any other jurist. But if by these statements, he means that he will always follow the implications of an authentic hadith despite the presence of strong contrary, legal arguments against its overt implications, then, Qarafi asserts, Al-Shafi’i went against the consensus of other jurists.[43]

 

Words of caution over interpretation of single-chained hadith

Imam Abu Yusuf stresses that great caution is required by scholars to draw the correct conclusions from soundly transmitted irregular hadiths. He does say: “…Hadith that are irregular (shadhdh) are not to be followed.”[44] However, he also goes on to say elsewhere that, “…the Hadiths of God’s Messenger have (diverse) meanings (ma’an), perspectives (wujuh), and interpretations, which only one whom God helps to that end can understand and see clearly”.[45]

According to Imam Al-Shatibi, authentic statements may, as a matter of course, become ambiguous when removed from their original context. Such ambivalence pertains to solitary hadiths as well as other texts. In his view, it is the duty of any jurist giving a legal opinion to remove the ambiguity of such texts by finding their proper context prior to applying them. Only then can sound conclusions be drawn from them.[46] Al-Shatibi holds that early communal praxis (‘Amal) constitutes one of the surest criteria against which to measure solitary hadith, assess their true meaning, and discern a proper context for them.[47]

It may be observed that considerable disagreement among the Schools of Juristic Thought is based on the various levels of authority given to Hadith Ahad with respect to other proofs (adillah) or tools for deriving rulings. As a result of these different approaches to the texts, there is tremendous diversity of opinion within the body of Fiqh. This diversity may be seen as a positive reflection of the universality and flexibility of the Shari’ah. A common maxim in support of this view is that “There is mercy for the Muslim community in the differences of opinion among the learned” (“Rahmat al-Ummah fi ikhtilaf al-a‘immah”).[48]

 

DISCUSSION QUESTIONS:

  1. What is the meaning and implication of the Qur’an being described as “Qati’ thubut”?
  2. What is the difference between hadith and Sunnah?
  3. List some of the major factors considered by scholars to determine the relative strength or authenticity of hadith.
  4. Explain the meaning and types of hadith Mutawatir.
  5. Where does the certainty of hadith Mutawatir come from?
  6. What reasons do you think some would have for still regarding those who reject all hadith (including Mutawatir) as Muslims – even though misguided?
  7. What do you think is an indication that a particular sunnah is based on hadith mutawatir?
  8. What are the main differences between hadith Mutawatir and Hadith Ahad?
  9. Describe the differences between the 3 main types of hadith Ahadgharib, Aziz and Mash-hur.
  10. In what way do scholars of hadith (Muhaddithun) differ from scholars of usul al-fiqh and Mujtahid in the determination of the reliability of single-chained (Ahad) hadith?
  11. Discuss the authority of solitary (ahad) hadith that are not conflicting with other evidences (adillah) and their capacity to make matters permissible or prohibited – according to the 5 or 7 value judgments (ahkam) of Shari’ah – in each of the 4 major Sunni Schools of Law:
  12. Hanafi
  13. Maliki
  14. Shafi’i
  15. Hanbali
  16. Discuss the relative authority of solitary (ahad) hadith when they clash or conflict with other sources (adillah) of shari’ah such as Ijma, Qiyas, Amal, Istihsan, Maslahah, etc. according to the following schools of law:
  17. Hanafi
  18. Maliki
  19. Shafi’i
  20. Hanbali

[1] For further reading on the compilation, preservation and authenticity of the Qur’anic text, see M.M al-Azami, The History of Qur’anic Text from Revelation to Compilation: A Comparative Study with the Old and New Testaments, Islamic Academy, Leicester, 2003; Dawah Institute of Nigeria, Authenticity of the Qur’an, Islamic Education Trust, Minna, 2008; Hamza M. Njozi, Sources of the Qur’an. Saudi Arabia: WAMY, 1991.

[2] For further reading of the authenticity of hadith, see Jonathan A.C. Brown, Hadith: Muhammad’s Legacy in the Medieval and Modern World, Oneworld Publications, Oxford, 2009; M.M. Al-Azami, Studies in Early Hadith Literature. Indianapolis, Indiana, USA: American Trust Publications, 1978.

[3] Except in the Maliki School of juristic Thought where the Amal Ahl al-Madinah is viewed as the normative sunnah of the Prophet and his Companions that was meant to be implemented, and Hadith that are not supported by Amal are viewed as more irregular instances of ambiguous implications (shadhdh). See ‘Umar FaruqAbd-Allah, Malik’s Concept of ‘Amal in the Light of Maliki Legal Theory, (unpublished PhD. Thesis), The University of Chicago, Illinios, 1978, p.80; Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, The Islamic Text Society, Cambridge, 2003, p.103.

Mohammad Akram Laldin, Introduction to Shari’ah and Islamic Jurisprudence, 2nd ed. CERT, Kuala Lumpur, 2008, 80-86; Jonathan A. C. Brown, Introduction to Shari’ah and Islamic Jurisprudence, Oneworld Publications, Oxford, 2009p.67-122; Mohammed Hashim Kamali, A Textbook of Hadith Studies, The Islamic Foundation, Leicester, 2005, p.139-175.

[5] Though not a major concern for discussion in this material, it may be worthy of note to bear in mind that “the distinction between disconnected (mursal) and connected (musnad) hadith constituted one of the critical fault lines of juristic dissent in the formative and post-formative periods”. Imam Al-Shafi’i in particular is noted to have “sought to marginalize disconnected hadith as authoritative sources of law, although their use had been ubiquitous for almost two hundred years before him and remained valid in other Sunni traditions.” This eventually contributed to the notion that such hadith were less “sound” and became a basis for the major discrepancies between the Shafi’i and other schools of law. See, Umar F. Abd-Allah Waymann-Langraf, Malik and Medina: Islamic Legal Reasoning in the Formative Period, Brill, Leiden, The Netherlands, 2013, p.98-102. A well-respected Successor of the Companions (Tabi’) such as Al-Hassan al-Basri is reported to have said that whenever he heard a hadith from four or more Companions, he would transmit it as a disconnected (mursal) hadith, whereas whenever he transmits a hadith from a single Companion whom he cited by name, he heard the hadith from that Companion only. (Abu Zahra, Malik, p.296; cited in ibid, p.101-102). In other words, in the opinon of some early scholars, a disconnected (mursal) hadith did not automatically mean it was less authentic. In fact, depending on who narrated it, it could be more reliable than one narrated by a Companion whose name is explicitly mentioned in the chain of narrators (isnad).

[6] Muhyiddin Al-Nawawi, Al-Taqrib wa al-Taysir, p.19 (Maktabah al-Shamila); Abdulrahman bin Abubakr al-Suyuti, Tadrib al-Rawi, Maktabat al-Riyadh al-Hadithah, Riyadh, vol.2, p.176; Mohammad Akram Laldin, Introduction to Shari’ah and Islamic Jurisprudence, 2nd ed. CERT, Kuala Lumpur, 2008, p.84; Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, The Islamic Text Society, Cambridge, 2003, p.93-95.

[7] Al-Suyuti, Miftah al-Jannah, Madina, 1399 AH, p.5

[8] It may be worth bearing in mind that some groups among the Khawarij at the time of the Sahabah rejected all hadith as they believed in following the Qur’an only. They were regarded as misguided innovators in the religion but still considered to be Muslims. Some respected Companions such as Abdullah bin ‘Umar even prayed (salat) behind Najda al-Haruri, who was one of the leaders of the Khawarij. For details and more examples, see Ibn Taymiyyah, Minjah al-Sunnah, Mu’assasat Qurtuba, 1406AH, vol.5, p.247; Hibbatullah al-lalikai, Sharh Usul I’tiqad Ahl al-Sunnah, Dar al-Tayba, 1402AH, vol.1, p.154; no.314; Alhassan bin Ali Al-Barbahari, Sharh al-Sunnah, Dar Ibn Qayyim, K.S.A., 1408AH, p.57; Imam al-Tahawi, al-‘Aqidah al-Tahawiyyah, p.45.

[9] See Jasser Auda, Maqasid al-Shariah as Philosophy of Islamic Law, IIIT, London, 2008, p.84-88; Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, Cambridge, 2003, p.93-95.

[10] For a very enlightening and detailed discussion of the various views regarding the importance, authority and use of authentic single-chained or solitary (hadith ahad) among different Schools of Jurisprudence and scholars, see Umar F. Abd-Allah Waymann-Langraf, Malik and Medina: Islamic Legal Reasoning in the Formative Period, Brill, Leiden, The Netherlands, 2013, p.107-129.

[11]Jonathan A. C. Brown, Hadith: Muhammad’s Legacy in the Medieval and Modern World, Oneworld Publications, Oxford, 2009, p.104; Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, The Islamic Text Society, Cambridge, 2003, p. 91-97.

[12] Muhammad bn Abdulrahman al-Sakhawi, Al-Tawdih al-Abhur li Tadhkirah Ibn al-Mulaqqan, Fi ‘Ilm al-Athar, Maktabat Adwa’ al-Salaf, 1418H, p.49; Mohammad Akram Laldin, Introduction to Shari’ah and Islamic Jurisprudence, 2nd ed. CERT, Kuala Lumpur, 2008, p.84-85; Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, The Islamic Text Society, Cambridge, 2003, p.93-108.

[13] For more details on this subject, see Gibril Fouad Haddad, Sunna Notes: Studies in Hadith and Doctrine, vol. 1, AQSA Publications, UK, 2006, p.111-140; Jonathan A. C. Brown, Hadith: Muhammad’s Legacy in the Medieval and Modern World, Oneworld Publications, Oxford, 2009, p.153-155; See also http://islamicperspectives.com/SingleNarrator.htm (accessed in June 2012) for a discussion on the concerns some scholars have raised about lone-narrator (gharib) hadith. The 5 main arguments presented for the view that Gharib hadith are acceptable but not legally binding include, (i) Evidence that sahih isnad (that is, an isnad that reaches the Prophet without interruption and that consists of trustworthy narrators) does not on its own guarantee the authenticity of a hadith, as there could be other doubt-creating factors; (ii) Arguments showing that supplementing soundness of isnad by other conditions does not make the acceptance of a gharib hadith binding; (iii) Arguments from the Qur`anic requirement of at least two witnesses in important matters; (iv) Argument from examples showing that the Prophet, Companions and Successors did not always accept a khabar (report) from a single trustworthy narrator; and (v) Argument that examples of acceptance by the Companions of a khabar from only one narrator prove only the permissibility and NOT the obligation of accepting such reports. See also “Islamic Law and the Use and Abuse of Hadith” in Mohammad Omar Farooq, Towards Our Reformation: From Legalism to Value Oriented Islamic Law and Jurisprudence, London, 2011, p.94-140.

[14] Gibril Fouad Haddad, Sunna Notes: Studies in Hadith and Doctrine, vol. 1, AQSA Publications, UK, 2006, p.116-119; Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, The Islamic Text Society, Cambridge, 2003,  p.93-98, 482.

[15] See Gibril Fouad Haddad, Sunna Notes: Studies in Hadith and Doctrine, vol. 1, AQSA Publications, UK, 2006, p.116-119; Jonathan A. C. Brown, Hadith: Muhammad’s Legacy in the Medieval and Modern World, Oneworld Publications, Oxford, 2009, p.153-155, 173-183.

[16] Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, The Islamic Text Society, Cambridge, 2003, p.97-98.

[17] In the Hanafi School of Juristic Thought, hadith ahad could also not qualify (takhsis) the Qur’an. See Jasser Auda, Maqasid al-Shariah as Philosophy of Islamic Law, IIIT, London, 2008, p.101-102.

[18] Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, The Islamic Text Society, Cambridge, 2003, p.97, 105; Some scholars however, such as Ahmad bin Hanbal,  Ibn Hazm, Ibn Taimiyyah, Ibn Qayyim, Ibn Abdul-Barr, Shawkani, Albani and some others regard single-chained hadith as reliable enough to be used to establish Aqidah (creed), especially if it is supported by some other evidence such as ijma’. This in some instances has led some young Muslims to do takfir (accusation of disbelief or Kufr) about members of most Schools of Juristic Thought that do not give such importance to single-chained hadith on matters of creed.  In this regard, see the detailed discussion by Gibril Fouad Haddad, Sunna Notes: Studies in Hadith and Doctrine, vol. 1, AQSA Publications, UK 2006, p.131-133; See also Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, The Islamic Text Society, Cambridge, 2003, p.96-108 for conditions scholars placed for the acceptance of hadith ahad.

[19] Umar F. Abd-Allah Waymann-Langraf, Malik and Medina: Islamic Legal Reasoning in the Formative Period, Brill, Leiden, The Netherlands, 2013, p.97.

[20] Ibn Qayyim al-Jawziyyah, Al-Manar al-Munif fi al-Sahih wa al-Da’if, Maktabat al-Matbu’aat al-Islamiyyah, Syria, 1983, p.68; Abdulrahman bin Ali Ibn Jawziy, Al-Mawduaat, 1966, vol.1, p.106, al- Maktabah al-Shamilah; Amidi, al-Ihkam, vol.I, p.161; Mahmassani, Falsafah, p.74. Cited in Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, The Islamic Text Society, Cambridge, 2003, p.97; Israr Ahmad Khan, Authentication Of Hadith: Redefining The Criteria, IIIT, 2010

[21] Al-Shawkani, Irshad al-Fuhul Ila Tahqiq al-Haq min ‘Ilm al-Usul, p. 47; Abu Zahrah, Usulal-Fiqh, p.85. Cited in Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, The Islamic Text Society, Cambridge, 2003, p.97. For more on the differences over the authority of Hadith Ahad among Mujtahid Imams and their Schools of Juristic Thought (madhhabs), see Lesson 33 of this manual.

[22] Umar F. Abd-Allah Waymann-Langraf, Malik and Medina: Islamic Legal Reasoning in the Formative Period, Brill, Leiden, The Netherlands, 2013, p.107-108.

[23] Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, The Islamic Text Society, Cambridge, 2003, p.100-108; Gibril Fouad Haddad, Sunna Notes: Studies in Hadith and Doctrine, vol. 1, AQSA, 2006, p.116-118; Jonathan A. C. Brown, Hadith: Muhammad’s Legacy in the Medieval and Modern World, Oneworld Publications, Oxford, 2009, p.153-155; Jasser Auda, Maqasid al-Shari’ah as Philosophy of Islamic Law, IIIT, London, 2008,, p.101-102, 132-135;

[24] Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, The Islamic Text Society, Cambridge, 2003, p. 414 and 427.

[25] Jonathan A. C. Brown, Hadith: Muhammad’s Legacy in the Medieval and Modern World, Oneworld Publications, Oxford, 2009, p. 154; Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, The Islamic Text Society, Cambridge, 2003, p. 103.

[26]Shatibi, al-Muwafaqat fi Usul al-Ahkam, vol.3, p.37, 64- 76, and 187, cited in ‘Umar Faruq ‘Abd-Allah, Malik’s Concept of ‘Amal in the Light of Maliki Legal Theory, (unpublished PhD. Thesis), The University of Chicago, Illinios, 1978, p. 509-514.

[27] Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, The Islamic Text Society, Cambridge, 2003, p. 103.

[28] See ‘Umar Faruq ‘Abd-Allah, Malik’s Concept of ‘Amal in the Light of Maliki Legal Theory, (unpublished PhD. Thesis), The University of Chicago, Illinios, 1978, p. 80.

[29] Gibril Fouad Haddad, Sunna Notes: Studies in Hadith and Doctrine, vol. 1, AQSA, 2006, p.113-114.

[30] “Ibn Taymiyyah quotes Ibn Abd al-Barr’s summary…: ‘The majority said that it (the lone-narrator or ahad hadith) dictates action, not certainty, and it is the opinion of al-Shafi’i and the majority of the jurists.’ Ibn Taymiyyah adds: ‘The lone-narrator report makes action obligatory and is most likely true, short of certainty, according to the majority.’ He cites al-Juwayni and Ibn al-Baqillani in support of this opinion.” Cited in Gibril Fouad Haddad, Sunna Notes: Studies in Hadith and Doctrine, vol. 1, AQSA, 2006, p.118.

[31] Qadi Iyad, Tartib, 1:17; Al-Qarafi, Al-Dhakhira (Cairo), 1:33; Ibn Al-Hajib, Mukhtasar, 72; Ibn Tumart, A’azz, 51-52; Abu Zahra, Malik, 303 – cited in Umar F. Abd-Allah Waymann-Langraf, Malik and Medina: Islamic Legal Reasoning in the Formative Period, Brill, Leiden, The Netherlands, 2013, p.122.

[32] See ‘Umar Faruq ‘Abd-Allah, Malik’s Concept of ‘Amal in the Light of Maliki Legal Theory, (unpublished PhD. Thesis), The University of Chicago, Illinios, 1978, p. 510-511; and Yasin Dutton, Original Islam: Malik and the Madhhab of Madina, Routledge, 2007, p.77-84.

[33] Umar F. Abd-Allah Waymann-Langraf, Malik and Medina: Islamic Legal Reasoning in the Formative Period, Brill, Leiden, The Netherlands, 2013, p.112.

[34] For more detail discussion see, Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, The Islamic Text Society, Cambridge, 2003, p.100-108; Gibril Fouad Haddad, Sunna Notes: Studies in Hadith and Doctrine, vol. 1, AQSA, 2006, p.116-117; Jonathan A. C. Brown, Hadith: Muhammad’s Legacy in the Medieval and Modern World, Oneworld Publications, Oxford, 2009, p.153-155; Jasser Auda, Maqasid al-Shariah as Philosophy of Islamic Law, IIIT, London, 2008, p.101-102, 132-135; Umar F. Abd-Allah Waymann-Langraf, Malik and Medina: Islamic Legal Reasoning in the Formative Period, Brill, Leiden, The Netherlands, 2013, p.107-129.

[35] Unless the narrator of the ahad hadith was known to be a Faqih, see Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, The Islamic Text Society, Cambridge, 2003, p.102

[36] Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, The Islamic Text Society, Cambridge, 2003, p.297; Abdulrahman bin Abdullah al-Sha’lan, Usul al-Fiqh al-Imam Malik, p.762-881; Muhammad al-Amin al-Shinqiti al-Maliki, Sharh Maraqi al-Suu’d, p.350, Dar Alam al-Fawa’id, Riyadh.

[37] Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, The Islamic Text Society, Cambridge, 2003, p.103

[38]Gibril Fouad Haddad, Sunna Notes: Studies in Hadith and Doctrine, vol. 1, AQSA, 2006, p. 116.

[39] It appears that the Hanbali School of Jurisprudence has not regarded anything other than the Qur’an and Sunnah Mutawatira to be more authoritative than Sunnah Ahad. The superiority of these sources over Hadith Ahad comes from the fact that a Hadith ahad in the Hanbali School (as with the other three major Schools) cannot abrogate the Qur’an or Hadith Mutawatir. The majority of the Hanbali School regards ahad narrations on their own as not giving the certainty required to establish creed (aqidah). Otherwise Ahmad bin Hanbal seems to have not made any distinction between the authority of the Qur’an and sound Sunnah (whether mutawatir or ahad) and no other tool of ijtihad may supersede them. See Gibril Fouad Haddad, Sunna Notes: Studies in Hadith and Doctrine, vol. 1, AQSA, 2006, p.117-118, and Abdul Hakim I. Al-Matroudi, The Hanbali School of Law and Ibn Taymiyyah: Conflict or Conciliation, Routledge, New York, 2006, p.32-38, 45-46.

[40] Cited in Abdul Hakim I. Al-Matroudi, The Hanbali School of Law and Ibn Taymiyyah: Conflict or Conciliation, Routledge, New York, 206, p.34.

[41] Quoted in Abu Yusuf, Al-Radd, p.24-25; cited in Umar F. Abd-Allah Waymann-Langraf, Malik and Medina: Islamic Legal Reasoning in the Formative Period, Brill, Leiden, The Netherlands, 2013, p.114.

[42] Umar F. Abd-Allah Waymann-Langraf, Malik and Medina: Islamic Legal Reasoning in the Formative Period, Brill, Leiden, The Netherlands, 2013, p.117.

[43] Umar F. Abd-Allah Waymann-Langraf, Malik and Medina: Islamic Legal Reasoning in the Formative Period, Brill, Leiden, The Netherlands, 2013, p.116.

[44] Abu Yusuf, Al-Radd, p.103-105, cited in Umar F. Abd-Allah Waymann-Langraf, Malik and Medina: Islamic Legal Reasoning in the Formative Period, Brill, Leiden, The Netherlands, 2013, p.119.

[45] Abu Yusuf, Al-Raddd, p.38, cited in Umar F. Abd-Allah Waymann-Langraf, Malik and Medina: Islamic Legal Reasoning in the Formative Period, Brill, Leiden, The Netherlands, 2013, p.120.

[46] Al-Shatibi, Al-Muwafaqat, 3:85-93, 76,98; cited in Umar F. Abd-Allah Waymann-Langraf, Malik and Medina: Islamic Legal Reasoning in the Formative Period, Brill, Leiden, The Netherlands, 2013, p.122.

[47] Umar F. Abd-Allah Waymann-Langraf, Malik and Medina: Islamic Legal Reasoning in the Formative Period, Brill, Leiden, The Netherlands, 2013, p.122.

[48]Muhammad bin ‘Abd alRahman alDimashqi, Rahmat alUmmah fi Ikhtilaf alA’immah, Dar al-Kutub al-‘ilmiyyah, Beirut. A similar saying is also purported to be made by Ibn Qudama al-Hanbali in Al`Aqa’id;al-Qasim ibn Muhammad ibn Abi Bakr al-Siddiq as mentioned by Al-Hafiz al-Bayhaqi in his book “al-Madkhal” and al-Zarkashi in his “Tadhkirah fi al-ahadith al-mushtaharah“; and Imam Malik according to al-Hafiz Ibn al-Mulaqqin in his “Tuhfat al-muhtajilaadillat al-Minhaj” and Ibn al-Subki in his “Tabaqat al-Shafi`iyyah.

Understanding the meaning or implication of the text is an attempt to achieve greater certainty regarding what exactly was meant by the Lawgiver – Allah. In other words, one is saying, “How am I sure that what is understood by what God says is actually what God meant?  I want to submit to what God or His Prophet meant, and not to just any possible or probable meaning.”

Scholars of Islamic Jurisprudence are therefore concerned about the certainty of meaning in texts. Certainty regarding meaning can best be ascertained by an authentic text’s clarity.

Dr. Jasser Auda explains,

When jurists talk about “an evidence” from the Qur’an or the Prophetic tradition, they actually mean a ruling that is derived from a specific expression of a verse or hadith… Expressions, or ‘terms’ are categorized in terms of clarity (wuduh), implication (dilalah), and scope (shumul).These expressions and the methods of deriving meanings/rulings from them is a shared concern for all schools of the Islamic law in their search for greater certainty regarding the meanings and implications of the texts.

 

These categorizations are further sub-divided into other classifications and further sub-classifications. They include, ‘clear’ (wadhih) and ‘unclear’ (ghayrwadhih), ‘firmly constructed’ (muhkam), ‘text’ (nass), ‘apparent’ (zahir), ‘explained’ (mufassar), ‘implicit’ (khafi), ‘ambiguous’ (mushkil), ‘general/compound’ (mujmal), ‘resembling’ (mutashabih), etc.; ‘clear expression’ (dilalah al-‘ibarah), ‘indirect implication’ (dilalah al-isharah), ‘obvious analogy’ (qiyas al-awla), ‘implying ommitance’ (dilalah al-‘iqtida’), ‘contrary implication’ (mafhum al-mukhalafah), etc.; ‘General’ (‘am), ‘specific’ (khas), ‘unqualified’ (mutlaq), ‘qualified’ (muqayyad), etc.[1]

 

In basic terms, meaning in any text of the Qur’an or Sunnah is either categorized as certain and unambiguous (qat’i), or uncertain and therefore only speculative (zanni). Where the meaning of the text is speculative (zanni), there is respect for differing interpretations. These distinctions are further broken down below:

  1. Qat’i al-dilalah– This is where the text has an explicit, definitive and unambiguous meaning. In other words, the meaning is clear and not debatable. If this is found in the Qur’an or HadithMutawatir, it provides certainty of truth and may be called ‘absolute truth’.[2] (E.g. In the equation: 2 + X = 5, the value of “X” could be nothing else but “3”).

Some verses with definitive (qat’i)text in the Qur’an include (what is qat’i is underlined):

In what your wives leave, your share is a half if they leave no child; but if they leave a child, you get a fourth after payment of legacies and debts. In what you leave, their share is a fourth if you leave no child; but if you leave a child, they get an eighth; after payment of legacies and debts. If the man or woman whose inheritance is in question has left neither ascendants nor descendants, but has left a brother or a sister, each one of the two gets a sixth; but if more than two, they share in a third; after payment of legacies and debts so that no loss is caused (to any one). Thus is it ordained by Allah. And Allah is All-Knowing, Most Forbearing. (Qur’an 4:12)

The woman and the man guilty of fornication (zina), flog each of them with a hundred stripes. Let not compassion move you in their case, in a matter prescribed by Allah, if you believe in Allah and the Last Day; and let a party of the believers witness their punishment. (Qur’an 24: 2)

And those who launch a charge against chaste women, and produce not four witnesses (to support their allegations), flog them with eighty stripes; and reject their evidence ever after: for such men are wicked transgressors. (Qur’an 24: 4)

  1. Zanni al-dilalah– This refers to text where the meaning is probable, speculative and debatable. It is open to alternative interpretations and therefore provides only relative truth.[3] (E.g. In the equation 2 + X + Y = 10, the value of “X” could vary).

For example, the Qur’an states (zanni texts are underlined):

Prohibited to you [for marriage] are: your mothers, daughters, sisters; father’s sisters, mother’s sisters; brother’s daughters, sister’s daughters; foster-mothers [who gave you suck], foster-sisters; your wives’ mothers; your step-daughters under your guardianship, born of your wives to whom you have gone into–and no prohibition if you have not gone into; (those who have been) wives of your sons proceeding from your loins; and two sisters in wedlock at one and the same time, except for what is past; for Allah is Oft-Forgiving, Most Merciful. (Qur’an 4:23)

The punishment of those who wage war against Allah and His Messenger, and strive with might and main for mischief through the land is: execution or crucifixion, or the cutting off of hands and feet from opposite sides, or exile from the land. That is their disgrace in this world, and a heavy punishment is theirs in the Hereafter. (Qur’an 5:33)

O you who believe! When you prepare for prayer, wash your faces, and your hands [and arms] to the elbows; rub your heads [with water]; and [wash] your feet to the ankles. If you are in a state of ceremonial impurity, bathe your whole body, but if you are ill, or on a journey, or one of you has relieved yourself of waste, or you have been in [sexual] contact with women, and you find no water, then take for yourselves clean sand or earth, and rub it on your faces and hands. Allah does not wish to place you in difficulty, but to make you clean, and to complete His favour to you, that you may be grateful. (Qur’an 5:6)

Implications of Commands (Amr) and Prohibitions (Nahy)

It is important when searching for certainty regarding the meaning and implications (dilalah) of the text of the Qur’an or Sunnah, that a student does not jump to conclusions regarding the implications of statements that appear as commands (amr) or as prohibitions (nahy).[4] While a command or an injunction using the prohibitive words, “Do not…” may seem explicit and clear-cut (qat’i), such statements may also be considered debatable in their legal implication (zanni).

Maliki jurists for example, usually assert that generally unrestricted meanings/implications from foundational texts should be deemed speculative or presumptively authoritative (zanni) and not conclusive (qat’i). The overt legal text of the Qur’an or Sunnah does not independently constitute universal statements of law, without support from other principles and sources of law.[5]

Kamali elaborates on this below:

Since a verbal command (amr) can mean different things, namely an obligatory order (fard or wajib), a mere recommendation (mustahab or mandub)[6], or even permissibility (mubah), the ulema have differed as to which of these is the primary and which is the secondary meaning of a command. Some have held the view that ‘amr is in the nature of a homonym (mushtarak) which imparts all of these meanings[7]. Others have held that amrpartakes in only two of these concepts, namely obligation and recommendation, but not permissibility. Still others have held that amr implies a permission to do something, and that this is the widest meaning of amr, which is common to all three of the foregoing concepts.

According to the majority opinion, however, a command by itself, that is, when it is not attended by clues or circumstances that might give it a particular meaning, implies obligation or an emphatic demand only.[8] But this may change in the event of other indications being present, which might reduce a command to permissibility, recommendation, or indeed to a variety of other meanings. Thus when we read in the Qur’an commands such as kulu wa’shrabu (‘eat and drink’) in Surah al-A’raf, 7:31, the indications are that they amount to no more than permissibility (Ibahah). For eating and drinking are the necessities of human life, and a command in respect of them must logically amount to a permissibility only. Similarly the Qur’anic permission in respect of hunting after the completion of the hajj ceremonies given in Surah al-Ma’idah 5:2 (waidhahalaltumfastadu), and its address to the believers to ‘scatter in the land’ (fa’ntashirufi’l-ard) after performing the Friday prayers (Surah al-Jumu`ah, 62:10) are both in the imperative form. But in both cases the purpose is to render these activities permissible only.[9]

[Similarly,]a prohibition (nahy), like a command, may convey a variety of meanings. Although the primary meaning of nahy is illegality or tahrim, nahy is also used to imply a mere reprehension (karahiyyah), or guidance (irshad), or reprimand (ta’dib), or supplication (du’a). An example of nahy which implies reprehension is the Qur’anic ayah addressing the believers to ‘prohibit not [la tuharrimu] the clean foods that God has made lawful to you’ (al-Ma’idah, 5:87). Nahy which conveys moral guidance may be illustrated by the Qur’anic ayah addressing the believers to ‘ask not questions about things which, if made plain to you, may cause you trouble’ (al-Ma’idah, 5:104). An example of nahy which implies a threat is when a master tells his recalcitrant servant, ‘Don’t follow what I say and you will see.’ An example of nahy which conveys supplication in the Qur’an, occurs in Surah al-Baqarah (2:286) which reads, ‘Our Lord, condemn us not if we forget.’

Since nahy can convey several meanings, the ulema have differed as to which of these is the primary (haqiqi) as opposed to the secondary or metaphorical meanings of nahy. Some have held that illegality (tahrim) is the primary meaning of nahy while others consider reprehension (karahiyyah) to be the original meaning of nahy. According to yet another view, nahy is a homonym in respect of both (i.e. nahy could be either tahrim or karahiyyah). The majority (jumhur) of ulema have held the view that nahy primarily implies tahrim, a meaning which will be presumed to prevail unless there are indications to suggest otherwise. An example of nahy in the Qur’an which has retained its primary meaning is the phrase ‘la taqtulu’ in the ayah which provides, ‘slay not life which God has made sacred’. There is no indication in this text to warrant a departure from the primary meaning of la taqtulu, which must therefore prevail. The primary meaning of nahy may be abandoned for a figurative meaning if there is an indication to justify this. Hence the phrase la tu’akhidhna(‘condemn us not’) implies supplication, as the demand here is addressed to Almighty God, and is hence a demand from a position of inferiority, which indicates that the correct meaning of nahy in this context is supplication, or du’a.[10]

In view of the foregoing, it is essential that there is careful analysis of the relevant texts and context of the Qur’an and Sunnah before one concludes on the legal implications of commands (amr) and prohibitions (nahy). The mere existence of commanding wording (an imperative word or an imperative phrase) does not provide a clear-cut and certain case of obligation or prohibition.

Towards a Deeper Appreciation of the Meaning and Implication of the Text (Dilalah Al-Nass)

The clarity of the text and the legal implications of commands and prohibitions are important in “maximizing certainty” regarding submission to God’s will. It is therefore important to know how did God’s Prophet (ﷺ) understand the revelation given to him?

It is also important to know what was the intent and implication of the words and deeds of the Prophet (ﷺ) for the purpose of legislation, and what is meant by his Sunnah”? Was everything the Prophet (ﷺ) did either compulsory or encouraged for everyone to emulate? Were some of his actions and statements meant in a particular context for a specific purpose and therefore not legally binding (Aadah), or were they all legally binding on everyone (Tashri’i)?

These questions are explored further in the next series of lessons.

DISCUSSION QUESTIONS:

  1. What is meant by qat’i al-dilalah and zanni al-dilalah when applied to a text?
  2. Why is it important to distinguish between the certain (qat’i) and speculative (zanni) when referring to the meaning and implication (dilalah) of a text of the Qur’an or Sunnah?
  3. Give examples of texts that are qat’i al-dilalah and those that are zanni al-dilalah.
  4. What level of certainty do commands (amr) and prohibitions (nahy) give a particular text of the Qur’an or Sunnah?
  5. What are the various opinions regarding the automatic or primary meanings and implications of a command (amr) or prohibition (nahy) in the text?
  6. Why do scholars differ on the primary implication of a command or prohibition?
  7. How could certainty be maximised regarding the implications of commands and prohibitions?
  8. When do the majority of scholars consider a command (amr) as implying an obligation?
  9. Give textual examples of a command (amr) that does not imply an obligation (fard/wajib).
  10. Give textual examples of a prohibition (nahy) that does not imply a prohibition (haram).
  11. When do the majority of scholars consider a prohibition (nahy) as implying an illegality (tahrim) of something?

[1]Jasser Auda, Maqasid al-Shariah as Philosophy of Islamic Law, IIIT, London, 2008, p.88-106; Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, The Islamic Text Society, Cambridge, 2003, p.117-201; Muhammad bin Hussain bin Hassan Al-Jizani, Ma’alim fi Usul al-Fiqh, Dar Ibn al-Jawzi, Jeddah, 1996, p.392-397.

[2] Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, The Islamic Text Society, Cambridge, 2003, p.27-37.

[3] Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, The Islamic Text Society, Cambridge, 2003, p. 27-37.

[4] For further reading on the criteria used by various scholars in determining when a command (amr) or prohibition (nahy) would imply either an obligation (fard/wajib), recommendation (mustahab), permissibility (mubah), discouragement (makruh), or a prohibition (haram), see Ahmad Hasan, The Principles of Islamic Jurisprudence: The Command of the Sharia and Juridical Norm, Adam Publishers, New Delhi, 2005, p.23-153. See also Khalid Shuja’, Dawabit Sarf al-Amr an al-Wujub wa al-Nahyi an al-Tahrim.

[5] Umar F. Abd-Allah Waymann-Langraf, Malik and Medina: Islamic Legal Reasoning in the Formative Period, Brill, Leiden, The Netherlands, 2013, p.90-91

[6] Abu Hashim, Mu’tazila, some jurists and a narration from Shafi’i are of the view that a command (‘amr) implies recommendation not obligation (Muhammad bin Ali al-Shawkani, Irshad al-Fuhulila Tahqiq al-Haq min Ilm al-Usul, Dar al-Fadila, Riyadh 1421 AH, vol.1, p.442. Fakhrudeen Muhammad bin Umar bin Husain Al-Razi, Al-Mahsul fi Ilm al-Usul al-Fiqh, Mu’assasat al-Risalah, vol.2, p.44.

[7]Ashari held this “stand still” position where judgment was suspended until there was additional evidence for a particular position. See, Ibn Taimiyyah, Al-Musawwadah fi Usul al-Fiqh, Dar al-Fadilah, Riyadh, 1422 AH, vol.1, p 83.

[8] Muhammad bin Ali al-Shawkani, Irshad al-fuhul ila tahqiq alhaq min ‘ilm al-Usul vol.1, p.442; Muhammad al amen bin Muhammad al mukhtar al-Shinqity, SharhMaraqi al-Suud, Dar Aalam al-fawaid, p.154; Abu Zahra, Usul al-Fiqh, Dar al-Fikr al-Araby, Beirut, p.176; Abdurahmanbin Abdullah Al-Sha’lan, UsulFiqh Imam Malik, Imam Muhammad bn Saud Islamic University, KSA, 1424, vol.1, p.407; Muhammad binSalih Ibn al-Uthaimeen, al-Usul min Ilm al-Usul, Dar al-Iman, Egypt, p.18; Muhammd bn Ahmad bn Abdul Aziz Taqiyy al-deen Abu al-Baqai bin al-Najjar, Sharh Al-kaukab al Munir, Maktabah al-Ubaikan, Madinah, 1418 AH, vol.3, p.19; Ibn Taimiyyah, al Musawwadah fi Usul al-Fiqh, Dar al Fadilah, Riyadh, 1422 AH, vol.1, p.83.

[9] Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, The Islamic Text Society, Cambridge, 2003, p.188-193

[10] The entire passage from p.63 above is extracted from Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, The Islamic Text Society, Cambridge, 2003, p.196.

 

DISCUSSION QUESTIONS:

Find a partner to discuss the following:

  1. Explain 3 differences between Fiqh and Shari’ah.
  2. Use a metaphor or analogy of a tree or anything else to describe the relationship between the Shari’ah, Usul al-Fiqh and Fiqh.
  3. Discuss why an individual should be cautious of speaking in God’s name with the authority of God. Mention at least one source of evidence to support this caution.
  4. Mention the action that would amount to speaking in God’s name.
  5. Discuss one way in which a scholar can minimize the risk of misrepresenting God and His Prophet.
  6. What are two forms of certainty when analyzing texts?
  7. How is it possible for the Qur’an to simultaneously provide some certainty and also some uncertainty?
  8. Name and describe 5 categories in the classification of hadith
  9. How authoritative are Hadith Mutawatir and Hadith Ahad respectively for deriving legislation? Give reasons for your answer.

The term “Sunnah” is used by the various strands of Islamic sciences and scholars in different ways.[1] In its juristic usage, Sunnah also has different meanings. To the ulama of Usul al-Fiqh, Sunnah refers to a source of the Shari’ahand a legal proof next to the Qur’an. But to the ulama of Fiqh, Sunnah primarily refers to a legal (shar’i) value which falls under the general category of Mandub. However, it is not necessarily confined to the Mandub. In its other usage, namely as a source of Shari’ah, Sunnah may authorize and create any of the following: Wajib, Haram, Makruh and Mubah. Thus, a Faqih might say that this or that act is Nafila or Sunnah, which means that it is neither Fard nor Wajib; rather, it is Mustahab or Mandub[2], whereas in the usage of Usul al-Fiqh, one might say that this or that ruling has been validated by the Qur’an or by the Sunnah.

Ibn Abd al-Barr states that the word “Sunnah” when used in general without qualifications was meant to refer to the Sunnah of God’s Messenger. If its source of authority was someone else, it would be qualified by specific reference to that person (or persons) as in the case of “the sunnah of Abu Bakr and Umar”. Even when a Sunnah was attributed to someone else, it was not because he was regarded as an independent authority, but because their authority was associated with the Prophet (ﷺ).[3]

Distinguishing Sunnah from Seerah

The Sunnah of the Prophet (ﷺ) usually refers to the actions, sayings and tacit approvals of the Prophet (ﷺ). The Seerah of the Prophet (ﷺ), however, refers to the biography and historical events that happened during his lifetime. The Seerah includes his Sunnah. However, not all of the Seerah constitutes Sunnah. In the Maliki School of Thought, the practice of the Sahabah and ‘People of Madinah’ (Amal) was regarded as having captured the normative Sunnah that was meant to be emulated and put into practice by Muslims. Hadith that were not supported or part of the Amal of Madinah were therefore often regarded as not normative but tied to specific cases and incidences, and were not a part of the Sunnah that was required to be put into practice. [4]

It has become necessary for scholars to distinguish what in the Seerah is Sunnah, and therefore legally applicable to Muslims. The information in the Seerah literature also does not undergo the level of authentication as do the Hadith or Sunnah literature. The Seerah includes a lot of material without complete chains of narrators (isnads).[5] This challenge to its certainty makes it problematic to consider the Seerah as a source or evidence for Shari’ah rulings.

 

 

 

The Legislative Implications of the Sunnah: The Prophet’s Intent of Legislation

The Prophet (ﷺ) is reported to have said, “Follow my Sunnah and the Sunnah of my rightly guided Companions.”[6]

The Companions of the Prophet (ﷺ) and jurists recognized the need to distinguish the different intents and legal implications of the words and actions (Sunnah) of the Prophet (ﷺ).[7] At the crux of the matter, the Companions and jurists are challenged to determine in the Prophetic traditions (Sunnah)what is of permanent legislative value, and what is contextual and therefore does not bear any legislative connotation.[8]

Not all the actions, sayings and decisions of the Prophet (ﷺ) were dictated by divine revelation.[9] In addition, not all the actions and sayings of the Prophet (ﷺ) are meant to be emulated by everyone. Some of his actions were specific to him as the Last Prophet.[10] Others were part of his role as a Messenger and Prophet to guide humanity. Still others were actions by him in response to his context and the circumstances he found himself in, while others were actions of his in his capacity as an exemplary Arab man living in the place and times of Arabia in which he found himself.[11]

Ibn Abi Layla is reported to have said: “A man does not understand hadith until he knows what to take from it and what to leave.” [12] As stated earlier, for Malik and Abu Hanifa in particular, knowledge of the Sunnah was the criterion against which hadiths were judged, interpreted, accepted, or rejected – not the reverse. They judged the contents of hadith by standards independent of their semantic content (matn).[13]

Classical scholars who discussed this issue in great depth[14] include Ibn Qutaybah (d.276 AH), Al-Qarafi (d. 684 AH), Ibn Qayyim (d. 748 AH), Al-Shawkani (d. 1250 AH)[15], and Ibn Ashur (d. 1325), etc.[16]Ibn Qutaybah(213-276AH) was among the earliest to write about the Prophet’s intent. He stated that the Prophet’s statements and actions comprised three types: (1) what had been revealed to him by the Angel Jibril; (2) what God allowed him to institute based on his personal judgment, depending on the cases presented to him; (3) what he would issue as a matter of discipline for his followers so that if they follow it they become more virtuous, but would not have any detriment if they didn’t do them. [17] After Qarafi also contributed work to the topic, this issue was taken up by the eminent Hanbali scholar Ibn Qayyim al-Jawziyyah.[18] In more contemporary times, the Indian scholar Shah Wali Allah Dahlawi dealt with the issue along similar lines in his seminal work Hujjat Allah al-Balighah.[19]

Ibn Ashur covered the topic comprehensively in his Treatise on Maqasid al-Shari’ah, yet this issue is still a matter of serious debate among contemporary Muslim scholars.[20] A summary of this debate has been provided by Yusuf al-Qaradawi in Al-Janib al-Hadari fi al-Sunnah al-Nabawiyyah.”[21]

As has been repeated in this material, it is important for young Muslims to appreciate that declaring something from the Qur’an or, in this instance, from the Sunnah as implying an obligation (Fard/Wajib) or a prohibition (Haram) requires significant certainty not only in the AUTHENTICITY and MEANING, but also in the LEGISLATIVE IMPLICATIONS of the text of the hadith under discussion.

The meaning of the text is therefore best understood when studies along with its own context. Disregarding context easily becomes pretext for misinterpreting and misapplication of the text. Text without context is pretext!

 

DISCUSSION QUESTIONS:

  1. Explain at least 4 different meanings of the term “Sunnah” according to various fields and specializations.
  2. What are some of the differences between “Sunnah” and “Seerah”?
  3. What are some of the differences between Sunnah and hadith?
  4. How did scholars determine whether or not a hadith was transmitting a sunnah that was meant to be put into practice by the community (ummah)?
  5. Why are there different legal implications of the Sunnah?
  6. List at least 5 well known scholars who have treated in some depth, the subject of the Prophetic intent on legislation and the legal implications of the Sunnah.
  7. Why do you think it was the Faqih or Mujtahid and not the Muhaddith that was the final arbiter or decider regarding the credibility of hadith and what better represented the Sunnah?

[1] Jamal al-Din M. Zarabozo, The Authority and Importance of the Sunnah, al-Basheer Publications, USA, 2000, p.8-26; Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, The Islamic Text Society, Cambridge, 2003, p.58-62; Abdullah bin Yusuf al-Juda’i, Taysir Usul al-Fiqh, p.98-101; Abdulmuhsin al-Abbad, Al-Haththu ala ‘ittiba’i al-Sunnah, p.8-10, (al-Maktabah al-Shamilah

[2] Jamal al-Din Abu Muhammad Abd al-Rahman al-Isnawi, Nihayah al-Sul fi Sharh al-Minhaj al-WusulIla ‘Ilm al-Usul. 3 Vols. Matba’ah al-Tawfiq, n.d. vol. II, p. 170; Muhammad bin Ali al-Shawkani, Irshad al-Fuhul Ila Tahqiq al-Haqq min ‘Ilm al-Usul, Dar al-Fikr, Cairo, n.d., p.33; Muhammad Hassan Hit, al-Wajiz fi Usul al-Tashri’ al-Islami, 2nd ed. Mu’assassah al-Risalah, 1984, p. 264 cited in Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, The Islamic Text Society, Cambridge, 2003, 61; see also Jamal al-Din M. Zarabozo, The Authority and Importance of the Sunnah, al-Basheer Publications, USA, 2000, p.8-26.

[3] Cited in Umar F. Abd-Allah Waymann-Langraf, Malik and Medina: Islamic Legal Reasoning in the Formative Period, Brill, Leiden, The Netherlands, 2013, p.94-95. See this reference for more on the use of the term Sunnah – “Sunnat Allah”, “Sunnah of the Muslims”, etc.

[4] See Yasin Dutton, “Amal vs. Hadith in Islamic Law: The Case of Sadl al-Yadayn (Holding One’s Hands by One’s Sides) When Doing the Prayer”, Islamic Law and Society, vol.3, No. 1. Brill Academic Publishers, 1996, p.14, available on http://www.jstor.org/; See a more detailed discussion of this subject in, ‘Umar Faruq Abd-Allah, Malik’s Concept of ‘Amal in the Light of Maliki Legal Theory, (unpublished PhD. Thesis, The University of Chicago, Illinois, 1978); Yasin Dutton, The Origins of Islamic Law: The Qur’an, the Muwatta’ and MadinanAmal, RoutledgeCurzon, U.K., 2002.

[5] Jonathan A. C. Brown, Hadith: Muhammad’s Legacy in the Medieval and Modern World, Oneworld Publications, Oxford, 2009, p.281

[6] Al-Bukhari,  cited in Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, The Islamic Text Society,  Cambridge, 2003, p. 60; Sunan Abu Dawud, 4607; Sunan Ibn Majah, 42; Sunan Al-Darimi, 95

[7] Muhammad al-Tahir Ibn Ashur, Treatise on Maqasid al-Shari’ah, IIIT, London, 2006, p.31.

[8] For more detail on this subject and other references, see Muhammad al-Tahir Ibn Ashur, Treatise on Maqasid al-Shari’ah, IIIT, London, 2006, p.31, p.351-352.

[9] A verse from the Qur’an commonly quoted to support the idea that all statements and actions of the Prophet (p) were divinely directed is: “Nor does he speak from (his own) inclination; It is not but a revelation revealed (to him); Taught to him by one intense in strength (i.e., Gabriel)” (Q53:3-5) This verse is understood by many jurists to refer to the revelation of the Qur’an via the Angel Gabriel, and not to all statements made by the Prophet (p) on all issues and on all occasions. See: Ibn ‘Ashur, al-Tahrirwa al-Tanwir, commentary of the cited verses. For further reading on this issue see also, Muhammad Sulaiman al-Ashqar, Af’al al-Rasul wa Dilalatuha al al-Ahkam al-Shar’iyyah, Beirut: Mu’assasa al-Risalah, 5th, edition, 1996, vol.1, p.181.

[10] Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, The Islamic Text Society, Cambridge, 2003, p. 67-68.

[11] See Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, The Islamic Text Society, Cambridge, 2003, p.67-68 for more discussion on legal and non-legal Sunnah.

[12] Cited in Ibn Abd Al-Barr, Jam’i Bayan al-Ilm, vol.2, p.130, cited in Gibril Fouad Haddad, Sunna Notes: Studies in Hadith and Doctrine, vol. 1, AQSA Publications, 2006, p.46.

[13] Umar F. Abd-Allah Waymann-Langraf, Malik and Medina: Islamic Legal Reasoning in the Formative Period, Brill, Leiden, The Netherlands, 2013, p.96-97.

[14] See Muhammad al-Tahir Ibn Ashur, Treatise on Maqasid al-Shari’ah, IIIT, London, 2006, p.28-32, 351-352.

[15] See Imam Muhammad bin Ali Al-Shawkani, Irshad al-Fuhul, Dar al-Fadila, Riyadh, 2000, p.198, for his classification into 7 categories of the implications of the actions of the Prophet (ﷺ).

[16] See Muhammad al-Tahir Ibn Ashur, Treatise on Maqasid al-Shari’ah, IIIT, London, 2006, p.28-32, 351-352.

[17] Abu Muhammad ‘Abd Allah ibn Muslim ibn Qutaybah, Ta’wilMukhtalaf al-Hadith, ed. Muhammad Abd al-Rahim, Dar al-Fikr, Beirut, 1995, p.180-183.

[18] Zad al-Ma’ad fi HadyiKhayr al-Ibad, ed. Shu’ayb al-Arna’ut et al., Mu’assassat al-Risalah, Beirut, 1985, vol. 3, p. 489-490.

[19] Shah Wali Allah of Delhi, The Conclusive Argument from God, trans. Marcia K. Hermansen (Leiden: E.J. Brill, 1996), vol. 1, p. 373-375.

[20] See for example, Yusuf al-Qaradawi, Kayfa Nata’amal ma’a al-Sunnah: Ma’alim wa Dawabit, Herndon, VA: IIIT, 1990; Muhammad Mahdi Shams al-Din, Al-Ijtihadwa al-Tajdid fi al-Fiqh al-Islami, al-Mu’assassah al-Dawliyyah, Beirut, 1998, p.168-175.

[21]Al-Sunnah al-Nabawiyyah wa Manhajuha fi Bina’ al-Ma’rifah wa al-Hadarah, proceedings of a conference jointly organised by IIIT and al-Majma’ al-Malaki li-Buhuth al-Hadarah al-Islamiyyah, Amman, 15-19 Dhu al-Qi’dah 1409/ 19-23 June 1989, vol. 2, p. 976-1029.

Ibn Ashur classified the Prophet’s roles or “Prophetic intents” regarding legislation into twelve.[1] Below is a summary of Ibn Ashur’s 12 classifications by Dr. Jasser Auda.[2] These classifications aid in differentiating between the Prophet’s actions “as a conveyer of the divine message, as a judge, and as a leader, etc.”, and suggest that each of these “intents” has a different “implication in the law”.[3]

  1. The intent of legislation (tashri’). One example is the Prophet’s sermon at the farewell pilgrimage during which he reportedly said: “Learn your rituals from me [by seeing me performing them] for I do not know whether I will be performing pilgrimage after this pilgrimage of mine.” He also said after concluding the same sermon: “Let those present inform those who are absent.”[4]
  2. The intent of issuing edicts/verdicts (fatwa). One example is the Prophet’s edicts during his ‘farewell pilgrimage’ when a man came to him and said: ‘I sacrificed before throwing the pebbles.’ The Prophet advised: ‘Throw, and don’t worry.’ Then another man came and said: ‘I shaved before sacrificing,’ and the Prophet answered: ‘Sacrifice, and don’t worry.’ The narrator said that he was not asked about anything that one would do after or before without his saying. ‘Do it, and don’t worry.’ In this case, the Prophet (p) was issuing verdicts (fatwa) in his capacity as a Mufti facilitating (taysir) the pilgrimage for those individuals who were asking.
  3. The intent of judgeship (qada’). Examples of this include: (1) the Prophet’s settlement of the dispute between a man from Hadramawt and a man from Kindah regarding a piece of land; (2) the Prophet’s settlement between the Bedouin and his adversary, when the Bedouin said: ‘O Messenger of God, judge between us’; and (3) the Prophet’s settlement between Habibah and Thabit. HabibahbintSahl, Thabit’s wife, complained to the Prophet that she did not love her husband and that she wanted to divorce him. The Prophet said: ‘Will you give him back his walled garden?’ She said: ‘I have all that he has given to me.’ Then, the Prophet said to Thabit: ‘Take it from her.’ And so he took his walled garden and divorced her.
  4. The intent of political leadership (imarah). Examples are the prohibition of eating donkey meat in the battle of Khaybar, as these were animals that were important for transportation of good and people in preparation for battle. The permission to cultivate barren lands by anyone was given by the prophet (p) but not meant for all contexts. The Prophet’s statement at the battle of Hunayn: ‘Whoever has killed an enemy and has evidence of his actions can claim the enemy’s property’ was not meant as a legislation for every battle hence forth.
  5. The intent of guidance and instructions; this being more general than that of legislation (hadyu).An example is found in Ibn Suwayd’s narration, in which he said: ‘I met Abu Dharr, who was wearing a cloak, and his slave too was wearing a similar one. I asked the reason for it. He replied, “I scolded a slave by calling his mother bad names.” The Prophet said to me, “O Abu Dharr! Did you abuse him by calling his mother bad names? You still have some characteristics of the age of pagan ignorance. Your slaves are your brethren.”’
  6. The intent of conciliation (sulh). One example is when the Prophet requested Barirah to return to her husband after she divorced him. Barirah said: ‘O God’s Apostle! Do you order me to do so?’ He said, ‘No, I only intercede for him.’ She said, ‘I do not need him.’ Also, Bukhari reported that when Jabir’s father died, Jabir asked the Prophet to speak with his father’s creditors so that they might waive some of his debt. The creditors did not want to meet with the Prophet(p). The Prophet then accepted their refusal to do so. Another example of conciliation is when Ka‘ab ibn Malik demanded repayment of a debt from ‘Abdullah ibn Abu Hadrad, the Prophet requested Ka‘ab to deduct half of the debt, and Ka‘ab agreed.
  7. The intent of giving advice (isharah) to those seeking his opinion. One example is when ‘Umar ibn al-Khattab gave someone a horse as charity and the man neglected it. ‘Umar wished to buy the horse from the man, thinking that he would sell it cheaply. When he asked the Prophet about it, he told him: ‘Do not buy it, even if he gives it to you for one dirham, for someone who takes back his charity is like a dog swallowing its own vomit.’ Also, Zayd narrated that the Prophet said: ‘Do not sell the fruits before their benefit is evident,’ but Zayd commented that this was, ‘only by way of advice, for some people had quarreled too much over that matter.’
  8. The intent of counseling (nasihah). For example Bashir informed the Prophet that he had given one of his sons a special gift. The Prophet asked him: ‘Have you done the same with all your sons?’ He said: ‘No’. The Prophet said: ‘Do not call me as a witness to injustice.’
  9. The intent of spiritual uplifting and encouraging people to follow the best forms of conduct (takmil an-nufus). For example, the Prophet (ﷺ) said, “My companions are like the stars (i.e. guides)”; also, “Do not abuse my Companions, for if anyone of you spent gold equal to Uhud (in God’s cause) it will not be equal to a mudda or even half a muddaspent by one of them”.
  10. The intent of teaching high ideals (ta’lim al-haqaiq al-a’liyah). For example, the Prophet asked Abu Dharr: ‘Do you see (the mountain of) Uhud?’ Abu Dharr replied: ‘I do!’ The Prophet said: ‘If I had gold equal to the mountain of Uhud, I would love that, before three days had passed, not a single Dinar thereof remained with me if I found somebody to accept it, excluding some amount that I would keep for the payment of my debts.’ Similarly, al-Bara’ ibn ‘Azib said: ‘God’s Messenger commanded us to practice seven things and prohibited us from practicing seven. He commanded us to visit the sick, to walk behind funeral processions, to pray for someone upon sneezing, to approve of someone’s oath, to help the oppressed person, to spread the greeting of peace, and to accept the invitation of the invitee. On the other hand, he prohibited us from wearing gold rings, using silver utensils, using red saddlecloth made of cotton, wearing Egyptian clothes with silky extensions, clothes made of thick silk, thin silk, or normal silk.’ Similarly, ‘Ali ibn Abi Talib narrates: ‘God’s Apostle forbade me to use gold rings, to wear silk clothes and clothes dyed with saffron, and to recite the Qur’an while bowing and prostrating in prayer. I am not saying he forbade you these things.’ Likewise, with the same educational intent, the Prophet told Rafi‘ ibn Khadij: ‘Do not rent your farm, but cultivate the land yourself.’
  11. The intent of disciplining his companions (ta’dib). For example, the hadith: ‘By God! He does not believe! By God! He does not believe!’ It was said, ‘Who is that, O Messenger of God?’ He said: ‘The person whose neighbor does not feel safe from his evil.’ This was often in statements couched in hyperbole and overemphasized but aimed at provoking awe and fear. In other words, the statement of the Prophet was not meant to be taken literally in this context. “By God! He does not believe” does not imply that the kind of person being addressed is literally a disbeliever (kafir) or an apostate (murtad).
  12. Intent of non-instruction (tajarrud ‘an al-irshad). This includes the hadith that described the way the Prophet ate, wore his clothes, laid down, walked, mounted his animal, and placed his hands when prostrating in prayer. Another example is the report that the Prophet stopped on the farewell pilgrimage at a hill overlooking a watercourse in BaniKinanah, on which ‘A’isha commented: ‘Camping at al-Abtah is not one of the ceremonies of hajj, but was simply a place where the Prophet used to camp so that it might be easier for him to leave for Madinah.’

Ibn Ashur’s extension of the implications (dilalat) of the hadith, as shown in the above examples, raises the level of ‘purposefulness’ in traditional methods and allows much flexibility in interpreting and applying the narrations.

According to Ibn Ashur:

“As for the capacity of non-instruction (tajarrud ‘an al-irshad), it is not concerned with legislation, religiosity, the education of souls, and the sound management of social order of the community. It rather concerns those actions emanating from innate human nature (jibillah) or the requirement of material life. This is something that cannot be mistaken, for God’s messenger performed actions in relation to his family affairs and the earning of living, which were not intended as legislation nor as an example to be emulated.

“Moreover, it is established in the discipline of Usul al-Fiqhthat the Muslim community is not required to emulate those actions of God’s messenger flowing from his innate nature as a human being, but rather, each individual should follow the course that suits his condition. Such deeds include the way in which he ate, wore his clothes, lay down, walked, mounted his beast, and so on. This is so, regardless of whether these things are unrelated to the Shari’ah prescriptions, such as walking in the street or riding a beast on a journey, or are related to them, such as riding a she-camel when performing the pilgrimage, and placing the hands on the prayer mat before the knees when prostrating in prayer according to those who – like Abu Hanifah – maintain that God’s messenger did so when he was old and quite stout.”[5]

Therefore, in the search for certainty when trying to understand or derive rulings from the Sunnah it is essential to reach an acceptable level of certainty regarding the legislative implications of the Sunnah before concluding on what is binding or optional for a believer to abide by, and to be ready to respect diversity where there is reason to doubt the precise legal implications of the Prophet’s words, actions or approvals.

 

 

DISCUSSION QUESTIONS:

  1. Discuss with examples, at least 8 different legislative implications of the Sunnah presented by Ibn Ashur.
  2. Distinguish between the Prophet’s role and intent of legislation (tashri’) and that of issuing religious verdicts (fatwa).
  3. Distinguish between the Prophet’s role and intent of judgeship (qada’) and that of political leadership (Imarah).
  4. Distinguish between the Prophet’s intent on conciliation (sulh) and that of non-instruction (tajarrud an al-irshad).
  5. In what ways are the Prophetic intents on legislation determinants in understanding the meaning and implications (dilalah) of the “Sunnah”?
  6. Discuss the implications of those actions of the Prophet that emanated from his nature as a human being.
  7. How is the legislative implication of the Sunnah or the Prophet’s intent on legislation related to the level of certainty (qati) or speculation (zanni) regarding the meaning (or) implication (dilalah) of the text of a hadith?

[1]  Muhammad al-Tahir Ibn Ashur, Treatise on Maqasid al-Shari’ah, IIIT, London, 2006, p.28-49; See also Jasser Auda, Maqasid al-Shariah as Philosophy of Islamic Law, IIIT, London, 2008, p.233-236. All the hadith cited in this Lesson are taken from these references.

[2]Jasser Auda, Maqasid al-Shariah as Philosophy of Islamic Law, IIIT, London, 2008, p.233-236. Auda lists 11 of the 12 intents discussed by Ibn Ashur. He omitted number 9 above. See Muhammad al-Tahir Ibn Ashur, Treatise on Maqasid al-Shari’ah, IIIT, London, 2006, p. 32-45 for the complete list of 12 intents.

[3] Another category that appears not to have been captured in this classification is that of actions that were distinctly specific to the Prophet himself. These include marrying more than four wives; continuous fasting for consecutive days without breaking (al-wisal); and late night prayer (qiyam al-layl or tahajjud), etc. (See Tafsir Ibn Kathir, commentary on Qur’an 73:2). This category might have been deemed to include so few actions of the Prophet (ﷺ) that it did not warrant having a separate category of its own.

[4] See the books cited in Footnote 1 above for the detailed references of all the hadith in this Lesson.

[5] For this last point, see Muhammad al-Tahir Ibn Ashur, Treatise on Maqasid al-Shari’ah, IIIT, London, 2006, p. 45-46.

Maxims in any field are like the “Ground Rules” or “Rules of Thumb”.  They are accepted by everyone within the field and guide application. Al-Qawa’id al-Fiqhiyyah are the major maxims of Islamic Jurisprudence.

By way of metaphor, Usul al-Fiqh is like the manual that comes with a car, showing how to use it. The Qawa’id al-Fiqhiyyah on the other hand, are like the Road Users’ Guide of rules which the road traffic authority puts together to lay down the rules of driving. The fact that a person has mastered the manual describing how to drive a car and he can drive it very well does not guarantee that he knows the rules of the road unless he studies it. It is the Road Users’ Guide that explains the rules that will help an individual navigate roads without causing harm to others. In other words, to know how to drive without knowing the regulations governing road use can be detrimental. The “driver’s” final destination may be called the Maqasid al-Shari’ah (the Higher Objectives of Shari’ah).

Consequently, to better represent the Prophet (ﷺ), it is necessary to know the Prophet better by referring to those who knew him better (the Sahaba) and who understood how he dealt with various situations. From his Sahaba (or Companions), jurists were able to learn how the Prophet (ﷺ) dealt with issues and, therefore, derived ground rules to enable them represent the Prophet faithfully.

 

 

 

The Core Maxims of Islamic Jurisprudence (al-Qawa’id al-Fiqhiyyah)[1]

The most comprehensive and broadly-based of all maxims are known as “al-qawa‘id al-fiqhiyyah al-asliyyah”, or the normative legal maxims, and they apply to the entire range of Fiqh without any specification. The Schools of Juristic Thought (madhahib) are generally in agreement over them. The early ‘ulama singled out 5 of these to say that they comprise between them the essence of the Shari‘ahas a whole, and other maxims are simply an elaboration of these.

Maxims such as “Harm must be eliminated” (Ad-dararu yuzal) and “ Matters will be judged by their purposes” (Al-umuru bi-maqasidiha) belong to this category of maxims. The other three of the normative legal maxims are: “Certainty is not overruled by doubt” (Al-yaqinu la yazulu bish-shakk), “Hardship begets facility” (Al-mashaqqatu tajlibu at-taysir) and “Custom is the basis of judgement” (Al-‘addatu muhakkamah).

To understand the 5 core maxims is to understand the essence of Islam in five short sentences. They embody the essential spirit of the religion. In the eyes of traditional Muslim scholars, the five core maxims constitute a concise summation of everything Islam represents.[2]

These 5 major maxims are elaborated below:

  1. “Matters will be judged by their purposes” (Al-umuru bi-maqasidiha)

Maqasid is the Arabic word for ‘purposes’ and it refers to intentions as well as objectives and goals such as are pertinent to general activities, institutions, and policies. Al-umur (matters) includes not only personal actions but “general activities, institutions, policies, and the like, which are not based on intentions, but on purposes.”[3]

According to Umar Faruq Abd-Allah,

The maxim “matters will be judged by their purposes” does not signify that good ends justify evil means. According to Islamic law, the means and the ends must both be legitimate. It does emphasize, however, that laudable means are not laudable in and of themselves. They must be consciously directed toward their purposes.”[4]

“Ibn Taymiyya indicates that the scope of this maxim includes the moral responsibility that persons and groups bear for the unintended consequences of potentially detrimental actions when those consequences are predictable and could have been avoided. The Companion Samura ibn Jundub had an obese son, who would not follow his advice to eat in moderation. The Prophet indicated to Samura that if his son did not control his eating habits and died from obesity, his death would be tantamount to suicide.[5]

“The Armistice (or treaty) of Hudaybiyya, which the Prophet concluded with the Meccan idolaters in the sixteenth year of his prophecy, provides a useful illustration of how matters can only be fully evaluated in the context of their purposes and outcomes. The precedent set by this accord contrasts sharply with the human tragedy common to many armed conflicts when resistance and intransigence become ends in themselves and prevail against reason, peace, and the preservation of public welfare.”[6]

“As much as any other operational mechanism, the maxim “matters will be judged by their purposes” constitutes a clear directive that Muslims live Islam with purpose. It sets a standard by which present activities in the Muslim community must be reassessed and future undertakings planned and carried out.”[7]

 

Sources of the maxim:

  • Narrated by ‘Umar ibn Al-Khattab, “Actions are judged by their intentions…”[8]
  • Narrated by Anas, “There are no deeds to those who have no intention.” (Bayhaqi)

Examples of application:

  • Killing a person intentionally or unintentionally
  • Keeping lost property for safe-keeping or for oneself
  • Giving money as charity or as a bribe

Example of a principle based on this maxim:

  • In contracts, liability is decided on the basis of intention and meaning and not on the basis of words and forms.

 

  1. “Certainty is not overruled by doubt” (Al-yaqinu la yazulu bish-shakk)

This maxim means that knowledge based on valid experience and strong evidence must not be overturned by weaker considerations. It embodies the principle in the Qur’anic verse: “And do not follow that of which you have no true knowledge” (Qur’an 17:36).

Permissibility is the natural state and that is certain. This will, therefore, prevail until there is evidence to warrant a departure from that position. This maxim is based on a general reading of the relevant evidence in the Qur’an and Sunnah. From numerous verses of the Qur’an and the hadith, it is understood that people are allowed to utilise the resources of the earth for benefit, and that unless something is specifically declared forbidden, it is presumed to be permissible. A Muslim’s decisions must be guide by evidence and proof, and not by unfounded speculation and superstition.

Ultimately, the maxim “certainty is not overturned by doubt” expresses and “embodies the Islamic conviction that truth, as varied as its paths are, is not a function of arbitrary Will or subjective perceptions and must be discerned through objective criteria.”[9]

One of the most important applications of this maxim is in “the presumption of continuity” (istishāb) – disussed in Lesson 13. “The presumption of continuity holds that things must be presumed at present to remain in their former states until the contrary is proven. Here again, “certainty” does not just apply to categorical knowledge but takes in matters of presumptive authority or strong conjecture. Even though a reasonable opinion may not be conclusive, it must be treated as if it were conclusive until the contrary is demonstratively proven.” Consequently, in its application, the maxim “certainty is not overturned by doubt” requires “that reasonable and well-established convictions be respected and not disregarded unless there is stronger evidence to the contrary.”[10]

According to Umar Faruq Abd-Allah:[11]

“Like many other legal systems, Islamic law upholds the principle that people are innocent until proven guilty. For Muslims, the presumption of innocence is a corollary of “certainty is not overturned by doubt.” More specifically, the presumption of innocence is a version of the presumption of continuity, which falls under the core maxim. The Islamic revelation teaches that human beings were created in a state of natural innocence and basic goodness. Their original condition of innocence makes guilt the exception to the rule. Therefore, people must be presumed to remain at present in their former state of innocence until the contrary is proven. Likewise, the reputations of people must be defended against rumors unless valid evidence proves them true.

 

“Another common application of “certainty is not overturned by doubt” is “the presumption of permissibility.” The presumption of permissibility holds that things must be presumed to be permissible unless the contrary is proven. Ibn Taymiyya asserts that none of the early authorities of Islamic law is known to have questioned the validity of the presumption of permissibility.[12] Another closely related maxim holds that things must be regarded as permissible unless proven harmful. A similar maxim, “the presumption of cleanness,” states that all things will be presumed to be ritually clean (tāhir) unless the contrary is proven.[13] These and related maxims are based on the Islamic belief that the world was created for human stewardship. Thus, the world and all that it contains are generally good, beneficial, and ritually clean. As a natural consequence, permissibility is the rule, and impermissibility, harmfulness, and ritual uncleanness are exceptions.

 

“The presumption of permissibility is crucial for the personal growth and community development of Muslims in the United States. Some Muslims regard Islam as little more than a list of do’s and don’ts, and, generally, the don’ts outnumber the do’s. When Islamic identity is behaviorally defined in this fashion, it fosters a psychology permeated With debilitations, inhibitions, and narrow cognitive frames; prohibition is made Islam’s default position, and the religion is given the appearance of permitting very little and prohibiting everything else.

 

“The presumption of permissibility emphasizes that the reverse is true; Islam’s real default position is one of general permissibility with an affirmative attitude toward the world. The basic rule of general permissibility does not mean that the clear prohibitions of Islamic law are discarded. In fact, it lays stress on the fact that prohibitions in Islam are grave matters and must not to be taken lightly. Because prohibitions are grave matters, they demand cogent proof based on sound knowledge, not on hearsay, misgivings, or inhibitions. Ibn Taymiyya adds in his discussion of the presumption of permissibility that it is reprehensible for a Muslim to be preoccupied with the minutiae of what may or may not be forbidden or to be obsessed with constantly asking about them.[14]

Sources of the maxim:

  • “Most of them only follow conjecture (zann), and surely, conjecture can be no substitute for the truth…” (Qur’an 10: 36)
  • “He it is Who has created all that is in the earth for your benefit.” (Qur’an 2:29)
  • “Are you not aware that God has made subservient to you all that is in the heavens and all that is on earth, and He has lavished upon you His blessings, both outward and inward?” (Qur’an 31:20)
  • “And We said, “O Adam, dwell together with your wife in this garden, and eat freely thereof, both of you, whatever you may wish; but do not approach this one tree lest you become wrongdoers.” (Qur’an 2:35)
  • “God the Almighty has laid down religious duties, so do not neglect them; He has set boundaries, so do not overstep them; He has prohibited some things, so do not violate them; and about some things He was silent – out of compassion for you, not forgetfulness – so seek not after them.” (Daraqutni, Tirmidhi, Ibn Maja and Hakim)
  • “If any of you feels anything in his or her stomach, and he is confused of whether anything has come out of it or not, he should not go out of the mosque unless he hears any sound or gets any smell.” (Sahih Muslim)
  • See also Qur’an 16:88; 5:101-102; 5:3

Examples of applications:

  • Ablution is not broken on the basis of doubt but on certainty – sound, smell, etc.
  • People are innocent until proven guilty
  • People are free of responsibility unless proven otherwise
  • A guardian is responsible for his ward unless proven otherwise
  • Foods and drinks and other substances are all pure and permissible to use until proven prohibited

Principles based on this maxim:

  • “The norm in regard to things is that of permissibility” (Al-aslu fil-ashyaa’ al-Ibahah).
  • “The norm (of Shari‘ah) is that of non-liability” (Al-aslu baraa’ah adh-dhimmah).
  • “The norm is that the status quo remains as it was before” (Al-aslu baqaa’u ma kaana ‘ala ma kaana) …unless it is proven to have changed.

 

  1. “Harm must be removed” (Ad-dararu yuzal)

The purpose (maqasid) and essence of Islam is to secure benefits (maslahah) and ward off detriments and harm (darar or mafsadah). By only mentioning harm and not benefit, the wording of this maxim emphasises the priority of removing harm, as the imperative to ward off detriments takes priority over the acquisition of benefits when the two are mutually incompatible. The concept of benefit is therefore implicitly understood in this maxim. Omission of the word “benefit” not only emphasizes the importance of warding off harm, it implies that the acquisition of real and lasting benefits is not possible until harms are removed first.[15]

This purpose-oriented and priority-setting maxim “harm must be removed” obliges Muslims, in the name of their religion, to identify harms and remove them. It leaves Muslims no justification for ignoring or tolerating harm and injustice in their midst whether done to humans, animals or the environment. By emphasizing the necessity of removing harm, the maxim grants priority to the victims of harm, injustice, and oppression. The right of victims is always legitimate, and the harm that afflicts them must be redressed. In the Prophetic law, all that is harmful, from harm’s greatest to its least manifestations, is unacceptable and must be removed.[16]

Many rulings that are based on the “safety-net” tools (maslahah, istihsan and sadd al-dhari’ah) are also manifestations of the application of this maxim.[17]

 

 

 

Sources of the maxim:

  • “Do not hold your Wives in bondage, seeking to harm them; that would be transgression” (Qur’an 2:231).
  • “No woman bearing a child shall be caused harm because of her child, nor shall any father to whom a child is born be caused harm because of his child.” (Qur’an, 1:233).
  • And make not your own hands contribute to (your) destruction.” (Qur’an 2:195)
  • Harm should not be inflicted nor reciprocated.” (Ibn Majah, Malik, Al-Hakim, Al-Bayhaqi and Al-Daraqutni)
  • “Harm will not be removed by a similar harm.” And the Prophet taught: “Fulfill the trusts that you have been given; do not deceive a person who has deceived you.” [18]

Examples of applications:

  • Prohibition of a victim taking law into her own hands to avoid misappropriation of justice or vendetta.
  • Penalties for any rules or laws that protect from harm, such as breaking traffic rules, causing suffering to animals, environmental laws, etc.
  • Removing the great harm caused by the difficulty many young people face in finding suitable spouses. So also the harms of dysfunctional marriages and domestic abuse.
  • It harms the community when solutions are not found for disadvantaged people who have no access to good education, cannot find adequate employment, or whose communities lack viable economic infrastructures.
  • Removing the harms caused by varioius forms of religious extremism, and also helping avert the potential harms that arise from dehumanization and misinformation. This also extends to various forms of social phobia, including racism, islamophobia, etc.

 

Principles based on this maxim:

  • “Harm must be eliminated but not by means of another harm” (Ad-dararuyuzaluwalakin la bi-darar)
  • “Harm is not eliminated by another (similar) harm” (Ad-dararu la yuzalu bid-darar).
  • “A specific harm is tolerated in order to prevent a more general one” (Yutahammal ad-darar al-khaas li-daf’al-darar al ‘aam). Also, “To repel a public damage, a private damage is preferred”.
  • “Harm is eliminated to the extent that is possible” (Ad-dararuyudfa‘u bi-qadr al-imkaan)
  • “A greater harm is eliminated by means of a lesser harm” (Yuzal ad-darar al-ashaddu bid-darar al-akhaff). Also, “When forced to choose between evil alternatives, the lesser evil must be sought”.
  • “Prevention of evil takes priority over the attraction of benefit” (Dar’ al-mafasidawla min jalb al-masalih).
  • “Necessity makes the unlawful lawful” (Ad-daruratu tubih al-mahzuraat).
  • “Necessity is measured in accordance with its true proportions” (Ad-daruratu tuqaddaru bi-qadriha).

 

  1. “Hardship begets facility” (Al-mashaqqah tajlib al-taysir)

To understand and appreciate this maxim, it is necessary to know that the word “hardship” used in it is not the same as “difficulty.” Unlike hardship, difficulty is not necessarily bad. Success in life usually does not come without difficulty and hard work – “no pain, no gain!”. Moral responsibility (taklif), which is the basis of Islamic religious obligation, literally means in Arabic “imposition of a heavy burden” due to the fact that acts of worship and other religious duties require some degree of difficulty.[19]

 

Hardship, as referred to in this maxim, excludes beneficial difficulty like that required for meeting obligations, training, study, work, and worship. Islam places high value on purposeful exertion but requires the alleviation of detrimental difficulty or hardship. The preceding maxim, “harm must be removed,” emphasizes elimination; harm must be eliminated, not necessarily replaced with something else. The focus of this maxim is different; hardship must not just be eliminated; it must be replaced with something better. “Hardship must be alleviated” often requires the creation alternatives, because alternatives are the means by which alleviation takes place. Taken together, both maxims testify to Islam’s commitment to reasonable norms that are free of harm and filled with as much benefit as possible. [20]

 

Also, while it may sometimes be difficult or even impossible to remove or eliminate certain forms of harm and hardship, it may still be possible to alleviate the effect of hardship and facilitate some degree of relief or ease (taysir) through concessions and allowances (rukhas) to lighten hardship. This maxim “hardship must be alleviated” also sets a critically important standard for new or lapsed Muslims; only the most basic obligations should be expected of them, and the transition should be gradual and undemanding.[21]

Unfortunately for some Muslims, Islam does not seem authentic if it is not hard. Occasionally, they adopt unnecessarily rigorous positions that push their psyches to the breaking point. Yet the Prophet made it clear that Islam is a religion of ease and that suffering for the sake of suffering is not laudable and does not please God.[22]

 

Sources of the maxim:

  • God intends for you ease and He does not intend to put you in hardship.” (Qur’an 2:185)
  • God does not intend to inflict hardship on you.” (Qur’an 5:6)
  • “He did not make any difficulty for you regarding the religion (of Islam).” (Qur’an 22:78)
  • “Allah does not give anyone (legal) responsibility for anything except what is within his capacity.” (Qur’an 2:286)
  • Hadith: “You have not been sent as those who have been given hardship. Rather, you have been sent as those who have been given ease or facility.” (Sahih al-Bukhari and Muslim)
  • Hadith: “Certainly, the best part of your religious practice is what is easiest for you.” The Prophet(p) is also reparted as having said: “If I command you to do something, do of it what you are capable of doing.”[23]
  • Hadith: “Surely Allah introduced the din as ease, full of kindness, and wide. He did not make it narrow.” (Tabarani)
  • A’isha said: “Whenever the Messenger of Allah was given a choice between two things, he chose the easier one unless it was a sin.” (Sahih al-Bukhari and Muslim)
  • Additional evidences cited for this maxim or principle come from the concept of Rukhsah or concession, such as shortening and combining prayers when travelling, payment of expiation (kaffarah) for fasting missed due to age or illness, etc.

Examples of applications:

  • Taking essential medicine even if it contains alcohol or pig gelatin.
  • Traditional methods of determining prayer times are no longer easy in some societies; in some cases, they have even become impossible. To alleviate this hardship, most Muslims today rely on prayer timetables.
  • When flying, it is widely regarded as permissible to pray in one’s seat by making minimal gestures indicative of prayer and without needing to face toward Mecca.
  • Given the length of urban commutes in some large cities, some scholars allow commuters to combine prayers, although the distances they drive may fall short of the definition of travel in Islamic law.
  • Suspending certain prescribed (hadd) punishments due to economic hardships, and finding excuses to avoid the severe “fixed” (hadd) punishments, as advised by the Prophet(p).
  • Taking easier or more facilitating opinions from other Schools of Juristic Thought and scholars if they were more in line with the objectives (Maqasid) of Shari’ah in a particular situation.

Principles based on this maxim:

  • “Necessity renders prohibited things permissible”
  • “Latitude should be afforded in the case of difficulty”

(The gravity of the necessity or difficulty will determine the degree and conditions for facilitation. Note that other maxims are used to restrict the use or abuse of these maxims.)[24]

 

  1. “Custom is a basis of law” (Al-‘adah muhakkamah) [25]

“The Prophet’s attitude toward the cultural norms of the Arab tribes and other ethnic groups constitutes a major precedent and a basic standard in Islamic law. Because the Prophet gave broad endorsement to diverse cultural conventions and did not alter them except when necessary, Abū Yusuf, the principal student of Imam Abū Hanifa, regarded Islam’s openness toward other cultures as the Prophet’s Sunna. Abu Yusuf’s position contrasts sharply with certain Muslims today who regard the Sunna (narrowly defined as certain details of dress and personal behavior) as a substitute for culture.[26]

The Prophet set the precedent of affirming cultural differences and made it clear that, for non-Arabs, entering Islam did not require them to give up their own cultural norms for those of the Arabs.[27] 

This maxim, “custom has the weight of law” cannot however be invoked to repeal or overlook what is clearly obligatory (fard/wajib) or prohibited (haram) from the texts of Qur’an or Sunnah, and the Shari’ah categorically repudiates harmful, immoral and degenerate customary practices that contradict its goodly purposes (maqasid).[28]

 

The word “custom” (‘āda) as used in the maxim “custom has the weight of law” therefore refers to acceptable cultural norms. Jurists define their usage of the word “custom” as “matters that are firmly established in practice and frequently repeated in people’s lives and acceptable to sound natures (al-tibā‘ al-salīma).” Reference to “sound natures” is linked to the Islamic belief that human beings are created with sound natures; humans are intrinsically good and endowed with basic intuitive knowledge of God, good and evil, benefit and harm. In a normative state, human beings adopt cultural norms suitable for themselves and the particular circumstances, times, and places in which they live. Thus, the basic purpose of cultural conventions is to obtain benefits and ward off harms to the furthest extent possible in widely divergent contexts. From the perspective of Islamic law, the nature of indigenous cultures and subcultures is fundamentally linked to the wellbeing of the social groups that have adopted them. For this reason, Muslim jurists regard Islam’s endorsement of diverse cultural norms as an instance of its overriding commitment to acquiring benefits and protecting from harms.[29]

 

Islamic legal theory (Usul al-Fiqh) regards sound cultural norms as constituting an independent and authoritative source of Islamic law.[30] The noted Hanafi jurist al-Sarakhsi stated: “Whatever is established by good custom is equally well established by sound legal proof.” Al-Tusūlī, a prominent Maliki judge and legal scholar, wrote: “It is obligatory to let people follow their customs, usages, and general aspirations in life. To hand down rulings in opposition to them is gross deviation and tyranny.”[31]     

 

Changing customary conventions unnecessarily is detrimental, because of the strong connection between customs and societal needs. When unhealthy customs must be altered or repealed, the process requires wise strategies and must be given time. Here again, the Prophet’s example sets the precedent; he brought his Companions into full compliance with Islamic norms gradually through a process that lasted more than two decades.[32]

 

Some Muslims challenge the validity of indigenous customs by citing the Hadith mentioned earlier: “Whoever imitates (tashabbaha) a people belongs to them.” As noted, the Hadith condemns the servile imitation of others; it does not condemn healthy cultural interaction or the mere act of resembling (tashābaha) other people. The value of such interaction is especially clear when it is done for laudable reasons like living with others harmoniously and building bridges of understanding and cooperation. Furthermore, it is indisputable in the light of a body of authentic Hadith that the Prophet himself often wore various types of non-Muslim clothing that were given to him as gifts from Byzantium, Yemen, and other distant regions.[33]

 

The presumption of permissibility drived from the 2nd maxim above also applies to indigenous customs; customs too must be presumed acceptable until proven otherwise. A relevant maxim states: “Permissibility is the basic rule in customs” (al-asl fi al-‘ādāt al-ibāha). As before, the burden of proof that a particular customary convention is impermissible falls exclusively on those who repudiate it, not on those who affirm it. Nevertheless, in borderline cases, the law prefers to err on the side of lenience. The applicable maxim in this regard states: “The basic rule in customs is exemption” (al-asl fi al-‘ādāt al-‘afw), meaning that they are exempt from blame.[34]

The maxim “custom has the weight of law” affirms that Islam is not culturally predatory, and it teaches Muslims to look upon all cultural heritages with an open mind, especially those where they live and to which they belong.[35]

 

Sources of the maxim:

  • The opinion of the companion, Abdullah ibn Mas‘ud, who said, “What the Muslim community agrees upon to be good is good in the eyes of God”.
  • “Keep forgiveness, enjoin ‘Urf and turn away from the ignorant” (Qur’an 7:199). Many scholars of the Qur’an (Mufassirun) suggest that the meaning of ‘Urf in this verse is synonymous to Ma’ruf which means anything that is good. Therefore the custom of a people shall be considered in making legal judgements.[36]
  • Hadith reported by A’isha, in which Hind the wife of Abu Sufyan complained to the Prophet that her husband was miserly and did not give adequate maintenance for her and her children, and the Prophet (ﷺ) said; “Take from his property what is customary (ma’ruf) which may suffice you and your children”. Some commentators of the Sunnah suggested that this hadith indicates the important role of custom, and that it should be relied upon in matters where the Shari’ah did not give exact details.[37]

Examples of applications:

  • Customary greetings and insults are regarded as so in Shari’ah
  • Local financial instruments and currencies are recognized.
  • The meanings of cultural idiomatic expressions are recognized over their literal meanings (e.g. “He wanted to kill two birds with one stone” is understood to mean that the subject did not actually kill two birds with a stone.)
  • Professional jargon is recognized.

Principles based on this maxim:

  • “What is determined by custom is tantamount to a contractual stipulation” (Al-ma‘rufu ‘urfankal-mashrutushartan)
  • “In the presence of custom, no regard is given to the literal meaning of things”
  • “A matter recognized by merchants is regarded as being a contractual obligation between them”
  • “A matter established by custom is like a matter established by law”
  • “It cannot be denied that with a change of time, the requirement of the law changes”

 

 

 

 

DISCUSSION QUESTIONS:

  1. What is the difference between Usul al-Fiqh and Qawa’id Fiqhiyyah?
  2. Use some metaphor to distinguish Usul al-Fiqh from Qawa’id Fiqhiyyah.
  3. Why are the Qawa’id al-Fiqhiyyah important in Ijtihad?
  4. List the 5 major legal maxims of Islamic jurisprudence.
  5. What evidence from the Qur’an and/or Sunnah is there for the establishment or justification of
  6. Maxim 1:
  7. Maxim 2:
  8. Maxim 3
  9. Maxim 4:
  10. Maxim 5:
  11. Give at least 2 examples of cases where each maxim is applicable.
  12. List other maxims or principles that are based on each of the 5 major maxims.
  13. Maxim 1
  14. Maxim 2
  15. Maxim 3
  16. Maxim 4
  17. Maxim 5

[1] Mohammad Hashim Kamali, Qawa’id Al-Fiqh: The Legal Maxims of Islamic Law, The Association Of Muslim Lawyers, U.K., 1998; Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, The Islamic Text Society, Cambridge, 2003, p. 369-382; Mohammad Akram Laldin, Introduction to Shari’ah and Islamic Jurisprudence, 2nd ed. CERT, Kuala Lumpur, 2008, p.150-153. Umar Faruq Abd-Allah, Living Islam with Purpose, Nawawi Foundation, 2007,  p.22-36

[2] Umar Faruq Abd-Allah, Living Islam with Purpose, Nawawi Foundation, 2007,  p.3

[3] Umar Faruq Abd-Allah, Living Islam with Purpose, Nawawi Foundation, 2007,  p.23-25

[4] Umar Faruq Abd-Allah, Living Islam with Purpose, Nawawi Foundation, 2007, p.24

[5] Ibn Taymiyya, Al-Qawā‘ id al-Fiqhiyya, I22, cited in Umar Faruq Abd-Allah, Living Islam with Purpose, Nawawi Foundation, 2007, p.24

[6] Umar Faruq Abd-Allah, Living Islam with Purpose, Nawawi Foundation, 2007, p.25

[7] Umar Faruq Abd-Allah, Living Islam with Purpose, Nawawi Foundation, 2007, p.25

[8] Sahih al-Bukhari, n. 1; Sunan Abu Dawud, no. 2203; al-Mu’jam al awsat, no.40,  al-Sunan al-Sugra, no, 2

[9] Umar Faruq Abd-Allah, Living Islam with Purpose, Nawawi Foundation, 2007, p.26

[10] Umar Faruq Abd-Allah, Living Islam with Purpose, Nawawi Foundation, 2007, p.26

[11] Umar Faruq Abd-Allah, Living Islam with Purpose, Nawawi Foundation, 2007, p.26-27

[12] Ibn Taymiyya, Al-Qawā‘id al-Fiqhiyya, 217. Cited in Umar Faruq Abd-Allah, Living Islam with Purpose, Nawawi Foundation, 2007, p.51.

[13] See al-Nadawi, Al-Qawā‘id wa al-Dawābit, 60. Cited in Umar Faruq Abd-Allah, Living Islam with Purpose, Nawawi Foundation, 2007, p.51.

[14] Ibn Taymiyya, Al-Qawā‘id al-Fiqhiyya, 206, 211-18. Cited in Umar Faruq Abd-Allah, Living Islam with Purpose, Nawawi Foundation, 2007, p.51.

[15] Umar Faruq Abd-Allah, Living Islam with Purpose, Nawawi Foundation, 2007, p.29

[16] Umar Faruq Abd-Allah, Living Islam with Purpose, Nawawi Foundation, 2007, p.29

[17] See Lesson 19 for discussion on the “Safety-net Tools”.

[18] Cited in Umar Faruq Abd-Allah, Living Islam with Purpose, Nawawi Foundation, 2007, p.29

[19] Umar Faruq Abd-Allah, Living Islam with Purpose, Nawawi Foundation, 2007, p.30

[20] Umar Faruq Abd-Allah, Living Islam with Purpose, Nawawi Foundation, 2007, p.30

[21] Umar Faruq Abd-Allah, Living Islam with Purpose, Nawawi Foundation, 2007, p.32

[22] Umar Faruq Abd-Allah, Living Islam with Purpose, Nawawi Foundation, 2007, p.30

[23] Cited in Umar Faruq Abd-Allah, Living Islam with Purpose, Nawawi Foundation, 2007, p.30

[24] Mohammad Akram Laldin, Introduction to Shari’ah and Islamic Jurisprudence, CERT, Kuala Lumpur, 2nd ed., 2008, p.144

[25] Also rendered by some as “Custom shall have the power of law”, or “custom is made the arbiter”. See, Umar F. Abd-Allah Waymann-Langraf, Malik and Medina: Islamic Legal Reasoning in the Formative Period, Brill, Leiden, The Netherlands, 2013, p.139.

[26] Umar Faruq Abd-Allah, Living Islam with Purpose, Nawawi Foundation, 2007, p.32

[27] Umar Faruq Abd-Allah, Islam and the Cultural Imperative, A Nawawi Foundation Paper, 2004, p.5.      

[28] Umar Faruq Abd-Allah, Living Islam with Purpose, Nawawi Foundation, 2007, p.34

[29] Umar Faruq Abd-Allah, Living Islam with Purpose, Nawawi Foundation, 2007, p.33

[30] See Lesson 12 on ‘Urf and ‘Aadat.

[31] Umar Faruq Abd-Allah, Islam and the Cultural Imperative, A Nawawi Foundation Paper, 2004.

[32] Umar Faruq Abd-Allah, Living Islam with Purpose, Nawawi Foundation, 2007, p.33

[33] Umar Faruq Abd-Allah, Living Islam with Purpose, Nawawi Foundation, 2007, p.33

[34] Ibn Taymiyya, Al-Qawā’id al-Fiqhiyya, 226-28, cited in Umar Faruq Abd-Allah, Living Islam with Purpose, Nawawi Foundation, 2007, p.34

[35] Umar Faruq Abd-Allah, Living Islam with Purpose, Nawawi Foundation, 2007, p.32

[36] Mohammad Akram Laldin, Introduction to Shari’ah and Islamic Jurisprudence, 2nd ed. CERT, Kuala Lumpur, 2008, p.151.

[37] Mohammad Akram Laldin, Introduction to Shari’ah and Islamic Jurisprudence, 2nd ed. CERT, Kuala Lumpur, 2008, p.151., p.152, citing other authorities.

For the purpose of this course, and so as to be explicitly clear regarding evidence for legal liability (Haram and Fard /Wajib), the most relevant maxim is: “Certainty is not overruled by doubt” and its application in ascertaining whether something in permissible or not from the text.

In most questions regarding what is permissible (halal) or prohibited (haram), the first and probably the most relevant sub-maxim or principle is: “The norm with regard to things is that of permissibility” (Al-asl fi al-ashyaa’ al-Ibahah).[1]

 

What this principle ensures is that certainty and not doubt is used to determine the position for attributing sin (ithm) to the commission or omission  of haram or fard /wajib actions respectively. It guides the jurist towards clarity regarding whether the matter under consideration is authentically discussed in clear terms in the text of the Qur’an or Sunnah, or not. This maxim enables the scholar to know whether there is a clear basis for speaking in the name of God or His Prophet (ﷺ), or whether there is the need to resort to other rationalistic and more speculative evidence. If there is silence in the text then it becomes difficult for the scholar to confidently speak with divine authority. They may have to resort to the original premise of permissibility of all things (in the absence of a clear prohibition), or if they feel there is a need, to resort to the various tools of ijtihad as used by the School of juristic Thought or Mujtahid.

As discussed earlier, this maxim is based on various verses of the Qur’an and Hadith, including: “(He)has created all that is in the earth for your benefit” (Qur’an 2:29)[2], and also the hadith that states: “Whatever God has made halal is halal and whatever He has rendered as haram is haram, and all that over which He has remained silent is forgiven”. (Ibn Majah)

There appears to be a general consensus (ijma’) among scholars and their Schools of Juristic Thought (with some apparently slight modifications from some in the Hanafi School[3]) that this maxim or principle of general permissibility essentially applies to all non-ritual worldly social transactions, and mundane issues (mu’amalat) or customary practices (adaat).[4]

This maxim is stated or rephrased below in a number of ways so as make clearer its meaning and implications:

  • Everything is halal except what is haram” from a clear and explicit text (nass qat’i thubut) of the Qur’an and authentic Sunnah.[5]
  • Whatever is not haram is in fact halal.[6]

 

  • Halal is the default verdict for everything, in social transactions or mu’amalat [7]
  • The assumed verdict (fatwa) for everything is that it is halal, in the absence of clear textual evidence to the contrary.
  • HARAM (i.e. what is sinful if committed) AND/OR FARD /WAJIB (i.e. what is sinful if omitted) REQUIRES TEXTUAL EVIDENCE! Silence in the text does not automatically imply a prohibition.
  • Halal (mubah or ja’iz) – permissibility – DOES NOT REQUIRE TEXTUAL EVIDENCE!
  • The silence or ambiguity in the text, then, is the sphere of ijtihad, “which permits fiqh, within the social affairs (mu’amalat) to be in constant development, evolution and formulation”.[8]
  • Silence in the text therefore means:
    1. A thing is halal (mubah) by default,[9]
    2. Opportunity for ijtihad (deductive reasoning by mujtahid)[10] especially if there is a valid concern that any of the objectives (maqasid) of Shari’ah would be threatened by the silence on it.

IN SUMMARY:

  • In Mu’amalat, Whatever is not haram is in fact halal !!!
  • Silence in the text means halal, or an opportunity for ijtihad (deductive reasoning by mujtahid)
  • The burden of proof that a particular mundane custom (‘Urf) or social transaction (mu’amalat) is impermissible falls exclusively on those who reject or repudiate it, not on those who affirm it. Nevertheless, in borderline cases, the law prefers to err on the side of lenience and compassion.[11]

 

DISCUSSION QUESTIONS:

  1. What is the textual evidence or justification for the maxim: “the premise of things is permissibility”?
  2. Explain what you understand by the maxim: “the premise of all things is permissibility”?
  3. What are the implications of silence in the text of the Qur’an and Sunnah on any issue related to social transactions (mu’amalat)?

[1] Kamali, Mohammad Akram Laldin, Introduction to Shari’ah and Islamic Jurisprudence, 2nd ed. CERT, Kuala Lumpur, 2008, Tariq Ramadan, To Be a European Muslim, The Islamic Foundation, Leicester,  1999, Yusuf al-Qaradawi,  The Lawful and the Prohibited in Islam, IIFSO, Salimiah, 1992, p. 14-18; Mohammad Hashim Kamali, Qawa’id Fiqh, The Legal Maxims of Islamic Jurisprudence. p.2; Abu Sulayman, ‘Abd al-Wahhab, “An-Nazariyyah wal-Qawa‘id fi al-Fiqh al-Islami” in Majallah Jamai‘ah al-Malik ‘Abdal-‘Aziz, No.2, May 1978, p.53; Shihab ad-Din al-Qarafi, Kitab al-Furuq, Matha’ah Dar Ihya al-Kutub al-‘Arabiyyah, Cairo, vol. IV, p.40; see also ‘Jamal al Din Atiyyah, Al-Tanzir al-Fiqhi, p. 208; Abdurahman bn Abu Bakr al-Suyuti, Al-ashbah wa al-Nazair, vol.1, p.107; Badruddeen Muhammad bin Abdullahi Al-Zarkashi, Al-Bahr Al-Muheet Fi Usul Al-Fiqh, Dar al-Kutub al-‘Ilmiyyah, Beirut, 1421 AH, vol.1, p.126; Ibrahim bn Ali bin Yusuf al-Shirazi, Dar al-Fikr, Damascus, 1403AH, vol.1, p.535; Muhammad Amir, Taysir Al-tahrir, Dar Nashr, vol.2, p.247; Abdullah bin Yusuf al-Juda’i, Taysir ‘Ilm Usul al Fiqh, p.34, 69, 71 and 72; Abdullah al-Fauzan, Khulasah al-Usul, p.7; al-Zarqa, Sharh al-Qawa’id al-Fiqhiyyah, p.299; Muhammad bin Hassan al-Dadaw, Sharh alwaraqaat, p.76; Abdulkareem al-khudair, Sharh Matn al Waraqaat, p.410;  Abdulwahab Khallaf, ‘Ilm Usul al-Fiqh, Maktabah al-Da’wah, p.91;  Muhammad Amin Ihsan Almujadidi Albarkati, Qawa’id al-Fiqh, Dar al-Nashr, p.14; Zakariyya bin Gulam Qadir Albakistani, Usul al-Fiqh ‘Ala Manhaj Ahl al-Hadith, Dar al-Kharraz, 1423 AH., p.116; Mashur bin Hasan Al-Salman, Al-Tahqiqat wa al-Tanqihat al-Salafiyyah ‘ala Matn al-Waraqaat, Dar Imam al-Malik, U.A.E, 1426AH, p.584-589.

[2] Other verses include, Qur’an 7:30; 6:146; 6:152; 7:31, etc.

[3] The principle is accepted by the Hanafis as long as the mu’amalat is wholesome, of benefit or not harmful in light of (Qur’an 2:28).  See more on this in Imran Khan Nyazee, Theories of Islamic Law, International Institute of Islamic Thought, Islamabad, 1994. See also Ahmad Abdelaziz Yacoub, The Fiqh of Medicine, Ta-Ha Publishers, London, U.K., 2001, p.314-318, and especially p.316, where he quotes Al-Hidaya, a classical Hanafi text which states that “permission is the rule”.

[4] Most of the common exceptions to this principle which are raised by some scholars when applied to “meats” (luhum) and “sexual relations” (abda’), etc. are a subject of disagreement among the scholars and appear to be mostly semantic and of no major practical consequence in their final outcome. And Allah knows best! The more significant difference among scholars in the application of this principle of general permissibility is on the exception of devotional worship (ibadat) as discussed in Lesson 32.

[5] Ibn Muflih, (quoting Ibn Taimiyyah), Al-Adab al-Shar’iyyah wa al-Minah al-Mar’iyyah, Beirut, 1419 AH, vol.1, p.137.

[6] Tariq Ramadan, To Be a European Muslim, The Islamic Foundation, Leicester,  1999, p.64;  Zakariyya bin Ghulam Qadir Al-Pakistani,  Usul al-Fiqh ala Manhaj ahl al-Hadith, p.116.

[7] Ibn Taimiyyah, Al-Qawa’id al-Nuraniyyah al-Fiqhiyyah, p.112-113, cited in Yusuf al-Qaradawi, The Lawful and the Prohibited in Islam, Al-Birr Foundation, London, 2003 p.5-6; see also What is Islamic Culture?, the Da’wah Institute of Nigeria, Islamic Education Trust, Minna, 2009, p. 4-5.

[8] Tariq Ramadan, To Be a European Muslim, The Islamic Foundation, Leicester,  1999, p.75

[9] Ibn Taimiyyah, Majmu’ al-Fatawa, Medina, 1416 AH, vol.21, p.538

[10] Tariq Ramadan, To Be a European Muslim, The Islamic Foundation, Leicester,  1999, p.75

[11] Ibn Taymiyya, Al-Qawā’id al-Fiqhiyya, 226-28, cited in Umar Faruq Abd-Allah, Living Islam with Purpose, Nawawi Foundation, 2007, p.34

Possible Exception to the Rule of General Permissibility: The case of acts of devotional or ritual worship (ibadat)

As mentioned earlier, almost all scholars apply the Principle of General Permissibility (“the premise for things is permissibility” – i.e., “everything is permissible except what is prohibited”) as a rule to all issues under the category of mu’amalat. Depending on the analysis of evidence or proofs (adillah) these new practices and innovations in mu’amalat (and adat) could be classified or judged according to any of the 5 (or 7) standard ethical rulings or value-judgements (ahkam) of Shari’ah – fard, (wajib), mustahab, mubah, makruh, (makruh tahrimi), and haram – as discussed earlier in this material.

Regarding the application of this principle of permissibility (and hence of innovation – bid’ah) to the sphere of ibadah or deen[1], there appear to be 2 major opinions or perspectives, with some diversity, nuances and qualifications within each of these major perspectives.[2]

 

Opinion 1: Deen as an Exception to the Rule of Permissibility

Many scholars[3] from the various schools of juristic thought apply the principle of general permissibility to only mu’amalat and adat, and not to “religion” (deen) – ritual acts or devotional worship (ibadat) and creed (aqidah). This opinion holds that in issues of deen or ibadah the exact opposite of the maxim or principle of permissibility applies: “Everything is haram except what is halal (from the clear explicit text of the Qur’an or authentic Sunnah).”[4]

According to Ibn Taimiyyah: “People’s sayings and actions are of two kinds: acts of worship (ibadat) by which their religion is established, and customary practices (adat) which are required for day-to-day living. From the Principles of the Shari’ah, we know that acts of worship (ibadat) are those acts which have been prescribed by Allah or approved by Him; nothing is to be affirmed here except through the Shari’ah. However, as far as the worldly activities of people are concerned, they are necessary for everyday life.  Here the principle is freedom of action; nothing may be restricted in this regard except what Allah has restricted…”[5] Elsewhere he says, “The principle regarding ibadat is that there is no legislating for it except that which God legislated, and the principle regarding adat is that there is no prohibiting it except that which God prohibited.”[6] Al-Shatibi defines bid’ah as “a way of innovation in religion that resembles the way of the Shari’ah and which is intended to be followed…”.[7] He says, “If this way of innovation belongs to dunya exclusively, it would not be a bid’ah”.[8]

 

In the view of those who hold this opinion, the Principle of Permissibility and hence of beneficial innovations and creativity, applies only to worldly (dunya) – mundane issues (mu’amalat) or customary practices (adat). It does not apply to “religion” or “devotional worship” (deen) – i.e., ibadat and/or aqidah.

Silence in the text of the Qur’an or Sunnah (or in practice of the Companions) related to ibadat or deen does not automatically imply permissibility or the possibility of ijtihad – it implies a prohibition. In other words, the absence of precedent in the practice of the Salaf is equivalent to a prohibition. The application of the principle of general permissibility to deen only creates a blameworthy or heretical innovation – bid’ah.[9]

The technical definition of bid’ah, from the perspective of those who hold the opinion under consideration here, is a term that is not applied to innovations in mu’amalat.[10] It applies only to deenibadah or aqidah, and is never good irrespective of the motive.[11] This approach regards the idea of “good bid’ah” as a contradiction in terms. Acceptable innovations and creativity in mu’amalat and adat (or dunya matters) are usually regarded to as being part of “public interest” and “common good” (maslaha), or “juristic interest/discretion” (istihsan).

Holders of this view would therefore object to any form of collective dhikr after prayers (salat) if done as an act of ibadah since it was not done in the Sunnah. If the same action is done purely for the sake of teaching children or educating people on how to recite various forms of dhikr or du’a, as taught by the Sunnah, then it would be permissible, because teaching is mu’amalat and not ibadah. Similarly, fasting for a whole month outside Ramadan or for a whole week  would be deemed objectionable as there is no text showing that the Prophet or his Companions did such an ibadah. The same position would be held regarding performing any form of special prayers for the dead a fixed number of days after the person’s demise, and celebrating the Prophet’s birthday (Mawlid al-Nabi), especially if viewed as a devotional act or similar to one.

While some of these scholars may not object to a person performing some devotional acts if they so please on an ad hoc basis, the moment these acts are given a regular or fixed time, place, number, unique manner of performance or wording, they would be regarded as bid’ah, even if (in the view of some scholars) they appear to be mu’amalat. The very fact that they are “ritualized” turns them into acts similar to ibadat and are thus treated as such.

In fact, according to Ibn Taimiyyah, “Shirk enters into every devotional act (ibadah) that God does not permit.”[12]

From this perspective, all acts of ibadah should be left alone as they were by the Prophet (ﷺ) and his Rightly-guided Successors, without “excess baggage”. It hold that what the Prophet (ﷺ) left behind should be sufficient for all sincere believers; the deen is perfect and complete! Any addition to ibadah is superfluous and unnecessary even if it may be rationally justifiable. Opening the door to new “good bid’ah” is opening the door that leads to uncertainty, confusion, and unnecessary disagreement – where the harm to Islam and the Ummah is greater than any potential benefits. It is (in this view) better to shut the door on “good innovations” or creativity in ibadah so as not to blur the line between guidance and misguidance in ibadat.

The central problem with bid’ah from this paradigm appears to be that it represents a misguided attempt to gain closeness to Allah by means that Allah did not legislate.[13]

To these scholars, every innovation IN IBADAT or AQIDAH is misguidance![14]

 

 

Opinion 2: Deen not an Exception to the Rule of Permissibility

Some other scholars[15] make no distinction in the application of the principle of permissibility (and hence of innovativeness) to both ibadat and mu’amalat, so long as the contents and purpose is virtuous. Depending on the analysis of evidence or proofs (adillah), both ibadah and mu’amalat would be classified or judged according to the criteria of the 5 ethical rulings or value-judgements (ahkam) of Shari’ah.[16]

Acts of devotion (ibadah) not done by the Prophet or his companions, such as those mentioned above, which the group who hold the first opinion would regard as unacceptable bid’ah are regarded as “good bid’ah” (bida’ hasanah) by this second group, if these acts do not contravene the Qur’an and Sunnah, and if the motives are virtuous.

A common evidence used to justify the idea that an innovation (bid’ah) could be applied to an acceptable act of worship (i.e. a “good bid’ah” in ibadah) is the fact that during his Caliphate, Umar bin Al-Khattab institutionalized the performance of regular congregational tarawih prayers in Ramadan, after which he remarked, “What an excellent bid’ah this is!”,[17] in spite of it being an act of ibadah. This statement of Umar has been interpreted differently by various scholars. Some view Umar as having used the word bid’ah in its purely lexical or linguists and not technical sense, and regard Umar’s practice as part of the Sunnah, since the Prophet(p) is reported to have said, “You must follow my sunnah and that of my rightly−guided successors. Hold to it and stick fast to it. Avoid innovation, for every innovation is a heresy, and every heresy is an error”. Others however view Umar’s statement as setting a precedent of a “good bid’ah”, and the linguistic with certain qualifications as being the technical meaning. [18]

According to Al ‘Izz bin Abdulsalam, “Bid’ah is what was not practiced during the era of the Prophet, and it is divided into wajib (obligatory), haram (unlawful), mandub (recommended), makruh (offensive), and mubah (permissible).”[19]

In this opinion, the principle of general permissibility (i.e. halal) remains the default verdict for everything in mu’amalat and acts of worship (ibadah). Though treated with greater reservation, creativity and innovation in deen or ibadat are not regarded as automatically haram and blameworthy innovations or heresy (bid’ah) by default, if they do not contradict or contravene the Shari’ah and its major sources (or adillah).

Imam Al-Suyuti says, “It has been clarified for you that the people (qawm) were wary of innovation, even if there was no harm lest they create something that was (harmful). And yet, novelties (muhdathat) occurred that do not clash with the law (shari’ah) and do not negatively affect it, and they did not see harm in doing them, but rather some of them said, ‘they are acts of drawing near to Allah (innaha qurbah)’, and this is correct, as it was related that the people used to pray during Ramadan individually…”[20]

 

According to this opinion, the criteria for the assessment of mu’amalat are the same as that for assessing innovations in deen or ibadat. Only those innovations that contradict the Qur’an and Sunnah are blameworthy bid’ah.[21]

 

Consequently, regarding the celebration of the Prophet’s birthday (Mawlid al-Nabi), Al-Suyuti says: “The legal basis for the observance of the Prophet’s birthday – which constitutes a gathering of people, a recitation of appropriate portions of the Qur’an, the recounting of transmitted stories about the beginning of the Prophet’s life, peace and blessings be upon him, and the signs that occurred upon his birth, followed by a banquet that is served to them and from which they eat, whereupon they leave without doing anything else – is of the good innovations (al-bid’ah al-hasanah) for which one is rewarded because of the glorification of the position of the Prophet, peace and blessings be upon him, and the display of joy and delight on his noble birth.”[22]

 

These scholars however, unlike most (not all) of those from the earlier group, also apply the term bid’ah to cover innovations in mundane affairs (mu’amalat).[23] ‘Aisha is reported to have said, “The first innovation (bid’ah) that took place after the Messenger of Allah was satiety from eating (al-shab’)”.[24] This often is cited as evidence of the term bid’ah being used for blameworthy innovations in mu’amalat that contradict the letter or spirit of the Shari’ah.[25]

An example of how a mu’amalat could become a bid’ah, the wearing of gold or silk by men, or the consumption of alcohol or swine is a mu’amalat that is prohibited (haram) by explicitly clear evidence. Accepting that the Qur’an forbids the consumption of alcohol is an obligation (fard), which is based on the explicitly clear and undisputedly authentic verses of the Qur’an (and Hadith). Rejecting this teaching of the Qur’an as wrong amounts to disbelief (kufr). Accepting that it is forbidden (haram) to consume alcohol, but still consuming it is wrong-doing (fisq) but not kufr. Re-interpreting it as not being actually forbidden but only discouraged (makruh) or permitted (halal) is a blameworthy innovation (bid’ah) and not just a prohibition (haram). It is a blameworthy bid’ah because it contradicts the teachings of the Qur’an and Sunnah, and yet it is being presented as part of the Shari’ah. The same logic would apply to consumption of the “flesh of swine” or taking of “riba”, etc. – once the definition was agreed upon.

The critical question being asked by those who hold this opinion appears to be, “What methodology or criteria did the Prophet and his Companions use in deciding acceptable and unacceptable innovations? Did they regard all innovations in ibadah as automatically blameworthy, or was it permitted unless it contradicted or disagreed with the Sunnah?” These scholars consider this approach to innovations as being more representative of the methodology and criteria of the Prophet and most of the Sahabah, who did not consider every innovation as automatically blameworthy, but treated each innovation on its own merit (or demerit).

 

To these scholars, not every innovation is misguidance, but every innovation THAT CONTRAVENES OR CONTRADICTS THE SHARI’AH is misguidance![26]

 

Therefore, regarding the meaning of the hadith that “Every innovation (bid’ah) is misguidance…and leads to hell”, it would not be incorect to say that both groups or opinions qualify (takhsis) this hadith and none of them really takes it competely literally nor do they completely generalize it. One group appears to qualify the word “every” (kullu) and the other qualifies “innovation” (bid’ah). Those who qualify “every” say it does not apply to every innovation in every aspect of life – including mu’amalat – but is specific to ibadah or devotional worship. Those who qualify the word “bid’ah” say it does not apply to every type of bid’ah, but is specific to that which contradicts the principles of the deen or ijtihad – the Qur’an, Sunnah, Ijma’, qiyas, practise of the Sahabah, malsalah, etc.

 

 

In conclusion, the objective of this discussion is purely for an appreciation of the fact that there exist respectable differences among the greatest classical scholars of Islamic jurisprudence on the application of the principle of general permissibility to devotional matters, and by implication to the definion and concept of bid’ah. It is not the objective of this material to delve further than this into the various differences among scholars in their arguments or more specific understandings and definitions of the concept of bid’ah in law and in theology.[27]

Supplement on Bid’ah:

Due to the fact that many young Muslims today are not aware that a significant number of respected classical scholars from various Schools of jurisprudence have actually classified bid’ah as being either good (bid’ah hasanah) or bad (bid’ah sayyi’ah) based on the analyses of proofs (adillah), we have decided to add some of these quotations here for the record. This is not meant to give support to the strength of their arguments, but merely to highlight the fact that they exist and should be respected or at least tolerated.

  • Harmala ibn Yahya al-Tujaybi said “I heard al-Shafi’i say: ‘Innovation is of two types: approved innovation (Bid’ah mahmudah) and disapproved innovation (Bid’ah madhmumah). Whatever conforms to the Sunnah is approved and whatever opposes it is abominable.’”[28]
  • According to Ibn Jawzi, “Bid’ah in legal convention is whatever is blameworthy in contravening the foundations of the law.”[29]
  • Qadi Abu Bakr Ibn Al-Arabi Al-Maliki says, “Only the bid’ah that contradicts the Sunnah is blameworthy”[30]
  • Ibn Hajar al-Asqalani wrote: “Put precisely, if an innovation (bid’ah) comes under the rubric of things regarded as good in the law, it is good. If it comes under the rubric of things ill-regarded in the law, it is ill-regarded. Otherwise, it belongs to the category of neutral things. Thus, [in general] [bid’ah] may be divided into the five [ethical] divisions.”[31]
  • Al-Nawawi supported this five-fold classification of innovations (bid’ah) by praising Ibn ‘Abd al-Salam and quoting from his al-Qawa’id al-Kubra: “The way to discriminate in this is that the innovation be examined in the light of the regulations of the Law (qawa’id al-shari’ah). If it falls under the regulations of obligatoriness (ijab), then it is obligatory; under the regulations of prohibitiveness (tahrim), then it is prohibited; recommendability, then recommended; offensiveness, then offensive; indifference, then indifferent.”[32]

 

DISCUSSION QUESTIONS:

  1. Why is there a general consensus on the application of the general principle of permissibility to social transactions and mundane affairs?
  2. Why do some scholars regard the principle of permissibility as not being applicable to devotional worship and creed?
  3. Why do some scholars not restrict the application of the principle of permissibility to only social transactions or mundane affairs?
  4. What are the different ways by which the various scholars qualified the apparently general statement in the hadith: “Every innovation is misguidance…”?
  5. What would all scholars agree is a blameworthy form of innovation (bid’ah)?
  6. What feature(s) would an act of mu’amalat or adat have in order for it to be considered blameworthy bid’ah by some scholars?
  7. What sort of innovations in ibadah do some scholars regard as permissible and even rewarding?

[1] As opposed to dunya or “worldly” affairs – i.e. mu’amalat or adat.

[2] These nuances, and the differences over the concept of bid’ah are not the main concern of this present work. For a more detailed analysis of various opinions among scholars regarding innovations (bid’ah) in worship or devotional (ibadat) issues, and a discussion on the “Descriptive Paradigm” represented by Imam Shafi’i’s approach to bid’ah, and “Normative Paradigm” or approach of Imam Malik, see Aslam Farouk-Alli’s “Translator’s Introduction” to Muhammad Al-Ghazali, Within the Boundaries of Islam: A Study on Bid’a, Islamic Book Trust, Kuala Lumpur, 2010, p.xxxiii. For an even more in-depth study of these paradigms, see Raquel M. Ukeles, Innovation or Deviation: Exploring the Boundaries of Islamic Devotional Law, (Harvard University; PhD. Thesis), 2006, p.117-120.

[3] This group is usually represented by the arguments of the Hanbali jurist Ahmad Ibn Taimiyyah (particularly in Iqtida’ al-Sirat al-Mustaqim li mukhalafat as-hab al-Jahim) and the Maliki jurist Abu Ishaq Al-Shatibi (particularly in Kitab al-I’tisam).

[4] Yusuf al-Qaradawi,  The Lawful and the Prohibited in Islam, IIFSO, Salimiah, 1992, p.16-17; Jasser Auda, Al-Maqasid al-Shari’ah: A Beginner’s Guide, IIIT, London, 2008, p.13;  Tariq Ramadan, To Be a European Muslim, The Islamic Foundation, Leicester,  1999, p.104, note 18.

[5] Ibn Taymiyyah, Al-Qawa’id al-Nuraniyyah al-Fiqhiyyah, Maktabat al-Sunnah Al-Muhammadiyyah, Cairo, 1951, pp.112

[6]Ibn Taimiyyah, Iqtida’ al-Sirat al-Mustaqim li mukhalafat as-hab al-Jahim, Vol.2, p.86. See also Abu ‘Umar ibn ‘Abd al-Barr, Al-Istidhkar, 5:153.

[7] Abu Ishaq al-Shatibi, Al-I’tisam, Vol.2, p.19

[8]  Abu Ishaq al-Shatibi, Al-I’tisam, Vol.2, p.19.

[9] The lexical meaning of bid’ah in the Arabic language is “novelty”, “innovation”, “creativity”, “newness” or “origination”. Its technical meaning however has been a subject of diverse opinions among Muslim scholars.

[10]Abu Ishaq al-Shatibi, Al-I’tisam, Vol.1, p.50.

[11]This paradigm or perspective of bid’ah has been described by some researchers as the “Normative Approach” to bid’ah. See Aslam Farouk-Alli’s “Translator’s Introduction” to Muhammad Al-Ghazali, Within the Boundaries of Islam: A Study on Bid’a, Islamic Book Trust, Kuala Lumpur, 2010, p.xxxiii. See also Raquel M. Ukeles, Innovation or Deviation: Exploring the Boundaries of Islamic Devotional Law, (Harvard University; PhD Thesis), 2006, p.117-120.

[12]Ibn Taimiyyah, Iqtida’, Vol.2, p.86.

[13] Aslam Farouk-Alli’s “Translator’s Introduction” to Muhammad Al-Ghazali, Within the Boundaries of Islam: A Study on Bid’a, Islamic Book Trust, Kuala Lumpur, 2010, p.xxxiii.

[14]While all Muslims upheld the validity of the famous Hadith: “Every innovation is misguidance” (Abu Dawood, Tirmidhi), none understood it in such general terms as to abrogate the obligation of performing ijtihad and finding unique innovative solutions to new problems. See Abd-Allah Umar Faruq, Innovation and Creativity in Islam, Nawawi Foundation, 2006, p.8.

[15] This group is usually represented most prominently by the Shafi’i jurists Al-‘Izz Ibn Abdulsalam (in especially Al-Qawa’id al-Kubra), Abu al-Qasim Abdul-Rahman Abu Shamah (in Al-Ba’ith ‘ala inkar al-Bid’a wa al-Hawadith), and Jalal al-Din al-Suyuti (in Al-Amr bi al-Ittiba’ wa al-Nahy ‘an al-Ibtida’).

[16] It should be noted that while many scholars would define bid’ah as covering good and bad innovations in ibadat and mu’amalat, and some would re-classify these into further sub-categories, many of them would also regard most of the “bad innovations” as being innovations in ibadat and aqidah, and most of the “good innovations” as being those mainly in mu’amalat. Consequently, depending on the technical definition of bid’ah by an individual scholar, a particular act may be described by one scholar as a “good innovation” (bid’ah hasanah), by another as part of accepted “tradition” (Sunnah), and by yet another scholar as being part of “Public Interest” (maslaha).

[17] Sahih al-Bukhari Vol. 3, No.227 in Alim

[18] Al-Mustadrak, no.329; Al-Baihaqi, al-Sunan al-Kubrah, no. 20835; Ibn Majah, Sunan Ibn Majah, no. 42; Musnad Imam Ahmad no.17145; Sunan al-Tirmidhi, no.2676; Sunan al-Darimi, no.  95.

[19] Al-‘Izz bin Abdulsalam, Qawa’id al-Ahkam fi Masalih al-An’am. Dar al Ma’rif, Beirut, Lebanon Vol.2, p.208-209.

[20]Al-Suyuti, Al-Amr bi al-Ittiba’ wa al-Nahy ‘an al-Ibtida’, p.36-37.

[21] Even though the main focus of even these scholars when addressing bid’ah was targeted to ibadah and aqidah, it was not exclusive of mu’amalat. (See Abd-Allah Umar Faruq, Innovation and Creativity in Islam, Nawawi Foundation, 2006, p.7)

[22]Al-Suyuti, Husn al-Maqasid fi Amal al-Mawlid” in Al-Hawi li al-Fatawi (Beirut, Dar al-Kutub al-Ilmiyyah, 1975, Vol.1, p.189. Some other scholars have understood the Mawlid celebrations as under the mu’amalat category – as an innovative customary (adat) celebration such as other birthdays, weddings, and graduation ceremonies – and not under ibadat.

[23] Those scholars who included mundane affairs (mu’amalat) under the rubric of bid’ah applied it usually to appalling innovations that encroached scandalously upon central precepts of the law such as unjust taxation (maks), administrative corruption, and hanging pictures of judges and rulers in public places. See Abu Ishaq al-Shatibi, Al-I’tisam, 2:570, 594; cited in Abd-Allah Umar Faruq, Innovation and Creativity in Islam, Nawawi Foundation, 2006, p.7; See also Al-‘Izz bin Abdulsalam, Al-Qawa’id al-Kubrah, vol.2, p.337-339.

[24] Al-Suyuti, et al., Sharh Sunan Ibn Majah, Hadith no. 1094, Al-Maktabah al-Shamilah; Also, Al-San’ani, Subul al-Salam, Vol. 4, p.179; cited in Gibril Fouad Haddad, Sunna Notes: Studies in Hadith and Doctrine, Vol. 2, AQSA Publications, UK, 2005, p.71.

[25] Ibid.

[26]As earlier mentioned, scholars upheld the validity of the famous Hadith: “Every innovation is misguidance.” None however understood it as abrogating the obligation of performing ijtihad and finding unique innovative solutions to new problems. (Abd-Allah Umar Faruq, Innovation and Creativity in Islam, Nawawi Foundation, 2006, p.8).

[27] For more readings on the concept of Bid’a, see Muhamad al-Ghazali, Within the Boundaries of Islam: A Study on Bid’a, Islamic Book Trust, Kuala Lumpur, 2010; Abd-Allah Umar Faruq, Innovation and Creativity in Islam, Nawawi Foundation, 2006; Gibril Fouad Haddad, Sunna Notes: Studies in Hadith and Doctrine, AQSA Publications, 2006, vol.2; Mohammad Hashim Kamali, Freedom of Expression in Islam, Ilmiah Publishers, Kuala Lumpur, Malaysia, 1998, p.131-143; Musharraf Hussain, “Is Every New Thing a Bid’a?”, Q-News, April Issue, 2001, p.24; Nuh Ha Mim Keller, The Concept of Bid’a in the Sharia of Islam (M.A.T. Papers, Cambridge: Muslim Academic Trust, 1999); See also Imam An-Nawawi, Tahdhib al-Asma wal-Lughat, vol.3, p.20-22; Al-‘Izz Ibn ‘Abd al-Salam, Al-Qawa‘id al-Kubra, vol.2, p.337-339; Al-Ghazzali, Ihya Ulum al-Din, vol.1, p.279; Ibn Hazm al-Zahiri, Al-Ihkam fi Usul al-Ahkam, vol.1, p.47; Ash-Shawkani, Nayl al-Awtar, vol.4, p.60; Ash-Shatibi, Al-I’tisam, vol.2, p.18-19, 63-68; Ibn Rajab, Jami’i al-Ulum wa al-Hikam, under hadith twenty eight of al-Nawawi’s Forty Hadith. Al-Kirmani, al-Kawakib al-Daraari Sharh Sahih al-Bukhari, vol.9, p.54; Ibn Abidin, Hashiya, vol.1, p.376, 560; al-Turkmani, al-Lum’a fî al-Hawadith wa al-Bid’a, vol.1, Stuttgart, 1986, p.37; al-Tahanawi, Kashf Istilahat al-Funoon, Beirut, 1966, vol.1, p.133-135; al-‘Ayni, ‘Umdah al-Qari, in al-Himyari, al-Bid’ah al-Hasanah, p.152-153; al-Turtushi, Kitab al-Hawadith wal-Bid’a, p.15, 158-159; Ibn al-Hajj, Madkhal al-Shar’ al-Sharif, Cairo, 1336, vol.2, p.115; al-Qarafi, al-Furooq vol.4, p.219; al-Zurqani, Sharh al-Muwatta, vol.1, p.238; Abu Shamah, al-Ba’ith ‘ala Inkar al-Bid’a wal-Hawadith, Riyadh: Dar al-Raya, p.93.

[28] Narrated by Abu Nu’aym through Abu Bakr al-Ajurri in Hilyat al-Awliya Vol.9, p.121; Ibn Rajab in Jami al-‘Ulum wal-Hikam, p.267.

[29] Ibn al-Jawzi, Gharib al-Hadith, vol.1, p.61; cited in Gibril Fouad Haddad, Sunna Notes: Studies in Hadith and Doctrine, Vol. 2, AQSA Publications, UK, 2005, p.71

[30] Ibn al-‘Arabi, Aridat al-Ahwadhi, vol.10, p.147; cited in Gibril Fouad Haddad, Sunna Notes: Studies in Hadith and Doctrine, Vol. 2, AQSA Publications, UK, 2005, p.72

[31]Ibn Hajar, Fath al-Bari, 4:253.

[32]Tahdhib al-Asma wal-Lughat Vol.3, p.20-22.

Having discussed the maxims of Islamic Jurisprudence, a fundamental maxim used by the majority, and the differences of opinion between primarily Hanbali scholars and scholars of other Schools of Juristic Thought, this lesson summarises the basis or foundation of agreements and disagreements among jurists when it comes to deriving verdicts (fatwas).

The scholars agree on the following:

  • Where the Qur’an and Hadith Mutawatir (which are qati’ al-thubut) are explicitly clear and unambiguous in their meaning and implications (qat’i al-dilalah), there is no debate or difference of opinions among scholars.
  • Those teachings that are based on these (clearly understood and indisputably authentic sources) form the core of what it is to be a Muslim. Qat’i texts are the bases for fundamental creed (aqidah), ritual worship (ibadat) and the most essential social transactions (mu’amalat), and therefore are bases for establishing whether a person is a Muslim or not.

The scholars disagree however, on a number of other issues. As with specialists or experts in any field in which there is research and development, there will be some major and minor differences between them in their assessment of the evidence, the contexts in which they apply their preferred procedures and methodologies, their assumptions about priorities and the consequences of their decisions. Also attached to the decisions of scholars are those natural human error and biases.

 

 

 

Jurists differ in their verdicts (fatwas) for 3 main reasons: [1]

  1. There is silence in the text of the Qur’an and Sunnah so scholars embark on ijtihad using their preferred tools or rational approaches.[2]
  2. There may be apparently conflicting evidence in the texts and the scholars differ on how they should be resolved.[3]
  3. They may differ in their assessment of the environment, context, situation or “reality” (waqi’) in which their verdicts will be applied.

Sincere mistakes by a qualified scholar or judge, however, are actually rewarded by Allah because of the scholar’s earnest intention to assist others with a useful verdict. The scholar also gets a double reward if his or her verdict is correct in the eyes of Allah.[4]

The diagram below shows the pathways through which scholars of different Schools of Jurisprudence reach differing conclusions about prohibitions and discouragements from their examination of the texts.

Where the evidence for a position is not clearly established from the text of the Qur’an or from Hadith Mutawatir, scholars begin to differ as a result of their hierarchical order of evidence and the preferred methodology of their Schools of Juristic Thought and mujtahid imams (see Lesson 20 for a summary). These divergent methodologies give different levels of authority to each “secondary source” of evidence. It gets even more complicated if the various pieces of evidence (adillah) used, conflict or appear to conflict with each other in some way.

 

MU’AMALAT: Default ruling: Everything is Halal except if clearly Haram

NO
Tools of Ijtihad&

“safety-net principles” of Maqasid: qiyas, ijma’, ‘Amal,

istihsan, maslahah,

Etc.

Maliki
Hanafi
Makruh
 Makruh Tahrimi
1.     Authenticity OK!

 

2.     Meaning & Implication OK!

 

QUR’AN
Haram
HADITH MUTAWATIR
Hadith Ahad
YES
YES
YES
Shafi’i &

Hanbali

Search for Certainty
NO
Shadhdh
 

NO

YES
Haram, Makruh
Default ruling: HALAL – Mubah
NO

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


DISCUSSION QUESTIONS:

  1. What type of issues would all scholars of all the major schools of juristic thought agree or have a consensus on?
  2. Discuss 3 main reasons why scholars would differ in their verdicts fatwa on a particular issue.
  3. Why would scholars differ when the texts of the Qur’an and Sunnah are silent on a specific issue?
  4. How can there be apparently conflicting evidence in authentic text?
  5. Why would scholars differ in how they resolve apparently conflicting evidence in the text?
  6. In what ways would scholars differ in their assessment of social contexts?
  7. Design a flowchart showing how various schools of juristic thought would assess the permissibility or otherwise of an action related to mu’amalat, using evidence from the Qur’an, Sunnah Mutawatir and Sunnah Ahad.

[1] Taha Jabir Al- Alwani, Ethics of Disagreement in Islam, The International Institute of Islamic Thought, Herndon, Virginia, USA, 1993, p. 21-34; Mohammad Hashim Kamali, Principles of Islamic Jurisprudence,2nd  Revised Edition, Ilmiah Publishers, Malaysia, 1991, p.323-348, 351-366 and 468-474; Muhammad al-Tahir Ibn ‘Ashur, Treatise on Maqasid al-Shari’ah, IIIT London, 2006, p. 26-49; Ibn Majah, no. 4251, al-Tirmidhi, no. 2499; see also  Mohammad Omar Farooq, Toward our Reform: From Legalism to Value-Oriented Islamic Law and Jurisprudence, The International Institute of Islamic Thought, London, 2011, p. 179, Taha Jabir Al- Alwani, Ethics of Disagreement in Islam, The International Institute of Islamic Thought, Herndon, Virginia, USA, 1993, p.91-107, Ibn Taymiyyah, Al-Wasiyyah Al-Kubrah, p.2, Tariq Ramadan, To Be A European Muslim, The Islamic Foundation, Leicester, 1999, p. 13-49, Ibn Majah, no. 4251, al-Tirmidhi, no. 2499, Ibn Taymiyyah, Qai’dahAhl al-Sunnah wa al-Jama’ah, p.4; Ali Gomaa, Responding from the Tradition, Fons Vitae, p.20-22 and 197-199, and Shaykh Abdullah bin Bayyah, (Vol.1 and 2, 18 audio CDs), trans. from Arabic by Hamza Yusuf (California, USA: Alhambra Productions, 2000). Differences occurred during the time of the prophet and his companions, but they still remained united as a community in enjoining right and forbidding wrong.

[2]  See Lesson 20 for a summary.

[3] See a wonderfully summaried discussion on the major approaches used by scholars for resolving “opposition” or apparently conflicting evidence, and some of the merits and demerits of each approach in Jasser Auda, Maqasid al-Shariah as Philosophy of Islamic Law, IIIT, London, 2008, p.218-226

[4] Al-Bukhari, no. 7352; Muslim no. 4584; al-Tirmidhi no. 1326

So far, this material has tried to show, that in the search for certainty regarding the will of God to which a Muslim must submit, scholars consider various tools and proofs in order to increase their level of certainty regarding both the source and authenticity of relevant information, and their understanding of it’s implications. Their various methodologies have also tried to harmonize and balance, to the best of their abilities, their pursuit of the spirit or purpose of the law and the respect for its letter, while recognizing their natural limitations in fully grasping a divine text that is meant for all time and people.

The following 4 major permutations or combinations of certain/categorical (qat’i) and speculative/presumptive (zanni), as applied to the historical authenticity (thubut or wurud) or meaning and implications (dilalah) are important to bear in mind when considering the level of certainty which scholars have when issuing or assessing rulings derived from any text or proofs (adillah), in Islamic jurisprudence. They help us in better understanding and even anticipating where and why differences in rulings might arise. Understanding these permutations and their implications to scholarly dissent improve our analysis of issues, prepare us to better ask more focused questions and be more humble about our own positions.

These permutations are therefore meant to assist us in better observing the boundaries of tolerance and respect for differing opinions among classical and contemporary scholars and their Schools.

 

 

These 4 major permutations are:[1]

  1. Qat’i al al-thubut and Qat’i al-Dilalah (“certain authenticity” and “certain meaning”)
  2. Qat’i al-Thubut and Zanni al-Dilalah – (“certain authenticity” and “presumptive meaning”)
  3. Zanni al-Thubut and Qat’i al-Dilalah – (“presumptive authenticity” and “certain meaning”)
  4. Zanni al-Thubut and Zanni al-Dilalah – (“presumptive authenticity” and “presumptive meaning”)

 

  1. Qat’i al al-thubut and Qat’i al-Dilalah (“certain authenticity” and “certain meaning”)

This is a situation where both the authenticity of the text and its meaning/implications are definitive, categorical, certain and indisputable. This permutation gives the highest level of certainty and is the closest to an “absolute truth”. This is often the permutation that is behind those topics of unanimity among scholars and the Schools of juristic Thought.

They include those issues of agreement regarding worship and the 5 pillars such as the number of compulsory (fard) daily prayers, fasting in Ramadan,[2] the number of raka’ahs for each prayer, etc.; the basic Articles of Faith or creed such as belief in Allah, Angels, divine revelation, prophethood, the Hereafter, Judgment Day, existence of ghayb (reality beyond human perception), etc.; the development and realization of virtues of God-consciousness, justice, compassion, honesty, forgiveness, respect for parents, generosity, etc.; the agreed upon prohibitions such as adultery, consumption of alcohol, eating pork, lying, stealing, slander, murder, etc.; and other issues such as the shares of certain heirs in inheritance, the number of witnesses required to prove adultery, etc.

Those teachings of Islam that meet the criteria of certainty in authenticity and meaning (qat’i al-thubut wa al-dilalah) form the fundamental foundations of Islamic teachings (Usul al-Din). They are the core and kernel of what binds all Muslims as one community (ummah) in spite of their diversity on other subsidiary matters.[3]

In these cases where there is absolute certainty regarding both the authenticity of the text and the meaning and implications of the text, then there is good reason for a qualified scholar to feel comfortable in using such evidence to classify actions as either mustahab, makruh, fard/wajib or haram, bid’ah and even kufr if the evidence definitely points to that. The scope of interpretation and ijtihad is consequently confined to the zanni proofs alone where authenticity and definitiveness are speculative.[4]

As discussed earlier in this material, while scholars of the Shafi’ and Hanbali Schools would regard an authentic (sahih) single-chained (ahad) hadith on its own (with no other supporting proofs) sufficiently reliable or certain to classify things or actions (‘amal) as fard and haram, the Maliki and Hanafi would usually not. The Hanafi would however use such hadith for the hukum-value(rephrase) of wajib and makruh tahrimi.[5] Nearly all scholars of the four major Schools of Juristic Thought would however not regard such hadith as sufficiently reliable in certainty for the purpose of establishing basic creed or doctrine (Aqidah) or for declaring disbelief (Kufr).

 

  1. Qat’i al-Thubut and Zanni al-Dilalah (“certain authenticity” and “presumptive meaning”)

This is a situation where the text of the Qur’an or Sunnah may be considered authentic with certainty, but the meaning and implication of the text is ambiguous or speculative (zanni), open to alternative interpretations and therefore not definitive or certain.

According to scholars, the speculative texts (ayat) of the Qur’an are open to interpretation and ijtihad. The best interpretation is that which can be obtained from the Qur’an itself, that is, by looking at the Qur’an as a whole and finding the necessary elaboration elsewhere in a similar or even a different context. The Sunnah is another source which supplements the Qur’an and interprets its rulings. When the necessary interpretation can be found in an authentic Hadith, it becomes an integral part of the Qur’an and both together carry a binding force. Next in this order come the Companions who are particularly well-qualified to interpret the Qur’an in light of their close familiarity with its text, the surrounding circumstances, and the teachings of the Prophet.[6] As mentioned earlier, the more conjectural (zanni) the precept or legal instruction is, the more strongly applied the criterion for further qualifying it by reference to the general good (maslahah).[7]

Common examples, some of which have been cited earlier, include verses of the Qur’an where scholars are not agreed on their meanings: Whether, for example, the prohibition of marriage to “your daughters” (banatukum) in Surah al-Nisa (Qur’an 4:23) also applies to illegitimate children or not; whether a particular verse of the Qur’an is actually abrogated by another one or not;[8] whether the phrase “to be banished from the earth” (yunfaw min al-ard) which occurs in Surah al-Ma’idah (Qur’an 5:33) would accommodate imprisonment, and not just exile, as a possible punishment for highway robbery or waging war (hirabah) on the community and its legitimate leadership.

Sometimes a phrase in the text may be certain (qat’i) in one sense and speculative (zanni) in another. A Qur’anic injunction therefore may simultaneously possess a definitive and a speculative meaning, in which case each of the two meanings will convey a ruling independently of the other. An example is the injunction concerning the requirement of ablution (wudu’) which reads in part “… and wipe your heads” (Qur’an, al-Ma’idah, 5:6). This text is definitive (qat’ial-dilalah) on the requirement of wiping (wamsahu) of the head (bi ru’uwsikum) in ablution (wudu’), but since it does not specify the precise area of the head to be wiped, it is speculative (zanni al-dilalah) in regard to this point.[9] Hence the jurists are unanimous in regard to the first, but have differed in regard to the second aspect of this injunction.[10]

In this situation, while scholars may be more comfortable classifying actions as mustahab or makruh, they are usually very cautious in referring to things as Wajib/Fard or Haram because of the element of uncertainty regarding the meaning and implications (Zanni al-Dilalah).[11] According to Ibn Taimiyyah and others, the early Muslims (Salaf) and great scholars were very careful in referring to things as prohibited (haram) or religious obligations (fard/wajib) if they did not have clear and certain evidence to back their conclusions.[12] It is in situations such as these that Hanafi scholars for example would avoid using the legal ruling (hukum) of fard or haram, and instead use wajib or makruh tahrimi.

In such cases, even where scholars feel confident in the correctness of their chosen interpretation that an action or thing is, or should be, wajib/fard or haram, there is still respect, tolerance and humility shown towards alternative interpretations of other scholars, along with the acceptance of the real possibility of actually being wrong in one’s preferred opinion.[13]

The definitive meanings and implications (qat’i al-dilalah) of the Qur’an for example, are an integral part of the Islamic doctrine (aqidah), and anyone who rejects or denies its validity automatically renounces Islam. However, denying a particular interpretation of the zanni does not amount to transgression. The mujtahid is entitled to give it an interpretation, and it is the ruler who may select one of the various interpretations for purposes of legislation or enforcement.[14]

Besides issues related to law and jurisprudence (Fiqh), and in matters related to doctrine (aqidah) and theology (kalam), it is not always self-evident to scholars whether a text of the Qur’an is qat’i’ al-dilalah or zanni al-dilalah, and hence may be open to alternative interpretations. This has generated heated disagreements, disturbing tension and even violent conflicts between the followers of different scholars and Schools. Some of these are still major reasons of disunity in some parts of the Ummah today. Examples of these have included enduring disagreements over issues associated with verses that may be viewed by some as having “ambiguous” (mutashabihat)[15] meanings in the Qur’an, such as some descriptions of the “nature” of Allah[16], some details about various aspect of “what is beyond our perception” or ghayb (such as descriptions of the actual nature of the Hereafter, etc.) and the real nature of qadr (“destiny”, “predestination”, “fate”, etc.), etc.

 

  1. Zanni al-Thubut and Qat’i al-Dilalah (“presumptive authenticity” and “certain meaning”)

This is often where a presumptively authentic single-chained (ahad) hadith (which is zanni al-thubut), has a meaning that is explicitly clear and not ambiguous (qat’i al-dilalah).[17] This combination of the “speculative/presumptive” and the “certain” also applies to a situation whereby any of the proofs (adillah) are explicitly clear in their meaning and implications but lesser in certainty regarding their credibility and authenticity unlike the Qur’an or Hadith mutawatir. Zanni al-thubut by implication implies to all other “secondary sources” (adillah) such as ijma’, qiyas,[18] and any other tool of ijtihad which is necessarily of “speculative” (zanni) authority, but where the meaning or implication understood from it is clear and definitive. The adillah here are zanni al-thubut, but the meaning is qat’i al-dilalah, and therefore not open to alternative interpretations.

This therefore applies to all or most verdicts (fatwas) that are based solely on single-chained (ahad) hadith or on some other sources/evidences (adillah) that are “probable” (zanni) in authenticity or reliability. Most scholars regarded zanni al-thubut evidence (which was acceptable to their respective Schools of Juristic Thought) as sufficiently reliable enough for the purpose of giving rulings of “recommended” (mustahab) or “discouraged” (makruh).[19] Depending on the School (and scholar), these often included  single-chained (ahad) hadith, consensus (Ijma’), analogy (qiyas), practice or praxis (‘amal) of the People of Medina, juristic discretion or preference (istihsan), opinion of a companion (ra’yi al-sahabah), public interest (maslahah), etc.

They differed more clearly, when it came to using these Zanni al-thubut evidence for the purpose of establishing an “obligation” (Fard/Wajib) and a “prohibition” (haram).[20] This is because Schools and their scholars differed with regard to the degree of weight/authority and validity/legitimacy they accorded these proofs (adillah). Many considered these as presumptive but “authoritative enough” for the purpose of the value-judgments (hukum) of fard/wajib and haram, while others did not.[21]  As discussed earlier, it should be borne in mind that in addition to single-chained (ahad) hadith, there was always a respected distinguished jurist (mujtahid), scholar, or School of Juristic Thought (madhhab) who did not even accept as independently valid, the use of one or some of these zanni al-thubut evidences (adilla) or tools of ijtihad.[22]

With very few exceptions, as noted earlier, scholars generally did not insist on using presumptively authoritative (zanni al-thubut) “sources” for the purpose of establishing essential doctrine or creed (aqidah) even if the meaning was certain (qat’i al-dilalah).

The more the corroborating “probable” (zanni al-thubut) evidences, the stronger the proof was for a particular verdict. Therefore where analogy (qiyas) was supported by public interest (maslaha) and/or consensus (ijma’), it was stronger and more reliable than where the qiyas did not have such support.

Examples of positions based on Zanni al-Thubut and Qat’i al-Dilalah – (“presumptive authenticity” and “certain meaning”) include the prohibition of eating carnivorous animals, the finality of an intentional triple divorce at one instance, the purity of dogs and their saliva, collecting zakat on horses, the Maliki preferred form of the Call for Prayer (adhan) based on hadith by Abu Mahzurah which was supported by Amal of Medina, etc.

This has naturally called for serious caution among scholars and an even greater need to respect of the Ethics of Disagreement (Adab al-Ikhtilaf) when dealing with opinions and differences that result from evidence that is Zanni al-Thubut and Qat’i al-Dilalah – (“probable authenticity” and “certain meaning”).

As explained earlier, this situation does not apply to the Qur’an or multiple-chained (mutawatir) hadith as these are sources of truth that are of “certain authenticity” (qat’i al-thubut).

  1. Zanni al-Thubut and Zanni al-Dilalah (“presumptive authenticity” and “presumptive meaning”)

This refers to a single-chained (ahad) hadith or any other proof (adillah) regarded as speculative or presumptive in authority (zanni) whose meaning and implications are also speculative and open to alternative interpretations. Rulings based on this sort of evidence have the least degree of certainty regarding their authority.

Texts or proofs (adillah) of this sort are common and form the bases for many of the accepted, respected or tolerated “minor differences” of opinions within and between Schools of Juristic Thought. Because of the very “speculative” nature of these proofs, their implications are also often regarded as issues related to the branches or subsidiaries (furu’) and not fundamentals or principles (usul) of Islamic teachings. Here, the jurist’s knowledge and use of “safety-net principles” – juristic preference (istihsan), preclusion (sadd al-dhara’i) and unstated common good (maslahah) – becomes even more critical.[23]

Examples include the differences among some scholars over the veiling of the face (niqab) of a woman; the categorization of the punishment for apostasy and drinking alcohol as being fixed (hadd) or discretionary (ta’zir); the impurity of dogs based on analogy (qiyas) with a single-chained (ahad) hadith; the debates over certain types of music; the prohibition of interfaith inheritance; the circumcision of women and of male converts to Islam; and whether two transacting parties have a choice to renegotiate as long as they have not physically “separated” or departed from the place of transaction based on the interpretation of a hadith ahad (al-bayyi’an bi al-khiyar ma lam yatafarraqah); etc.

As a result of the fact that both the text/proof and the understanding of it are not certain or definite (qat’i), the basis of the value-judgment (hukum) to be derived from it will consequently be even more speculative and open to conjecture. In this case, making a pronouncement of Wajib/Fard or Haram was/is usually avoided when its uncertainty is clear enough to the scholar concerned. However, because scholars differ in the weight they give the zanni al-thubut evidence (that is acceptable to their respective Schools), and because they could also differ in their interpretation of the text or adillah as to whether the meaning is qat’i or zanni al-dilalah, they have generally agreed to disagree agreeably on such matters.

The differing approaches and methodologies preferred by the various Schools and their scholars for handling apparently conflicting evidence also make it difficult for them to resolve some of their differences especially where the “speculative” element (zanni) may apply to either or both the proof and to its understanding. The fact however, that there is even a difference of opinion among distinguished scholars on whether a particular proof (dalil) or text (nass) is zanni or qat’i is itself usually evidence that it is more probably zanni. Hence the need for greater caution when speaking in God’s name or in the name of His Prophet (ﷺ), or when the difference of opinion on the issue may threaten unity or justice or other explicitly clear (qat’i al-dilalah) objective (Maqasid) of Shari’ah that is based on definitive text (qat’i al-thubut) such as the need for patience, forgiveness, humility, brotherhood, cooperation, facilitation, etc.

 

Conclusion

From all the 4 permutations of Qat’i and Zanni, as they apply to al-Thubut and al-Dilalah, it should be noted that if it is clear and understood that a particular issue or ruling or verdict is not established by an undisputedly authentic text with a clear definitive meaning, it is then strictly forbidden to judge one who commits or omits it as a deibeliever (Kafir). It is also not proper to see him or her as a fasiq or violator of Allah’s injunction (i.e., for committing Haram or omitting Fard /Wajib) if there is an element of “speculation” in the proofs (adillah) and especially where it is an opinion of a respected scholar. Such judgements, even if sometimes necessary, should be left to the discretion of qualified scholars and not to their students or lay persons.[24]

 

 

 

 

 

DISCUSSION QUESTIONS:

  1. Give 2 examples of each of these permutations of speculation and certainty:
  2. Qat’i al al-thubut and Qat’i al-Dilalah (“certain authenticity” and “certain meaning”)
  3. Qat’i al-Thubut and Zanni al-Dilalah – (“certain authenticity” and “presumptive meaning”)
  4. Zanni al-Thubut and Qat’i al-Dilalah – (“presumptive authenticity” and “certain meaning”)
  5. Zanni al-Thubut and Zanni al-Dilalah – (“presumptive authenticity” and “presumptive meaning”)
  6. Why is it important to learn to distinguish each of the above permutations or combinations of evidence?

[1] For more on this, see Ministry of Awqaf and Religious affairs, Al-Mausuat al-Fiqhiyya al-Kuwaitiyya, Dar al-Salasil, Kuwait, Vol.21, p.24; Ahmad bin Muhammad bin Isma’il Al-Tahawi Al-Hanafi, Hashiyatu ‘ala Maraqi al-Falah, Mataba’at al-Amiriya Al-Kubra, Cairo, 1318AH, Vol.1, p.37; Hashiyatu Radd al-Mukhtar, Vol.1, p.102, Al-Maktabah Al-Shamila; Abd al-Kareem Khudair, Sharh Matn al-Waraqat, p.274, Al-Maktabah Al-Shamila.

[2] Wahba al-Zuhaili, Al-Fiqh al-Islami wa Adillatuhu, Dar al-Fikr, Damascus, Vol.8, p.268

[3]  Jasser Auda, Maqasid al-Shariah as Philosophy of Islamic Law, IIIT, London, 2008, p.215-216

[4]  Khallaf, ‘Ilm, p. 35, Abu Zahrah, Usul, p. 711; Shaltut, Al-IsIam, p. 498; Cited in Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, The Islamic Text Society, Cambridge, 2001, p.21

[5] Mashur bin Hasan Salman, Al-Tahqiqat wa al-Tankihat ‘ala Matn al-Waraqat, Dar al-Imam Malik, Abu Dhabi, 2005, p.48

[6] Khallaf, ‘Ilm, P. 35; Abu Zahrah, Usul, P. 71; Cited in Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, The Islamic Text Society, Cambridge, 2001, p.28

[7] Umar F. Abd-Allah Waymann-Langraf, Malik and Medina: Islamic Legal Reasoning in the Formative Period, Brill, Leiden, The Netherlands, 2013, p.92-93.

[8]See Israr Ahmad Khan’s The Theory of Abrogation: A Critical Evaluation, Research Centre, International Islamic University Malaysia (IIUM), Malaysia, 2006.

[9] Mahmud bin Hatab Al-Subki, Irshad al-Khalq ila Din al-Haqqi, Vol.1, p.284, Al-Maktabah al-Shamila.

[10] Badran, Usul, p. 66; Cited in Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, The Islamic Text Society, Cambridge, 2001, p.30

[11] Ahmad Hasan, The Principles of Islamic Jurisprudence: The Command of the Sharia and Juridical Norm, Adam Publishers, New Delhi, 2005, p.40.

[12] Cited in Yusuf Al-Qaradawi, The Lawful and the Prohibited in Islam, Salimiah, 1992, p.18-21; See also Arif Ali Khan et al., eds., Encyclopaedia of Islamic Law, Vol. 3: Islamic Law in Practice, Kuala Lumpur: Crescent News(KL) Sdn Bhd, 2006, p.127-128.

[13] See examples of courtesy and mutual respect in handling such differences of opinions among scholars in works such as Taha Jabir Al- Alwani’s Ethics of Disagreement in Islam, The International Institute of Islamic Thought, Herndon, Virginia, USA, 1993.

[14] Shaltut, Al-Islam, PP. 498-99, Abu Zahrah, Usul, P. 71; Khallaf, ‘Ilm, P. 35; Badran, Usul, p.67; Cited in Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, The Islamic Text Society, Cambridge, 2001, p.34-35

[15] “Allegoric” or “ambiguous” meanings – as there is no agreement on the meaning of muhkamat or mutashabihat. See discussions by various Qur’anic commentators on Qur’an 3:7. See also, Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, The Islamic Text Society, Cambridge, 2001, p.100-101.

[16] This is evident from the early debates and disagreements between scholars of the Ahl al-Hadith, Ash’ari, Maturidi and Mu’tazilite Schools of Theology. Their disagreements were not on the authenticity of the relevant Qur’anic texts, but on their meaning and implications.

[17] Zain al-Deen al-Hanafi Ibn Najim, Al-Bahr al-Ra’iq Sharh Kanz al-Daqa’iq, Dar al-Ma’rifa, Beirut, Vol.1, p.16

[18] Ministry of Awqaf and Religious affairs, Al-Mausuat al-Fiqhiyya al-Kuwaitiyya, Dar al-Salasil, Kuwait, Vol.21, p.22

[19] Mashur bin Hasan Salman, Al-Tahqiqat wa al-Tankihat ‘ala Matn al-Waraqat, Dar al-Imam Malik, Abu Dhabi, 2005, p.49

[20] As discussed earlier, many Malikis and Hanafis would not use for example single-chained (ahad) hadith alone, with no other corroborating evidence to establish a “prohibition” (haram) or an “obligation” (fard). Hanafis would however use such zanni evidence to establish “less certain obligation” (wajib) and a “less certain prohibition” (makruh tahrimi).

[21] It therefore amounts to a “preferable conjecture” (al-zann al-rajih). Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, The Islamic Text Society, Cambridge, 2001, p.51; Muhammad bin Husain bin Hasan Al-Jizani, Ma’lim fi Usul al-Fiqh ‘inda Ahl Al-Sunna wa al-Jama’a, Dar Ibn Al-Jawzi, Riyadh, KSA, p.154

[22] Scholars differ in whether to accept some of these as valid and legitimate tools of ijtihad for deriving rulings with. The early Shafi’ did not accept istihsan or maslahah; most Hanafi and others did not accept Amal of Medina; Zahiri did not accept qiyas, etc. as already discussed elsewhere in this material.

[23] Umar F. Abd-Allah Waymann-Langraf, Malik and Medina: Islamic Legal Reasoning in the Formative Period, Brill, Leiden, The Netherlands, 2013, p.92-93. See more on the “Safety-net Principles” in Lesson 19.

[24]See more on this in Mohammad Hashim Kamali, Freedom of Expression in Islam, Ilmiah Publishers, Kuala Lumpur, Malaysia, 1998