Voices of Islam (33 page)

T
HE
S
HARI
‘
A
:
L
AW AS THE
W
AY OF
G
OD

•

Mohammad Hashim Kamali

SHARI‘A
AND
FIQH

Islamic law originates in two major sources: divine revelation (
wahy
) and human reason (
‘aql
). This dual identity of Islamic law is refl in the expressions,
Shari‘a
and
fi .
The former bears a strong affi with the revelation, whereas the latter is mainly the product of human reason.
Shari‘a
literally means, ‘‘the path to the watering place,’’ the road that the believer has to tread in order to obtain guidance.
Fiqh
means human understanding and knowledge. The Shari‘a provides general directives, whereas detailed sol- utions to particular and unprecedented issues are explored by
fiqh.
Since the Shari‘a is contained in the Qur’an, the revelation of God, and the Sunna, the teachings of the Prophet Muhammad, it has a close affi with the dogma of Islam.
Fiqh,
however, is a rational endeavor and is largely a product of speculative reasoning, which does not command the same authority as the Shari‘a.

To say, as some Muslim fundamentalists do, that the Shari‘a is ‘‘con- tained’’ in the Qur’an and the Sunna would preclude the scholastic legacy of
fi h
and its vast literature from the purview of the Shari‘a, especially the parts that do not have a clear origin in the Qur’an. From a legal point of view, the core of the Shari‘a is contained in the relatively small number of clear injunctions of the Qur’an and the Sunna, known as
nusus
(pl. of
nass
). Some parts of the Qur’an that consist of historical data and parables, for instance, are not included in the Shari‘a. Shari‘a is a wider concept than
fi
since it comprises the totality of guidance that God has revealed to the Prophet Muhammad. This guidance pertains to the dogma of Islam, its moral values, and its practical legal rules. Shari‘a thus comprises in its scope not only law but also theology and moral teachings.
Fiqh
is a form of positive law that does not include morality and dogma per se. Yet the
ulama,
the scholars of Islam,

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have agreed on the primacy of morality and dogma in the determination of basic values. By comparison with the Shari‘a,
fi
can thus be considered the superstructure of the law and a practical manifestation of commitment to the basic values of Islam.

The Shari‘a provides clear rulings on the fundamentals of Islam, its moral values, and its practical duties such as prayers, fasting, legal alms (
Zakat
), the Hajj pilgrimage, and other devotional matters. Its injunctions on the sub- ject of what is lawful (
halal
) or unlawful (
haram
) are on the whole definitive, as are its rulings on certain aspects of civil transactions. However, the Shari‘a is generally flexible with regard to most civil transactions, criminal law (with the exception of the prescribed punishments, or
hudud
), government policy and constitution, fi policy, taxation, and economic and international affairs. On many of these issues, the Shari‘a provides only general guidelines, whereas
fiqh
elaborates Shari‘a’s guidelines in detail.

Fiqh
is defined as knowledge of the practical rules of the Shari‘a, which are derived from detailed evidence in the sources. The rules of
fiqh
are thus con- cerned with the manifest aspects of individual conduct. The practicalities of conduct are evaluated according to a scale of five values: (1) obligatory, (2) recommended, (3) permissible, (4) reprehensible, and (5) forbidden. The definition of
fi h
also implies that the derivation of rulings from the Qur’an and the Sunna is through direct contact with these sources. The need to uti- lize the source materials of the Qur’an and the Sunna necessitates knowledge of Arabic and a certain degree of insight and erudition that would preclude the work of a nonspecialist. A jurist (
faqih
) who fulfi these requirements and has the ability to derive the rules of the Shari‘a from their sources is a
mujtahid,
one who is qualified to exercise independent reasoning (
ijtihad
).

The rules of
fi h
occur in two varieties. The first variety consists of rules that are conveyed in a clear text from the Qur’an or the Sunna, such as the essentials of worship, the validity of marriage outside the prohibited degrees of relationships, the rules of inheritance, and so forth. These rules are self- evident and independent of interpretation and
ijtihad.
This part of
fi
is simultaneously a part of the Shari‘a. The second variety of
fi h
consists of rules that are formulated through the exercise of
ijtihad
on parts of the Qur’an and the Sunna that are not self-evident. Because of the possibility of error in this exercise, the rules that are derived in this way do not command fi ality. They are not necessarily part of the Shari‘a, and the jurist who has reason to disagree with them may do so without committing a transgression. Only when juristic opinion and
ijtihad
are supported by a widespread con- sensus (
ijma‘
) does such a fi acquire the binding force of a ruling, or
hukm,
of the Shari‘a.

The subject matter of
fiqh
is divided into the two main categories of devo- tional matters (
‘ibadat
) and civil transactions (
mu‘amalat
). The former are usually studied under six main headings: (1) cleanliness, (2) ritual prayer,

(3) fasting, (4) the Hajj, (5) Alms Tax (
Zakat
), and (6)
jihad
(holy struggle).

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Law as the Way of God
151

These headings conform to the Five Pillars of Islam, with the addition of jihad. The schools of law do not vary a great deal in their treatment of these subjects. Juristic differences among the schools mostly occur over the category of
mu‘amalat.
These are usually studied under seven headings:

1. transactions involving the exchange of values, which include contracts;
   

2. matrimonial law; (3) equity; (4) trusts; (5) civil litigation; (6) rules pertaining to dispute settlement in courts; and (7) administration of estates. This body of law is generally subsumed under what is known in modern legal parlance as ‘‘civil law.’’ Laws pertaining to crimes and penalties, which in the West would be considered ‘‘criminal law,’’ are studied under the separate heading of
   ‘uqubat.
   Rules concerning state and governmental affairs are stud- ied under the rubric of
   al-ahkam al-sultaniyya,
   literally, ‘‘Sultanic rulings’’ (also referred to as
   siyasa shar‘iyya,
   ‘‘Shari‘a-compliant policy’’). This is similar to what is known in the West as constitutional law or administrative law. Finally, laws pertaining to international relations, such as war and peace, fall under the category of
   ‘ilm al-siyar,
   literally, ‘‘the knowledge of pro- cedure.’’ The most detailed exposition of the entire range of classical
   fi
   

   including the above categories, is Shams al-Din al-Sarakhsi’s (d. 1087
   CE
   )
   Kitab al-Mabsut
   (The Extensive Book), which contains 30 volumes. A twentieth-century equivalent of this work is Wahba al-Zuhayli,
   al-Fiqh al- Islami wa Adillatuhu
   (Islamic Jurisprudence and Its Proofs) in eight volumes and over 6,000 pages.
   

   SOURCES OF THE SHARI‘A
   

   The sources of the Shari‘a are of two types: revealed and nonrevealed. The revealed sources are two: the Qur’an, and the teachings and exemplary con- duct (
   Sunna
   ) of the Prophet Muhammad. The content of the Sunna includes the Prophet’s sayings, acts, and tacit approval of the conduct of his Compan- ions. The nonrevealed sources of the Shari‘a are numerous and comprise the products of juristic reasoning (
   ijtihad
   ). This reasoning may take a variety of forms, such as analogical reasoning (
   qiyas
   ), juristic preference (
   istihsan
   ), con- sideration of public interest (
   istislah
   ), and consensus (
   ijma‘
   ).
   

   Qur’an and Sunna
   

   The Qur’an consists, by its own affirmation, of the revealed Word of God recited in Arabic to the Prophet Muhammad through the Angel Gabriel (Qur’an 26:193). Much of the Qur’an was revealed in relation to actual events and questions that were encountered by the Prophet. The Prophet also used the Qur’an as the basis of his own teaching and adjudication. Legal rulings occupy only a small portion of the Qur’an. By far the greater part of its 6,235 verses is devoted to religious and moral themes. Such themes
   

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   include belief in God, the prophethood of Muhammad, angels and the Here- after, the human being and the universe, the history of bygone nations, their prophets and scriptures, and even parables. Less than three percent of the text deals with legal matters.
   

   The legal contents of the Qur’an were mainly revealed after the Prophet’s migration from Mecca to Medina, where he established a government. Hence, there was a need for legislation on social and governmental issues. The contents of the Qur’an are not classifi according to subject. Its pro- nouncements on various topics appear in unexpected places and no particular thematic order can be ascertained. This has led many to conclude that the Qur’an is an indivisible whole and that its legal parts should not be read in isolation from its religious and moral teachings. The text is divided into 114
   suras
   (chapters) of unequal length, 85 of which were revealed during the twelve and a half years of the Prophet’s residence in Mecca and the remainder after his migration to Medina, where he lived for just under 10 years.
   

   Of about 350 legal verses of the Qur’an (
   ayat al-ahkam
   ), 140 relate to dogma and devotional matters, including practical religious duties such as prayer, alms, fasting, the Hajj, and so forth. Seventy verses deal with mar- riage, divorce, paternity, custody of children, inheritance, and bequests. Rules concerning commercial transactions such as sale, lease, loan, usury, and mortgage constitute the subject of another 70 verses. There are about 30 verses on crimes and penalties, another 30 on justice, equality, rights and duties, and consultation in government affairs, and about 10 on eco- nomic matters. Some of the earlier rulings of the Qur’an were abrogated and replaced because of change of circumstances, although the scope of these abrogations and their precise import is a matter of disagreement among scholars.
   

   Muslim scholars are unanimous that the Sunna of the Prophet is a source of the Shari‘a and that his rulings on the lawful and unlawful (
   halal wa haram
   ) stand on the same footing as the Qur’an. The words of the Prophet, as the Qur’an declares, are divinely inspired (Qur’an 53:3), and obedience to him is a duty of every Muslim (Qur’an 4:80; 59:7). Thus, the words of the Prophet were normative for those who actually heard them. Subsequent gen- erations of Muslims, who received the words of the Prophet through verbal and written records of narrators (
   hadith
   ), however, needed to ascertain their authenticity before accepting the reports as normative. The claim of authen- ticity may be definitive (
   mutawatir
   ), relying on numerous sources, recurrent and continuous testimony, or it may consist of solitary reports of odd individ- uals (
   ahad
   ), which may not be free of doubt. The most defi type of hadith is verbal
   mutawatir,
   consisting of the word-for-word transmission of what the Prophet said. These are very rare, comprising no more than 10 hadiths. Another kind of defi hadith is the conceptual
   mutawatir.
   In this kind of hadith, the concept is taken from the Prophet but the words are
   

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   Law as the Way of God
   153
   

   supplied by the narrator. When the reports of a large number of transmitters of hadith concur in their meaning but differ in wording, this hadith is consid- ered as
   mutawatir
   in meaning. This latter type of hadith is quite frequent and is found in reference to the acts and sayings of the Prophet that explain the essentials of the faith, rituals of worship, rules that regulate the application of certain punishments, and so forth. Many traditions on the subject of pro- hibitions, as well as hadith that explain and supplement the injunctions of the Qur’an, are classified under this type of
   mutawatir.
   

   The Sunna of the Prophet relates to the Qur’an in various capacities. It may consist of rules that merely corroborate the Qur’an, it may clarify the ambiguous parts of the Qur’an, or it may qualify and specify general rulings in the Qur’an. These three capacities comprise between them the largest bulk of the Sunna, and Muslim scholars are in agreement that they are supplemen- tary yet integral to the Qur’an. The Sunna may also consist of rulings on which the Qur’an is silent, in which case the Sunna represents an indepen- dent source of the Shari‘a. This type of Sunna, known as ‘‘Founding Sunna’’ (
   sunna mu’assisa
   ), is the focus of the argument that the Sunna is not only an explanation and supplement to the Qur’an but also an independent source of the Shari‘a in its own right.
   

   The Qur’an and the Sunna consist of two types of rulings, defi itive (
   qat‘i
   ) and speculative (
   zanni
   ). Defi tive rulings are injunctions that are self-evident and need no interpretation. There are also instances where the Qur’an lays down a basic rule, which, although defi needs to be supplemented by additional information. In such a case, the necessary details are often supplied by the Sunna. Defi ve injunctions (that is, the
   nusus
   ) constitute the basis of unity among the various schools of Islamic law and among Muslims generally. This is why the Shari‘a is often described as a diversity within a unity; it comprises a unity in essentials but differs in details; it is a unity on matters of belief and on permitted (
   halal
   ) and for- bidden (
   haram
   ) actions but is a diversity in matters that fall outside of these categories.
   

   A legal text is speculative (
   zanni
   ) when it is conveyed in a language that leaves room for interpretation. Instances can also be found of a legal text that is defi ve in some respects but speculative in others. For example, the Qur’an provides the following injunction: ‘‘Forbidden to you (in marriage) are your mothers and your daughters’’ (Qur’an 4:23). This text is definitive in the basic prohibition that it contains. However, questions may arise as to whether the term ‘‘daughters’’ includes illegitimate daughters and adopted daughters and if so, whether they are entitled to inheritance or not. The scope of interpretation is not just confined to words but also extends to sen- tences and includes the meaning they may convey in a particular context. Most of the legal content of the Qur’an is speculative with respect to mean- ing, although the whole of the Qur’an is definitive with respect to its authen- ticity. Most of the Sunna that has been transmitted down to the present by
   

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   means of solitary (
   ahad
   ) reports by single individuals is speculative with respect to authenticity, even if it conveys a clear meaning.
   

   Muslim scholars differ in their approach to interpretation. Most allow alle- gorical interpretation (
   ta’wil
   ) in addition to more straightforward interpreta- tions of normative texts (
   tafsir
   ) and have validated interpretations based on personal opinion in addition to interpretation founded on valid precedent in their understanding of the Qur’an and the Sunna. The scope of interpreta- tion is enhanced further by the fact that the majority of the Qur’an is devoted to the exposition of general principles. As noted above, of a total of some 350 legal verses in the Qur’an, only a small portion is conveyed in the form of spe- cific provisions, whereas the rest are concerned with basic principles. Many of the general rulings of the Qur’an are made specific by other verses of the Qur’an, by the Sunna, or through the independent reasoning of jurists (
   ijti- had
   ). Since the Qur’an mainly sets forth broad guidelines, its language is often versatile. The noted jurist Abu Ishaq Ibrahim al-Shatibi (d. 1391
   CE
   ) stated: ‘‘Every scholar who has resorted to the Qur’an in search of solution to a problem has found in the Qur’an a principle that has provided him with some guidance on the issue.’’
   1
   

   Shatibi also observed that the specifi rulings of the Qur’an are often related to a better understanding of its general principles. For example, the Qur’an proclaims: ‘‘God permitted sale and prohibited usury’’ (Qur’an 2:275). It also proclaims: ‘‘God does not intend to impose hardship upon people’’ (Qur’an 5:6) and counsels the believers to ‘‘cooperate in pursuit of good works and piety and cooperate not in hostility and sin’’ (Qur’an 5:2). Another verse tells the believers to ‘‘obey God and obey the Messenger and those who are in charge of affairs’’ (Qur’an 4:59) and ‘‘render trusts to whom that they are due and when you judge among people, judge with justice’’ (Qur’an 4:58). Such commandments lay down basic values rather than specific rules and procedures. The same is true for the well-known com- mands to ‘‘consult them (the community) in their affairs’’ (Qur’an 3:159), to not ‘‘devour not each other’s property in vain, unless it be through lawful trade by your mutual consent’’ (Qur’an 4:29), ‘‘no soul shall be burdened with the burden of another’’ (Qur’an 6:164), or ‘‘God commands justice and the doing of good’’ (Qur’an 16:90). Each of these verses is concerned with providing basic norms and general principles, which may be related to new developments and be given fresh interpretations in new and unprec- edented contexts.
   

   Independent Reasoning and Juristic Opinion
   

   The terms for independent reasoning (
   ijtihad
   ) and juristic opinion (
   fatwa
   ) are often used interchangeably. The main difference between the two terms is that
   ijtihad
   has a greater juridical substance and often requires an explanation
   

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   Law as the Way of God
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   of its reasoning and evidential basis, whereas a
   fatwa
   most often consists of a verdict or opinion that is given in response to a particular question. It is not necessary for a
   fatwa
   to provide an explanation of its evidential basis; thus, the text of a
   fatwa
   may either be very brief or include greater depth and detail. Juristic opinions are often sought by individuals who seek legal advice in the context of litigation. In such cases, the
   fatwa
   may be cursory and brief. When a
   fatwa
   addresses complex issues the jurist often feels the need to probe into the source evidence, in which case his finding may be equivalent to
   ijtihad.
   Neither the result of
   ijtihad
   nor the finding of a
   fatwa
   binds the person to whom it is addressed, unless it is issued by a formally constituted court, in which case the decision would carry a binding force.
   Ijtihad
   may only be carried out by a highly qualified legal scholar (
   mujtahid
   ), whereas a
   fatwa
   may be issued by a
   mujtahid
   or by a scholar of lesser knowledge.
   

   Ijtihad
   literally means ‘‘striving’’ or ‘‘exertion.’’ It is defi as the total expenditure of effort by a
   mujtahid,
   in order to infer, with a high degree of probability, the rules of Shari‘a from the detailed evidence that is found in the sources. Two important points are to be noted in this definition: (1)
   ijti- had
   is to be conducted only by a qualifi jurist and scholar in Shari‘a, namely, the
   mujtahid
   and (2)
   ijtihad
   is envisaged as an individual effort wherein the
   mujtahid
   exerts himself to the best of his ability. In the following pages, we propose a modifi defi of
   ijtihad
   that expands upon the classical notion of the term. What prompts us into proposing a new definition for this term is that the conventional theory of
   ijtihad
   poses some problems if one were to make
   ijtihad
   an integral part of the legislative processes in modern times. We thus defi
   ijtihad
   in the modern context as ‘‘a creative and comprehensive intellectual effort by qualified individuals and groups to derive juridical rulings of given issues from the sources of Shari‘a in the con- text of the prevailing circumstances of Muslim society.’’
   2