Shariah and Contemporary Issues *
By Dr. Adbul Basit
The structure of the Shari’ah (Islamic Law) is built on four foundations:
(2) Sunnah of the Prophet
(3) Qiyas [analogical reasoning], and
(4) Ijma [consensus].
The Shari’ah contains an elaborate and detailed code of conduct, religious duties, and acts of worship, business transactions, penalties and inheritance—in fact it covers the myriads of problems that arise in the course of man’s life. And the Shari’ah is thought of, not as a product of human intelligence, but of divine inspiration based primarily on the Qur’an and the Prophetic Traditions (ahadith).
The word ’ Shari’ah’ literally means “to make out or chalk out a clear road to water” but in its religious usage it translates to “the highway of good life” i.e., religious values expressed in concrete terms to guide man’s life. Thus the Shariah shows how a man is to conduct his life in order to realize the Divine Will. Therefore, it includes all aspects—spiritual, mental, and physica1. It comprises faith and practice, religious duties, legal and social transactions, as well as personal behavior. All is subsumed under the Shari’ah as the comprehensive principle of the total way of life!
In the early period only two sources were recognized for the Shari’ah:
The Qur’an and the Sunna of the Prophet ( ). In view of the developing needs of the succeeding generations, which embraced many nations with different customs and cultures, the need for applying human intelligence and understanding was increasingly recognized. Thus, whenever points of law arose that were not covered by a clear statement in the Qur’an or the hadith, the majority of jurists had recourse to qiyas, ijma, and/or ra’y [personal opinion].
In less than two hundred years after the death of the Prophet () Muslim scholars who were well-versed in the study of Qur’an and the principles of hadith, began to specialize in formulating Islamic jurisprudence [fiqh]. Fiqh, which literally means “comprehension” or “understanding,” now denotes Islamic jurisprudence deduced and worked out by the various Muslim scholars. Though a large number of scholars were involved in the beginning, only four major schools of fiqh remained popular.
(1) Fiqh-i-Hanafi - Its founder was Imam Abu Hanifa who is called Imam-i-Azam. He died eighteen years after the Abbasids came to power (d. 150 A.H). His two disciples, Abu Yusuf (d. 181 AH» and Mohammad al-Shaybani (189 AH», who held judicial posts in the Abbasid court, wrote extensively and organized his teachings. The Hannifi school arose out of the older Iraqi Sunna and legal school and it retained a considerable element of personal reasoning or exercise of free opinion [ra]1, even though it had tried to conform to the Prophetic Traditions.
(2) Fiqh-i-Maliki- This school is named after Malik Ibn Anas (d. 1 79 A.H). Imam Malik was born in Medina where he studied and learned hadith and became a great jurist. Imam Malik used the Qur’an and hadith as the main sources but also emphasized the importance of the unwritten customs of Medina on the presumption that “they must have been transmitted from the time of the Prophet.”
(3) Fiqh-i-Shafi’i - Imam Shafi’i was a pupil of Imam Malik (d. 204 AH.). He was considered the chief architect of Islamic jurisprudence and his theories are noted for moderation. He tried to strike a balance between the ‘upholders of hadith’.
(4) Fiqh-i-Hanbali - The founder of this school was the famous scholar Ahmad Ibn Hanbal (d. 241 AH). He adhered strictly to the traditions of the Prophet ( ); in fact his reputation as a traditionalist and theologian is greater than as a jurist. Only the Qur’an and the Sunna of the Prophet ( ) were considered by him as the authoritative sources of the law; human reason was unacceptable to him. The highly celebrated scholar and theologian, Ibn Taymiya (d. 728 AH.), and later the Wahabi movement in the Arabian Peninsula derived their inspiration from the Hanbalite school.
Without doubt these four Imams were intellectual giants, who included universal principles for applying the rules of Shari’ah to the practical problems of life. The authenticity that is associated with these four schools of fiqh is largely due to the unimpeachable integrity of their character.
It is strange that though these imams never considered their views as having attained finality, their followers were rigid and slavishly followed the legal doctrines. Dr Muslehuddin, in his book Philosophy of Islamic Law and the Orientalists, has highlighted this point: “It is interesting to note that the four Imams Abu Hanifa, Malik, Shafi’i, and Ahmad Ibn Hanbal - advised not to follow their views unless their sources are ascertained. ”
Abu Hanifa and Abu Yusuf are reported by Ibn Qayyim al-Jawaziah to have said, “It is not legitimate for anyone to follow our views until he has learned the source where we derived these views.”
It is reported that Ma’d ibn Isa heard Malik say, “I am but a human being who is capable of right and error. Consider my views carefully; whatever is compatible with the Qur’an and Sunnah accept it; whatever is in conflict with the Qur’an and Sunnah set it aside.” It was on the basis of this conviction that Malik warned the Caliph Harun al-Rashid against imposing the Maliki school on the people.
Shafi’i said, “If you come across a statement by me that runs counter to a statement by the Prophet, then follow the Prophet’s statement and do not imitate me. Similarly if an authentic tradition conflicts with my school, then follow the former and know that it is my school.” Finally Ahmad Ibn Hanbal, reputedly the most meticulous adherent of the traditions and a foe of opinion, said, “Do not imitate me, Malik, al Shafi’i or al-Thawri, but learn from the source from which they learned.”
As stated earlier, the Qur’an, Prophetic traditions, qiyas and ijma constitute the roots [usul] of the Shari’ah. They are the sole foundation of fiqh [Islamic jurisprudence]:
Qur’an - Without doubt the Qur’an, which is the final revelation of God to man, was always used as the primary source of Shari’ah - the final authority in providing guidelines to the Muslims. The real foundation of fiqh is to be sought in the Qur’an. If any points of law arose that were dearly covered by the Qur’an, and Muslim jurists accepted them! But the Qur’anic body of statements is at most universal and enunciates eternal, spiritual, and moral principles.
The strictly legislative portion of the Qur’an is relatively small. In fact only 300 verses concern aspects of jurisprudence. “Besides detailed pronouncements on the law of inheritance and on punishment for crimes such as theft and adultery (which are not legally defined) there is little in it that is properly speaking legislative.” Consequently the jurists, and scholars resorted to Prophetic traditions, qiyas and ijma.
Traditions of the Prophet—The authoritative explanation of the Qur’an, rituals and practices pertaining to prayer, fasting, hajj, and the legal and social structure of the Muslim community in everyday affairs - are largely based on the words and deeds of the Prophet [hadith]. Within two or three generations a large number of hadith was in circulation, professing to relate statements made by the Prophet ( ) on various points of law and doctrine. It soon became evident that, for a wide variety of reasons, the hadith were being invaded by forgeries on a vast scale. Imam Bukhari is said to have collected his material from no less than 200,000 hadith; but the total number of hadith quoted by him is 7,300.
Qiyas - The term qiyas means analogical reasoning i.e., the application of a given principle to a new problem based on a precedent with a common essential feature caned illa [reason]. The elements common to the two cases are used to reason from the explicitly known to the explicitly unknown. The concept of qiyas originally appeared as personal opinion or personal judgment, but by the time of Abu Hamid al Ghazali in the 4th Islamic century was, in his words, “merely another term for ijtihad,” or intellectual effort.
Ijma - Within a short period (50 years) differences in legal and dogmatic opinion on details began to appear on a very wide scale, forcing religious leaders and jurists of different regions in the Muslim community to direct their efforts toward coordination and unification. They soon agreed that ijma [consensus] had binding force. Though ijma was defined as a ‘consensus of the community,’ it was ambiguous. Some jurists interpreted ijma as the “consensus of the Prophet’s Companions,” but to others it meant “a consensus of the Muslim scholars.”
Ijtihad - In the early times the gate of ijtihad [individual inquiry or individual judgment] was open. Ijtihad means exerting one’s utmost with a view to deduce laws (by exercising independent judgment) that may be applicable to new situations or circumstances. After the formation of the four schools of fiqh, unfortunately, the Muslim scholars of later centuries were limited to commentary and explaining the fiqh, and for all practical purposes the doors of ijtihad were shut. A few eminent scholars, like Ibn Taymiya and Shah Wali Alah, claimed and did exercise the right of ijtihad
Due to blind imitation [taqlid] of one or another school of fiqh, the gate of ijtihad was shut tight and for all practical purposes there was complete immobility in Islamic jurisprudence. Many noted Muslim scholars; like Ibn Hazm (d. 1064 CE.), Ibn Taymiya (d. 1328 CE.) Shah Wali Allah (d. 1762 CE.), bitterly criticized this blind imitation and strongly emphasized ijtihad to revive the Shari ‘ah. According to Shah Wali Allah:
“Ijtihad in every age is obligatory (for Muslim scholars) and by ijtihad, I mean the fun understanding of the Shari’ah values [ahkam] based on the fundamentals of Islam, the elucidation of their details and the compilation and codification of new laws, although it may not be in conformity with the approach adopted by the founder of a particular school. The reason why I have spoken of ijtihad as obligatory is that every age has its own countless problems, and cognizance of the Divine injunctions with regard to them is essential. The material that has already been written and compiled, is not only insufficient but also embodies many differences of opinion.” (Preface of “Musaffa”)
According to Dr. Iqbal, “the verdict of history is that worn out ideas have never risen to power among a people who have worn them out. ... The only alternative open to us then is to tear off from Islam the hard crust that has immobilized an essentially dynamic outlook of life and to rediscover the original verities of freedom, equality, and solidarity with a view to rebuild our moral, social, and political ideas out of the original simplicity and universality.”
Islam is a dynamic religion, and constant reformulation and expansion of Islamic law to meet the problems of society in every age is a must. In fact, what is desperately needed now is the establishment of a council of religious scholars who can produce true ijtihad in all matters that demand new solutions in this technological era.
Originally published in the Winter 1994 print edition of The American Muslim