Re-examining primary and secondary sources of Shariah
Posted May 3, 2005

5-3-2005

Shariah, though understood narrowly by some as Islamic law, is in reality a complete and comprehensive code of behavior, governing the moral, ethical, spiritual, social as well as legal dimensions of a Muslim’s private or public life. Shariah literally means “the way to the water”. As a means of regulating society, Shariah endeavors to protect the rights of all human beings and by so doing, enjoins upon them certain responsibilities and obligations geared towards safeguarding these rights.

The entire corpus of the Shariah code has been derived from four agreed upon sources of Fiqh or Jursiprudence, which may be further classified as primary and secondary sources.  The primary sources of Shariah include the Holy Qur’an and the Sunnah, the established practice of the Holy Prophet pbuh.

An area of divergence that must be noted here between the Shia and Sunni schools involves the rejection by the former of Ijma (consensus) and Qiyas (analogical deduction) as secondary or derived sources of Shariah. Sunni schools however, consistently base their ijtihad on these sources. This article attempts to re-examine both the primary and secondary sources of Shariah in order to ascertain their scope and apllicability in light of modern circumstances.

Qur’an

While no Muslim disputes the authenticity or authority of the Qur’an, there is little doubt that the Qur’anic text can lend itself to variant interpretations that may reflect cultural biases, societal norms and social attitudes. Differences in the connotative and denotative usages of the language also open the door to several interpretations and may at times result in “stripping the text of its meaningful connotations” as Najah Khadim, a British scholar of Islam suggests.  It is therefore difficult to understand the Qur’an’s true spirit unless one is familiar with the historical circumstances surrounding a particular injunction. The linguistic intricacies of Qur’anic Arabic must also be thoroughly understood before laws are formulated or viewpoints established.


Sunnah.

The Sunnah of the holy prophet consists of his established practice, first witnessed by his companions, and subsequently reported through the transmission of hadith. Hadith literature is a resource that enables us to learn about the prophets words and deeds, as well as his tacit approval or disapproval about certain existing social practices. Yet Hadith as a source of Sunnah must also be subjected to a thorough re-examination for its content. Although the most authoritative compilations of hadith known as the “Sahah Sitta” are accepted by the majority of Muslims as works containing only authentic Hadith, one needs to ask, whether these would stand the test of modern scrutiny. Imam Bukhari and Imam Muslim, though well-intentioned, were nonethelss influenced by medieval cultural norms with respect to determining the admissibility of certain hadith.  These would today be rejected as spurious, because the standards applied in determining their admissibility and authenticity would be different and perhaps more stringent.

One must also bear in mind, that whereas Sunnah is the established practice of the prophet, witnessed by several of his companions,  “ahadith” were merely reports of words or deeds that may or may not have originated from the prophet pbuh. The two therefore cannot be used synonymously, as is often the case.

Yet another distinction must also be borne in mind. Not all of the prophet’s Sunnah bore religious significance and therefore cannot be used as a means to derive rules and legislation for Muslim societies.


“Ijma"or consensus of the scholars.

Sunni schools of Jurisprudence recognize the consensus of scholars on a particular issue as a secondary source of Shariah. Proponets of “Ijma” go so far as to suggest that Muslims who choose to ignore the consensus of these scholars, qualify as apostates since they disagree with the majority. Thus, for centuries the agreed upon ijtihad of the Fuqaha came to acquire an unshakable sanctity for votaries of “Taqlid” or blind following. It was hence considered incumbent on Muslims to uphold the rulings of the classical jurists in every society and era.

This view must be subjected to scrutiny for the following reasons. First, the hadith attributed to the prophet as lending validity to this view stating “my nation will not agree upon an error” is not entirely authentic.  Secondly, an ijtihad or ruling rendered on a specific circumstance in a particular era may not necessarily address the same issue adequately in another time and era. Agreed upon decisions for medieval times may not be suitable in the twenty first century. This is not to discount the efforts of the Fuqaha by any means, but to merely recognize the need for a continous flow of fresh interpretations, particularly when there appears to be a contradiction between the stated goals of Shariah and its varied applications.

Qiyas.

“Qiyas” is defined as judging and comparing.  Such comparisons are based on rulings already derived from the Qur’an, Sunnah and Ijma. Here a process of deduction is used to arrive at an analogical decision based on comparing it with a precedent.  According to the Usul ul Fiqh, such analogical deduction should be based on an understanding of reasons and causes for particular rulings. However, sometimes reasons, causes and intents become clouded behind the veil of centuries of Taqlid.  It is imperative that these be subjected to revisitation as well, and new rulings derived with the objective of delivering justice to all.

Qiyas is flawed as a mechanism to deduce laws also because no two situations can be identical.

The above analysis warrants a re-examination of the Usul Fiqh in themselves. Perhaps a new system of deducing laws based on common sense and the cardinal priciples of “Adl ” (justice), and “Ihsaan”( the doing of that which is beautiful), ought to be revived in order to achieve social justice which will guarantee rights, freedoms and priviledges, particularly to the weak and downtrodden.

Farzana Hassan Shahid is the President of the Mississauga-based group, Muslims Against Terrorism. She has written a novel called “echoes from the abyss” on Child Prostitution in India (Available amazon.com/ca) It is a Ferozsons publication. Farzana is active in the interfaith community in Mississauga and has given a number of presentations on Islam in churches and synagogues.