An introduction to the principles of Islamic law

The Prophet’s sunna was the first resort in seeking to supplement the Quran, so that the course which the early Khalifas decided to adopt was comparatively simple. All they had to do was to administer the law according to the opinions which they knew he had held. In forming their judgments they had no recourse either to speculation, to private opinion, or to arguments founded upon analogy.

With the expansion of the empire and under new conditions of life, questions arose about which Muhammad had given no explicit direction. In these circumstances Muslim doctors had recourse to the exercise of their own reason, thus giving rise to a new criterion, ijma’.

 

The principle of unanimous consent (ijma‘)

This foundation for legislation in Islam stands for the unanimous consent of the doctors. Muhammad is said to have affirmed:

> “My people will never agree in an error.”

An interesting example of the exercise of this principle in its simplest form can be seen in the election of Abu Bakr to the Khilafat. This act came to be spoken of as the ijma’- ul-ummat, or the unanimous consent of the Muslim community. The “six books” of the ahadith and the four schools of law also owe their official recognition to the jjma‘ of the Muslim people.

At first it seemed natural to conclude that such agreement should be found only in the opinions of the Companions of the Prophet and their successors, because, as the first disciples, they were supposed to have been directly trained by Muhammad, and because all of them had lived in what came to be thought of as the golden age of Islam. There were some who restricted the principle to the ijma’ of the Ashab, i.e. the Companions, including the first four Khalifas but in practice it was found impossible to limit its use to these.

The principle of analogical reasoning (qiyas)

This further additional procedure was the practice of reasoning “by analogy” and could be readily justified by an incident recorded in the life of the Prophet. Muhammad wished to send a man named Mu’adh to Yaman to receive some money collected for alms, which he was then to distribute to the poor. On appointing him, he said: , “O Mu’adh, by what rule will you act?” He replied, “By the law of the Quran.” “But if you find no direction therein?” “Then I will act according to the sunna of the Prophet.” “But what if that fails?” “Then I will make a logical deduction and act on that.” Muhammad is reported to have raised his hand and said, “Praise be to God who guides the messenger of His Prophet in what He pleases !”

 

Some illustrations of the application of this principle of qiyas are given below.

1) > “and that ye be kind to parents whether one or both of them attain old age in thy life, say not to them a word of contempt, nor repel them, but address them in terms of honour” (Al-Isra 17:23).

It is concluded from this that disobedience to parents is prohibited, and prohibition implies punishment if the order is disobeyed.

2) >”and if they suckle your (offspring), give them their recompense: and take mutual counsel together, according to what is just and reasonable. And if ye find yourselves in difficulties, let another woman suckle (the child) on the (father’s) behalf”  (At-Talaq 65:6).

It is said that the maintenance of a woman who suckles an infant rests upon him to whom the child is born. From this the opinion is deduced that the maintenance of the infant also falls upon the father.

3) > “O ye who believe! Intoxicants and gambling, stones, and arrows, are an abomination, of Satan’s handwork: eschew such (abomination), that ye may prosper” (Al-Maidah 5:90).

The Quran forbids the use of khamr, an intoxicating substance, and so it is argued that wine and opium are unlawful, even though not forbidden by name. The Wahhabis extend the prohibition to the use of tobacco also.

4) There is a tradition which shows that Muhammad himself made use of this method of reasoning. “One day a woman came to the Prophet and said, ‘My father died without making the pilgrimage.’ The Prophet said, ’If thy father had left a debt what wouldest thou have done ?’ ‘I would pay the debt. ’ ‘ Good, then pay this debt also.’ “

Now this principle embodies the idea, held tenaciously by the orthodox that in Islam a perfect law has been given, even to the details of religious, social and political life. In other words, it is believed that the teaching of Muhammad contains the solution of every difficulty likely to arise: that is to say, every law not provided, can be, and must be, deduced analogically, and since all first principles are contained in the Quran and the sunna, what does not coincide with them must be wrong.

Islam is a legal religion

From all we have read it will have become clear that Islam is essentially a legal religion and that nothing is left to the believer’s free will or initiative. The Shari’at or Quranic law, supplies the Muslim with a family code, with penal and public law, and with guidance for his relations with non-Muslims. In fact, it aims at regulating all departments of his life. True, by this means there is produced and preserved a certain type of uniformity, but it is at the cost of intellectual liberty.

Finally, in the absence of any text in the Quran or the sunna or any ruling according to ijma’, the compilers of the canon law sometimes made use of ra’i or individual opinion, but this was considered an exceptional course to take and was lacking in authority.

by L. Bevan Jones  Copyright © 2011 “Message 4 Muslims” All rights reserved.

Leave a Reply