The Prophet Muhammad (SAAS) was the last of these prophets and, therefore, the teachings of Islam constitute the complete and perfect code of conduct for humans. Legislation in Islam is to be found in the teachings revealed to the Prophet Muhammad (SAAS) and contained in the Qur'an. The source of this legislation is Allah (SWT). As there can be no further revelation after the Prophet Muhammad (SAAS), it follows that the laws contained in the Qur'an are final, valid for all times and places, and that no human hand can amend or reform them.
In addition to the legislation contained in the Qur'an, we find that the method of interpretation and application of the legislation has also been provided for.1 Whereas modern legislation has to be interpreted by courts, interpretation of Qur'anic legislation has been provided by the Sunnah, that is, the inspired teaching and practice of the Prophet Muhammad (SAAS). Again, by Qur'anic authority, the Prophet was not only the transmitter of the divine revelation but also exemplified it in his words, attitudes, judgements and actions.
We read in the Qur'an the following verse:
You have indeed in the Messenger of Allah a beautiful pattern of conduct for anyone whose hope is in Allah and the Final Day and who engages much in the praise of Allah2
Nor does he [the Prophet] say aught of his own desire. It is no less than inspiration sent down to him.5
The example of the Prophet as contained in the Sunnah and recorded in the Hadith therefore forms a source of Islamic law, as in effect a supplement to the Qur'an. The acts, the sayings and even the silence of the Prophet (SAAS) have become a source of guidance for Muslims, of what they regard as the data of revelation. In all matters that have been dealt with and explained by him, all Muslims are bound to accept his ruling. Since there can be no higher source of guidance, it follows that the rulings of the Sunnah cannot be overturned by any human being.
The Qur'an does not however contain a code of laws. Except in a few matters, the guidance given in the Qur'an is in the form of general principles rather than detailed prescriptions. The Prophet (SAAS) was also careful not to bind the Muslims with too much detail. His approach was practical. Whenever he was asked to give a ruling on a particular matter, the Prophet (SAAS) would ask if the matter had already occurred, and he discouraged his companions from raising hypothetical questions by which they would find themselves later bound.4 Moreover, he was careful to distinguish in his rulings between those instructions that he gave as the Messenger of Allah, and hence as divine revelation, and those that he gave on his own authority. He, and the Muslims after him, regarded only the former as binding. The Muslims treated the latter with utmost respect,5 and in most cases worthy of emulation, but they continued to keep the distinction between the divine and the human in the Sunnah. Thus, while the Qur'an is a complete guide for everything6, much was left to the reasoning, or ijtihad, of the Muslims. When Mu'adh ibn Jabal was sent as the Prophet's delegate to Yemen, he was asked how he would decide matters referred to him. His reply was, "According to the Qur'an. "The Prophet (SAAS) then asked him "What if you do not find a definite ruling in the Qur'an?" Mu'adh replied, "I will look into the Sunnah of the Prophet." Once again the Prophet (SAAS) asked, "What if you do not get a definite ruling therefrom?" Mu'adh replied, "I will then use my reasoning to arrive at a solution." The Prophet (SAAS) was pleased with this answer and gave praise to Allah for giving him such a worthy delegate.7
To those who argue that because the Qur'an and the Sunnah are fundamental and cannot be amended or changed there is little scope for the intellect in formulation of Islamic law, one has only to point to the vast library of Islamic jurisprudence, the result of the efforts of Muslim jurists in using their reason and powers of intellection to arrive at solutions to problems not specifically dealt with in the Qur'an and the Sunnah, and to expand upon and extrapolate from the data revelata either to cover new cases or to realize greater equity under the challenging circumstances of history. And yet, throughout Islamic history, the divine and the human elements in legislation were never mixed. The vast difference between the inspired sources of Islamic law—the Holy Qur'an and the Sunnah-and the non-inspired sources-the result of ijtihad by Muslim scholars has never been far from sight. Imam Shafi'I explained this by using the analogy of a Muslim seeking to face the Ka'bah when he wished to perform his Salah. If the person is in Makkah al Mukarramah and
in the presence of the Ka'bah itself, he can have no choice but to turn toward it. In such situation, there is no room for the'use of the intellect. The sight of the Ka'bah experienced by him obliges him to perform his ritual facing it. The experience, which is instantly verifiable, precludes any argument about it. On the other hand, if the Muslim is far away from the Ka'bah and cannot see it with his own eyes, then he must use his reasoning to find out in which direction he should turn to face the Ka'bah. The solution he arrives at is the result of ijtihad. It cannot have the certainty of the pereon seeing the Ka'bah with his own eyes, and it may be right or wrong.8 But the Muslim gets a blessing for using his intellect to the best of his ability.9 This then is the way of the Muslim'scholar who uses his intellect.
Development of Islamic Law
It might be useful to have a quick glance at the history of the development of Islamic law. In the lifetime of the Prophet (SAAS), the law could be enacted and amended by divine revelation and any disputes or problems that could be referred to him for solution. After his demise, the law could not be developed further through divine inspiration since the medium of Divine communication was no more. If any problems, arose the Muslims had to solve them by reference to the Qur'an or the Sunnah. It was the practice of the early caliphs to try to arrive at solutions through discussion and consensus among those best fitted to do so. Practical problems received their practical solutions. The caliph in power took an active role in the deliberations. When once a solution was arrived at, it became binding on other Muslims. The early caliphs never tried to dictate or impose their wills. In many cases the caliphs were told that the solutions they proposed were contrary to the teachings of Islam, and they accepted the criticism and withdrew their suggestions. The solutions were therefore the best the Muslims could agree upon at under the circumstances. The practice of the Muslims thus conformed to the teachings of Islam.
After the time of the early caliphs, there came a time when the development of Islamic law came to be divorced from its practice. The Ummawi caliphs, for the most part, left the administration of Islamic law to the state officials, the qadis, not all of whom were qualified to exercise the duty of ijtihad. The result was that the law that was administered by the qadis ceased to draw its inspiration from Islamic law. Practice diverged from theory, and 11 became dangerous to rely on the practice of the Muslims as a mirror of the conscience of Islam. The scholars of Islam criticized the administration °f the law and in the process built up their own system of theoretical law.
Thus the law was developed by scholar-jurists rather than by judges or by the executives in power. This meant that Islamic law had no longer the advantage of the Muslims' experience of living and marrying, of buying and selling, and of contracting. This explains why the student of Islamic law or a qadi today seeks the normative injunctions of Islamic law not in the decisions of the courts or the rulings of the executive power but in the theoretical writings of scholar-jurists. There is of course a "silver lining, namely" that the efforts of the scholar-jurists have helped to preserve Islamic law and to keep it free from the influence of secular rulers and their agents, even when these were qadis. For this we should be grateful to the scholar-jurists. They have left a vast treasure of learning as an inheritance to us. It is for us to learn how to use it.
In the thirteenth and fourteenth centuries, the Muslims came under the influence of the Europeans. Most Muslim countries lost their independence. Executive, legislative and judicial power came to be influenced or exercised by the Europeans. European codes and systems of law were substituted for Islamic law and for centuries the law of the land was exercised, by decree of the colonialist rulers. In the Arab countries, European commercial, criminal, and civil codes were adopted. In Turkey, after an attempt to codify the theoretical civil law, the whole of the Muslim law was abandoned in favor of a European code. In India, the Penal Code, Evidence Act, Contract Act and others were enacted, again to replace Muslim law. The changes spread to Malaysia, where the Indian Codes were adopted to take the place of Muslim law. In most cases, Muslim governments and people are still trying to adjust to this invasion of foreign legal systems and practices. The results, however, are still far from satisfactory.
In some Arab countries, attempts have been made to replace the European codes with codes more compatible with Islamic law. New civil codes were promulgated in Egypt, Libya, and Iraq. More recently, attempts are being made in a number of Muslim countries to reintroduce Islamic criminal law. Muslim scholars everywhere feel that they should return to Islamic law; but so far, no clear consensus has emerged among them as to the precise contents of that law. Unfortunately, their difficulties are exacerbated by a class of Westerns educated judges and executives who combine ignorance of Islamic law and jurisprudence with an inferiority complex toward Western laws and institutions to which they have become accustomed.
In addition to the legislation contained in the Qur'an, we find that the method of interpretation and application of the legislation has also been provided for.1 Whereas modern legislation has to be interpreted by courts, interpretation of Qur'anic legislation has been provided by the Sunnah, that is, the inspired teaching and practice of the Prophet Muhammad (SAAS). Again, by Qur'anic authority, the Prophet was not only the transmitter of the divine revelation but also exemplified it in his words, attitudes, judgements and actions.
We read in the Qur'an the following verse:
You have indeed in the Messenger of Allah a beautiful pattern of conduct for anyone whose hope is in Allah and the Final Day and who engages much in the praise of Allah2
Nor does he [the Prophet] say aught of his own desire. It is no less than inspiration sent down to him.5
The example of the Prophet as contained in the Sunnah and recorded in the Hadith therefore forms a source of Islamic law, as in effect a supplement to the Qur'an. The acts, the sayings and even the silence of the Prophet (SAAS) have become a source of guidance for Muslims, of what they regard as the data of revelation. In all matters that have been dealt with and explained by him, all Muslims are bound to accept his ruling. Since there can be no higher source of guidance, it follows that the rulings of the Sunnah cannot be overturned by any human being.
The Qur'an does not however contain a code of laws. Except in a few matters, the guidance given in the Qur'an is in the form of general principles rather than detailed prescriptions. The Prophet (SAAS) was also careful not to bind the Muslims with too much detail. His approach was practical. Whenever he was asked to give a ruling on a particular matter, the Prophet (SAAS) would ask if the matter had already occurred, and he discouraged his companions from raising hypothetical questions by which they would find themselves later bound.4 Moreover, he was careful to distinguish in his rulings between those instructions that he gave as the Messenger of Allah, and hence as divine revelation, and those that he gave on his own authority. He, and the Muslims after him, regarded only the former as binding. The Muslims treated the latter with utmost respect,5 and in most cases worthy of emulation, but they continued to keep the distinction between the divine and the human in the Sunnah. Thus, while the Qur'an is a complete guide for everything6, much was left to the reasoning, or ijtihad, of the Muslims. When Mu'adh ibn Jabal was sent as the Prophet's delegate to Yemen, he was asked how he would decide matters referred to him. His reply was, "According to the Qur'an. "The Prophet (SAAS) then asked him "What if you do not find a definite ruling in the Qur'an?" Mu'adh replied, "I will look into the Sunnah of the Prophet." Once again the Prophet (SAAS) asked, "What if you do not get a definite ruling therefrom?" Mu'adh replied, "I will then use my reasoning to arrive at a solution." The Prophet (SAAS) was pleased with this answer and gave praise to Allah for giving him such a worthy delegate.7
To those who argue that because the Qur'an and the Sunnah are fundamental and cannot be amended or changed there is little scope for the intellect in formulation of Islamic law, one has only to point to the vast library of Islamic jurisprudence, the result of the efforts of Muslim jurists in using their reason and powers of intellection to arrive at solutions to problems not specifically dealt with in the Qur'an and the Sunnah, and to expand upon and extrapolate from the data revelata either to cover new cases or to realize greater equity under the challenging circumstances of history. And yet, throughout Islamic history, the divine and the human elements in legislation were never mixed. The vast difference between the inspired sources of Islamic law—the Holy Qur'an and the Sunnah-and the non-inspired sources-the result of ijtihad by Muslim scholars has never been far from sight. Imam Shafi'I explained this by using the analogy of a Muslim seeking to face the Ka'bah when he wished to perform his Salah. If the person is in Makkah al Mukarramah and
in the presence of the Ka'bah itself, he can have no choice but to turn toward it. In such situation, there is no room for the'use of the intellect. The sight of the Ka'bah experienced by him obliges him to perform his ritual facing it. The experience, which is instantly verifiable, precludes any argument about it. On the other hand, if the Muslim is far away from the Ka'bah and cannot see it with his own eyes, then he must use his reasoning to find out in which direction he should turn to face the Ka'bah. The solution he arrives at is the result of ijtihad. It cannot have the certainty of the pereon seeing the Ka'bah with his own eyes, and it may be right or wrong.8 But the Muslim gets a blessing for using his intellect to the best of his ability.9 This then is the way of the Muslim'scholar who uses his intellect.
Development of Islamic Law
It might be useful to have a quick glance at the history of the development of Islamic law. In the lifetime of the Prophet (SAAS), the law could be enacted and amended by divine revelation and any disputes or problems that could be referred to him for solution. After his demise, the law could not be developed further through divine inspiration since the medium of Divine communication was no more. If any problems, arose the Muslims had to solve them by reference to the Qur'an or the Sunnah. It was the practice of the early caliphs to try to arrive at solutions through discussion and consensus among those best fitted to do so. Practical problems received their practical solutions. The caliph in power took an active role in the deliberations. When once a solution was arrived at, it became binding on other Muslims. The early caliphs never tried to dictate or impose their wills. In many cases the caliphs were told that the solutions they proposed were contrary to the teachings of Islam, and they accepted the criticism and withdrew their suggestions. The solutions were therefore the best the Muslims could agree upon at under the circumstances. The practice of the Muslims thus conformed to the teachings of Islam.
After the time of the early caliphs, there came a time when the development of Islamic law came to be divorced from its practice. The Ummawi caliphs, for the most part, left the administration of Islamic law to the state officials, the qadis, not all of whom were qualified to exercise the duty of ijtihad. The result was that the law that was administered by the qadis ceased to draw its inspiration from Islamic law. Practice diverged from theory, and 11 became dangerous to rely on the practice of the Muslims as a mirror of the conscience of Islam. The scholars of Islam criticized the administration °f the law and in the process built up their own system of theoretical law.
Thus the law was developed by scholar-jurists rather than by judges or by the executives in power. This meant that Islamic law had no longer the advantage of the Muslims' experience of living and marrying, of buying and selling, and of contracting. This explains why the student of Islamic law or a qadi today seeks the normative injunctions of Islamic law not in the decisions of the courts or the rulings of the executive power but in the theoretical writings of scholar-jurists. There is of course a "silver lining, namely" that the efforts of the scholar-jurists have helped to preserve Islamic law and to keep it free from the influence of secular rulers and their agents, even when these were qadis. For this we should be grateful to the scholar-jurists. They have left a vast treasure of learning as an inheritance to us. It is for us to learn how to use it.
In the thirteenth and fourteenth centuries, the Muslims came under the influence of the Europeans. Most Muslim countries lost their independence. Executive, legislative and judicial power came to be influenced or exercised by the Europeans. European codes and systems of law were substituted for Islamic law and for centuries the law of the land was exercised, by decree of the colonialist rulers. In the Arab countries, European commercial, criminal, and civil codes were adopted. In Turkey, after an attempt to codify the theoretical civil law, the whole of the Muslim law was abandoned in favor of a European code. In India, the Penal Code, Evidence Act, Contract Act and others were enacted, again to replace Muslim law. The changes spread to Malaysia, where the Indian Codes were adopted to take the place of Muslim law. In most cases, Muslim governments and people are still trying to adjust to this invasion of foreign legal systems and practices. The results, however, are still far from satisfactory.
In some Arab countries, attempts have been made to replace the European codes with codes more compatible with Islamic law. New civil codes were promulgated in Egypt, Libya, and Iraq. More recently, attempts are being made in a number of Muslim countries to reintroduce Islamic criminal law. Muslim scholars everywhere feel that they should return to Islamic law; but so far, no clear consensus has emerged among them as to the precise contents of that law. Unfortunately, their difficulties are exacerbated by a class of Westerns educated judges and executives who combine ignorance of Islamic law and jurisprudence with an inferiority complex toward Western laws and institutions to which they have become accustomed.
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Ethics of Disagreement in Islam book by Taha Jabir Al Alwani.
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