Islamic Methodologies Made Easy by Ehab Shawky - HTML preview
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on 2 secondary sources, the consensus
companions.
of the companions and analogy.
Lens 5: Weak traditions.
They had different opinions regarding
Lens 6: Analogy ( Qiyas).
the legitimacy of the other sources,
these are the bold ones in this table.
The previous juristic telescopes are the apparatuses which every jurist employed in his search for legal evidences, and deduction of legal rulings. These telescopes are what scholars call “The origins of jurisprudence” ( Usool Al-Fiqh). The lenses are the sources of legitimate evidences (D aleel Shar‘y) used in the deduction of juristic opinions ( Ra’y fiqhy). The sources of legitimate evidences that were agreed upon by the jurists are summed up in the verse which says, “O you who believe, obey Allah and obey His
messenger and those in charge of your community. If you dispute over anything,
then refer it back to Allah’s laws and (the teachings) of His messenger if you truly believe in Allah and the judgment day. This is way better and closer to the best
understanding. ” [The Qur’an (4:59)].
The order to obey Allah and His messenger, is an order to follow Allah’s injunctions in the Qur’an, and Prophet Muhammad’s teachings and traditions. The order to obey those in charge of the community, is an order to follow the laws promulgated by the governmental personnel responsible for legislation. In the previous section of the book, it was explained how the Caliph gathered around him the most knowledgeable companions, and used to consult them regarding every new matter that arose.
Whatever they agreed upon, he issued as a law for all Muslims. They were the Caliph’s congress. Today’s democratic system is similar to this process but on a bigger scale.
It’s a necessity produced by the expansion of nations, and the vast increase in people’s numbers and needs.
The order to refer the matters of dispute back to Allah and His messenger was applicable during the prophet’s life, after the prophet’s departure this order was still followed by the knowledgeable companions in the form of analytical deduction. This is mentioned clearly later on in the same Qur’anic chapter where Allah says: “If they refer that (i.e. which
they dispute about) back to the messenger, and to the leaders of their community, then
those who are capable of deducing correct conclusions would surely know about it.”
[The Qur’an (4:83)].
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Based on the previous verse, whenever there was no decisive text or consensus, the companions performed analytical deduction. In short, this is a process in which the new at-hand incident is connected to another similar one whose ruling is known, and having the same effective cause ( ‘Il-lah). This was the legislation path described in the Qur’an and followed by the rightly guided Caliphs after the prophet’s death.
Now, it would be beneficial to acquire deeper understanding of the previously mentioned
“Sources of Legislation,” for they constitute the first pillar upon which the methodology of legislation in Islam was built.
The First Source… The Qur’an
The message of our creator through which we can get to contact him, learn about His attributes, know what He desires from us, and live rightly through its guidance.
Its main characteristic is that it was preserved in writing, and through memorization during the prophet’s time. It was delivered from one generation to the next in a recurring manner that assures its correctness and authenticity.
In order to stand as evidence and guide for all people ever since its revelation till the end of time, the Qur’an was made miraculous in many facets. Its linguistic construction is the most perfect, its artistic depictions are breath taking, its verses allude to scientific facts in several fields that match the discoveries made centuries after it was revealed, and it foretold future events that actually happened later on proving its legitimacy as a true message from the Omniscient Creator who has created everything.
Injunctions in the Qur’an are divided into 3 main categories:
1. Creedal injunctions: These are related to the creed of Muslims, their understanding of their Creator, His messages and messengers, this worldly life and the hereafter, etc.
2. Moral injunctions: These are related to spiritual purification, and the moral and ethical values that a faithful believer should be characterized with.
3. Practical injunctions: These are related to the deeds and acts of Muslims, whether they are acts of worship like praying, fasting, performing pilgrimage, etc., or acts of dealing and interacting with others, whether individuals, groups of people, or other nations.
This third type is the one placed under the telescope of the science of ’Usool Al-Fiqh, and consequently the science of Fiqh. They are the foundation of a complete series of laws related to every aspect of our life. Some jurists reckoned, summarized, and categorized these verses as follows:
1. Family and personal status injunctions: 70 verses.
2. Civil rights:
70 verses.
3. Penal Code:
30 verses.
4. International injunctions:
25 verses.
5. Pleading injunctions:
13 verses.
6. Economical injunctions:
10 verses.
7. Constitutional injunctions:
10 verses.
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The injunctions tackling these seven issues in the Qur’an are guide lines upon which the lawmaker should base his or her analogy and legislation. They are not detailed laws, nor does the Qur’an stand as a book of law. This is to allow a space of freedom for law makers to introduce any modifications necessary according to the circumstances of their community without colliding with the Qur’anic text.
The Second Source… The Prophetic Traditions ( Sunnah)
Sunnah is everything that the prophet P.B.U.H. did, said, or approved to during his life.
Therefore it is practical, verbal, or just an advisory approval.
1. Practical Sunnah: The acts and deeds of Prophet Muhammad in different occasions and situations, like his performance of prayers, pilgrimage, giving obligatory alms ( Zakah), etc.
2. Verbal Sunnah: The sayings, and explanations of Prophet Muhammad in different occasions and situations, like when he was asked by some companions whether they can perform ablution using sea water or not, he responded to their question saying, “Its water is pure and its caught lifeless fish is lawful to eat.”
3. Advisory approval Sunnah: The acts of the companions that were approved by the prophet P.B.U.H., either by his consent or non-denial. This is like when the prophet dispatched companion Mu‘ādh Ibn Jabal to Yemen, he asked Mu‘ādh, “How shall you judge between the people?” Mu‘ādh said, “I shall judge between them with the injunctions I find in the book of Allah (i.e. the Qur’an), if the case at-hand was not in it, then I shall look into your teachings prophet, if I couldn’t find the case in it either, then I shall make my own interpretative judgment.” The prophet P.B.U.H. approved to that and said, “Praise be to Allah who has guided the messenger of His messenger to what’s right.”
Scholars agree that whatsoever had been attributed to the prophet P.B.U.H., whether practical, verbal, or his advisory opinions, and has reached us through an unbroken trustworthy chain of narrators—whether its implication and meaning are decisive or speculative—is considered a legitimate evidence for all Muslims alongside the Qur’an.
Allah says in the Qur’an:
“Say [O Muhammad], if you love Allah, then follow my way and Allah shall love you and forgive your sins” [The Qur’an (3:31)].
“Whosoever obeys the prophet, he has obeyed Allah” [The Qur’an (4:80)].
“Indeed there is a good example for you in the prophet for those who wish for Allah’s
[protection and aid in this life] and the hereafter.” [The Qur’an (33:21)].
“Whatever the prophet orders you to do, obey him, and whatever he forbids you from doing, then abstain from doing it.” [The Qur’an (59:7)].
Among many other verses that stipulate the same meaning.
There was a consensus among the companions on the obligation of following the prophet’s Sunnah. They never differentiated between the laws promulgated through the Qur’an or those promulgated by the prophet, neither during the prophet’s life nor after his departure. Finally, the orders promulgated in the Qur’an were given in their general outlined wording; the only way to understand their application is through Prophet Muhammad’s application and explanation.
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It’s worth mentioning here that injunctions in the Sunnah are one of two kinds: 1. Assuring and explaining a summed up matter in the Qur’an.
2. Promulgating new commandments not mentioned in the Qur’an.
Hence, no conflict could arise between the Qur’an and the Sunnah.
Reports of the Sunnah are classified according to their chain of narrators into 2 kinds: 1. Recurrent ( Mutawāter): Reports that are delivered by a large number of narrators whose agreement on a lie is inconceivable. The minimum number of narrators is debatable among scholars, they agree that it should not be less than 6, and the preferred opinion is at least 10 narrators on every level in the chain of narrators ( Isnād).
2. Narrations of individuals ( ’Āhād): Reports that are delivered by less than 6 narrators on every level in the chain of narrators.
The authenticity of the first kind is considered decisive, while that of the second kind needs further investigation that shall be discussed with more details in the next chapter.
The meanings of the traditions of both kinds could either be decisive or speculative, that’s based on its wording, the availability of information about the circumstances surrounding the tradition, and its complete context.
The student of fiqh should understand that the prophet P.B.U.H. was a human being.
Whatever he did as a person acting naturally from sitting, walking, standing, sleeping, etc., and was reported by his companions to the next generations is not considered an order or injunction in the Islamic law ( Shari‘ah). Whatever was recorded from the prophet’s deeds or sayings regarding worldly life matters, e.g., agricultural advices, army preparation techniques, describing a certain medicine for a disease, etc., is not considered a legitimate law in Shari‘ah. Whatever was recorded to indicate that a certain act was something personal and only the prophet was entitled of doing, is also not part of Shari‘ah. Hence, only what was recorded from the prophet’s deeds and sayings, which he had done as a prophet promulgating a law or a certain provision for all Muslims, is what stands as a legitimate evidence in Shari‘ah and a law by which Muslims should abide.
The Third Source… Consensus ( Ijmā‘)
Consensus refers to the agreement of the well learned knowledgeable Muslim jurists—
at any time after the prophet’s death—on one ruling for a specific well defined issue.
If only one of those jurists whose knowledge and rank is acknowledged was absent, or had a different opinion, then the opinion of the majority is not considered consensus, and their opinion is not binding for all Muslims to abide by it.
The occurrence of consensus is something debatable. It was possible when jurists were few in number and living in one place, like during the reign of Caliphs Abu Bakr and ‘Omar. After this, the knowledgeable companions were scattered all over the Arab countries, and consensus was no longer possible. Imam Ahmad Ibn Hanbal said,
“Whoever claims to have reached consensus on a religious matter is a lair, maybe others have a different opinion while he doesn’t know; let him say, ‘I do not know for people have different opinions.’ ”
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This is why whenever consensus is mentioned in this book, it is usually followed by the words “of the companions.” It is important to understand that there is no decisive evidence on consensus as a legitimate source of legislation neither in the Qur’an, nor in the Sunnah.
In my opinion, it is a process built upon logic. The bigger the number of knowledgeable jurists who agree on a certain opinion, the higher is the probability of its correctness.
Likewise, if all jurists agree on exactly the same opinion, then the probability of its correctness is the highest, and its adoption by laymen is an obligation. My personal opinion in its occurrence is that it’s impossible except with analogous cases having decisive effective causes. This shall be further understood through the next source.
The Fourth Source… Analogy ( Qiyas)
Analogy is a process in which a comparison is carried out between two cases, one of them is old with an established legitimate ruling reached through one of the previous 3 evidences, and the second is a new case that has no ruling yet, but has a similar effective cause ( ‘Il-lah). This makes the comparison applicable, resulting in the establishment of a connection between the rulings of both cases. Let’s take a quick example for better understanding:
Allah says in the Qur’an, “Indeed wine, gambling, idols and divination stones are abominations from Satan, so stay away from them. Satan only wishes to produce animosity and hatred between you through intoxicants and gambling, and to avert you from the remembrance of Allah and from your prayers, so will you not desist.”
[The Qur’an (5:90-91)].
Drinking wine makes the mind befogged, consequently, a person who is drunk may commit horrible things unaware of what he or she is doing. Hundreds of people die annually for driving under the effect of alcohol, others commit adultery and wakeup unaware of what they have done or with whom, etc.; this leads to the destruction of families and the community. All crimes are committed by those whose minds are befogged, and far away from the remembrance of Allah. Based on the previous facts, jurists concluded that whatever puts a person in such a state is forbidden, like whisky, Hashish, Marijuana, etc. It is not known that any acknowledged jurist at any time or place declared a different opinion, which makes this a consensus.
Besides the previously mentioned verses of Chapter 4 that prove analogy to be a legitimate source of legislation in the Islamic Shari‘ah, Allah says in different places in the Qur’an, “Verily in this is an example,” “Seek an example in…,” and many other expressions of similar meaning. Allah is ordering us to ponder over the Qur’anic injunctions, narratives, etc., and compare them to the situations which we face in our daily lives so that we may learn the legitimate action we should follow. This is a direct order to perform analogy.
Another example from the Qur’an is where Allah says, “Man asks ‘Who may revive bones after they have turned to dust?’ Say (O Muhammad), ‘He shall revive them, him who had created them the first time, He is All-Knowing of all creation.’ ” [The Qur’an (36:78-79)].
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In this verse, Allah is ordering Prophet Muhammad to tell those who refuse the concept of resurrection to perform analogy. They don’t deny that humans were once nothing, and then later on, they came to exist. After a while—may it be long or short—they shall die and return to be nothing. It doesn’t take a rocket scientist to understand that the One who brought them to being the first time can repeat his action without any difficulty.
Other verses address the minds of atheists, and hold scientific facts as evidence on the fallacy of their logic and reasoning.
The previous few verses prove the legitimacy of analogy from the Qur’an. Now let’s look into the Sunnah; besides the tradition of companion Mu‘ādh Ibn Jabal mentioned earlier, it’s important to learn more about the prophet’s approach in educating the companions: 1. A young woman once came to Prophet Muhammad and said, “O prophet, my father died without performing pilgrimage, would it be accepted if I perform it on his behalf?” The prophet responded saying, “If your father was indebted, and you fulfilled his debt, would it be accepted?” The young woman said,
“Sure.” The prophet then said, “Then Allah’s debt is worthier of fulfilling.”
2. ‘Omar Ibn Al-Khattab once asked the prophet about a man kissing his wife while fasting, does it break his fasting or not? The prophet responded saying, “If you rinse your mouth with water while fasting, does this break your fasting?” ‘Omar said, “No.” The prophet then said, “So is your case, but don’t cross that limit.”
The above two traditions, among many others, prove the authenticity of analogy as a legitimate evidence and source of legislation. The recorded traditions do not only prove its legitimacy, but you can immediately get the sense that the prophet P.B.U.H. was urging his companions to follow this method in deducing the proper actions in different situations, exactly like Allah urges us to do the same thing in the Qur’an.
The companions followed the prophet’s path. Whenever they couldn’t find direct guidance in the Qur’an or the Sunnah, they performed analogy, and tried to reach a unanimous agreement on the best opinion introduced. One famous example is what they did the second day after the prophet’s departure, they compared the Caliphate to leadership in religious matters, and agreed to choose Abu Bakr as their leader after the prophet P.B.U.H. They said, “The prophet chose him to lead us in religious matters, so won’t we accept him as our leader in worldly life matters?” 1
When ‘Omar Ibn Al-Khattab was instating Abu Musa Al-Ash‘ary as the judge of Basra, he said to him, “Understand well whatever is laid between your hands from people’s cases. If they are not mentioned in the Qur’an or the Sunnah, then compare between matters seeking their likes, and chose the ruling you deem closer to Allah’s content and closer to what’s right.”
‘Ali Ibn Abi-Taleb also said, “People of intellect reach what’s right through analogy.”
After we have proven the legitimacy of analogy, let’s now learn about the most important tool in its utilization as a method of legislation, which is the effective cause or ‘Il-lah.
1: Unfortunately many groups throughout the Islamic history have mobilized people, and took Islam as a front in their pursuit of power and leadership without being qualified for such a position. They took this analogous opinion as their evidence on attacking any ruler. In this process thousands of Muslims were killed thinking they were dying for Islam, while actually they died for false leaders. May Allah save all Muslims from their lies and schemes.
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The Effective cause ( ‘Il-lah):
Behind any injunction in the Qur’an or the Sunnah, there is an effective cause ( ‘Il-lah).
Jurists divided injunctions into two main kinds: Devotional injunctions ( ‘Ahkam Ta‘ab-budyah) and Rational injunctions ( ‘Ahkam ma‘qulat Al-Ma‘na). Allah kept the knowledge of the effective causes of the first kind for Himself, while He guided us to those of the second kind either through the context, or through logic and reason; these are the ones that could be utilized in analogy. Examples of the first kind are: the number of units of prayer in each of the 5 prayers, we don’t know why the Morning Prayer is 2 units and not 1 or 3, so is the case with the rest of our daily prayers. Likewise, we don’t know why do we bow and prostrate while praying? Why don’t we just pray standing like Jews for instance? We don’t know why we bow only once while we prostrate twice in every unit of prayer, etc.
As for the second kind, jurists agreed that the effective cause ( ‘Il-lah) is the focus and token of any injunction provided in the Islamic Shari‘ah. They also agreed that Allah never promulgated any injunction except for the good of mankind either by preventing something harmful or by producing what’s beneficial and bringing about ease from hardship. The following are quick examples:
1. Permitting those who are sick or travelling to break their fasting.
2. Killing murderers for the sake of protecting people’s lives.
3. Cutting off the hands of thieves to preserve people’s possessions.
They differentiated between the effective cause of an injunction, and the wisdom ( Hikmah) behind it. For example: shortening the prayers is a divine permission for those who are traveling. The effective cause here is traveling, while the wisdom behind it is in bringing forth ease for the traveler who already has a lot to worry about. Based on the type of ride the traveler is taking, there could be various kinds of danger, like bandits and dangerous animals or reptiles for those traveling on camels in the desert; reaching the airport on time and boarding the luggage in the proper manner that ensures their arrival on the same plan for those traveling by air; high speed accidents, flat tires, or any mechanical breakdown for those driving their cars, etc. Here a person will say,
“But it is not a must that all travelers worry about those things; some people are used to traveling all the time, and nothing dangerous ever happens.” Well that’s true, but how can a jurist be sure that nothing will ever happen? That’s totally speculative, and no ruling could be issued based upon speculative evidence. Hence, jurists agreed that the presence of the wisdom in every case is something evaluative and indecisive, while the effective cause is more clear and decisive. Therefore, they placed a juristic principal which says:
“Legal rulings are based on their effective causes.”
They also placed some conditions for accepting any suggested effective cause: 1. It must be an evident, clearly described, perceivable cause.
2. It must be suitable and appropriate as a cause for the ruling issued.
3. It must be extendable to all similar cases, not confined to one case.
4. It must secure the wisdom and guard the law.
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In the previous example, it was made clear that one traveler may find hardship, while another may not; one may feel afraid, and another may not. In many cases, fear and hardship are unperceivable; therefore, the wisdom of bringing forth ease from hardship is something unclear and indecisive. On the other hand, traveling as a cause for shortening the prayers is something clear, decisive, suitable, and applicable for any person traveling from one city to another. ( Please note that: Jurists differed in determining the minimum distance that could be considered travelling.) Methods of determining the effective cause:
1. From the context: The context of the Qur’an, or the prophetic tradition, may clearly state the effective cause behind the injunction promulgated.
In this case the effective cause mentioned could directly be utilized in analogy.
A quick example from the Qur’an is where Allah says, “The month of Ramadan is the month in which the Qur’an was sent down as guidance for mankind with clear proofs of guidance, and the criterion by which to distinguish right from wrong. Therefore, whoever of you witnesses that month, let him fast, but he who
is ill or on a journey shall fast a similar number of days later on. Allah desires ease for you, not hardship.” [The Qur’an (2:185)].
2. From consensus: If jurists at any time make analogy, and agree unanimously on the effective cause of a certain injunction, their consensus is considered legitimate evidence on the correctness of such cause. The example given for intoxicants stands for this case.
3. Limitation and Evaluation ( As-Sabr Wat-Taqseem): If there exists a certain passage promulgating a certain legal ruling without stating its effective cause, and there was no consensus among the jurists of earlier generations on its cause, then this analytical method may be adopted in deducing the cause.
Example for the third method: There is a tradition banning usury in exchanging barley with barley, meaning that if someone was in need for pure barley, and he wanted to buy it in exchange for a bigger amount of impure barley, this is usury and it’s forbidden in Islam. It’s called “Favored usury” ( Reba Fadl). The problem here is that the tradition didn’t state clearly the effective cause behind this banning, nor is there any recorded consensus among the companions or the jurists of the next generation on the cause.
Jurists of the 4th generation analyzed the issue by limiting all the possible causes for this prohibition. For simplicity, the main causes they suggested were the following: 1. Barley is an essential nutrient.
2. Barley is a nutrient that could be stored for future use.
3. Barley is something that could be weighed and its proper price estimated.
Hanafists evaluated every cause from the previous ones 1300 years ago, they stated that, being an essential nutrient could not be the cause, as banning favored usury is also applied on gold which is not food. The second cause was also refused, as it allows favored usury for important nutrients that could not be stored for future use, like fruits and meat.
The only remaining cause is that barley is something that could be weighed, meaning that its quantity is measurable, and its proper price could be estimated. Therefore, to prevent any exploitation or injustice, the person having the impure barley should sell it first, then buy with its price pure barley. From this, Hanafists deduced that when the quality differs, usury is generally forbidden in exchanging any measurable matter with its kind.
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Other jurists limited this ruling for nutrients, gold and silver only as they are the ones specified in the prophetic traditions.
Therefore this process is carried out through the following 5 steps: 1. Analyzing the legal ruling under discussion.
2. Limiting all possible effective causes for this ruling.
3. Evaluating every cause utilizing the related evidences from the previous 3 sources, plus the individual opinions of the companions that have great importance in this case1.
4. Disqualifying the causes found unsuitable.
5. Preponderance of the effective cause deemed most suitable.
This process does not depend on conjecture like some scholars stated, it’s totally an academic approach built upon logic and reason. Though jurists have always differed in their preponderance of the most suitable effective cause for their analogy, still, their differences are something normal and beneficial, it grants Muslims a wider spectrum of opinions and choices.
This process is even found in several places in the Qur’an. One clear example is where Allah says, “Were they created without a creator or did they create themselves?”
[The Qur’an (52:35)]. In this verse, Allah is teaching us how to use the method of limitation and evaluation in order to reach the truth about His existence.
Allah is displaying for us the possible effective causes for our own existence: 1. We have come to exist without the need for an Omniscient Creator.
2. We created ourselves and the earth on which we live.
3. There exists an Omniscient creator who has created us and everything else.
The physical laws and rules that govern each and every component in this universe make the first assumption void. If the books written explaining these laws in all science branches were to be used as bricks, they would build huge cities. Imagine if the people receiving those books claim that they had no knowledgeable intelligent authors, but were the result of an explosion that occurred in a publishing house, causing the ink to scatter over the paper sheets forming the books! Of course, we can’t imagine something like this happening. Hence, the question here is why do some people imagine that the universe has come to exist with all of its constellations, planets, stars, etc., guided by all of these physical laws merely through some kind of creative chaos, without any need for organization and guidance from an “Intelligent Capable Designer,” or an “Omniscient Omnipotent Creator”?!
As for the second assumption, of course we know that we are not the creators of the universe, we cannot create one bee even if all humans on earth were to cooperate in such a project. This only leaves us with the third assumption, that the effective cause behind existence is an Omniscient Omnipotent Creator, praise be to Him our sustainer, He guides us from intellectual darkness to light.
1: If the companions performed analogy regarding the issue at-hand during their time, and they had different opinions, then their opinions must be considered and given great attention for they were the most knowledgeable of this nation, and at least one of them must have known the correct ruling.
The jurist may give preponderance to the opinion he deems most correct, but he cannot neglect all of their opinions, or else he or she is an innovator.
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One final thing that is extremely important to mention before we move on to the next evidence, Islam is built on reason and logic, no one truly believes except if his or her faith is based on reasonable thinking, and this is the beauty of Islam. Allah says in the Qur’an,
“Had your Lord willed [O Muhammad] He would have made all people become believers all together, are you then going to compel people to become believers. No soul believes except with the will of Allah, and He casts His wrath upon those who do not use their reason.” [The Qur’an (10:99-100)].
The previous four “sources of legitimate evidences,” were the ones agreed upon by the major schools of thought. Now, let’s grab some knowledge about the most important controversial sources mentioned in the table of juristic telescopes.
The Fifth Source… Preference ( Istihsān)
Hanafists define “Preference” as a process of evaluation in which the jurist waives a ruling deduced through clear direct analogy, and adopt another deduced indirectly; or he passes an old well-established legal ruling excluding part of it for a reason he deems closer to the higher objectives of the Islamic law.
An example for the first kind of preference described in the definition: Based on preference, if a person entails a piece of agricultural land for the public welfare, the irrigation water passages and the crossing passages are both included in the contract whether this is mentioned or not. Direct analogy will compare entailment with selling contracts that do not include these services, but with preference, entailment is compared to renting contracts, this is because the purpose of entailment here is to donate the outcome of the land into the public treasury, and this necessitates the presence of those services.
An example for the second kind of preference described in the definition: Based on the Qur’anic injunctions, any Muslim can bequeath one third of his or her possessions to whomever he or she likes, on the condition that this person or entity is not already among the inheritors. The other two thirds are distributed on his or her spouse, children, parents, brothers and sisters, each according to the shares prescribed in chapter 4 of the Qur’an. If this person was found incompetent because of any mental disease for instance, the bequest written under this condition is considered void. But with preference, the bequest is accepted if it was for a charitable cause that deserves the donation.
Hanafists took the following verse as evidence on the legitimacy of this source:
“Give glad tidings to my servants, those who follow the best of the opinions they listen to, they are the ones Allah has guided and they are the people of intellect.”
[The Qur’an (39:18)].
And from the Sunnah, they mention the tradition in which the prophet says,
“Whatever Muslims find preferable, then it is preferable in Allah’s sight.”
Some jurists refused this understanding; they stated that the mentioned verse and tradition do not indicate this particular approach. Among the famous jurists who refused this source totally are Imam Shāfe‘i and Imam Ibn Hazm. Some other jurists accepted the logic of the approach, but refused many of the Hanafists’ opinions that were built upon it.
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My personal opinion is that “Preference” has always been practiced ever since the prophet P.B.U.H. passed away. Take the following as quick examples:
1. During the year of famine, Caliph ‘Omar Ibn Al-Khattab stopped the application of the theft punishment. He was afraid that hunger would force people to steal, and those who are forced to commit a crime should not be punished. One may think that stopping the application of the theft punishment during famine will encourage people to steel even more. Direct analogy leads to stopping the application of the punishment on those who steal small portions of food, but ‘Omar preferred to stop the punishment totally without stating any conditions till the famine is over. He waived the ruling deduced through clear direct analogy to another deduced indirectly for a reason he deemed closer to the higher objectives of the Islamic law, which is preference of the first kind.
2. When distributing the alms during his caliphate, ‘Omar terminated the application of giving a share to those whose hearts are reconciled towards Islam.
When he was asked about this and faced with the Qur’anic verse which says,
“Alms are only for: the poor and the destitute, for those who collect zakah, for conciliating people’s hearts, for freeing slaves, for those in debt, for the cause of Allah, and for travelers in need. It is a legal obligation enjoined by Allah.
Allah is All-Knowing and Wise.” [The Qur’an (9:60)].
‘Omar responded saying, “This verse was revealed when Muslims were weak and needed to gain more allies, but now, Allah has made us victorious and increased our numbers, so Islam is no longer in need to conciliate anyone’s heart.” In this example ‘Omar passed the well-established legal ruling of Zakah excluding part of it for a reason he deemed closer to the higher objectives of the Islamic law. This is preference of the second kind.
3. The first legal ruling issued by ‘Ali Ibn Abi-Taleb when he was recognized as Caliph in Hejaz was delaying the punishment of those who assassinated his predecessor, ‘Othman Ibn Affan. Although killing murderers is a well-established legal ruling in Islam, ‘Ali saw that applying it right-away will incite the killers’ kin to revolt against him; consequently, more Muslims shall die in a horrible civil war. He preferred to delay the application of the punishment, seeking to calm people down, and unify all Muslims on his Caliphate first.
He wanted to gain the political and military support that may enable him apply the law on the multinational killers. In this example, ‘Ali passed a well-established legal ruling excluding part of it for a reason he deemed closer to the higher objectives of the Islamic law. This is also preference of the second kind.
I think that preference is a legitimate source for legislation. It’s a tool of fine-tuning the results of analogy and generating solutions that are more matching to the higher objectives of Shari‘ah. Nonetheless, it should be practiced and discussed in jurisprudential congregations, not individually. The Individual practice of preference is closer to supposition than what’s truly beneficial for all people. In other words, if the process defined above was carried out by an officially acknowledged congregation of jurists in a certain country, and they all agreed on a certain preferred opinion regarding a specific issue, then their opinion should be well accepted as legitimate evidence by the Muslims living in this country.
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The Sixth Source… Public welfare ( Masāleh Mursalah) Mālekies define “Public welfare” as any beneficial matter for which there is no mentioned legal ruling neither in the Qur’an nor the Sunnah, and there is no evidence that gives preponderance to its consideration or negligence.
As mentioned earlier, all injunctions promulgated in the Qur’an and Sunnah are for the good of mankind. They either prevent something harmful, or produce what’s beneficial.
Hence, the main purpose of legislation is to serve and protect the public welfare.
Since that people’s needs and circumstances have no limits, nor could they be confined in the injunctions of the Qur’an and Sunnah, the need for continuous legislation is something crucial from which there is no escape.
For example: Abu Bakr gathered the Qur’an, ‘Omar established judicial and postal systems, the companions built prisons in which criminals were locked, they also built coinage workshops, etc. In modern times, marriages are recorded in official records through contracts to guarantee the rights of both parties and their children. Any person must have an I.D. card for the prevention of fraud. No one can drive unless he or she has a driving license that ensures his or her knowledge of the driving rules and ability to drive, etc. All of the previous were either political decisions or legal rulings issued for the public welfare.
The companions promulgated many laws that serve people’s welfare. They didn’t have any direct evidence—neither from the Qur’an nor from the Sunnah. Actually, achieving the public welfare is the main target of law making. This is why the famous scholar Abu Al-Wafa’ Ibn ‘Uqail (431-513 A.H.) said, “Politics is every decision taken seeking to improve people’s lives and fight corruption, even if it was a decision that the prophet P.B.U.H. never took, nor is there any injunction in the Qur’an referring to it.
Whoever says, ‘There is no politics except for the matters that the Shari‘ah has tackled,’
is surly mistaken and claiming that the companions were innovators.”
Jurists placed some conditions for accepting to consider a legal ruling a matter of public welfare:
1. Issuing the rule should actually be achieving true benefits or preventing harm.
Supposition has no role in the process.
2. The issue at hand must be of public nature, not confined to an individual case.
Legal rulings should only be issued for the good of all people.
3. The ruling issued should not contradict another one that has been promulgated based on legal text or consensus.
4. The ruling must be rationally acceptable by people of sound reason.
Some scholars say that this source is the same as “Preference” in essence, but with restrictions and guiding rules. The main purpose of them both is achieving the main objectives of the Islamic law while providing a proper space of freedom for the legislators, which is what really matters.
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The Seventh Source… People’s Customs ( ‘Urf)
Linguistically speaking, ‘Urf is whatever the people are used to. In legislation, it is whatever people are used to and does not contradict any legal text. According to many jurists, people’s recurrent, prevailing customs must be taken into consideration by the legislators because it coincides with people’s interests and welfare.
For example: Because of the tough economic conditions, Egyptians are accustomed to dividing the dowry into 2 halves, one is paid before the marriage is consummated, and the other is considered a debt on the groom, he pays it whenever he can. Although this practice is not mentioned in any of the legal texts of the Shari‘ah, it is accepted by most jurists, and considered legitimate based on ‘Urf. Likewise, if the fathers of the bride and groom cannot agree on a certain dowry, then the customary dowries of the people living in the place should stand as an arbiter between them both, etc.
Thus, Imam Mālek based many of his opinions and legal rulings on the practices of Madeenites. Imam Abu Hanifah also differed with his students on many issues; the reason was the different customs each one of them had based on the place he came from. Imam Shāfe‘i too changed his jurisprudential opinions when he moved from Iraq to Egypt because he was faced by a totally different community having different customs and habits; this is why whenever someone states one of his opinions he says, “In his old school of thought (madhab), or in his new school of thought.”
Some scholars say that this source is a completion of the “Public welfare.” Only through its knowledge at any place, the proper legal rulings could be issued.
The Eighth Source… Accordance ( Istishāb)
Shāfe‘ies define “Accordance” as a process of issuing a legal ruling regarding any matter according to its initial condition until new evidence arises proving that this condition is changed. It is more concerned with denying a claim, not establishing it.
For example: If a person is missing, he or she is considered alive according to the last known condition in which he was seen. This ruling stands as long as there is no solid evidence proving death or any change in the initial condition. Consequently, any legal suits brought against a court of law demanding inheritance, divorce, etc., is rejected.
Some conformity juristic principals form the foundation of this source, e.g.: 1. “Certainty could not be nullified by doubt.”
2. “Every person is presumed innocent until convicted of a crime.”
3. “All things are lawful except that which has been prohibited by a decisive legitimate text.”
This source is the final lens that any jurist considers looking through when studying a certain case. Its utilization in legislation is considered by most jurists when there is no guiding evidence found in the previous sources.
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Objectives of the Islamic Law (Shari‘ah)
After we have discussed the sources of legislation upheld by the famous schools of thought, and tackled some of their differences, it’s extremely important to speak about the vast areas of agreement. Jurists agree that the revelation of the Qur’an occurred in two periods, the first one is the Makkan period. This one held knowledge mainly about: our Creator and His attributes; the previous nations and their prophets; the judgment day and the next life; alongside intellectual challenges to those who reject the Qur’an.
This was the period of setting the foundations of faith for the new nation; hence,
“Sound faith comes first.” The second period is the Madinian period. It held knowledge mainly about: legal provisions, family affairs, people of the book, striving in the cause of Allah (Jihad) and Muslim hypocrites. This was the period of building an Islamic state; hence, “State of justice comes second.”
In this course, when the Qur’an was first revealed to Prophet Muhammad P.B.U.H., its teachings and provisions were considerate not to destroy the standing civilization, but it looked over everything it tackled from the perspective of human welfare.
What was useful was confirmed, and what was harmful was prohibited, either instantly or gradually, based on the capacity and ability of the recipients to adapt to this new way of life. Scholars agree that the injunctions and teachings in the Qur’an and Sunnah have 5 main objectives:
1. Protecting people’s lives.
2. Protecting people’s religion.
3. Protecting people’s honor (i.e. the unity of the family).
4. Protecting people’s possessions.
5. Protecting people’s intellect.
These 5 objectives are called “Objectives of the Islamic law” (Maqāsed Al-Shari‘ah).
They constitute the Second pillar upon which the methodology of legislation in Islam was built. The following are few examples on each of the 5 objectives from the Qur’an: Objective No. 1: Protecting people’s lives.
“No believer should kill another believer, unless it be by mistake. Anyone who kills a believer by mistake should free a believing slave, and pay blood money to the victim’s relatives unless they forego it as an act of charity. If the victim belongs to people at war with you, but is a believer, then the compensation is to free a believing slave. If he belongs to people with whom you have a peace treaty, then blood money should be handed over to his relatives, and a believing slave set free. Anyone who lacks the means must fast for two consecutive months. Such is the penance imposed by Allah. Allah is all knowing and wise. If anyone kills a believer deliberately, his reward shall be eternal Hell.
Allah will condemn him and reject him, and prepare for him a terrible punishment.”
[The Qur’an (4:92-93)].
“Whoever kills a human being—except as a punishment for murder or for spreading corruption in the land—shall be regarded as having killed all mankind, and whoever saves a life shall be regarded as having saved all mankind.” [The Qur’an (5:32)].
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“Say [O Muhammad], ‘Come! I will tell you what your Lord has strictly forbidden on you, do not associate anything with Him, be good to your parents, and do not kill your children out of fear of poverty—We shall provide sustenance for you as well as for them—
refrain from committing indecent deeds, whether openly or in secret, and do not take the life which Allah has made sacred, save by right. That is what He has enjoined upon you, so that you may understand.” [The Qur’an (6:151)].
“Do not take lives which Allah has made inviolate—except by right. If anyone is killed wrongfully, We have given authority to his heirs to demand retribution, but let them not transgress the prescribed limits in exacting retribution, for then they shall be assisted
[by the law enforcer].” [The Qur’an (17:33)].
Objective No. 2: Protecting people’s religion.
“They say, ‘Be Jews or Christians, and you shall be rightly guided.’ Say, ‘By no means!
We believe in the faith of Abraham, who was ever inclined [to Allah], he was not one of those who set up partners with Allah.’ Say, ‘We believe in Allah and what was revealed to us, and what was revealed to Abraham, Ishmael, Isaac, Jacob, and their descendants, and what was given to Moses and Jesus and what was given to the [other] prophets by their Lord. We make no distinction between any of them. It is to Him that we surrender ourselves.’ If they believe as you have believed, then they are rightly guided, but if they turn back, then know that they are entrenched in hostility. Allah will surely suffice to defend you against them, for He is All Hearing, All Knowing. We take on Allah’s own dye. Who has a better dye than Allah’s? We worship Him alone. Say, ‘Do you dispute with us about Allah, while He is our Lord and your Lord? We have our actions and you have your actions. We are devoted to Him alone. Do you claim that Abraham and Ishmael and Isaac and Jacob and their descendants were all Jews or Christians?’
Say, ‘Do you know better or does Allah? And who could be more unjust than one who conceals a testimony given to him by Allah? Allah is not unaware of what you do.’ ”
[The Qur’an (2:135-140)].
“Let there be no compulsion in religion: true guidance has become distinct from error.
Whoever refuses to be led by Satan and believes in Allah has grasped the strong handhold that will never break. Allah is all hearing and all knowing. Allah is the patron of the faithful. He leads them from darkness to the light. As for those who deny the truth, their supporter is Satan, who brings them out of light into darkness. They are the heirs of the Fire, and there they will remain forever.” [The Qur’an (2:256-257)].
“O Believers, obey Allah and obey the Messenger and those who have been entrusted with authority among you. If you are in dispute over any matter, refer it to Allah and the Messenger, if you truly believe in Allah and the Last Day: this is best, and best in the end.
Have you not seen those who profess to believe in what has been revealed to you and [to other prophets] before you? They seek the judgment of evil people, although they were commanded not to obey them. And Satan wants to lead them far astray. When they are told, ‘Come to what Allah has sent down and to the Messenger,’ you see the hypocrites turn away from you. How will it be when an affliction befalls them because of what they themselves have done? They will come to you, swearing by Allah, saying that they were seeking nothing but goodwill and conciliation. But Allah knows all that is in their hearts, so ignore what they say, admonish them and speak to them in such terms as will address their minds.” [The Qur’an (4:59-63)].
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“Allah has ordained for you the same religion which He enjoined on Noah, and which We have revealed to you, and which We enjoined upon Abraham and Moses and Jesus,
so that you should remain steadfast in religion and not become divided in it. What you call upon the polytheists to do is hard for them, Allah chooses for Himself whoever He pleases and guides towards Himself those who turn to Him. They became divided only after knowledge had reached them, out of mutual jealousy. Had it not been for a decree already passed by your Lord, [to reprieve them] till a specified period, the matter would surely have been decided between them. Those who inherited the Book after them are indeed in grave doubt, amounting to suspicion about it. So call people to that faith and hold fast to it yourself as you are commanded, and do not be led by their desires, but say, ‘I believe in the Book which Allah has sent down, and I am commanded to do justice between you: Allah is our Lord and your Lord, we are responsible for what we do and you are responsible for what you do. There is no contention between us and you.
Allah will gather us together, for to Him we shall return.’ As for those who argue about Allah after He has been accepted, their arguments will carry no weight with their Lord, and His wrath will fall upon them. Severe punishment awaits them. It is Allah who has sent down the Book with the truth and the scales of justice.” [The Qur’an (42:13-18)].
Objective No. 3: Protecting people’s honor (i.e. the unity of the family).
“Divorced women should wait for three menstrual cycles, it is unlawful for them, if they believe in Allah and the Last Day, to hide what Allah has created in their wombs.
Their husbands have the right to take them back within that time, if they desire to be reconciled.” [The Qur’an (2:228)].
“It shall be no offence for you to hint at a proposal of marriage [to divorced or widowed women] or to cherish them in your hearts. Allah knows that you will bear them in mind.
But do not enter into any secret arrangement with them, beyond conveying some indication to them of your inclination. Do not proceed with tying the marriage knot before the end of their waiting period. Know that Allah has knowledge of all your thoughts.
Therefore, take heed and bear in mind that Allah is forgiving and forbearing.”
[The Qur’an (2:235)].
“Do not approach unlawful sexual intercourse, indeed it is ever an indecent thing and an evil course.” [The Qur’an (17:32)].
“Allah has not placed two hearts in any man’s body, nor has He made your wives— whom you forsake saying, ‘Be as my mother’s back’—your [real] mothers, neither has He made your adopted sons as your own sons. These are merely words which you utter with your mouths; but Allah speaks the truth and gives guidance to the right path. Call them after their own fathers—that is closer to justice in the sight of Allah. If you do not know their fathers, regard them as your brothers in faith and your protégés. You will not be blamed if you make a mistake, you will be held accountable only for what in your hearts you have done intentionally. Allah is forgiving and merciful.” [The Qur’an (33:4-5)].
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Objective No. 4: Protecting people’s possessions.
“Give the orphans their possessions, do not exchange good things with bad and do not consume their property by adding it to your own. Verily, this is a great crime.”
[The Qur’an (4:2)].
“Do not give those who are of immature mind your property which Allah has granted you as a means of support: make provision for them out of it, and clothe them, and give them good advice. Keep a close check on orphans till they attain the age of marriage, then, if you find them to be mature of mind, hand over their property to them. Do not consume it by wasteful spending, before they come of age. If the guardian is affluent, let him abstain altogether, and if he is poor, let him have for himself what is just and reasonable.
When you hand over their property to them, call witnesses in their presence, Allah is sufficient as a Reckoner. Men shall have a share in what parents and relatives leave behind, and women shall have a share in what parents and relatives leave behind, whether it be little or much. This is ordained [by Allah]. If other relatives, orphans or needy people are present at the time of the division, then provide for them out of it, and speak kindly to them. Those who are concerned about the fate of their own helpless children if they should die and leave them behind should show the same concern for orphans. Let them fear Allah and uphold justice. Those who consume the property of orphans unjustly are actually swallowing fire into their own bellies, soon they will burn in the blazing Flame.”
[The Qur’an (4:5-10)].
“Allah commands you to hand back your trusts to their rightful owners, and when you judge between people, to judge with fairness. Allah’s instructions to you are excellent.
Allah hears and sees all things.” [The Qur’an (4:58)].
“Stay well away from an orphan’s property–except with best intentions–before he comes of age. Give full measure and weight, according to justice; We never charge a soul with more than it can bear. When you speak, observe justice, even though it concerns a close relative, and fulfill the covenants of Allah. That is what He has enjoined upon you so that you may take heed.” [The Qur’an (6:152)].
Objective No. 5: Protecting people’s intellect.
“If you are in doubt about the revelation We have sent down to Our servant, then produce a single chapter like it, and call upon your helpers besides Allah, if you are truthful.”
[The Qur’an (2:23)].
“Do they not ponder over the Qur’an? If it had been from anyone other than Allah,
they would have found much inconsistency in it.” [The Qur’an (4:82)].
“Say, ‘Who provides [sustenance] for you from the heavens and the earth? Who is it who controls [the functioning of] the ears and the eyes? Who brings forth the living from the dead, and the dead from the living? And who governs all affairs? ’ They will say,
‘Allah’. Then say, ‘Will you not then fear Him? That is Allah, your true Lord. What is there, besides the truth, but error? How then can you turn away?’ Thus the Word of your Lord is proved true against those who are disobedient. They will not believe. Ask then,
‘Can any of your partner-gods originate creation, and then reproduce it?’ Say, ‘It is Allah who originates creation and then restores it: how then are you so misled?’ Say, ‘Does any of your partner-gods guide one to the Truth?’ Say, ‘It is Allah who guides to the truth.
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Then, is He who guides to the truth more worthy to be followed or one who cannot find the way himself unless he be guided? What is the matter with you? How ill you judge!’
Most of them follow nothing but mere conjecture. But conjecture is of no use against the Truth. Allah is well aware of what they do. This Qur’an is not such as could have been produced by anyone but Allah. It fulfills that [the predictions] which came before it and gives a fuller explanation of the [earlier] Revelations. There is no doubt about it: it is from the Lord of the Universe. Do they say, ‘He has fabricated it?’ Say, ‘Bring me one chapter like it. Call on whom you may besides Allah to help you, if what you say be true’! Indeed, they are denying something which they cannot comprehend, the reality not yet having dawned on them. Likewise those before them rejected the truth. So look at the end of the wrongdoers. Some of them will believe in it, while others will not. And your Lord is fully aware of the evil-doers. If they should reject you, say, ‘My deeds are mine and your deeds are yours. You are not held accountable for my actions, nor am I held accountable for what you do.’” [The Qur’an (10:31-41)].
“If you ask them who it is that has created the heavens and the earth and subjugated the sun and the moon, they will say, ‘Allah.’ How then are they turned away?”
[The Qur’an (29:61)].
“Were they created out of nothing, or are they their own creators? Did they create the heavens and the earth? No! They have no faith.” [The Qur’an (52:35-36)].
The previous were examples on the 5 main objectives of the Islamic Law ( Shari‘ah) from the Qur’an. Those who study the History of Prophet Muhammad and his teachings, may acquire deeper understanding of the practices undertaken for their preservation.
The following verses sum up the five objectives; they stress on the fact that: truthful faithful believers always observe them:
“The true servants of the Gracious One are those who walk upon the earth with humility
and when they are addressed by the ignorant ones, their response is, ‘Peace;’ and those
who spend the night prostrating themselves, and standing before their Lord, they say,
‘Our Lord, ward off from upon us the punishment of Hell, for its punishment is a dreadful torment to suffer. Indeed, it is an evil abode and evil dwelling-place.’ They are those who
are neither extravagant nor niggardly, but keep a balance between the two, those who
never invoke any other deity besides Allah, nor take a life which Allah has made sacred,
except with the right to do so, nor commit adultery. Anyone who does that shall face punishment: he shall have his suffering doubled on the Day of Resurrection and he will abide forever in disgrace, except for those who repent, and believe, and do good deeds.
Allah will change the evil deeds of such people into good ones: He is most forgiving and most merciful. He who repents and does good deeds has truly turned to Allah. And those
who do not bear false witness, and when they pass by frivolity, they pass by with dignity,
who do not turn a blind eye and a deaf ear to the signs of their Lord when they are
reminded of them, who say, ‘Lord, grant us joy in our wives and children and make us a model for the righteous. These are the ones who will be rewarded with lofty mansions in Paradise, for their steadfastness. They will be received therein with greetings of welcome and salutations of peace. There they shall abide forever: a blessed dwelling and a blessed resting place.” [The Qur’an (25:63-76)].
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Promoting Simplicity…Conformity Juristic Principles Unlike what many Muslims think, the methodology of legislation in the Qur’an was built upon promoting facilitation and disfavoring difficulty. In the Qur’an you can read verses like the following:
“Allah desires ease for you, not hardship.” [The Qur’an (2:185)].
“Allah does not charge a soul with more than it can bear.” [The Qur’an (2:286)].
“Allah wishes to lighten your burdens; man has been created weak.” [The Qur’an (4:28)].
“We do not burden any soul with more than it can bear.” [The Qur’an (7:42)].
“We charge no soul with more than it can bear.” [The Qur’an (23:62)].
“Allah does not burden any person with more than He has given him. Allah will soon bring about ease after hardship.” [The Qur’an (65:7)].
The above among many other verses confirm the same meaning, that the provisions sent by our Creator in the Qur’an are not intended to make our lives harder, but to make them easier. This was also stressed on by the prophet P.B.U.H. all the time throughout the 23
years of prophethood. Anas Ibn Mālek reported that the Prophet said, “Make things easy for the people and do not make it difficult, bode them well [with glad tidings] and do not repulse them.” [Recorded by Bukhari].
Lady ‘Āʾishah described his conduct P.B.U.H. saying, “Whenever the prophet P.B.U.H.
was given the opportunity to choose between two affairs, he always chose the easiest and most convenient among them, but if he was certain that it is sinful, he would stay as far as possible from it. He never avenged himself, but if the sanctity of Allah was violated he would, that would be for Allah not for himself (i.e. obeying Allah’s laws).
He was the last one to get angry, and the first to be satisfied. His hospitality and generosity were matchless. His gifts and endowments manifested a man who does not fear poverty.” [Recorded by Bukhari].
The prophet P.B.U.H. said, “Verily, the best [of opinions] in your religion are the easiest, the best [of opinions] in your religion are the easiest.” [Recorded by Ahmad].
“Verily this religion [was built upon] promoting simplicity. No one will ever try to complicate any of its matters except that [the other teachings of the religion] will cause him to fail.” [Recorded by Bukhari and Muslim].
“Those who are merciful are treated mercifully by the ‘All merciful’ (i.e. Allah).
So be merciful to those on earth and you shall receive mercy by the One in heavens.”
[Recorded by Tirmidhī].
“Verily those who are over strict [in their opinions] shall perish [in the hereafter].”
[Recorded by Muslim].
The previous were just the tip of the ice berg when it comes to promoting facilitation.
Therefore, those Muslims who think that the stricter they try to be, the closer they are to the Islamic teachings, have totally got it backwards. Actually it’s the opposite, the more merciful and boding well they try to be, and the keener they are on people’s welfare, the closer they are to what Islam is all about. In order to protect jurists from straying away from the objectives of the Islamic law, in the 3rd century A.H., some jurists took the initiative of placing some jurisprudential principals ( Qawā‘ed Fiqheyah) that govern the process of issuing any legal ruling or advisory opinion.
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Jurists deduced these principals from the Qur’an and the Sunnah. Their main task is to facilitate the memorization of the effective causes behind the different legal rulings, and govern the process of issuing any advisory opinion ( Fatwa) so that they may conform to the legal texts. Among these principles are the following important ones: 1. “Hardship entails facilitation.”
Although it is obligatory to fast Ramadan, Allah allowed those who are ill or traveling to break their fasting. He says in the Qur’an, “The month of Ramadan is the month in which the Qur’an was sent down as guidance for mankind with clear proofs of guidance, and the criterion by which [you] may distinguish right from wrong. Therefore, if any of you witnesses the month, let him fast, but he who is ill or on a journey may fast a similar number of days later on. Allah desires ease for you, not hardship.” [The Qur’an (2:185)].
2. “Necessity renders some forbidden acts lawful.”
Although it is forbidden to eat pork, Allah permits those who are driven by necessity (e.g. starving to death) to eat it. He says in the Qur’an, “He has forbidden for you carrions, blood, the flesh of swine, and any flesh that is consecrated except in the name of Allah.
But for one who is driven by necessity, neither craving nor transgressing the limits,
there is no sin upon him. For Allah is Oft-forgiving and Most-Merciful.”
[The Qur’an (2:173)].
Likewise, many other juristic principles were deduced by jurists, and carefully observed as guiding rules when issuing an opinion regarding any matter. This approach forms a huge part in the methodology of legislation in the Islamic law ( Shari‘ah). In a very simplified manner, and for the benefit of the reader, the following are some of the most important juristic principals that every Muslim should be aware of, and consider before taking important decisions. Each principal is followed by its evidence from the Qur’an or the Sunnah.
3. “Warding off harm is given precedence over producing benefits.”
Although drinking alcoholic beverages and gambling could be enjoyable for some people, both acts were rendered unlawful by Allah in the Qur’an because their harmful effects outweigh their benefits. Allah says in the Qur’an, “They ask you about intoxicants and gambling. Say [O Muhammad], ‘There is great sin in both, although they have some benefit for the people, but their harm is greater than their benefit.’ ”
[The Qur’an (2:219)].
4. “Private harm should be endured for the sake of lifting public harms.”
Although Prophet Muhammad was subjected to insults, beatings, being targeted to kill all the time, etc., Allah ordered him to be patient and endure this personal harm for the sake of all people’s welfare. Allah says in the Qur’an, “Call to the way of your Lord with wisdom and fair exhortation, and reason with them in the best manner. Your Lord knows best those who have strayed away from His path, and He knows best those who are rightly guided. If you want to retaliate, retaliate to the same degree as the injury done to you.
But if you are patient, it is better to be so. Endure with patience, truly, your patience is possible only with the help of Allah. Do not grieve for them, or feel distressed because
of their schemes, for Allah is with those who are righteous and those who do what’s
good. ” [The Qur’an (16:125-128)].
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5. “Harm could not be lifted by harm.”
Although Prophet Muhammad was continuously threatened as we have just stated, Allah ordered him to retaliate with what’s good. From the Qur’an we read, “Repel evil
with what is best, We are well aware of the things they say, and say, ‘My Lord, I seek refuge with You from the prompting of the devils...” [The Qur’an (23:96-97)].
Also read where Allah says, “Good and evil are not equal. Repel evil with what is better, then you will see that the one who was once your enemy has become your dearest friend, but no one will be granted such goodness except those who exercise patience and self-restraint—no one is granted it save those who are truly good.” [The Qur’an (41:34-35)].
6. “If inevitable, lesser harm is given preference over graver harm.”
Although he was innocent, Prophet Joseph P.B.U.H. preferred to be imprisoned over falling into the dark well of fornication and sinning. From what is told in the Qur’an of his story, “She said, ‘This is he about whom you have been blaming me! And indeed, I did try to make him yield to me, but he was unyielding. Now, however, if he does not do as I bid him (i.e. surrender to her seduction), he shall certainly be put in prison and be humiliated.’ Joseph said, ‘O my Lord! I prefer prison to what these women are inviting
me to do. If You do not avert their guile from me, I may yield to them, and so become
one of the ignorant.’ So his Lord answered his prayers, and warded off their guile.
He is All Hearing and All Knowing.” [The Qur’an (12:32-34)].
7. “Whatever is necessary for accomplishing an obligation is also obligatory.”
Although praying and performing ablution are two different deeds, they are interconnected, meaning that no one can pray unless he or she was in the state of purity and having performed ablution. Allah says in the Qur’an, “Believers, when you rise
to pray, wash your faces and your hands up to the elbows, and wipe your heads
and [wash] your feet up to the ankles. If you are in a state of impurity, take a full bath.
Should you be ill, or on a journey, or when you have just relieved yourselves, or you have consorted with your spouses, purify yourself by bathing. If you can find no water, take some clean sand and rub your faces and hands with it. Allah does not wish to place any burden on you, He only wishes to purify you and perfect His favor to you, in order that you may be grateful.” [The Qur’an (5:6)].
Some scholars tried to sum up the juristic principles reached into the most comprehensive ones among them. Many of them agree on 5 basic conformity juristic principles ( Al-Qawā’ed Al-’Usooleyah Al-Fiqheyah Al-Khams), they are: 1. “Certainty could not be nullified by doubt.”
2. “All harm should be lifted.”
3. “Hardship entails facilitation.”
4. “People’s customs stand as juristic evidence.”
5. “All affairs are according to their objectives.”
The previous principles among other “Conformity Juristic Principles” constitute the third pillar upon which the methodology of legislation in Islam was built.
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The Juristic Rulings ( Al-Ahkām Al-Fiqheyah) After we have learned how jurists had different approaches in issuing a legal opinion, and how they utilized the different sources of legal evidences, it is important to know that since the first century A.H., the majority of jurists divided their legal rulings regarding the actions and deeds of Muslims into 5 main kinds: 1. Obligatory ( Wājeb): it is any order promulgated by Allah in the Qur’an or by Prophet Muhammad in his Sunnah. Its observer shall be awarded, and its neglector shall be punished in the hereafter; e.g., the five daily prayers, fasting Ramadan, paying Zakah, etc.
2. Sunnah ( Mandoub): it is any deed which the prophet performed, but did not make obligatory on Muslims. Its doer shall be awarded, and its neglector shall not be punished in the hereafter. It is divided into 3 kinds:
i) Confirmed Sunnah ( Sunnah Mu’akkadah): it is any deed which the prophet observed persistently. Those who neglect it deserve to be blamed for neglecting it by their mentors; e.g., praying 2 voluntary units of prayers before the morning prayers.
ii) Supererogatory Sunnah ( Nāfelah): it is any deed that the prophet did but did not observe persistently. Those who neglect it should be encouraged to do them even once during their lives; e.g., fasting Mondays and Thursdays.
iii) Desirable Sunnah ( Mostahab): it is any deed which the prophet could have done normally. Those who follow the prophet’s example in those things out of love and sincerity shall be awarded, and those who don’t are not to be blamed in any way; e.g., walking fast, sleeping on the right side, preferring to wear white clothes, loving perfumes, etc.
3. Abominable ( Makrouh): it is any deed which the prophet hated, or implied that it was something not fit for Muslims to do. Its neglector shall be awarded, and its doer shall not be punished in the hereafter; e.g., wearing extremely expensive clothes among those who cannot afford to buy remotely similar outfits.
4. Permissible ( Mubāh): it is any deed for which the legal texts of the Qur’an or the Sunnah gave the freedom of choice to all Muslims whether to perform or neglect. Its doer shall not be awarded, and its neglector shall not be punished.
E.g., Allah says in the Qur’an, “When the prayer has been concluded, then disperse within the lands and seek from the bounty of Allah.”
[The Qur’an (62:10)].
5. Prohibited ( Muharram): it is any prohibition promulgated by Allah in the Qur’an, or by Prophet Muhammad in his Sunnah. Its avoider shall be awarded, and its doer shall be punished in the hereafter; e.g., fornication, adultery, theft, murder, lying, hypocrisy, backbiting, etc.
Finally, let’s take a comprehensive example on the different juristic opinions and their evidences regarding a simple topic, that’s for the sake of a well-established understanding.
This example only tackles the opinions of the major 4 jurisprudential schools, which is enough for the scope of this book. After the example, we shall move on to another interesting topic: how did scholars classify the prophetic traditions?
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