The Sources of Islamic Law
Bismi-llahi r-rahmani r-rahim
Wa-salla-llahu ‘ala Sayyidina Muhammadin wa-‘ala alihi wa-sahbihi ajma‘in
As Muslims our aim is to please Allah, and we do this by carrying out what He has commanded and avoiding what He has prohibited. Allah says:
Say, obey Allah and the Messenger; and, if you turn away, Allah does not like those who reject. (Q.3:32.)
Obey Allah and the Messenger that hopefully you will receive mercy. (Q.3:132.)
O you who believe, obey Allah and obey the Messenger and don't bring your actions to nought. (Q.47:33.)
There are many other similar verses.
Likewise, we find all the prophets calling on their people to obey them: "Have fear of Allah and obey me" (Q.3:50; Q.26:108, 110, 126, 131, 144, 150, 163, 179; Q.43:63).
How, then, do we know what the commands of Allah and His Prophet are, so that we can obey them?
1. The Qur'an
Firstly, of course, we have the Qur'an, "a sending-down from the Lord of all the worlds" (Q.56:80), "which no falsehood approaches, either from in front of it or from behind; a sending-down from [One] Wise and Praiseworthy" (Q.41:42).
But, as with any linguistic text, there are potential problems. It is necessary to determine, for instance, whether an expression is to be taken generally, or whether there are exceptions to it. Thus, for example, the punishment of being flogged a hundred times for zina (fornication, illicit sexual intercourse) in Q.24:2 - "A woman who fornicates and a man who fornicates - flog them both a hundred times" - is understood to refer specifically to free men and women rather than all men and women because of the judgement in Q.4:25 to the effect that slave-girls, and thus slave men as well, who are guilty of the same offence should only be punished with half the punishment stipulated for free men and women, i.e. being flogged fifty times rather than a hundred. (The relevant part of Q.4:25 reads: "and if they [i.e. slave-girls] are married [fa-idha uhsinna] and then commit adultery, they should receive half the punishment prescribed for free women".) The second verse is thus taken as an exception to the general ruling in the first. This comes under the us‚lis' heading of al-‘amm wa-l-khass ("what is general and what is specific").
It may also be that an expression which is unqualified in one part of the Qur'an is qualified elsewhere: should the first expression thus be understood to be qualified in the same way? An example of this would be the phrase fa-tahriru raqaba ("then the freeing of a slave") in Q.58:3, referring to the kaffara ("expiation") for breaking the oath of zihar, while the kaffara for accidental killing mentioned in Q.4:92 is referred to using the phrase fa-tahriru raqabatin mu’mina ("then the freeing of a believing slave"). Would a slave freed for the kaffara of zihar have to be "believing", i.e. a Muslim, as well? (Malik and al-Shafi‘i said "Yes", while Abu Hanifa said "No.") This comes under the us‚lis' heading of haml al-muþlaq ‘ala l-muqayyad (i.e. assuming an unqualified expression to be qualified in the same way as its qualified counterpart elsewhere).
It may also be that there is a contradiction between two judgements because one of them was revealed later and intended to supersede the other, although both remain in the text. An example of this would be the verses detailing inheritance rights (Q.4:11, 12 and 176) which superseded the verses prescribing bequests to parents and relatives (Q.2:180). This involves the science of al-nasikh wa-l-mans‚kh ("what is abrogating and what is abrogated").
Similarly, it is often of importance when understanding the meaning of a passage to know something about the circumstances in which it was revealed. This involves the knowledge of the "circumstances of revelation", or asbab al-nuzul (sing. sabab al-nuzul). Thus, for example, the phrase wa-la jidala fi l-hajj (Q.2:197) ("and [let there be] no argument during [or "about"] the hajj") is explained by Malik in the Muwatta’ as referring to the arguments that the Quraysh and various other tribes used to have in the pre-Islamic period concerning where the rite of "standing" should take place; now that these places had been decided and the correct sunna of doing the hajj was known, there was no longer any need for argument during the hajj about the hajj, that is, about where the various rites should take place. This interpretation by the sabab al-nuzul of the aya thus implies that "argument" in this context is not to be understood in the general sense of any argumentation during the hajj but rather in the specific sense of argument during the hajj about the hajj. However, the general rule usually observed in this context is that one goes by the general sense of such words rather than simply the specific meaning suggested by the occasion of revelation (al-‘ibra bi-‘umum al-lafz, la bi-khusus al-sabab).
Furthermore, it goes without saying that all these issues of textual interpretation demand a firm knowledge of the Arabic language.
The men who later systematised this science isolated five different types of Qur'anic statement from which judgements can be derived:
(i) Firstly, there is the nass (lit. "text") of the Qur'an (nass al-kitab), meaning, in this instance, an unambiguous text or judgement, as, for example, when Allah says: "Men who steal and women who steal - cut off their hands ... " (Q.5:38).
(ii) Secondly, there is the zahir ("overt, apparent meaning") of the Qur'an (zahir al-kitab), by which is also meant the general meaning (al-‘umum). In other words, you take an expression at face value - unless there is specific evidence to the contrary - and assume that everything that could be covered by the words is covered by those words. Thus, for example, Malik assumes that the word "mosques" in the phrase "while you are doing i‘tikaf in mosques" (Q.2:187) refers to any mosque, and not just a mosque where the Jumu‘a is done, although he then points out that if the intended period of i‘tikaf involves a Jumu‘a, then it should only be in a Jumu‘a mosque, so that the person does not have to break his i‘tikaf in order to go to the Jumu‘a.
Another example cited in this respect is where Allah says, "On the day when the wrong-doer will bite his hands [in regret], saying, ‘If only I had taken a path with the Messenger. Woe is me! If only I hadn't taken so-and-so as a friend’" (Q.25:27). Although the word "wrong-doer" is understood by some to refer specifically to ‘Uqba ibn Abi Mu‘ayt and "so-and-so" to Ubayy ibn Khalaf (with some people saying it is the other way round), most mufassirin prefer to take these expressions to refer to any and every wrong-doer, thus going by the ‘umum. Indeed, as noted above, the general rule is to go by the general meaning of such phrases rather than the specific meaning suggested by their occasion of revelation.
(iii) Thirdly, there is the dalil (lit. "indication") of the Qur'an (dalil al-kitab), by which is meant a particular type of implication also known as mafhum al-muhkalafa, or argumentum e contrario, to use the Latin expression. For example, Allah says: "And those among you who do not have the means (tawl) to marry believing free women (muhsanat) [may marry] from among those of your believing slave-girls (fatayat) that your right hands possess ... That is for those among you who fear zina." (Q.4:25). In other words, you can marry a slave-girl on condition that you don't have enough money to marry a free woman and that you are afraid of zina. Therefore, by implication (i.e. by mafhum al-mukhalafa in this case), if you do have enough money to marry a free woman and you are not afraid of zina, you shouldn't marry a slave-girl.
(iv) Fourthly, there is the mafhum (lit. "what is understood", i.e. implications) of the Qur'an (mafhum al-kitab), also known as mafhum al-muwafaqa, and sometimes further subdivided into al-mafhum bi-l-awla ("what applies even more so"), by which is meant the straightforward implication of a text in the a fortiori sense (to use the Latin expression again), and al-mafhum bi-l-musawat ("what applies equally"). For example, Allah says that one should not say "Uff!" to one's parents (Q.17:23: "And do not say ‘Uff!’ to them ... "). From this it is understood - by a fortiori reasoning, i.e. al-mafhum bi-l-awla - that one should not curse them or hit them or treat them disrespectfully in any other way.
Similarly, burning an orphan's wealth is as prohibited as using it for your own purposes, since Allah says, "Those who consume the wealth of orphans unjustly are in fact consuming fire in their bellies" (Q.4.10). (This latter is an example of al-mafhum bi-l-musawat.)
(v) Fifthly, there is the shabah (lit. "likeness") of the Qur'an (shabah al-kitab, also known as tanbih al-kitab or al-tanbih ‘ala l-‘illa), which refers to when the reason for a particular judgement is indicated, as, for example, when Allah says "or the meat of pigs, for that is filth" (Q.6:145), where He thus gives the reason why pig-meat is forbidden.
2. The Sunna, or the Qur'an in Action
So far these are very textual considerations, but the Qur'an did not come down in a vacuum. It was revealed on the tongue of a man - the Messenger, salla-llahu ‘alayhi wa-sallam - or, more correctly, it was revealed "onto his heart", and from there it came out by means of his tongue, which was "a clear, Arabic tongue". Allah says: "The Noble Spirit brought it down onto your heart for you to be one of the warners, in a clear, Arabic tongue" (Q.26:193-5), i.e. via someone who spoke clear Arabic.
This message was then acted upon by the Messenger. There is the famous hadith of ‘A'isha where she describes the Prophet by saying, "His behaviour was the Qur'an"; or, as it has also been translated, "He was the Qur'an walking". This is the origin of our second source, the sunna.
This means that, at the first level, the Qur'an is initially explained by what the Prophet, salla-llahu ‘alayhi wa-sallam, did, i.e. how he put the Qur'an into practice, as it is also explained by what he said.
These actions and words were of course witnessed and heard by those with him, who in turn acted upon them, and, in some cases, also recorded them in a more formal, "textual" way, whether by committing them to memory or, in some cases, writing them down. It was the activities of this latter group of specialists that led to the later compilation of the hadith reports about the sunna - and here we differentiate between hadith and sunna, since they are not the same.
At this point we have a second written source - commonly known as the sunna, but more accurately described as the hadith (although there is a source which we can call the sunna and which is really our second source, as we shall see shortly). From this second written source, the hadith, we can then derive the same sort of judgements that we did from the first, so we can have nass al-hadith, zahir al-hadith, dalil al-hadith, mafhum al-hadith, and shibh al-hadith in the same way that we had nass al-kitab, etc.
We should also note that the interplay between the two is extensive. Thus we can use sunna, or its textual form of hadith, to clarify what is stated generally in the Qur'an, and/or define exceptions to it, etc. Thus, for example, beyond the basic commands, very few details are given in the Qur'an about how to do the prayer or pay the zakat. Nevertheless, copious details are provided in the records of the sunna of how the Prophet, salla-llahu ‘alayhi wa-sallam, carried out these two obligations.
These two bases, the Qur'an and the sunna, are the accepted bases of the law for all the madhhabs, or schools of law. The only difference at this point is on details of interpretation, i.e. on what exactly the words of a particular aya or hadith mean.
The Historical Development of the Madhhabs
At this point, we need to say a word about the historical development of the main Sunni madhhabs before proceeding to the other sources beyond the Qur'an and the sunna.
Islam began in Makka, but it was not until Madina that it reached its fullest expression in a community of men and women living by the Qur'an and the sunna in their worship of Allah, i.e. as a Muslim polity. Allah says, in a verse that was revealed during the Farewell Hajj: "Today I have perfected your din [i.e. the way to behave] for you and have completed My blessing upon you and am pleased with islam [lit. "submission"] as a din for you." (Q.5:3)
This was then continued by the Prophet's successors during the Madinan caliphate of Abu Bakr, ‘Umar and ‘Uthman, may Allah be pleased with all of them. But, as we know, difficulties started in ‘Uthman's time and, by the end of his life, fitna ("civil strife") had for the first time reared its ugly head openly, although the Prophet had warned that this would happen.
Then came ‘Ali who, in a very short space of time, found himself having to leave Madina for Iraq in order to deal with various rebel groups - which kept him occupied for the rest of his relatively short caliphate - never to return to Madina. At this point, the seat of the caliphate effectively moved eastwards from Madina to Iraq, hence Iraq's position as the second major centre of the lands of Islam after Madina. (Basra and Kufa, the two main Muslim centres in Iraq at that time, had been founded in the time of ‘Umar.)
However, after ‘Ali's death, and the agreement by his son Hasan to forego his right to the caliphate in favour of Mu‘awiya in order to achieve reconciliation and unity amongst the Muslims - which he did, in the Year of Unity (‘am al-jama‘a), as his grandfather, salla-llahu ‘alayhi wa-sallam, had predicted he would - the seat of the caliphate moved to Damascus in Syria, which then became a third important centre of Islam. However, unlike the Iraqis, who seem to have developed a strongly independent intellectual tradition, the Syrians remained very much still connected to Madina.
Thus we find two main centres of Islamic learning (and law) developing - the Madinan and the Kufan - with a third, relatively unimportant, Syrian school also evident. These Madinan and Kufan schools later become the Maliki and Hanafi schools respectively. The third, Syrian, school lasted for a short while, with al-Awza‘i in Beirut as its main representative, and then effectively died out (although it did survive for a while longer in al-Andalus).
Most of us are aware that there are four traditional Sunni madhhabs. We have mentioned two, the Maliki and the Hanafi. Where, then, did the other two, the Shafi‘i and the Hanbali, come from? And what are the differences between them?
Very briefly, Madina was living, or you could say lived, Islam. At the time of the Farewell Hajj, the Prophet, salla-llahu ‘alayhi wa-sallam, had said: "Have I not passed on the message? Have I not passed on the message?" and the Companions had replied, "Yes." So they had it, and Madina was where the majority of the Companions were. As the hadith-scholar ‘Ubaydallah ibn ‘Abd al-Karim put it, "When the Messenger of Allah, may Allah bless him and grant him peace, died, there were twenty thousand weeping eyes", by which he meant the ten thousand Companions who were in Madina at that time.
So, these ten thousand people who were in Madina at the time of the death of the Messenger, salla-llahu ‘alayhi wa-sallam, had it, and the younger generations who grew up in Madina inherited it from the older ones, with the natural additions that were necessary as time went on and further details were worked out and new judgements arrived at. Thus, for example, in Malik's Muwatta’ we find numerous judgements not only from the Prophet, salla-llahu ‘alayhi wa-sallam, but also from Abu Bakr, ‘Umar, ‘Uthman and ‘Ali; and not only from these, the Rightly-Guided Caliphs, but also from the Umayyad caliphs and governors such as Mu‘awiya, Marwan, ‘Abd al-Malik, ‘Umar ibn ‘Abd al-‘Aziz, and others.
But not everyone stayed in Madina. Many individuals went elsewhere, e.g. Basra, Kufa, Damascus, the Yemen, and further afield. However, only a very small number of these people had an extensive knowledge of the din beyond the well-known basics. So, when they arrived in these new places, they and the people living there had to do the best they could with the knowledge they had. This is why we hear, for example, of the Iraqis being given to analogy (qiyas): if you only have a few people of knowledge among you who themselves only know a few or relatively few hadiths (in addition to the Qur'an), then that small corpus of texts has to be enough to derive all the secondary judgements you need in the natural course of life.
So, where the original Madinan (later Maliki) form of the law is based primarily on what the people in Madina were doing, the early Iraqi (later Hanafi) school of law is characterised by an extensive use of analogy on a relatively small number of texts.
This, then, gives a rough outline of the origin of two of the four madhhabs. What about the other two?
The third is the madhhab of Imam al-Shafi‘i. Al-Shafi‘i was born in the year 150 AH, which was the year in which Abu Hanifa died. Al-Shafi‘i began his studies in Makka and then went to Madina to study under Malik - and in particular, we might add, to study Malik's Muwatta’, described by al-Shafi‘i as the most accurate book on the face of the earth after the Qur'an.
After Malik's death in 179 AH, al-Shafi‘i travelled - first to Yemen, then to Baghdad (Iraq), then to Makka again, then to Iraq again, and then, finally, after another short stay in Makka and a return to Baghdad, to Egypt, where he stayed until he died in 204 AH. During his travels he saw the differences between the Muslims in their fiqh, and he saw these differences becoming greater. But were not the Muslims one umma, and did they not have one Book and one Prophet? Couldn't there be - shouldn't there be - only one definitive interpretation of the law?
What al-Shafi‘i came up with was a brilliant attempt at synthesis, but one which ended up being a third position: the Shafi‘i madhhab. He said "Yes" to the Qur'an and "Yes" to the sunna, but subtly changed the way that this sunna was to be understood. He effectively said, "How can we know what it was that the Prophet, salla-llahu ‘alayhi wa-sallam, said and did, so that we in turn can put it into practice?", and his answer was, "Through the science of hadith." In other words, if we have an authentic hadith, with a known isnad of impeccable narrators so that we know that it goes back to the Prophet, salla-llahu ‘alayhi wa-sallam, then that is what we have to follow. Anything else, any other claim to sunna, cannot be accepted. That is what al-Shafi‘i effectively said.
Now, that is not the same as Malik's position, for whom it was perfectly possible for a sunna not to be backed up by a hadith at all, and perhaps even to be at variance with a sound, authentic, impeccably-narrated hadith, and even one that is narrated by him! Thus we have, for example, Malik's judgement that it is better to pray the fard prayers with one's hands hanging by one's sides (known as sadl al-yadayn), even though he himself relates two authentic hadiths in the Muwatta’ that seemingly indicate that one should clasp the hands in front of one (known as qabd) and no hadiths suggesting the other position. So the Madinan concept of the sunna of the Prophet, salla-llahu ‘alayhi wa-sallam, or rather of how to arrive at knowledge of that sunna, was not at all the same as that of Imam al-Shafi‘i's "sunna = authentic hadith", and thus it is that there are many Madinan judgements which are understood to be authentic sunna but which seem to go against authentic hadith.
Furthermore, if we speak for a moment in terms of the hadith sciences, it is well-known that Malik would accept, and base judgements on, mursal hadiths (i.e. ones with a "link", especially the Companion-link, missing), or - even worse from the technical point of view - balaghat hadiths, i.e. where no chain is mentioned at all, both of which types were considered technically "weak" from the later post-Shafi‘i viewpoint of the scholars of hadith. For broadly similar reasons to those of the Madinans, many Iraqi (Hanafi) judgements are also based on mursal, and therefore "weak", hadiths, and many sound hadiths are "rejected", i.e. not acted upon, by them.
Al-Shafi‘i, however, took the position "If the hadith is sound [i.e. has a complete and reliable isnad], that is my madhhab." And so sunna becomes re-defined as authentic hadith.
3. Ijma‘ (consensus)
Al-Shafi‘i was also instrumental in a second re-definition - and here we return to our list of sources. His third source, after Qur'an and sunna, was ijma‘, "consensus". But whereas the Madinans had recognised an ijma‘ of the people of Madina as authoritative (or mostly so), al-Shafi‘i's ijma‘ was to be an ijma‘ of all the Muslims - or, at least, all the learned ones amongst them. In other words, the idea of a "local" ijma‘ - which was how he saw Madinan ijma‘, although this was not how the Madinans understood it - was done away with and a universal concept substituted. Now in fact all the Muslims had always accepted this universal concept - there is the famous hadith that "My community will not agree on an error" - but what, in a sense, was really happening was that the ijma‘ of Madina was being denied, which was something else.
4. Qiyas (analogy)
We have already referred briefly to the idea of qiyas when referring to Abu Hanifa's (or the Iraqis') penchant for exercising qiyas to arrive at new judgements in the absence of sufficient material in their existing textual sources. Al-Shafi‘i saw the necessity of this technique, and accepted it as a fourth source after Qur'an, sunna and ijma‘. He saw that the judgements in a limited number of texts were by nature finite, but that the general principles behind them could and should be applied elsewhere. Thus, for instance, if intoxication by wine was haram, then so too should intoxication by other drinks, or indeed other substances, once it had been established that it was intoxication that was being prohibited.
Analogy thus formed the fourth pillar of al-Shafi‘i's system, and it is this four-fold system that is generally referred to today when people speak of the sources of Islamic law - even when referring to the earlier madhhabs which ostensibly espouse very different methodologies. Nevertheless, there are other sources which, although rejected by some (al-Shafi‘i in particular), form the basis for the judgements of many others (e.g. Malik and Abu Hanifa).
Before considering these "extra" sources, though, we should mention briefly the fourth of the four madhhabs, i.e. that of Ahmad ibn Hanbal. Imam Ahmad, who died in 241 AH, was first and foremost a hadith-scholar rather than a faqih, or scholar of the law. His work is reflected in his monumental collection of hadith, the Musnad, and, although his son in particular recorded many legal judgements from him, these are more in the nature of commentaries on individual hadiths rather than a comprehensive exposition of the law such as we find, for instance, in Malik's Muwatta’ or al-Shafi‘i's Umm, both of which cover the complete spectrum of Islamic law topic by topic.
However, with the importance of hadith emphasised by Imam al-Shafi‘i, Imam Ahmad's corpus of hadith and opinions on fiqh eventually became the basis for the Hanbali madhhab. This never had numerous adherents, but it is today the official madhhab of the Saudi state.
Other Possible Sources
We have seen how Imam al-Shafi‘i's system acknowledged four main sources of law: Qur'an, sunna, ijma‘ and qiyas. But what if, having exhausted these four possibilities, you still need another judgement on something new that has arisen, or on some fine detail which seems to clash with another principle adumbrated elsewhere? How does one solve these problems and iron out these ambiguities?
5. The ‘Amal of the People of Madina
For Malik there is another source which is as important as these first four - in fact, in many ways it subsumes them - and that is the ‘amal, or "practice", of the people of Madina. (The ijma‘ of the people of Madina referred to above in the section on ijma‘ is a more limited concept in that it refers only to those judgements on which there was general agreement in Madina, whereas the ‘amal of Madina as a whole includes points about which there were sometimes significant differences of opinion among the Madinan ‘ulama’.)
One could say a lot about this topic, but suffice it here to say that ‘amal is not merely "local custom", as its opponents (both Muslim and non-Muslim) claim, but rather - in its earliest form, at least - a non-textual source of sunna on the level of mutawatir hadiths (i.e. hadiths with multiple, and parallel, chains of authority). That is, it represents a non-textual transmission of the practice of the Prophet, salla-llahu ‘alayhi wa-sallam, (or, perhaps, one of the Rightly-Guided Caliphs) by many from many, in the same way that mutawatir hadiths represent a textual transmission of the practice of the Prophet, salla-llahu ‘alayhi wa-sallam, by many from many. Most hadiths, by contrast, are transmissions by one from one, or, at best, a few from a few, i.e. the khabar al-wahid, pl. akhbar al-ahad, type of hadith. This is the reason for the comment of the famous 2nd-century Madinan scholar, Rabi‘a (d. 136 AH), to the effect that "One thousand from one thousand is preferred by me to one from one; one from one would tear the sunna right out of your hands." "One thousand from one thousand" was the situation in Madina, while "one from one" was the situation everywhere else. This was also the reason why Abu Yusuf, for example, changed his mind about the correct measurements for the mudd and the sa‘ of the Prophet, salla-llahu ‘alayhi wa-sallam, when he saw how the size of these had been preserved physically, from one generation to another, by the people in Madina. Indeed, it is said that Abu Yusuf and al-Shaybani, the two main founders of the "Hanafi" madhhab after Abu Hanifa, had between them to change fully one third of Abu Hanifa's madhhab after their exposure to the knowledge of the people of Madina.
Two examples will give some further idea of the nature of Madinan ‘amal as a source of judgements:
(i) We have already referred above to the question of sadl al-yadayn, or doing the prayer with one's hands by one's sides. This was a judgement based on the ‘amal of the people of Madina, with Malik denying the applicability of the hadith-based judgement that one's hands should be clasped in front of one (qabd) when doing obligatory prayers but allowing it for voluntary prayers: "I don't know of this practice [i.e. qabd] as far as obligatory prayers are concerned, but there is no harm in someone doing it in voluntary prayers, if he has been standing for a long time, in order to make it easier for himself."
(ii) In his Mukhtasar, Khalil refers to what is known as the "transaction of the people of Madina (bay‘at ahl al-Madina)" when he says: "[It is permissible] to buy from someone whose work is continuous, like a baker, and this is [considered] a[n ordinary] sale; if it is not continuous, it is [considered] a pre-payment transaction (salam)."
The people of Madina used to buy meat from the butcher's, taking a certain amount day by day, and then pay for it when they had received their stipends, which might be only once a month. This type of transaction thus shares characteristics with the forbidden transaction of a debt for a debt, because it is like a pre-payment transaction (salam) in which the actual transfer of both the money to be paid and the thing being payed for are delayed (e.g. the meat that I will be buying next week I will be paying for in two weeks' time). However, since the butcher's work goes on day by day in the same way, and given that the buyer begins to receive some of what he has arranged to buy straightaway, this transaction is considered as a type of ordinary sale rather than a salam contract, and so it is not a condition that the money be paid first and the thing being paid for be delivered later (as it would be in an ordinary salam contract).
This transaction was something that the people of Madina used to do. In the ‘Utbiyya and other sources there is a report from Malik that Salim ibn ‘Abdallah ibn ‘Umar said: "We used to buy meat from the butcher's at a known price, taking two or three ratls every day and agreeing with them that we would pay them when our stipends came in. I think that this is an acceptable practice (ara dhalika hasanan)." Malik added: "And I see no harm in it, as long as the stipend is regular and payment can be expected at a known time."
Ibn Rushd (the Grandfather) says, in his commentary on this report: "The words ‘We used to buy meat from the butcher's at a known price, taking two or three ratls every day and agreeing with them that we would pay them when our stipends came in’ shows that this was something which was well-known amongst them, so much so that the transaction is known as ‘the transaction of the people of Madina’. This was considered acceptable by Malik and his companions, because it was part of the ‘amal of the people of Madina ... even though qiyas would suggest otherwise."
This originally applied to butchers, but was then extended by qiyas to anyone producing food on a daily basis, such as bakers, milk-sellers and cooks.
6. The Opinion of a Companion
This principle includes, for example, something which one of the Rightly-Guided Caliphs did and which nobody disagreed with, such as ‘Umar's institution of group tarawih prayers in the mosque in Ramadan. Such a practice then becomes like an authoritative text (nass) because of the Prophet's saying that "You must hold to my sunna and the sunna of the Rightly-Guided Caliphs [after me]." Furthermore, since nobody said gainsaid this judgement, it is like a silent consensus (ijma‘ sukuti).
As for the opinions of other Companions who were not caliphs, these are considered authoritative (hujja) by Malik, because he considers the Companions to be followers of the sunna and not innovators. Furthermore, they may have based their opinion on knowledge of a sunna which others did not know about. Thus in the Muwatta’ and other early texts we find numerous opinions of the Companions, such as ‘Abdallah ibn ‘Umar and ‘A'isha, may Allah be pleased with them both.
Istihsan refers to when a "hidden" qiyas (qiyas khafi) is given preference to a "clear" qiyas (qiyas jali), or when a partial exception is made to an otherwise general rule because of some indication elsewhere in the Shari‘a. An example of this would be the validity of certain types of bequest made by a minor whose money is being held in trust for him (wasiyyat al-mahjur). Under normal circumstances, he is not allowed to use this money as he wants. If, however, he dies having made a bequest regarding his money (i.e. the third that is allowed for bequests), such a bequest is considered valid. Ordinary, "clear" qiyas would suggest that he is not allowed to use any of his money for any purpose. By istihsan, though, his bequest is considered valid, because the point of his being made mahjur is to protect his money and guard him against poverty while he is alive; when he is dead such concerns no longer apply. For this reason it is permissible for a young boy, for example, to make a bequest regarding money of his that is being held in trust for him, assuming this is for a good cause, such as for a mosque, or for the benefit of some of his relatives, etc.
8. al-Masalih al-mursala
Masalih is the plural of maslaha, which means "something of benefit". Mursala in this context means, literally, "set free", "unrestricted", i.e. that there is no text either expressly allowing or forbidding the particular matter. In other words, the principle of al-masalih al-mursala refers to matters about which there is no definitive judgement or precedent in the Shari‘a but which are allowed because of their general benefit to the community, as long as they do not go against an existing judgement.
It is well-known that Malik favours this principle. However, as al-Qarafi notes, one in fact finds it acted upon in all the madhhabs. Indeed, this principle was used extensively by the Companions, particularly the first caliphs.
In his Maraqi al-su‘ud, Sidi ‘Abdallah al-Shinqiti (d. c. 1233 AH) notes the following seven examples:
(i) Writing down the Qur'an and vocalising the written text. After many of those who knew the Qur'an by heart had been killed during the Wars of the Ridda, Abu Bakr had the Qur'an collected together in a written form. This is considered a maslaha mursala because, in the time of the Prophet, salla-llahu ‘alayhi wa-sallam, the Qur'an was not collected together in a written form. Later, in the middle of the first century AH, people also began to vocalise the text in order to preserve it from corruption. This, too, was a maslaha mursala.
(ii) Abu Bakr's appointment of ‘Umar as his successor. Abu Bakr left instructions that ‘Umar should be the caliph after him, although the Prophet, salla-llahu ‘alayhi wa-sallam, had not left any such instructions when he died. Some people say that Abu Bakr only did this to avoid repetition of the confusion at the Saqifa after the Prophet, salla llahu ‘alayhi wa-sallam, had died. However, the preferred view is that he did this because he saw that ‘Umar was the best man for the job.
(iii) Demolishing a waqf or other building next to a mosque in order to enlarge the mosque because of an increase in the number of people using it.
(iv) Establishing a standard coinage for the Muslims. ‘Umar established standard weights for both gold and silver coins in order to facilitate correct transactions between people. In the time of the Prophet, salla llahu ‘alayhi wa-sallam, the Muslims did not have their own distinctive coinage, but would use whatever coins (and/or unminted gold and silver) were available, measuring them by weight. These coins, however, contained differing amounts - and qualities - of gold and silver. ‘Umar therefore standardised the weight of the dinar (gold) and dirham (silver) such that ten dirhams of silver weighed the same as seven dinars of gold, basing himself on the overall average weight of the coins commonly being used at that time.
(v) Adding a second adhan on the Day of Jumu‘a. When the numbers of people coming to the Jumu‘a had begun to increase markedly, ‘Uthman instituted a second adhan to be done before the imam sat down on the minbar so that people could have more time to get ready for the prayer.
(vi) Establishing a jail (sijn) as a place of detention for certain well-defined purposes. In the time of the Messenger, salla-llahu ‘alayhi wa-sallam, and Abu Bakr there were no jails; rather people would be detained, for example, by being tied to a pillar in the mosque and kept there until such time as judgement was made about them. ‘Umar, however, bought a house in Makka which he made into a jail. Indeed, ‘Umar is well-known for having jailed the poet al-Hutay’a for lampooning the then governor of Madina (although some sources suggest that he was put at the bottom of a well rather than - or perhaps as well as - in a house), as he also jailed –abigh ibn ‘Isl, after flogging him a hundred lashes, for his persistent questions about the mutashabih verses of the Qur'an. Similarly, ‘Uthman jailed Dabi’ ibn al-Harith al-Burjumi, after flogging him, for lampooning a group of the Ansar. Later, after he was released, he was caught planning to attack and murder the caliph. ‘Uthman therefore jailed him a second time, and he ended up dying in jail, though after how long is not clear. ‘Ali and Ibn al-Zubayr also used such jails in Kufa and Makka respectively. As mentioned above, the Prophet, salla llahu ‘alayhi wa-sallam, kept people as detainees, but he did not use a building specifically set aside for that purpose. Doing so was therefore a maslaha mursala.
What should be made clear at this point, however, is that, although in modern Arabic the word sijn (verbal noun sajn) is commonly used to mean "prison" in modern Arabic, what is being envisaged here is not imprisonment in the modern sense of the word, i.e. what is known by European legal scholars as "punitive detention", or incarceration as a punishment following conviction. For, as Shaykh ‘Abd al-Qadir as-Sufi has clearly summarised the situation, in Islamic shari‘at there is neither prison nor prison sentence. Justice is done, done publicly, and done immediately. There is no mental torture added to the sentence through delay between sentence and judgement ... In Islam, there is neither prison nor police. Prisoners may be taken in war and kept until re-allocated back into society but there is no possibility of permanent camps ...
Rather, what is being envisaged here is closer to what Western legal scholars refer to as "administrative detention", i.e. detention as a form of compulsion (as, for example, in the case of debtors or, in the above examples, –abigh ibn ‘Isl, until he retracted his views), and "pre-trial detention", i.e. detention of a suspect before his trial commences. Thus Malik, for example, refers to the possibility of someone being detained for theft and kept in jail (fi sijn) until such time as his case is decided, as he also refers to the possibility of someone being jailed for a year (yusjanu sana) if (a) he has been a direct, but unintentional, accessory to murder by having held someone down while he was being beaten to death, on the understanding that he thought the murderer was only going to beat the victim, not kill him, in which case he should be severely punished and then jailed for a year, or (b) he is guilty of murder but has been pardoned by the murdered man's family, in which case he should be flogged a hundred lashes and then jailed for a year. Both of these latter judgements are arrived at by qiyas with the "banishment" (nafy) of one year which is imposed in certain cases of fornication after the punishment of flogging has been administered, and which is understood to involve "imprisonment" (sajn) in the place to which the offender is banished.
(vii) Compiling official diwans, or registers. ‘Umar was the first to compile an official diwan, or register, of the Muslims and the various amounts that they were entitled to receive as stipends according to how early they had become Muslim and what they had done in the service of Islam. This, again, was something that had not been done in the time of the Messenger of Allah, salla-llahu ‘alayhi wa-sallam.
9. Sadd al-dhara'i‘
Sadd al-dhara'i‘ means, literally, "blocking the means", i.e. to undesirable ends, in other words, forbidding what is likely to lead to the haram. This is thus an extension of the general principle that what leads to the haram is haram, just as what leads to the obligatory is obligatory, and what leads to the permitted is permitted.
The basis of this principle is contained in the Qur'an where Allah says: "Do not swear at those who call on other gods than Allah, so that they will then swear at Allah in enmity, without any knowledge. In this way We have made every community's action seem good to them. Then their return will be to their Lord and He will inform them of what they used to do." (Q.6:108). Allah has made it haram for us to swear at the idols of idol-worshippers because, if we do, they will then swear at Allah, and this greater evil needs to be prevented. This is thus also an application of the principle of choosing the lesser of two evils (akhaff al-dararayn) (see below).
Al-Qarafi says that all the Muslims are agreed that such dhara’i‘ fall into three sub-categories:
(i) those whose prohibition is agreed upon, e.g. digging wells in the paths of the Muslims or swearing at idols (i.e. something that is highly likely to cause harm, although in itself permitted).
(ii) those whose permissibility is agreed upon, e.g. cultivating grapes (i.e. something that could lead to what is haram, since grapes are of course essential for the production of wine, but which is more normally used for permitted purposes, i.e., in this case, the production of food).
(iii) those about which there is a difference of opinion, such as certain transactions coming under the category of buyu‘ al-ajal ("deferred sales"), which Malik and the Madinans forbade, although others allowed them.
The transactions in question here involve:
(a) selling something on credit terms and then buying it back for a lesser amount either paid in cash or on shorter credit terms than the original transaction. An example of this would be if A sells B some goods for 100 dirhams to be paid in a month's time and then buys them back from B for 50 dirhams paid either immediately or, say, in fifteen days' time. B thus effectively gets 50 dirhams now (or in fifteen days' time) for which he must pay back 100 dirhams to A in a month's time, with the goods effectively remaining in the hands of A, the original owner.
(b) selling something on credit terms and then buying it back for a larger sum to be paid at a later date than the original credit terms. An example of this would be if A sells B some goods for 100 dirhams to be paid in a month's time and then buys them back from B for 150 dirhams to be paid in two months' time. In this case B is effectively paying 100 dirhams in a month's time to get 150 dirhams in two months' time, with the goods again effectively remaining in the hands of the original owner A.
Malik and the Madinans forbade both types of combination because, although as individual transactions they are all permissible, when combined in this fashion they can become a means (dhari‘a) to allowing riba.
The important consideration with regard to sadd al-dhara’i‘ is thus the result of the action, and whether it leads to benefit or harm.
Under this principle come certain sub-principles, e.g:
(i) "preventing harm is given preference over gaining benefit". For example, if someone does wudu’ and is not sure whether he has washed his face three times or only twice, he assumes it is three, because he shouldn't wash it more than three times, whereas washing it twice is acceptable (and recorded as part of the practice of the Prophet, salla-llahu ‘alayhi wa-sallam).
(ii) "the lesser of two evils". For example, if some Muslims are being used as a shield by a non-Muslim enemy and the main body of Muslims are certain that, if they do nothing about this, the enemy will get the better of them and end up occupying the territory of the Muslims, then it is permissible to strike the enemy and the Muslims with them. In other words, it is better that some Muslims get killed in order to save the majority of the community than that the whole community is destroyed. (Some people consider this to come under the category of al-masalih al-mursala.)
10. ‘Urf (custom)
This principle applies to things such as use of language, food, clothing, etc. One example would be understanding the word dabba ("riding-beast") as used in certain areas to refer to a donkey rather than any other type of animal. In other words, certain words are understood in a certain way in certain areas, which might be different from the "dictionary" definition. In cases involving the interpretation of such words, their customary meaning is taken into account.
Another example is the custom in some areas of dividing the dowry into two parts, one of which is paid at the time of the marriage (hall), and the other of which is delayed until later (mu’ajjal). If a case arises in which a wife says she has only received half of her dowry (i.e. not the "delayed" part) and her husband says that he has paid it all, the ‘urf, or customary practice, in such matters is taken into account in arriving at a judgement, and preference given to what is normally understood by the relevant words.
A third example is that handing over goods without saying anything can, in certain circumstances, be considered the same as actual words of acceptance as far as buying and selling are concerned.
11. Other general principles
There are certain other general principles of which one needs to be aware. We have already mentioned preferring the prevention of harm to the gain of benefit, and also the lesser of two evils. Other principles include:
(i) "Harm is to be removed" (al-darar yuzalu), in accordance with the hadith "There should be no harm nor reciprocating harm". Examples include: returning what has been taken unjustly along with liability for any loss or damage; and preventing someone from doing what will cause harm to his neighbour.
(ii) "Difficulty allows ease" (al-mashaqqa tajlibu l-taysir). Allah says: "He has not put any constraint on you as far as the din is concerned" (Q.22:78). For example, if using water causes or is likely to cause harm, you do tayammum instead of wudu’. Likewise, a sick person doesn't have to fast. Allah says: "And whoever among you is ill, or on a journey, [should fast] a [similar] number of other days. Allah wishes ease for you and does not wish difficulty for you" (Q.2:185).
Some people use the above-mentioned aya about no constraint in the din to allow themselves to do what they want, but that is not the correct tafsir of it in this context. Rather, what is meant here are those instances where there is serious rather than slight difficulty (since there may of course be different degrees of difficulty). Slight difficulty, for example, would be getting up in the morning and having to use very cold water to do wudu’ with: it might cause you discomfort, but it doesn't harm you. It becomes serious, though, if using water either causes illness, or increases it, or prevents one from being cured.
(iii) "Certainty is not removed by doubt" (al-yaqin la yurfa‘u bi-l-shakk). Points coming under this category include: assuming you have only done three rak‘as if you are not sure whether you have done three or four; and having a claimant produce two witnesses for his claim and, if not, letting the defendant make an oath that what is being claimed from him is his own and not the claimant's.
(iv) Related to the last principle is the more general one that "Things are assumed to be now as they have been" (ibqa’ ma kana ‘ala ma kana). For example, you assume that someone is still alive now unless you have heard definitively that he is dead (in inheritance cases, for example). This, the presumption of continuity, is also known by the term istishab.
(v) Some mention a fifth rule, which is that "Things are [judged] according to the intentions behind them", which is based on the hadith "Actions are by intentions [or "are according to intention"], and every man gets what he intends." Thus, for example, the actions of wudu’ alone are not valid unless they are accompanied by the intention of doing wudu’.
The above approach results in a list of possible sources which can be ordered and numbered in terms of perceived priority. Indeed, one often finds such lists, albeit in slightly different orders and with various additions and/or omissions. Thus, for example, Rashid ibn Abi Rashid al-Walidi (d. 675/1276), in his al-Halal wa-l-Haram, mentions the following seventeen sources:
1-5. the nass, zahir, dalil, mafhum and shabah of the Qur'an
6-10. the same with regard to the sunna
13. the ‘amal of the people of Madina
14. the opinion of a Companion
16. sadd al-dhara’i‘
17. mura‘at al-khilaf ("respecting differences [of opinion]") which, he says, is sometimes considered and sometimes not.
Ibn Hamdun (d. c. 1273/1857), in his Hashiya on Mayyara's "Lesser Commentary" on Ibn ‘Ashir's al-Murshid al-Mu‘in, mentions the same seventeen sources but also includes istishab in his list, thus making eighteen possibilities. Other scholars, such as al-Qarafi (d. 684/1285), include al-masalih al-mursala and ‘urf, as in our discussion above, as well as other disputed principles.
However, what we have to note here is that all of these systematisations are, in a sense, being wise after the event, whereas the active faqih, mufti or qadi who is confronted by actual issues does not have this luxury: what he needs is to be wise in the event. It is often easy to understand afterwards how a particular person has arrived at a particular judgement: what is not so easy is to know how to do so at the time the judgement needs to be made. When confronted by a case, the faqih, mufti or qadi will not look down his list and decide which "source" is most appropriate; rather, he will be concerned to achieve justice in the situation using any means at his disposal. But knowing the path of justice in a situation involves not just knowing the sources, but having a clear heart in order to be able to recognise what the path of justice is. And this, we must recognise, is only possible for someone who is actively engaged in jihad of his own nafs ("self"). As Imam Malik said: "Knowledge is not a matter of knowing many texts; knowledge is a light which Allah puts in the heart." He also said: "When a man is zahid ("does-without") and has taqwa ("fear") of Allah, Allah puts wisdom in his speech", and wisdom, as he defined it elsewhere, is "understanding the din of Allah (al-fiqh fi din Allah)".
Thus fiqh is not - or should not be - a theoretical activity. Rather, it arises out of actual situations. The fiqh that Malik was referring to in the above comment is the response by the individual faqih, mufti or qadi to a real situation which needs a real answer because it has arisen in practice. This, of course, is then no longer simply an academic exercise, but a necessity born out of a need and desire to put the Shari‘a into practice and thus establish Islam both inwardly and outwardly.
May Allah give us understanding of His din, and the ability, desire and circumstance to put it into practice as it should be put into practice. Amin.
Wa-salla llahu ‘ala Sayyidina Muhammadin wa-‘ala alihi wa-ashabihi ajma‘in.
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