Similarly, the Qur’anic commandments to do justice are confined to general guidelines and no details
are provided regarding the duties of the judge or the manner in which testimony should be given.
Al-Islam, p. 501.]
On the principles of government, such as consultation, equality and the rights of citizens,
the Qur’an does not provide any details. The general principles are laid down, and it is for the
community, the ulema and leaders to organise their government in the light of the changing conditions
of society
[Sabuni, Madkhal, P. 73.]
The Qur’an itself warns the believers against seeking the regulation or
everything by the express terms of divine revelation, as this is likely to lead to rigidity and cumbersome
restrictions: 'O you believers, do not keep asking about things which, if they were expounded to you,
would become troublesome for you. . .' (5:104). In this way, the Qur’an discourages the development of
an over-regulated society. Besides, what the Qur'an has left unregulated is meant to be devised, in
accord with the general objectives of the Lawgiver, through mutual consultation and ijtihad. A careful
reading of the Qur’an further reveals that on matters pertaining to belief, the basic principles of
morality, man's relationship with his Creator, and what are referred to as ghaybiyyat, that is
transcendental matters which are characteristically unchangeable, the Qur’an is clear and detailed, as
clarity and certainty are the necessary requirement of belief. In the area of ritual performances (ibadat)
such as salah, fasting and hajj, on the other hand, although these too are meant to be unchangeable, the
Qur’an is nevertheless brief, and most of the necessary details have been supplied by the Sunnah. An
explanation for this is that ritual performances are all of a practical, or 'amali, nature and require clear
instructions which are best provided through practical methods and illustration. With regard to salah,
legal alms (zakat) and hajj, for example, the Qur'an simply commands the believers to ‘perform the
salah, and pay the zakat' and states that 'pilgrimage to the house is a duty, that God has imposed on
mankind' (al-Nahl, 116:44 and Al-'Imran, 3:97, respectively). With regard to salah, the Prophet has
ordered his followers to 'perform salah the way you see me performing it',
and regarding the hajj he similarly instructed people to 'take from me the rituals of the hajj.
Muwafaqat, III, 178; Abu Zahrah, Usul, p. 122; Khallaf, ‘Ilm, p. 167.]
Principles of Islamic Jurisprudence ~
Kamali 37
The details of zakat such as the quorum, the amount to be given and its numerous other conditions have
been supplied by the Sunnah.
The Qur’an also contains detailed rules on family matters, the prohibited degrees of relationship in
marriage, inheritance and specific punishments for certain crimes. These are, for the most part,
associated with human nature and regulate the manner in which man's natural needs may be fulfilled.
The basic objectives of the law regarding these matters are permanent. They are, however, matters
which lead to disputes. The purpose of regulating them in detail is to prevent conflict among people.
The specific rulings of the Qur’an in these areas also took into consideration the prevalence of certain
entrenched social customs of Arabia which were overruled and abolished. The Qur’anic reforms
concerning the status of women, and its rules on the just distribution of property within the family
could, in view of such customs, only be effective if couched in clear and specific detail.
72; Badran, Bayan, P. 4.]
The Qur’an frequently provides general guidelines on matters of law and religion, which are often
specified by the Qur’an itself; otherwise the Sunnah specifies the general in the Qur’an and elaborates
its brief and apparently ambiguous provisions. By far the larger part of Qur’anic legislation is conveyed
in general terms which need to be specified in relation to particular issues. This is partly why we find
that the study of the 'Amm (general) and Khass (particular) acquires a special significance in the
extraction of substantive legal rules from the general provisions of the Qur’an. Once again the fact that
legislation in the Qur’an mainly occurs in brief and general terms has to a large extent determined the
nature of the relationship between the Qur’an and Sunnah. Since the general, the ambiguous and the
difficult portions of the Qur’an were in need of elaboration and takhsis (specification), the Prophet was
expected to provide the necessary details and determine the particular focus of the general rulings of the
Qur’an. It was due to these and other such factors that a unique relationship was forged between the
Sunnah and the Qur’an in that the two are often integral to one another and inseparable. By specifying
the general and by clarifying the mujmal in the Qur’an, the Sunnah has undoubtedly played a crucial
role in the development of Shari'ah. It is the clear and the specific (Khass ) in the Qur’an and Sunnah
which provides the core and kernel of the Shari’ah in the sense that no law can be said to have any
reality if all or most of it were to consist of brief and general provisions. To that extent, the specifying
role of the Sunnah in its relationship to the Qur’an is of central importance to Shari'ah. And yet the
general in the Qur’an has a value of its own. In it lies the essence of comprehensive guidance and of the
permanent validity of the Qur’an. It is also the 'Amm of the Qur’an which has provided scope and
substance for an ever-continuing series of commentaries and interpretations. The ulema and
commentators throughout the centuries have attempted to derive a fresh message, a new lesson or a new
principle from the Qur’an that was more suitable to the realities of their times and the different phases
of development in the life of the community. This was to a large extent facilitated by the fact that the
Qur’an consisted for the most part of broad principles which could be related to a variety of
circumstances. To give one example, on the subject of consultation (shura) the Qur’an contains only
Principles of Islamic Jurisprudence ~ Kamali 38
[Cf. Sabuni, Madkhal, P.
two ayat, both of which are general. One of these commands the Prophet to 'consult them [the
community] in their affairs' (Al-Imran, 3:159) and the other occurs in the form of praise to the Muslim
community on account of the fact that 'they conduct their affairs by consultation among them' (AlShura,
42:38). The fact that both these are general proclamations has made it possible to relate them to
almost
any stage of development in the socio-political life of the community. The Qur’an has not
specified
the manner as to how the principle of shura
should
be interpreted; it has not specified any
subject
on which consultation must take place, nor even any person or authority who should be
consulted.
These are all left to the discretion of the community. In its capacity as the vicegerent of God
and
the locus of political authority, the community is at liberty to determine the manner in which the
principle
of shura
should be interpreted and enforced.
III. The Five Values
[Cf. Sha'ban, 'Manhaj’, p. 29.]
As a characteristic feature of Qur'anic legislation, it may be stated here that commands and prohibitions
in the Qur’an are expressed in a variety of forms which are often open to interpretation and ijtihad. The
question as to whether a particular injunction in the Qur’an amounts to a binding command or to a mere
recommendation or even permissibility cannot always be determined from the words and sentences of
its text. The subject of commands and prohibitions need not be elaborated here as this is the theme of a
separate chapter of this work. It will suffice here to note the diversity of the Qur’anic language on
legislation. Broadly speaking, when God commands or praises something, or recommends a certain
form of conduct, or refers to the positive quality of something, or when it is expressed that God loves
such-and-such, or when God identifies something as a cause of bounty and reward, all such expressions
are indicative of the legality (mashru’iyyah) of the conduct in question which partakes in the obligatory
and commendable. If the language of the text is inclined on the side of obligation (wujub), such as when
there is a definite, demand or a clear emphasis on doing something, the conduct is question in
obligatory (wajib), otherwise it is commendable (mandub).
Similarly, when God explicitly declares something permissible (halal) or grants a permission (idhn) in
respect of doing something, or when it is said that there is 'no blame' or 'no sin' accrued from doing
something, or when God denies the prohibition of something, or when the believers are reminded of the
bounty of God in respect of things that are created for their benefit,
[Note, e.g., 'and He created for you ships and cattle on
which you ride' (al-Zukhruf,, 43:12), and 'He created cattle from which you derive warmth ... and you eat of their meat' (al-Nahl, 16:5), and 'say, who has forbidden
the beautiful gifts of God which He has produced for His servants, and the clean food for their sustenance' (al-A’raf,7:32).]
all such expressions are
indicative of permissibility (ibahah) and option (takhyir) in respect of the conduct or the object in
question.
Principles of Islamic Jurisprudence ~ Kamali 39
Whenever God demands the avoidance of a certain conduct, or when He denounces a certain act, or
identifies it as a cause for punishment, or when a certain conduct is cursed and regarded as the work of
Satan, or when its harmful effects are emphasised, or when something is proclaimed unclean, a sin or a
deviation (ithm, fisq) - all such expressions are indicative of prohibition which partakes in abomination
(karahah). If the language is explicit and emphatic in regard to prohibition, the conduct/object in
question becomes haram, otherwise it is reprehensible, or makruh. It is for the mujtahid to determine
the precise value of such injunctions in the light of both the language of the text as well as the general
objectives and principles of the Shari’ah.
[Cf. Sha’bin,'Manhaj', pp. 22-23.]
This style of Qur’anic legislation, and the fact that it leaves room for flexibility in the evaluation of its
injunctions, is once again in harmony with the timeless validity of its laws. The Qur’an is not specific
on the precise value of its injunctions, and it leaves open the possibility that a command in the Qur’an
may sometimes imply an obligation, a recommendation or a mere permissibility. The Qur’an does not
employ the categories known as the five values (al-ahkam al-khamsah) which the fuqaha' have
attempted to specify in juristic manuals. When an act is evaluated as obligatory, it is labeled fard or
wajib; when it is absolutely forbidden, it is evaluated as haram. The shades of values which occur
between these two extremes are primarily religious in character and provide a yardstick which can be
applied to any type of human conduct. But only the two extremes, namely the wajib and haram,
incorporate legal commands and prohibitions. The rest are largely non-legal and non-justiciable in a
court of law. The Qur’an thus leaves open the possibility, although not without reservations, of enacting
into haram what may have been classified by the fuqaha' of one age as merely reprehensible, or
makruh. Similarly, the recommendable, or mandub, may be elevated into a wajib if this is deemed to be
in the interest of the community in a different stage of its experience and development.
IV. Ratiocination (ta'lil) in the Qur’an
Literally ta’lil means 'causation', or 'search for the causes', and refers to the logical relationship between
the cause and effect. But the ulema of jurisprudence tend to use ta’lil and its derivative 'illah, for
different purposes. In its juridical usage, 'illah (i.e. effective cause) does not exactly refer to a causal
relationship between two phenomena; it rather means the ratio of the law, its value and its purpose.
Broadly speaking, 'illah refers to the rationale of an injunction, and in this sense, it is synonymous with
hikmah, that is, the purpose and the objective of the law. But there is a difference between 'illah and
hikmah which I shall discuss in a subsequent chapter on analogical deduction (qiyas). There is another
Arabic word, namely sabab, which is synonymous with 'illah, and the two are often used
interchangeably. Yet the ulema of usul tend to use sabab in reference to devotional matters (ibadat) but
Principles of Islamic Jurisprudence ~
Kamali 40
use 'illah in all other contexts. Thus it is said that the arrival of Ramadan is the cause (sabab) of fasting
but that intoxication is the 'illah of the prohibition in wine-drinking.
[Cf. Ahmad Hasan, 'Rationality', p. 101.]
The authority of the Qur’an as the principal source of the Shari’ah is basically independent of
ratiocination. The believers are supposed to accept its rulings regardless of whether they can be
rationally explained. Having said this, however, there are instances where the Qur’an justifies its rulings
with a reference to the benefits that accrue from them, or the objectives which they may serve. Such
explanations are often designed to make the Qur’an easier to understand. To give an example in the
context of encounters between members of the opposite sex, the believers are enjoined in sura al-Nur
(24:30) 'to avert their glances and to guard their private parts'. The text then goes on to provide that in
doing so they will attain greater chastity of character and conduct. To give another example, in sura alHashr
(59:7) the Qur'an regulates the distribution of booty among the needy, the orphans and the
wayfarers
'so that wealth does not merely circulate among the wealthy'. In the first ayah,
averting the
glance
is justified as it obstructs the means to promiscuity and zina.
The ruling in the second ayah
is
justified
as it prevents the accumulation of wealth in a few hands. Whereas the foregoing are instances
in
which the text explicitly states the 'illah
of the injunctions concerned, on numerous other occasions
the
jurists have identified the 'illah
through reasoning and ijtihad.
The identification of 'illah
in many of
the
following for example, is based on speculative reasoning on which the ulema are not unanimous:
that
arrival of the specified time is the cause (sabab
or 'illah)
of the prayer, that the month of Ramadan
is
the cause fasting, that the existence of the Ka'bah is the cause of hajj;
that owning property is the
cause
of zakat,
that theft is the cause of amputation of the hand, that traveling is the cause of shortening
the
prayer and that intentional killing is the cause of retaliation. These and other similar conclusions
with
regard to the assignment of 'illah
have been drawn in the light of supportive evidence in the
Qur’an
and Sunnah,
but even so many of them are disputed by the ulema. These examples will in the
meantime
serve to show the difference between the literal/logical meaning of "illah'
and its juridical
usage
among the ulema of jurisprudence.
[Cf. Ahmad Hasan, 'Rationality', p. 104.]
The question arises as to whether the incidence of ta’lil in the Qur’an gives the mujtahid the green light
to enquire into the causes and reasons behind its injunctions, or whether it exists simply to facilitate a
better understanding of the text. The ulema have held different views on this issue. The opponents of
ta’lil maintain that divine injunctions embodied in the clear text have no causes unless the Lawgiver
provides us with clear indications to the contrary. Thus it would not only be presumptuous on the part
of the mujtahid to adopt an inquisitive approach to divine injunctions, but searching for the cause
('illah) or the objective hikmah of the Qur’anic rules amounts to no more than an exercise in
speculation. Besides, the opponents of ta’lil have argued that the believer should surrender himself to
the will of God, which can best be done by unquestioning acceptance of God's injunctions. To look into
the motive, purpose and rationale of such injunctions, and worse still, to accept them on their rational
merit, is repugnant to sincerity in submission to God. Furthermore, in his attempt to identify the
rationale of an injunction, the mujtahid can only make a reasonable guess which cannot eliminate the
Principles of Islamic Jurisprudence ~
Kamali 41
possibility of error. There may even be more than one cause or explanation to a particular ruling of the
Qur’an, in which case one cannot be certain which of the several causes might be the correct one. This
is the view of the Zahiris. The majority of ulema have, however, held that the ahkam of the Shari’ah
contemplate certain objectives, and when such can be identified, it is not only permissible to pursue
them but it is our duty to make an effort to identify and to implement them. Since the realisation of the
objectives (maqasid) of the Shari’ah necessitates identification of the cause/rationale of the ahkam, it
becomes our duty to discover these in order to be able to pursue the general objectives of the Lawgiver.
[Ibn Hazm, Ihkam, VIII, 76ff; Sabuni, Madkhal, P. 75. For further discussion on ta’lil in the Qur’an see the section on qiyas below where ta’lil is discussed in
connection with the ‘illah of qiyas.]
Thus it is the duty of the mujtahid to identify the proper causes of divine
injunctions, especially in the event where more than one 'illah can be attributed to a particular
injunction. The majority view on ta'lil takes into account the analysis that the rules of Shari’ah have
been introduced in order to realise certain objectives and that the Lawgiver has enacted the detailed
rules of Shari’ah, not as an end in themselves, but as a means to realising those objectives. In this way,
any attempt to implement the law should take into account not only the externalities of the law but also
the rationale and the intent behind it. Thus when a man utters the credo of Islam to achieve worldly gain
or to attain social prestige, his confession is not valid. The reason is that the true purpose of confession
to the faith is the exaltation and worship of God, and if this is violated, a formal confession is of no
value. Similarly, if a man says a prayer for the sake of display and self-commendation, it is not valid.
The real purpose and value of the law is therefore of primary importance, and indeed it is necessary that
the mujtahid identifies it so as to be able to implement the law in accordance with its purpose. The
Qur’an admittedly requires unquestioning obedience to God and to His Messenger, but at the same
time, it exhorts men to understand the spirit and purpose of God's injunctions. Time and time again, the
Qur’an invites the believers to rational enquiry, as opposed to blind imitation, in the acceptance of its
messages.
[Cf. Ahmad Hasan, 'Rationality', 102.]
Ta’lil acquires a special significance in the context of analogical deduction. ‘Illah is an essential
requirement, indeed the sine qua non of analogy. To enable the extension of an existing rule of the
Shari’ah to similar cases, the mujtahid must establish a common ‘illah between the original and the
new case. Without the identification of a common 'illah between two parallel cases, no analogy can be
constructed. To this it may be added that there is a variety of qiyas, known as qiyas mansus al-‘illah, or
qiyas whose 'illah is indicated in the nass, in which the 'illah of the law is already identified in the text.
When the ‘illah is so identified, there remains no need for the mujtahid to establish the effective cause
of the injunction by recourse to reasoning or ijtihad. However, this variety of qiyas is limited in scope
when it is compared to qiyas whose 'illah is not so indicated on the nusus. It thus remains true to say
that ta'lil, that is, the search to identify the 'effective cause of the shari’ah rules, is of central importance
to qiyas. Further discussion on the ‘illah of analogy, the manner of its identification, and rules which
govern the propriety of ta'lil in qiyas can be found in our discussion of qiyas in a separate chapter
below.
Principles of Islamic Jurisprudence ~
Kamali 42
There seems to be a confusion on the part of the opponents of ta’lil as to the purpose and nature of
ta’lil. The opponents of ta’lil seem to have perceived this phenomenon as a sign of impudence and
impropriety in belief. In reality, however, this need not be the case. One may attempt ta’lil while
remaining totally faithful to the divine origin and essence of the Qur’an. To exercise ta’lil does not
lessen either the binding power or the holiness of the divine injunctions. We may, for example, offer
various interpretations of the cause of performing the salah or of giving zakah; but whether we can
understand the reason or not, salah and zakah are still obligatory upon Muslims.
V. Inimitability (i'jaz) of the Qur’an
This is reflected in at least four aspects of the Qur’an. First, in its linguistic excellence: many scholars
have pointed out that there exists no piece of literature that can match the literary excellence of the
Qur’an with respect to both content and form.
[Note for example sura al-Baqarah (2:23) which reads: 'If you are in any doubt about what
We have sent to Our servant, then bring a chapter like it and call in your witnesses besides God, if you are truthful.']
It is neither poetry nor prose;
its rhythm and its genre and word structure are unique. It is the spiritual miracle of the prophethood of
Muhammad, who never learned to read or write, and it is considered to have been far beyond his own
ability to produce a linguistic artefact of this kind. In more than one place, the Qur’an challenges those
who deny its divine origin by asking them to produce anything to match it.
P. 45.]
[Abu Zahrah, Usul, p. 65; Sabuni, Madkhal,
The second aspect of i’jaz in the Qur’an is its narration of events which took place centuries ago. The
accuracy of the Qur’anic narratives concerning such events is generally confirmed by historical
evidence.
[von Denffer, ‘Ulum, P. 152.]
The third aspect of i’jaz in the Qur’an is its accurate prediction of future events, such as the victory of
the Muslims in the battle of Badr (al-Anfal, 8:7), the conquest of Mecca (al-Fath, 48:27) and the
eventual defeat of the Persians by the Roman empire: The Romans were defeated in a land near-by, but
even after this defeat, they will be victorious in a few years (fi bid’i sinin; literally in a period lasting up
to ten years)' (al-Rum, 30:2). The Romans were defeated by the Persians when the latter took Jerusalem
in 614 A.D. But seven years later the Persians were defeated when the Romans won the battle of Issus
in 622.
[For further details on i’jaz see von Denffer, 'Ulum, PP. 152-57; Abu Zahrah, Usul, pp. 65-66; Khallaf, ‘Ilm, PP. 25-27.]
The fourth aspect of i’jaz in the Qur’an is manifested in its scientific truth concerning the creation of
man, the earth and the planetary system. The tenets thus inform us:
Principles of Islamic Jurisprudence ~
Kamali 43
• 'We created man from an extract of clay, then We placed him as a drop of semen in a secure
resting-place. Then We turned the drop into a clot; next We turned the clot into tissue; and then
We turned the tissue into bones and clothed the bones with flesh' (al-Mu'minun, 23:12-14).
• That the earth was previously a part of the sun, and only after it was separated from the sun did
it become suitable for human habitation (al-Anbiya', 21:30).
• That all life originated in water (al-Anbiya', 21:30).
• That originally the universe consisted of fiery gas (Ha-mim, 41: 11).
• That matter is made up of minute particles (Yunus, 10:62).
• That fertilisation of certain plants is facilitated by the wind (al-Hijr, 15:22).
Another manifestation of i’jaz in the Qur’an is to be seen in its humanitarian, legal and cultural reforms
that were unprecedented in the history of nations. Thus in the sphere of government, the ruler and the
ruled were both equally subjected to adjudication under the rule of law.
government under the rule of law - also referred to as the principle of legality - see my article 'The Citizen and State', P. 30ff.]
[For further details on the principles of
In the area of civil
transactions and commerce, the Qur’an established mutual agreement as the norm and essence of all
contracts. The principal Qur’anic reform in the area of property was the introduction of the doctrine of
istikhlaf: the Qur’an declares that all property belongs to God, and that man, in his capacity as the
vicegerent of God, is a mere trustee, whose exercise of the right of ownership is subjected to the
maslahah of society to be supervised by the government. In the sphere of international relations, treaty
relations, the conduct of war, and treatment of prisoners of war; all were regulated by a set of principles
which aimed at the realisation of justice and respect for human dignity. Relations among individuals
were to be governed by the principles of freedom and equality, and the state was equally subjected to
the observance, and indeed the protection, of these values.
Citizen', 15ff.]
VI. Occasions of Revelation (asbab al-nuzul)
[Cf. Sabuni, Madkbal, P. 46; Abu Zahrah, Usul, p. 67; Kamali, 'The
Asbab al-nuzul deal with the phenomenology of the Qur’an, and explain the events which are related to
the revelation of its particular passages. The well-known asbab al-nuzul have been related to us by
reliable Companions. It is a condition for the reliability of such reports that the person relating it should
have been present at the time or the occasion which is relevant to a particular passage. The authenticity
of such reports is subject to the same rules as are applied to Hadith in general. In this way, reports from
the Successors (tabi'un) only which do not go back to the Prophet and his Companions are considered
to be weak (da'if).
[von Denffer, 'Ulum, P. 93ff.]
Principles of Islamic Jurisprudence ~
Kamali 44
The knowledge of asbab al-nuzul is necessary for anyone who wishes to acquire more than a superficial
knowledge of the Qur’an, and there are at least two main reasons to explain this. One of these is that
knowledge of words and concepts is incomplete without the knowledge of the context and the nature of
the audience. For a form of speech - a question for example - may also convey other meanings such as
elucidation, surprise, or reprimand, etc. Similarly, a command may mean a mere permissibility, a
recommendation, or a threat, etc., depending on the circumstances in which it is issued and the nature of
the audience. An incidental meaning or a shade of expression may at times reflect the main purpose of a
particular text and this cannot be known without the knowledge of the asbab al-nuzul. Ignorance of the
asbab al-nuzul may thus lead to the omission or misunderstanding of a part or even the whole of an
injunction.
[Shatibi, Muwafaqat, III, 201.]
Secondly, ignorance of asbab al-nuzal may lead to unwarranted
disagreement and even conflict. For the Qur'an comprises passages which are in the nature of
probability (zahir) and ambiguity (mujmal). Such instances in the text can be clarified by reference to
the circumstances in which they were received. It is reported that in a conversation with 'Abd Allah ibn
‘Abbas, 'Umar ibn al-Khattab asked him: 'Why should there be disagreement among this ummah, all of
whom follow the same Prophet and pray in the direction of the same qiblah?' To this Ibn 'Abbas replied,
'O Commander of the Faithful, the Qur’an was sent down to us, we read it and we know the
circumstances in which it was revealed. But there may be people after us who will read the Qur’an
without knowing the occasions of its revelation. Thus they will form their own opinion, which might
lead to conflict and even bloodshed among them.'
‘Umar disagreed with Ibn 'Abbas for saying so at first but, when the latter departed, ‘Umar pondered
over what he had said. He then sent for Ibn ‘Abbas only to tell him that he agreed with his view.
Muwafaqat, III, p. 202.]
It has been observed that by making this remark, Ibn ‘Abbas was referring to certain
misinterpretations of the Qur’an which had occurred owing to ignorance of the asbab al-nuzul. In
particular, some of the Qur’anic passages had been revealed concerning the unbelievers, but were taken
by some commentators to be of general application to Muslims and non-Muslims alike. There were also
passages in the Qur’an which were revealed in reference to the conduct of people who had died before
the revelation of certain rulings, and yet these were taken by some commentators to be of general
application.
[Khudari, Usul, pp. 209-210. Thus when Qudamah b. Maz'un was charged with the offence of wine-drinking, ‘Umar b. al-Khattab decided to
punish him, but the defendant cited the Qur’anic ayah in sura al-Ma’idah (5:95) in his own defence. This ayah reads 'there is no blame on those who believe and do
good deeds for what they consume provided they are God-fearing believers… ' Ibn Maz'un claimed that he was one of them. ‘Abd Allah b. ‘Abbas refuted this
view and explained that this particular ayah had been revealed concerning people who died before wine-drinking was definitively forbidden.]
Furthermore, the knowledge of asbab al-nuzul is informative of the conditions of the Arab society at
the time. Their customary and linguistic usages and their nuances of expression were naturally reflected
in the Qur’an. The peculiarities of Arab social customs often gave exegesis of the Qur’anic text a
perspective and offered solutions to some of the doubts/ambiguities which would otherwise be difficult
to understand. The asbab al-nuzul take full cognizance of the customary practices of Arabian society
and the relationship, if any, of such practices to Qur’anic legislation. To give an example, the Qur’anic
Principles of Islamic Jurisprudence ~ Kamali 45
[Shatibi,
ayah 'Our Lord punish us not, if we forget or make a mistake' (al-Baqarah, 2:286), is held to be
referring to unbelief, that is, when words which partake in unbelief are uttered inadvertently. This is
forgiven just as are words of unbelief that are expressed under duress. However, the exemption here is
not extended to similar pronouncements, such as statements of divorce, freeing of a slave, or sale and
purchase, for freeing a slave was not known in the custom of the Arabs nor were the inhibitions over
oath-taking (ayman). The general support of this ayah is thus given a concrete application in the light of
the prevailing custom.
[Khudari, Usul, p.211.]
are provided regarding the duties of the judge or the manner in which testimony should be given.
Al-Islam, p. 501.]
On the principles of government, such as consultation, equality and the rights of citizens,
the Qur’an does not provide any details. The general principles are laid down, and it is for the
community, the ulema and leaders to organise their government in the light of the changing conditions
of society
[Sabuni, Madkhal, P. 73.]
The Qur’an itself warns the believers against seeking the regulation or
everything by the express terms of divine revelation, as this is likely to lead to rigidity and cumbersome
restrictions: 'O you believers, do not keep asking about things which, if they were expounded to you,
would become troublesome for you. . .' (5:104). In this way, the Qur’an discourages the development of
an over-regulated society. Besides, what the Qur'an has left unregulated is meant to be devised, in
accord with the general objectives of the Lawgiver, through mutual consultation and ijtihad. A careful
reading of the Qur’an further reveals that on matters pertaining to belief, the basic principles of
morality, man's relationship with his Creator, and what are referred to as ghaybiyyat, that is
transcendental matters which are characteristically unchangeable, the Qur’an is clear and detailed, as
clarity and certainty are the necessary requirement of belief. In the area of ritual performances (ibadat)
such as salah, fasting and hajj, on the other hand, although these too are meant to be unchangeable, the
Qur’an is nevertheless brief, and most of the necessary details have been supplied by the Sunnah. An
explanation for this is that ritual performances are all of a practical, or 'amali, nature and require clear
instructions which are best provided through practical methods and illustration. With regard to salah,
legal alms (zakat) and hajj, for example, the Qur'an simply commands the believers to ‘perform the
salah, and pay the zakat' and states that 'pilgrimage to the house is a duty, that God has imposed on
mankind' (al-Nahl, 116:44 and Al-'Imran, 3:97, respectively). With regard to salah, the Prophet has
ordered his followers to 'perform salah the way you see me performing it',
and regarding the hajj he similarly instructed people to 'take from me the rituals of the hajj.
Muwafaqat, III, 178; Abu Zahrah, Usul, p. 122; Khallaf, ‘Ilm, p. 167.]
Principles of Islamic Jurisprudence ~
Kamali 37
The details of zakat such as the quorum, the amount to be given and its numerous other conditions have
been supplied by the Sunnah.
The Qur’an also contains detailed rules on family matters, the prohibited degrees of relationship in
marriage, inheritance and specific punishments for certain crimes. These are, for the most part,
associated with human nature and regulate the manner in which man's natural needs may be fulfilled.
The basic objectives of the law regarding these matters are permanent. They are, however, matters
which lead to disputes. The purpose of regulating them in detail is to prevent conflict among people.
The specific rulings of the Qur’an in these areas also took into consideration the prevalence of certain
entrenched social customs of Arabia which were overruled and abolished. The Qur’anic reforms
concerning the status of women, and its rules on the just distribution of property within the family
could, in view of such customs, only be effective if couched in clear and specific detail.
72; Badran, Bayan, P. 4.]
The Qur’an frequently provides general guidelines on matters of law and religion, which are often
specified by the Qur’an itself; otherwise the Sunnah specifies the general in the Qur’an and elaborates
its brief and apparently ambiguous provisions. By far the larger part of Qur’anic legislation is conveyed
in general terms which need to be specified in relation to particular issues. This is partly why we find
that the study of the 'Amm (general) and Khass (particular) acquires a special significance in the
extraction of substantive legal rules from the general provisions of the Qur’an. Once again the fact that
legislation in the Qur’an mainly occurs in brief and general terms has to a large extent determined the
nature of the relationship between the Qur’an and Sunnah. Since the general, the ambiguous and the
difficult portions of the Qur’an were in need of elaboration and takhsis (specification), the Prophet was
expected to provide the necessary details and determine the particular focus of the general rulings of the
Qur’an. It was due to these and other such factors that a unique relationship was forged between the
Sunnah and the Qur’an in that the two are often integral to one another and inseparable. By specifying
the general and by clarifying the mujmal in the Qur’an, the Sunnah has undoubtedly played a crucial
role in the development of Shari'ah. It is the clear and the specific (Khass ) in the Qur’an and Sunnah
which provides the core and kernel of the Shari’ah in the sense that no law can be said to have any
reality if all or most of it were to consist of brief and general provisions. To that extent, the specifying
role of the Sunnah in its relationship to the Qur’an is of central importance to Shari'ah. And yet the
general in the Qur’an has a value of its own. In it lies the essence of comprehensive guidance and of the
permanent validity of the Qur’an. It is also the 'Amm of the Qur’an which has provided scope and
substance for an ever-continuing series of commentaries and interpretations. The ulema and
commentators throughout the centuries have attempted to derive a fresh message, a new lesson or a new
principle from the Qur’an that was more suitable to the realities of their times and the different phases
of development in the life of the community. This was to a large extent facilitated by the fact that the
Qur’an consisted for the most part of broad principles which could be related to a variety of
circumstances. To give one example, on the subject of consultation (shura) the Qur’an contains only
Principles of Islamic Jurisprudence ~ Kamali 38
[Cf. Sabuni, Madkhal, P.
two ayat, both of which are general. One of these commands the Prophet to 'consult them [the
community] in their affairs' (Al-Imran, 3:159) and the other occurs in the form of praise to the Muslim
community on account of the fact that 'they conduct their affairs by consultation among them' (AlShura,
42:38). The fact that both these are general proclamations has made it possible to relate them to
almost
any stage of development in the socio-political life of the community. The Qur’an has not
specified
the manner as to how the principle of shura
should
be interpreted; it has not specified any
subject
on which consultation must take place, nor even any person or authority who should be
consulted.
These are all left to the discretion of the community. In its capacity as the vicegerent of God
and
the locus of political authority, the community is at liberty to determine the manner in which the
principle
of shura
should be interpreted and enforced.
III. The Five Values
[Cf. Sha'ban, 'Manhaj’, p. 29.]
As a characteristic feature of Qur'anic legislation, it may be stated here that commands and prohibitions
in the Qur’an are expressed in a variety of forms which are often open to interpretation and ijtihad. The
question as to whether a particular injunction in the Qur’an amounts to a binding command or to a mere
recommendation or even permissibility cannot always be determined from the words and sentences of
its text. The subject of commands and prohibitions need not be elaborated here as this is the theme of a
separate chapter of this work. It will suffice here to note the diversity of the Qur’anic language on
legislation. Broadly speaking, when God commands or praises something, or recommends a certain
form of conduct, or refers to the positive quality of something, or when it is expressed that God loves
such-and-such, or when God identifies something as a cause of bounty and reward, all such expressions
are indicative of the legality (mashru’iyyah) of the conduct in question which partakes in the obligatory
and commendable. If the language of the text is inclined on the side of obligation (wujub), such as when
there is a definite, demand or a clear emphasis on doing something, the conduct is question in
obligatory (wajib), otherwise it is commendable (mandub).
Similarly, when God explicitly declares something permissible (halal) or grants a permission (idhn) in
respect of doing something, or when it is said that there is 'no blame' or 'no sin' accrued from doing
something, or when God denies the prohibition of something, or when the believers are reminded of the
bounty of God in respect of things that are created for their benefit,
[Note, e.g., 'and He created for you ships and cattle on
which you ride' (al-Zukhruf,, 43:12), and 'He created cattle from which you derive warmth ... and you eat of their meat' (al-Nahl, 16:5), and 'say, who has forbidden
the beautiful gifts of God which He has produced for His servants, and the clean food for their sustenance' (al-A’raf,7:32).]
all such expressions are
indicative of permissibility (ibahah) and option (takhyir) in respect of the conduct or the object in
question.
Principles of Islamic Jurisprudence ~ Kamali 39
Whenever God demands the avoidance of a certain conduct, or when He denounces a certain act, or
identifies it as a cause for punishment, or when a certain conduct is cursed and regarded as the work of
Satan, or when its harmful effects are emphasised, or when something is proclaimed unclean, a sin or a
deviation (ithm, fisq) - all such expressions are indicative of prohibition which partakes in abomination
(karahah). If the language is explicit and emphatic in regard to prohibition, the conduct/object in
question becomes haram, otherwise it is reprehensible, or makruh. It is for the mujtahid to determine
the precise value of such injunctions in the light of both the language of the text as well as the general
objectives and principles of the Shari’ah.
[Cf. Sha’bin,'Manhaj', pp. 22-23.]
This style of Qur’anic legislation, and the fact that it leaves room for flexibility in the evaluation of its
injunctions, is once again in harmony with the timeless validity of its laws. The Qur’an is not specific
on the precise value of its injunctions, and it leaves open the possibility that a command in the Qur’an
may sometimes imply an obligation, a recommendation or a mere permissibility. The Qur’an does not
employ the categories known as the five values (al-ahkam al-khamsah) which the fuqaha' have
attempted to specify in juristic manuals. When an act is evaluated as obligatory, it is labeled fard or
wajib; when it is absolutely forbidden, it is evaluated as haram. The shades of values which occur
between these two extremes are primarily religious in character and provide a yardstick which can be
applied to any type of human conduct. But only the two extremes, namely the wajib and haram,
incorporate legal commands and prohibitions. The rest are largely non-legal and non-justiciable in a
court of law. The Qur’an thus leaves open the possibility, although not without reservations, of enacting
into haram what may have been classified by the fuqaha' of one age as merely reprehensible, or
makruh. Similarly, the recommendable, or mandub, may be elevated into a wajib if this is deemed to be
in the interest of the community in a different stage of its experience and development.
IV. Ratiocination (ta'lil) in the Qur’an
Literally ta’lil means 'causation', or 'search for the causes', and refers to the logical relationship between
the cause and effect. But the ulema of jurisprudence tend to use ta’lil and its derivative 'illah, for
different purposes. In its juridical usage, 'illah (i.e. effective cause) does not exactly refer to a causal
relationship between two phenomena; it rather means the ratio of the law, its value and its purpose.
Broadly speaking, 'illah refers to the rationale of an injunction, and in this sense, it is synonymous with
hikmah, that is, the purpose and the objective of the law. But there is a difference between 'illah and
hikmah which I shall discuss in a subsequent chapter on analogical deduction (qiyas). There is another
Arabic word, namely sabab, which is synonymous with 'illah, and the two are often used
interchangeably. Yet the ulema of usul tend to use sabab in reference to devotional matters (ibadat) but
Principles of Islamic Jurisprudence ~
Kamali 40
use 'illah in all other contexts. Thus it is said that the arrival of Ramadan is the cause (sabab) of fasting
but that intoxication is the 'illah of the prohibition in wine-drinking.
[Cf. Ahmad Hasan, 'Rationality', p. 101.]
The authority of the Qur’an as the principal source of the Shari’ah is basically independent of
ratiocination. The believers are supposed to accept its rulings regardless of whether they can be
rationally explained. Having said this, however, there are instances where the Qur’an justifies its rulings
with a reference to the benefits that accrue from them, or the objectives which they may serve. Such
explanations are often designed to make the Qur’an easier to understand. To give an example in the
context of encounters between members of the opposite sex, the believers are enjoined in sura al-Nur
(24:30) 'to avert their glances and to guard their private parts'. The text then goes on to provide that in
doing so they will attain greater chastity of character and conduct. To give another example, in sura alHashr
(59:7) the Qur'an regulates the distribution of booty among the needy, the orphans and the
wayfarers
'so that wealth does not merely circulate among the wealthy'. In the first ayah,
averting the
glance
is justified as it obstructs the means to promiscuity and zina.
The ruling in the second ayah
is
justified
as it prevents the accumulation of wealth in a few hands. Whereas the foregoing are instances
in
which the text explicitly states the 'illah
of the injunctions concerned, on numerous other occasions
the
jurists have identified the 'illah
through reasoning and ijtihad.
The identification of 'illah
in many of
the
following for example, is based on speculative reasoning on which the ulema are not unanimous:
that
arrival of the specified time is the cause (sabab
or 'illah)
of the prayer, that the month of Ramadan
is
the cause fasting, that the existence of the Ka'bah is the cause of hajj;
that owning property is the
cause
of zakat,
that theft is the cause of amputation of the hand, that traveling is the cause of shortening
the
prayer and that intentional killing is the cause of retaliation. These and other similar conclusions
with
regard to the assignment of 'illah
have been drawn in the light of supportive evidence in the
Qur’an
and Sunnah,
but even so many of them are disputed by the ulema. These examples will in the
meantime
serve to show the difference between the literal/logical meaning of "illah'
and its juridical
usage
among the ulema of jurisprudence.
[Cf. Ahmad Hasan, 'Rationality', p. 104.]
The question arises as to whether the incidence of ta’lil in the Qur’an gives the mujtahid the green light
to enquire into the causes and reasons behind its injunctions, or whether it exists simply to facilitate a
better understanding of the text. The ulema have held different views on this issue. The opponents of
ta’lil maintain that divine injunctions embodied in the clear text have no causes unless the Lawgiver
provides us with clear indications to the contrary. Thus it would not only be presumptuous on the part
of the mujtahid to adopt an inquisitive approach to divine injunctions, but searching for the cause
('illah) or the objective hikmah of the Qur’anic rules amounts to no more than an exercise in
speculation. Besides, the opponents of ta’lil have argued that the believer should surrender himself to
the will of God, which can best be done by unquestioning acceptance of God's injunctions. To look into
the motive, purpose and rationale of such injunctions, and worse still, to accept them on their rational
merit, is repugnant to sincerity in submission to God. Furthermore, in his attempt to identify the
rationale of an injunction, the mujtahid can only make a reasonable guess which cannot eliminate the
Principles of Islamic Jurisprudence ~
Kamali 41
possibility of error. There may even be more than one cause or explanation to a particular ruling of the
Qur’an, in which case one cannot be certain which of the several causes might be the correct one. This
is the view of the Zahiris. The majority of ulema have, however, held that the ahkam of the Shari’ah
contemplate certain objectives, and when such can be identified, it is not only permissible to pursue
them but it is our duty to make an effort to identify and to implement them. Since the realisation of the
objectives (maqasid) of the Shari’ah necessitates identification of the cause/rationale of the ahkam, it
becomes our duty to discover these in order to be able to pursue the general objectives of the Lawgiver.
[Ibn Hazm, Ihkam, VIII, 76ff; Sabuni, Madkhal, P. 75. For further discussion on ta’lil in the Qur’an see the section on qiyas below where ta’lil is discussed in
connection with the ‘illah of qiyas.]
Thus it is the duty of the mujtahid to identify the proper causes of divine
injunctions, especially in the event where more than one 'illah can be attributed to a particular
injunction. The majority view on ta'lil takes into account the analysis that the rules of Shari’ah have
been introduced in order to realise certain objectives and that the Lawgiver has enacted the detailed
rules of Shari’ah, not as an end in themselves, but as a means to realising those objectives. In this way,
any attempt to implement the law should take into account not only the externalities of the law but also
the rationale and the intent behind it. Thus when a man utters the credo of Islam to achieve worldly gain
or to attain social prestige, his confession is not valid. The reason is that the true purpose of confession
to the faith is the exaltation and worship of God, and if this is violated, a formal confession is of no
value. Similarly, if a man says a prayer for the sake of display and self-commendation, it is not valid.
The real purpose and value of the law is therefore of primary importance, and indeed it is necessary that
the mujtahid identifies it so as to be able to implement the law in accordance with its purpose. The
Qur’an admittedly requires unquestioning obedience to God and to His Messenger, but at the same
time, it exhorts men to understand the spirit and purpose of God's injunctions. Time and time again, the
Qur’an invites the believers to rational enquiry, as opposed to blind imitation, in the acceptance of its
messages.
[Cf. Ahmad Hasan, 'Rationality', 102.]
Ta’lil acquires a special significance in the context of analogical deduction. ‘Illah is an essential
requirement, indeed the sine qua non of analogy. To enable the extension of an existing rule of the
Shari’ah to similar cases, the mujtahid must establish a common ‘illah between the original and the
new case. Without the identification of a common 'illah between two parallel cases, no analogy can be
constructed. To this it may be added that there is a variety of qiyas, known as qiyas mansus al-‘illah, or
qiyas whose 'illah is indicated in the nass, in which the 'illah of the law is already identified in the text.
When the ‘illah is so identified, there remains no need for the mujtahid to establish the effective cause
of the injunction by recourse to reasoning or ijtihad. However, this variety of qiyas is limited in scope
when it is compared to qiyas whose 'illah is not so indicated on the nusus. It thus remains true to say
that ta'lil, that is, the search to identify the 'effective cause of the shari’ah rules, is of central importance
to qiyas. Further discussion on the ‘illah of analogy, the manner of its identification, and rules which
govern the propriety of ta'lil in qiyas can be found in our discussion of qiyas in a separate chapter
below.
Principles of Islamic Jurisprudence ~
Kamali 42
There seems to be a confusion on the part of the opponents of ta’lil as to the purpose and nature of
ta’lil. The opponents of ta’lil seem to have perceived this phenomenon as a sign of impudence and
impropriety in belief. In reality, however, this need not be the case. One may attempt ta’lil while
remaining totally faithful to the divine origin and essence of the Qur’an. To exercise ta’lil does not
lessen either the binding power or the holiness of the divine injunctions. We may, for example, offer
various interpretations of the cause of performing the salah or of giving zakah; but whether we can
understand the reason or not, salah and zakah are still obligatory upon Muslims.
V. Inimitability (i'jaz) of the Qur’an
This is reflected in at least four aspects of the Qur’an. First, in its linguistic excellence: many scholars
have pointed out that there exists no piece of literature that can match the literary excellence of the
Qur’an with respect to both content and form.
[Note for example sura al-Baqarah (2:23) which reads: 'If you are in any doubt about what
We have sent to Our servant, then bring a chapter like it and call in your witnesses besides God, if you are truthful.']
It is neither poetry nor prose;
its rhythm and its genre and word structure are unique. It is the spiritual miracle of the prophethood of
Muhammad, who never learned to read or write, and it is considered to have been far beyond his own
ability to produce a linguistic artefact of this kind. In more than one place, the Qur’an challenges those
who deny its divine origin by asking them to produce anything to match it.
P. 45.]
[Abu Zahrah, Usul, p. 65; Sabuni, Madkhal,
The second aspect of i’jaz in the Qur’an is its narration of events which took place centuries ago. The
accuracy of the Qur’anic narratives concerning such events is generally confirmed by historical
evidence.
[von Denffer, ‘Ulum, P. 152.]
The third aspect of i’jaz in the Qur’an is its accurate prediction of future events, such as the victory of
the Muslims in the battle of Badr (al-Anfal, 8:7), the conquest of Mecca (al-Fath, 48:27) and the
eventual defeat of the Persians by the Roman empire: The Romans were defeated in a land near-by, but
even after this defeat, they will be victorious in a few years (fi bid’i sinin; literally in a period lasting up
to ten years)' (al-Rum, 30:2). The Romans were defeated by the Persians when the latter took Jerusalem
in 614 A.D. But seven years later the Persians were defeated when the Romans won the battle of Issus
in 622.
[For further details on i’jaz see von Denffer, 'Ulum, PP. 152-57; Abu Zahrah, Usul, pp. 65-66; Khallaf, ‘Ilm, PP. 25-27.]
The fourth aspect of i’jaz in the Qur’an is manifested in its scientific truth concerning the creation of
man, the earth and the planetary system. The tenets thus inform us:
Principles of Islamic Jurisprudence ~
Kamali 43
• 'We created man from an extract of clay, then We placed him as a drop of semen in a secure
resting-place. Then We turned the drop into a clot; next We turned the clot into tissue; and then
We turned the tissue into bones and clothed the bones with flesh' (al-Mu'minun, 23:12-14).
• That the earth was previously a part of the sun, and only after it was separated from the sun did
it become suitable for human habitation (al-Anbiya', 21:30).
• That all life originated in water (al-Anbiya', 21:30).
• That originally the universe consisted of fiery gas (Ha-mim, 41: 11).
• That matter is made up of minute particles (Yunus, 10:62).
• That fertilisation of certain plants is facilitated by the wind (al-Hijr, 15:22).
Another manifestation of i’jaz in the Qur’an is to be seen in its humanitarian, legal and cultural reforms
that were unprecedented in the history of nations. Thus in the sphere of government, the ruler and the
ruled were both equally subjected to adjudication under the rule of law.
government under the rule of law - also referred to as the principle of legality - see my article 'The Citizen and State', P. 30ff.]
[For further details on the principles of
In the area of civil
transactions and commerce, the Qur’an established mutual agreement as the norm and essence of all
contracts. The principal Qur’anic reform in the area of property was the introduction of the doctrine of
istikhlaf: the Qur’an declares that all property belongs to God, and that man, in his capacity as the
vicegerent of God, is a mere trustee, whose exercise of the right of ownership is subjected to the
maslahah of society to be supervised by the government. In the sphere of international relations, treaty
relations, the conduct of war, and treatment of prisoners of war; all were regulated by a set of principles
which aimed at the realisation of justice and respect for human dignity. Relations among individuals
were to be governed by the principles of freedom and equality, and the state was equally subjected to
the observance, and indeed the protection, of these values.
Citizen', 15ff.]
VI. Occasions of Revelation (asbab al-nuzul)
[Cf. Sabuni, Madkbal, P. 46; Abu Zahrah, Usul, p. 67; Kamali, 'The
Asbab al-nuzul deal with the phenomenology of the Qur’an, and explain the events which are related to
the revelation of its particular passages. The well-known asbab al-nuzul have been related to us by
reliable Companions. It is a condition for the reliability of such reports that the person relating it should
have been present at the time or the occasion which is relevant to a particular passage. The authenticity
of such reports is subject to the same rules as are applied to Hadith in general. In this way, reports from
the Successors (tabi'un) only which do not go back to the Prophet and his Companions are considered
to be weak (da'if).
[von Denffer, 'Ulum, P. 93ff.]
Principles of Islamic Jurisprudence ~
Kamali 44
The knowledge of asbab al-nuzul is necessary for anyone who wishes to acquire more than a superficial
knowledge of the Qur’an, and there are at least two main reasons to explain this. One of these is that
knowledge of words and concepts is incomplete without the knowledge of the context and the nature of
the audience. For a form of speech - a question for example - may also convey other meanings such as
elucidation, surprise, or reprimand, etc. Similarly, a command may mean a mere permissibility, a
recommendation, or a threat, etc., depending on the circumstances in which it is issued and the nature of
the audience. An incidental meaning or a shade of expression may at times reflect the main purpose of a
particular text and this cannot be known without the knowledge of the asbab al-nuzul. Ignorance of the
asbab al-nuzul may thus lead to the omission or misunderstanding of a part or even the whole of an
injunction.
[Shatibi, Muwafaqat, III, 201.]
Secondly, ignorance of asbab al-nuzal may lead to unwarranted
disagreement and even conflict. For the Qur'an comprises passages which are in the nature of
probability (zahir) and ambiguity (mujmal). Such instances in the text can be clarified by reference to
the circumstances in which they were received. It is reported that in a conversation with 'Abd Allah ibn
‘Abbas, 'Umar ibn al-Khattab asked him: 'Why should there be disagreement among this ummah, all of
whom follow the same Prophet and pray in the direction of the same qiblah?' To this Ibn 'Abbas replied,
'O Commander of the Faithful, the Qur’an was sent down to us, we read it and we know the
circumstances in which it was revealed. But there may be people after us who will read the Qur’an
without knowing the occasions of its revelation. Thus they will form their own opinion, which might
lead to conflict and even bloodshed among them.'
‘Umar disagreed with Ibn 'Abbas for saying so at first but, when the latter departed, ‘Umar pondered
over what he had said. He then sent for Ibn ‘Abbas only to tell him that he agreed with his view.
Muwafaqat, III, p. 202.]
It has been observed that by making this remark, Ibn ‘Abbas was referring to certain
misinterpretations of the Qur’an which had occurred owing to ignorance of the asbab al-nuzul. In
particular, some of the Qur’anic passages had been revealed concerning the unbelievers, but were taken
by some commentators to be of general application to Muslims and non-Muslims alike. There were also
passages in the Qur’an which were revealed in reference to the conduct of people who had died before
the revelation of certain rulings, and yet these were taken by some commentators to be of general
application.
[Khudari, Usul, pp. 209-210. Thus when Qudamah b. Maz'un was charged with the offence of wine-drinking, ‘Umar b. al-Khattab decided to
punish him, but the defendant cited the Qur’anic ayah in sura al-Ma’idah (5:95) in his own defence. This ayah reads 'there is no blame on those who believe and do
good deeds for what they consume provided they are God-fearing believers… ' Ibn Maz'un claimed that he was one of them. ‘Abd Allah b. ‘Abbas refuted this
view and explained that this particular ayah had been revealed concerning people who died before wine-drinking was definitively forbidden.]
Furthermore, the knowledge of asbab al-nuzul is informative of the conditions of the Arab society at
the time. Their customary and linguistic usages and their nuances of expression were naturally reflected
in the Qur’an. The peculiarities of Arab social customs often gave exegesis of the Qur’anic text a
perspective and offered solutions to some of the doubts/ambiguities which would otherwise be difficult
to understand. The asbab al-nuzul take full cognizance of the customary practices of Arabian society
and the relationship, if any, of such practices to Qur’anic legislation. To give an example, the Qur’anic
Principles of Islamic Jurisprudence ~ Kamali 45
[Shatibi,
ayah 'Our Lord punish us not, if we forget or make a mistake' (al-Baqarah, 2:286), is held to be
referring to unbelief, that is, when words which partake in unbelief are uttered inadvertently. This is
forgiven just as are words of unbelief that are expressed under duress. However, the exemption here is
not extended to similar pronouncements, such as statements of divorce, freeing of a slave, or sale and
purchase, for freeing a slave was not known in the custom of the Arabs nor were the inhibitions over
oath-taking (ayman). The general support of this ayah is thus given a concrete application in the light of
the prevailing custom.
[Khudari, Usul, p.211.]
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