What are the various sources of Islamic Law? for LLb Part one

What are the various sources of Islamic Law? According to Islam, the ultimate source of authority is God alone. In the ideal of Islamic law, everyone except God, including the Prophet and ruling authorities, is subordinate to Divine Law, which emanates from Divine Revelation. Islamic law, irrespective of the variety of its "sources", emanates from God and aims at discovering and formulating His will. God's will is not once-and- for-all defined as a static system; rather it comprehends all spheres of man's life and is progressively unfolded. As Islam gives guid¬ance in all walks of life, Fiqh, the law of Islam, as developed from the very beginning, comprehends, with special care, religion-moral, social, economic, and political aspects of human life. That is why a man acting according to the Islamic law is, in all circumstances, deemed to be fulfilling God's will. Thus, Islamic law is a mani¬festation of God's will. The term "law" in this context, as hinted above, includes both the moral law as well as the legal enactments, particularly and more properly the former. It would thus be more accurate to say that while the (moral) law was revealed in the specific context of the Qur'an and the Sunnah as the will of God, the Muslims' duty is to embody it in legal enactments in their own context. Indeed, a number of legal rules have been given by the Qur'an to embody the will of God. The Qur'anic rulings may be divided into two broad categories, namely halal (permissible) and haram (forbidden). The classical legal categories owe their origin to these two terms frequently used by the Qur'an. The Qur'an itself does not lay down the various degrees of permissibility and prohibition. These degrees came into existence later when Fiqh developed as an independent science. The terminology used by the early jurists is a little different from the five categories evolved later. Today we hear the terms wajib, haram, makruh, mandub and mubah. This classification is based on moral assumptions and is primarily legal. Since every act of a Muslim must fall, according to the later Fiqh literature, under a certain legal category, this sort of classification became essential. The early works on Fiqh indicate that there were no such fixed categories; the terminology of the early Muslim period was general. Al-Awza'i uses the terms la basa, halal, haram and makruh in his writings. The term la ba'sa and makruh have been used by him in the sense of permissible and disapproved respectively. While discussing the question of selling prisoners of war he remarks that the Muslims did not consider it objectionable (la ba'sa) to sell female prisoners of war. They disapproved iyakrahuna) of the sale of male prisoners, but approved of their exchange for Muslim prisoners of war. It seems that these two terms conveyed a sense more literal than legal. The terms halal and haram recur in his reasoning. He uses these two terms even for those cases which are disputed and not categorically permitted or prohibited in the Qur'an or the Sunnah. The five legal categories (al-ahkam al-khamsah) are not to be found in Malik either. His terminology is similar to that of al- Awza'i. The terms la ba'sa (no harm) and makruh (disapproved) have been used by him as opposed to each other like al-Awza'i. The terms halal and haram are not very frequent in his work. He also uses the term wajib in the sense of obligatory, but does not draw any distinction between fard and wajib as the late Hanafi jurists do. Of course, he distinguishes wajib from Sunnah. For instance, he says that the sacrifice of animals (on the occasion of 'Id) is Sunnah (recommended) and not wajib (obligatory). The term makruh or yukrahu has been used by him sometimes in the sense of forbidden and sometimes in the sense of disapproved. The terms hasan (good), astahibbu (I like) are also available in his writings. They convey the sense of recommendation-categories below wajib. All such terms as indicate recommendation fall under mandub according to late classification. The 'Iraqis avoid the use of the terms halal and haram, except for matters permitted or prohibited categorically in the Qur'an. That is why the use of the terms la ba'sa and makruh is frequent in their writings. Abu Yusuf criticizes al-Awza'i for his easy use of the terms halal and haram, particularly his statement: "this is halal from God". He says that he found his teachers disliking the practice of saying in their legal decisions:'this is halal (lawful) and this is haram (unlawful)', except what was mentioned expressly in the Qur'an as such without any qualification. He refers to Rabi' b. Khaytham, a Successor, as having remarked: "One ought not to say that God made such-and-such lawful (halal) or that He liked it, lest God tell him that He did not make it lawful nor did He like it. Similarly, one should not say that God made such-and- such unlawful (haram); lest God say that he told a lie; He did not make it unlawful (haram) nor did He forbid it." He adds that Ibrahim al-Nakha'i is reported to have mentioned about his com¬panions that whenever they gave some legal decision, they used to say: "This is disapproved (makruh), and there is no harm in so- and-so (la ba'sa bihi)." Concluding he remarks: "If we say 'this is lawful (halal) and 'this is unlawful (haram)' what a tall talk it would be."' But it is interesting that Abu Yusuf does not strictly follow this rule himself; he uses the term halal even in a case which is not expressly mentioned in the Qur'an as such. He, for instance, says: "If a Muslim in the enemy territory has no animal for riding, while the Muslims there have no animal except those of ghanimah and he cannot walk on foot, in such a situation it is not lawful (la yahillu) nor the Muslims to leave him behind." It should be noted that this sort of prohibition is not available in the Qur'an, yet he uses la yahillu which generally stands in his writings for explicit prohibition like riba' and marrying more than four women. The terms yajuzu and la yajuzu are also found in Abu Yusuf's works. Al-Shaybani frequently uses the terms ja'iz and la ba'sa bihi for 'allowed' and la khayra (not good) for 'forbidden'. He does not make any clear distinction between prohibition proper (haram) and disapproved (makruh). The term makruh or yukrahu recurs in his writings standing sometimes for forbidden and sometimes for disapproved. The terms halal and haram are no doubt visible occasionally in certain cases but not so frequently. The term Sunnah in the sense of recommended, according to traditional categories, is rarely used in this period. In a case al- Shaybani says that the recitation of al-Fatihah in the last two rak'ahs of prayers is Sunnah; but non-recitation so is equally valid. The Sunnah prayer said before or after fard prayers is known as tatawwu' and not Sunnah or nafl as the name came to be established later. Al-Shaybani sometimes interprets wajib (obligatory) as afdal (better or recommended). Quoting a tradition from the Prophet that bathing or. Friday is obligatory (wajib) for Muslims, al-Shaybani remarks: "Taking a bath on Friday is better {afdal) and not obligatory {wajib). "Since, the term wajib has occurred in this Hadith with reference to the Friday bath it is to be inferred that al-Shaybani treats it as a non-technical term; hence he considers it to be better. Otherwise, it would mean that al-Shaybani does not apparently accept the tradition which charac¬terizes Friday bath as wajib (obligation). Both fard and wajib have been used by al-Shaybani for 'obli¬gatory but fard has been generally used for those rules that are based on the Qur'anic injunctions. It appears to be more technical than wajib. The term wajib no doubt stands for obliga¬tory, but sometimes it is used in the non-technical sense denoting 'essential or 'necessary'. So far it had not assumed its position next to the category fard in sense and usage. There is a clear distinction between faridah and Sunnah in his writings. He calls 'Id prayer Sunnah and Friday prayer faridah. He remarks, how¬ever, that none of them should be abandoned. For this emphasis, we presume, 'Id prayer was described as wajib in later Fiqh literature. We find the term hasan being used most frequently in al Shaybani's writings. It seems that this was a non-technical word used in a general approbatory sense. It stands sometimes for 'approved', often for 'recommended', and occasionally for 'impera¬tive'. We think that later on this term was divided into several categories, e.g. wajib, sunnah, mustahabb etc. In most places al-Shaybani uses this term along with term afdal (better). He says, for instance, it is better (afdal) if the mu'adhdhin puts his fingers in his ears (while calling for prayers), but in case he does not do so, The use of mustahabb is not frequent in al Shaybani's works. It is mostly used in its literal sense in the late legal categories there appeared a clear distinction between fasid and batil. Fasid, according to the late terminology, stands for 'corrupt' or 'voidable' while batil for 'null and void'. Al-Shaybani uses these terms in several contexts, but the distinc¬tion is not very clear. Sometimes while discussing one and the same problem he uses both these terms interchangeably which implies that here he draws no such distinction between them. When we come to al-Shafi'i, we notice a great deal of develop¬ment in categories both by way of their subdivision and by way of introduction of new categories. These sub-divisions are not found in Malik's or al-Shaybani's works. Prohibition, for example, is of two kinds according to him. The first is forbidden (haram) for intrinsic reasons, and the second is forbidden for extrinsic reasons (tanzihan). He demonstrates the distinction between them with complete illustrations. Similarly, he divides wajib into two sub-categories: wajib proper and wajib optional (fi'l-ikhtiyar). According to him, taking a bath on account of janabah (major impurity) is wajib proper, while a bath for the purpose of general cleanliness is wajib optional. He says that the term wajib which occurs in the Hadith for Friday bath is capable of having both meanings. First, apparently it means that Friday bath is as obli¬gatory as the bath for major impurity. But it might simply mean desirability for the purpose of good deportment and cleanliness He refers to 'Uthman b. 'Affan as having said his Friday prayer without taking a bath which corroborates the second meaning. Further, he argues on the basis of a Hadith of the Prophet and a tradition (athar) of 'A'ishah which indicate that Friday bath was not meant for the validity of Friday prayer but for cleanliness. Therefore, al-Shafi'i does not hold taking a bath on Friday to be wajib proper. The term mubah which stands for actions, in relation to which the Shari'ah is neutral, appears for the first time in al-Shafi'i He elaborates it and gives its implications. He mentions several prohibitions made by the Prophet in mubah actions. For instance, he says that the Prophet forbade wearing samma (single robe) sitting in ihtiba condition (to lean against a single cloth by drawing together and covering one's back and shanks with it), and command¬ed to take food at one's own side from the plate and prohibited taking food from the middle, and forbade halting on the road at night. He draws a distinction between such prohibitions in mubah acts and the prohibitions proper. He thinks that this sort of prohibition was made for etiquette. Therefore, these pro¬hibitions, according to him, do not render these mubah acts haram, while the prohibition with regard to sale and marriage contracts made them haram. Nevertheless, he regards violation in both the cases as disobedience, but disobedience in the latter is greater than in the former. Al-Shafi'i also introduced the term fard kifayah which is not to be found before him. He defines it as 'the fard which if perfor¬med by a sufficient number of Muslims, the remaining Muslims who did not perform it would not be sinful.' He justifies this sort of fard on the basis of the Qur'anic verses 9: 5, 36, 41, 111, 122 and 4: 95 concerning Jihad. He regards Jihad, saying funeral prayers for a Muslim, his burial and return of salutation (salam) as Kifayah. He thinks that in this category of fard the intention is sufficiency, i.e. devolving upon the community as a whole and hence requiring a "sufficient number" of agents as distinguished from what devolves as a duty upon every individual. As regards fardayn, he does not use this term in his writings. But it seems that the concept is there. He divides legal knowledge into 'ammah and khassah. Under ammah he mentions five prayers, fasting during Ramadan, Hajj and Zakah, and prohibition of murder, usury (fornication), and theft and drinking. With regard to these acts he remarks that all individuals are obligated therewith (kullifa). It is this concept which appeared in the form of fard'ayn in the sater Fiqh literature. The process of development of these categories from the early schools to al-Shafi'i and from him onward is not very much clear from the available early literature. It is, however, clear that these categories began to take their formal shape from al-Shafi'i and resulted in five fixed values (al-ahkam al-khamsah) after him with the passage of time. The above categories are based on four foundations (usul). According to the classical legal theory, they are: the Qur'an, the Sunnah, Ijma' and Qiyas. Works on Islamic jurisprudence composed since the time of al-Shafi'i (d. 204 A.H.), and certain reports claiming to go back earlier, convince us that the present sequence of the sources of Islamic Law was in existence in the earliest days of Islam. It is, however, difficult to accept that the present order of the legal theory dates back to the time of the Companions. There are various reasons for our doubt. Firstly, the scheme of this legal theory, i.e. the Qur'an, the Sunnah, Ijma' and Qiyas, is itself the result of historical development starting from the time of the Companions. Secondly, the technical order of the sources of law, as the reports claim to show, is actually a later product; hence such reports cannot be genuine. Thirdly, the idea of the rightly-guided leaders (a'immat al-huda), must have emerged after the first four Caliphs therefore, the reports showing the use of the term Qiyas by 'Umar, the second Caliph, in his instructions to the judges, appear to be doubtful. Fourthly, the Concept of Ijma', particularly the Ijma' of the Companions, most probably appeared after the first generation (i.e. the Companions). Hence, the question of its existence in a legal theory in the days of the Companions does not arise. Fifthly, Qiyas developed as a technical doctrine during the second and the third generations, although the idea was present in the form of ray (considered opinion) during the first generation. From al-Shafi'i's discussions with his opponents it appears that the jurists of the early schools placed Qiyas before Ijma'. The change in the order of the sources of law first appeared in al-Shafi'i; though the ground seems to have been prepared long before him. We anaylse here a few examples in order to illustrate that before al-Shafi'i Ijma.' was placed after Qiyas. While discussing the principle of Ijma', al-Shafi'i's opponent seeks to establish the authority of Ijma' in opposition to the isolated traditions advocated by al-Shafi'i. The opponent remarks that Ijma' of the scholars (ulama) on the points of detail should be followed, because they alone have the legal knowledge and are agreed upon an opinion. Ijma', according to him, stands as an authority for those who have no legal knowledge, in case the scholars are agreed. But if the scholars differ, their opinions do not have any binding authority. Further, he suggests that the un¬settled points in which there is difference of opinion should be referred back to Qiyas on the basis of their agreed points. This implies that, according to him, Qiyas-Ijma' process should go on continuously and that Qiyas precedes Ijma'. In addition to al-Shafi'i's controversies, we find numerous other instances that confirm our view. Ibn al-Muqaffa' (d. 140 A.H.) suggests to the Caliph al-Mansur that he should apply his own reason to the heritage of the past on the basis of Sunnah or Qiyas. Concluding, he remarks that the collection of these prac¬tices (siyar) along with the personal opinion of the Caliph himself may likely form the nearest approach (qarinah) for future agree¬ment. This argument indicates that Ibn al-Muqaffa' puts Ijma' at the end of the scheme and assigns the third position to Qiyas after the Sunnah. Further, Wasil b. 'Ata' (d. 131 A.H.) is reported to have said that a right judgement can be arrived at through four sources: 'the express word of the Book, unanimously recognized traditions, logical reasoning, and consensus of the Community. Here, too, we notice that Qiyas is given priority over Ijma' and Ijma' comes in the last. Ample evidence can, however, be produced to prove that a change occurred in the order of the terms of the legal theory later, and the early procedure was reversed. From a purely theoretical point of view, also the interaction of Qiyas and Ijma' is absolutely essential. If there were no Qiyas (Ijtihad), how could an Ijma' be considered? For Ijma can be arrived at only through the difference of opinion as a result of the exercise of Qiyas by several persons. Out of these diverse opinions, an accepted general opinion emerges through a process of gradual integration. This means that Qiyas (Ijtihad) and Ijma' are two complementary factors of a continuous process. Ijma', being an agreed and accepted opinion, implies that it carries more weight and force than other non-agreed individual opinions based on Qiyas. This might be the reason why al-Shafi'i and the later jurists gave priority to Ijma' over Qiyas. The process, however, requires that Qiyas must precede Ijma'. The primary source of Islamic legislation is the Qu'ran. The Sunnah explains and elaborates the Qur'an. While Sunnah un¬doubtedly constitutes also an independent source, it is closely linked with and is secondary to the Qur'an. Qiyas is the syste¬matic form of ray (considered individual opinion) and is based on the Qur'an and the Sunnah. Personal opinion results in Ijma' when it receives the universal acceptance of the Community in a word, the Qur'an, the Sunnah, Qiyas and Ijma' are interlinked; the same spirit pervades these sources for which the final authority is the Qur'an. The basic material sources of Islamic law are the Qur'an and the Sunnah. Their authority is unchanged in all times and circum¬stances. Qiyas and Ijma' are, in fact, instruments or agencies for legislation on new problems for whose solution a direct guidance from the Qur'an and the Sunnah is not available. It is, therefore, obvious that Qiyas and Ijma' are considered to be an authoritative source of law being subservient to the Qur'an and the Sunnah. The authenticity of these auxiliary sources shall be determined only by the degree of their consonance with the other two original and unchallenged sources of law. We may now discuss briefly each of these sources of law. The Qur'an, as we said before, is the primary source of legislation. Several Qur'anic verses expressly indicate that it is the basis and main source of law in Islam. The Prophet lived at Mecca for thirteen years and at Medina for ten years. The period after the Hijrah, unlike that of Mecca, was no longer a period of humilia¬tion, and persecution of the Muslims. The type of guidance which the Muslims required at Medina was not the same as they had needed at Mecca. That is why the Medinese surahs differ in character from those revealed at Mecca. The latter are compara¬tively small in size, and generally deal with the basic beliefs of Islam. They provide guidance to an individual soul. The Medinese surahs, on the other hand, are rich in laws relating to civil, criminal, social, and political problems of life. They provide guidance to a nascent social and political community. We do find the term zakah in several Meccan surahs; but zakah was not in existence at Mecca in its institutional form. At Mecca, this term has been used in the sense of monetary help on a voluntary basis or in the sense of moral purity. It was not an obligatory social duty of the opulents. Moreover, at Mecca no administrative staff was recruited for this purpose. Apart from the controversy over the number of the legal verses in the Qur'an, it is clear that the Qur'an is neither a legal code in the modern sense, nor is it a compendium of ethics. The primary purpose of the Qur'an is to lay down a way of life which regulates the relationship of man with man and his relationship with God. The Qur'an gives directions for man's social life as well as for his communion with his Creator. The laws of inheritance, rulings for marriage and divorce, provisions for war and peace, punishments for theft, adultery and homicide, are all meant for regulating the ties of man with his fellow beings. In addition to these specific legal rules, the Qur'an abounds in moral teachings. Therefore, it is not correct to say, as Coulson presumes, that "the primary purpose of the Qur'an is to regulate not the relationship of man with his fellows but his relationship with his Creator." The Qur'anic quasi-legislation is not couched in purely legal terms. There is an amalgam of law and ethics. The Qur'an, in fact, addresses itself to the conscience of man. That is why the legal verses were revealed in the form of moral exhortation, some¬times exhorting people to the obedience of God and occasionally instilling a keen sense of fear of God in the minds of Muslims. Hence, it contains emphatic statements about certain specific attributes of God, e.g. God is all hearing, all-seeing and the like, at the end of its verses. Further, it goes without saying that the Qur'an does not seek to be pan-logistic, i.e. to lay down once and for all the details of life. Broadly speaking, it should be borne in mind that the legislative part of the Qur'an is the model illustra-tion for future legislation and does not constitute a legal code by itself. History tells us that the revelation came down when some social necessity arose, or some Companion consulted the Prophet in connection with certain significant problems. Thus, the specific rules, the legal norms, and the juridical values furnished by the Qur'an constitute its legislative side which, however, is in no way less important than its purely ethical side. A common reader begins to read the Qur'an with an idea that u is a versatile code and a comprehensive book of law. He does not find in detail the laws and by-laws relating to the social life, culture, and political problems. Further, in the Qur'an he reads numerous verses to the effect that everything has been mentioned in this Book and nothing has been left out. Besides, he notices that the Qur'an lays great emphasis on saying prayer and giving zakah, but at the same time he finds that it does not mention their specific definitions or details. Questions, therefore, arise in the mind of the layman as to the nature of the comprehensiveness of the Qur'an. The difficulty arises from ignoring the fact that God did not reveal the Qur'an in a vacuum, but as a guide to a living Prophet, who was engaged in an actual struggle. The Qur'an, however, instead of giving the minutiae, indicates basic principles that lead a Muslim to a certain direction, where he can find the answer by his own effort. Moreover, it presents the Islamic ideology in a general form, suited to the changing circumstances in all ages and climes. The Qur'an calls itself 'guidance' and not a code of law. It should be noted that the Qur'an sometimes explains itself, and as a book of guidance (hidayah) it did not leave untouched any¬thing relating to the fundamentals. As regards the actual practical shape of life to be led by a Muslim and the community as a whole it shows and demarcates the borders of the various aspects of life. It was the task of the Prophet to present the ideal practical life in the light of those limits enunciated by the Qur'an. The Prophet was, in fact, sent primarily to exemplify the teachings of the Qur'an. That is why; the Sunnah by its very nature never goes against the Qur'an, or the Qur'an against the Sunnah. In his work, 'The Origins of Muhammadan Jurisprudence,' Prof. Joseph Schacht holds that "apart from the most elementary rules, norms derived from the Koran were introduced into Muhammadan law almost invariably at a secondary stage." He illustrates this by quoting the cases of divorce, the maxim that spoils belong to the killer, and the policy of not laying waste the enemy country, the oath of the plaintiff in confirmation of the evidence of one witness and the evidence of minors. From the difference of opinion among the early jurists in the aforesaid cases, he draws the conclusion that these people argued on the basis of their personal judgments, which they sought to justify through the Qur'an. This, however, appears to be incorrect, as it stands. Prof. Schacht, of course, admits that the clear rules provided for in the Qur'an for example, those of inheritance, evidence, punish¬ment, etc. were from the very beginning operative, and, in fact, formed the nucleus of Shari'ah. What causes him to reach his conclusions about the secondary introduction of the Qur'anic norms is that, in case where the Qur'an did not provide any explicit guidance, the Muslims formed their own opinion. How¬ever, this considered opinion was never expected to be opposed to or independent of the spirit of the Qur'an and, if someone at a later stage, thought of a verse, which could have possible relevance to this question, he quoted the verse. But, this certainly does not show that the Qur'an was introduced at a secondary stage. It is needless to say that Islamic law underwent a long process of evolution. The interpretation of the Qur'an in the early period was not so complex and sophisticated as it developed in the later ages. The legal rules not derived from the specific verses of the Qur'an in the early period were sought to be so drawn later on. This was a continuous activity. The methodology of inference from the Qur'an grew more and more intricate and philosophical in the wake of the deep and minute study of the Qur'an by jurists in the later ages. The corpus of Islamic law is rich in examples where, with regard to a problem, some jurists argued on the basis of the Qur'an, while the others did soon the basis of traditions or personal opinion, for these latter did not think the Qur'anic verse relevant to the point at issue. Such differences do not imply that "in every single case the place given to the Koran", in Prof. Schacht's words, "was determined by the attitude of the group concerned to the ever-mounting tide of traditions from the Prophet;" and that "the Koran taken by itself, apart from, it's possible bearing on the problem raised by the traditions from the Prophet, can hardly be called the first and foremost basis of early legal theory." Prof. Schacht does admit that "a number of legal rules, particularly in family law and law of inheritance, not to mention cult and ritual, were based on the Koran from the beginning." It is of supreme importance to note that the Qur'an's position as the first and foremost basis for legal theory does not mean that it treats of every problem meticulously. The Qur'an, as we know, is not basically a code of law, but a document of spiritual and moral guidance. The presentation of the details of legal rules does not fall under the basic objectives of the Divine Book. The instances quoted by Prof. Schacht relate mainly to the cases, where detailed manner of application has not been prescribed by the Qur'an. Although, generally, the legal verses of the Qur'an are quite definite, nevertheless all such verses are open to interpretation, and different rules can be derived from the same verse on the basis of Ijtihad. This is the reason for the difference of opinion among the jurists in the cases mentioned by Prof. Schacht. Accor¬ding to one jurist, a law can be deduced from some verse but the same verse is silent on the same problem according to the other. Hence, one argues on the same point on the basis of the Qur'an, while the other on the basis of the Sunnah. It is reported, for example, that during the caliphate of Abu Bakr a grandmother approached him asking her share from the heritage of her deceased grandson. Abu Bakr reportedly replied: "Neither in the Book of Allah is there anything for you, nor do I know of anything in the Sunnah of the Prophet. "Abu Bakr's reference in the first instance to the Qur'an clearly shows that this was the practice from the earliest days of Islam. Let us take another example a slave of Ibn 'Umar who deserted him, a report says committed theft. Ibn 'Umar asked Said alas, the governor of Medina, to amputate his hand. But Said refused to do soon the plea that the hand of a deserting slave is not amputated. Thereupon Ibn 'Umar reportedly asked: "In which Book of Allah did you find it?" This sort of report represents the trend of the early generations towards the Qur'an, and shows its preprimary role in the process of law-making. The doctrine of abrogation (naskh) of the individual verses in the Qur'an is also significant in Islamic jurisprudence. The classical concept of this doctrine affirms that a number of verses in the Qur'an, having been repealed, are no longer operative. These repealed verses are no doubt part of the Qur'an, but they carry no practical value. This raises a very serious question: When the Qur'an is eternal and its injunctions are valid for all ages, how is it possible that some of its passages lost their practical value? It seems that such a concept of abrogation was not in existence in the lifetime of the Prophet or in the early generation. It must have emerged sometime later for reasons of legal consis¬tency not definitely known to us. It may be due to modern conception of law, religions and ethics. Another important source of Islamic law is the Sunnah. Sunnah essentially means exemplary conduct of some person. In the context of Islamic jurisprudence, it refers to the model beha¬viour of the Prophet. The Islamic concept of the Sunnah, as we shall discuss and is commonly understood, originates with the advent of the Prophet. Since the Qur'an enjoins upon the Muslims to follow the conduct of the Prophet, which is distinguished as 'exemplary and great, it became 'ideal' for the Muslim Community. The Qur'an asks the Prophet to decide the problems of the Muslims according to the Revelation. As such, the basic authority for legislation, as we have already pointed out, is the Qur'an. Nevertheless, the Qur'an declared the Prophet to be the interpreter of the Qur'anic texts. Moreover, it describes the functions of the Prophet, namely, announcing of the revelation before people, giving moral training to them, and to teach them the Divine Book and wisdom. The Sunnah is therefore, closely linked with the Qur'an and it is, therefore, rather difficult to maintain that these are two separate sources. It is the Sunnah that gives the concrete shape to the Qur'anic teachings. The Qur'an, for instance, men¬tions salah and zakah but does not lay down their details. It is the Prophet who explained them to his followers in a practical form. Moreover, the Divine Book made obedience to the Prophet obligatory; hence, the Sunnah, i.e. the model behaviour of the Prophet, be it in the form of precept or example, became ulti¬mately a source of law. The decisions taken by the Prophet were elevated by God to such a degree that their acceptance and willing submission to them was declared to be a fundamental of the faith. The Qur'an, accordingly, says: "But nay, by thy Lord, they will not believe (in truth) until they make thee judge of what is in dispute between them and find within themselves no dislike of that which thou decides, and submit with full submission". The source of law is the "ideal Sunnah" or the model behavi¬our of the Prophet. Hadith is the index and vehicle of the Sunnah. The early schools of law, as we pointed out previously, generally accepted those traditions that were well-known and practised by the Muslims. That is why the early jurists arguing on the basis of the Sunnah differed from one another. Their differences were mainly due to the differences in the interpretation and application of a particular Hadith to a particular case. One jurist might consider one particular incident in the life of the Prophet as more relevant than others to a given situation; while another jurist might single out another incident. Through this activity more or less regional interpretation of the Sunnah came into existence. They were all termed Sunnah but each one of them was associated with the Sunnah of the Prophet and ultimately based on it. This question will occupy the interpretation of Sunnah. According to al-Shafi'i, the Sunnah coming direct from the Prophet in the form of Hadith through a reliable chain of narrators is a source of law, irrespective of whether it was accepted by the people or not, and even if it was an isolated tradition. He emphasized the value of the traditions from the Prophet in pre¬ference to the opinions of the Companions or their practice Carnal). In some cases, the early jurists followed the practice or the opinion of the Companions even in the presence of a tradition from the Prophet. But al-Shafi'i vehemently opposed this practice. He con¬tended that in the presence of the Prophet's tradition, no other authority can stand. He tried to convince his opponents that they should not set aside a Hadith from the Prophet even if it came through a single narrator, unless another, Hadith on the same sub¬ject carried over by a chain of reliable narrators is available. In case of conflict between two reports from the Prophet, the one which is more authentic must be preferred. Al-Shafi'i interprets the word 'hikmah' occurring in the Qur'an together with 'the Book' as the Sunnah of the Prophet. He argues that since God made obedience of the Prophet obligat¬ory on people, this means that what comes from the Prophet comes from God. He believes that the Sunnah of the Prophet is revelation from God. He reports that Ta'us, a Successor, had possessed a document which contained a list of wergilds which were divinely inspired. Again he says: "Whatever the Prophet made obligatory he did so on the basis of a divine revela¬tion, because there is a kind of revelation which is recited (ma yutla, i.e. the Qur'an) while there is another kind which is sent to the Prophet and forms the Sunnah." He elaborates this point by quoting several reports to show that there used to come revelation to the Prophet in addition to the Qur'an. It appears that the concept of two kinds of revelation, namely, jaliy (patent) and khafi (assumed), begins rather earlier than al-Shafi'i as the reports quoted by him indicate. We do not think he was non-committal in regarding the Sunnah of the Prophet as revelation, as Prof. Schacht holds/ The next important basis of law which is, in fact, a supple¬ment to the Sunnah, is the opinions and practice (athar and 'amal) of the Companions. From the early days of Islam the Muslims have taken the legal decisions of the Companions as the source of law. The reason behind this is that the Companions were the immediate observers of the Sunnah of the Prophet. Having been in association with him for years together, they were expected to be acquainted not only with his sayings and behaviour but also with the spirit and character of the .deal Sunnah left by him for the coming generations. Their legal opinions, despite differences, carried the spirit of the Prophetic Sunnah, when they cannot be divorced. That is the reason why the jurists of the early schools frequently argued on the basis of the Companions' legal decisions. The practice and opinions of the Companions were so important a source of law that Malik sometimes sets aside a tradition from the Prophet in their favour. Al-Shafi'i, for instance, reports a tradition on the authority of Malik that Sad b. Abi Waqqas and Dahhak b. Qays were once discussing the question of per¬forming 'Umrah along with Hajj. Dahhak said that only a man who was ignorant of God's commands would combine the two. Further, he remarked that 'Umar, the second Caliph, had forbid¬den such practice. Rejecting his opinion, Sa'd replied that the Prophet had performed Umrah along with Hajj, and he himself did so with him. Malik reportedly held that the opinion of Dahhak was more to his liking than that of Sa'd, and that 'Umar knew the Prophet better than Sa'd. Why the Medinese some¬times follows the opinion of the Companions or the local practice and set aside prophetic traditions is a serious question which requires consideration by those well versed in Sunnah and Ijma. The Companions played a vital role in establishing the Sunnah of the Prophet. Hence, it became more or less customary with the early school to argue on the basis of the practice of the Com¬panions. They must have considered that their action was based on the Prophetic Sunnah or they were better equipped to take dictions in the light of the Sunnah. But al-Shafi was strongly oppos¬ed to this view. He does not regard the sayings of the Compa¬nions or their practice as necessarily the Sunnah of the Prophet unless there exists an explicit tradition from the Prophet. In the absence of a tradition from the Prophet, he, no doubt, follows the opinions of the Companions. In case of difference of opinion among them, he prefers the opinion of the first four Caliphs to those of others, or the opinion which coincides with the Qur'an, or the Sunnah or Ijma' or the opinion which is correct accord¬ing to Qiyas. His utmost endeavour, however, was to adhere to the Sunnah of the Prophet to which he gave absolute priority and which he radically distinguished from the subsequent practice and opinions. The Successors, too, played a major role in the development of Islamic law. Since they had association with the Companions, their opinions, too, carried weight in law. Their legal decisions constituted a source of law for the early schools. Not infrequently, we find cases where the opinion of a Successor was even preferred to that of a Companion. Early works on Fiqh are replete with the legal opinions of the Successors. The early schools quote their opinions in support of their doctrines, and occasionally make them the sole basis of their arguments. After quoting the traditions from the Prophet and the Companions, Malik quotes the practice and opinions of the Successors. But from this, it does not follow that he always adheres to them, because on occasions he does not act upon the traditions from the Companions either. Abu Yusuf clearly bases the principle of 'avoiding to inflict had punishment on the accused in case of doubt, on the opinions of the Compan¬ions and the Successors. As the practice and opinions of the Companions and the Successors reflected the Sunnah of the Prophet, the early schools regarded them as an important source of law. We have previously shown that al-Shafi'i regards the opinions of the Companions as a source of law. Sometimes he calls follow¬ing their practice laqlid. But he does not make any mention of the Successors in his theory of law. It appears from Kitab al-Umm that he follows the opinions of the Successors as a support of his thesis and not as a basis of his argument. He quotes, for instance, Shurayh, al-Sha'bi, Sa'id b. al-Musayyib 'Ata', Ta'us and Mujahid in the case of accepting the evidence given by a slanderer (qadhif). Another source of Islamic law is Qiyas (analogical deductions). It is, in fact, a systematic and developed form of ra'y (considered opinion). The most natural and simple mode of reasoning is ray that played a paramount role prior to the dominance of Qiyas. In the early days of Islam, ray was a generic term that covered a variety of modes of Ijtihad. We find its use in the Prophet's time as well as after him by the Companions. The Qur'an and the Sunnah no doubt provide us with some legal rules with regard to the individual and social life of Muslims. But human life, being dynamic, requires laws that should change with the changing circumstances, Ray is an instrument that enables the coverage of diverse situations and enables Muslims to make new laws accord¬ing to their requirements. The period of 'Umar's Caliphate abounds in such instances We first meet with a semi-technical use of the term Qiyas in the alleged letter of 'Umar, the second Caliph, to Abu Musa al-Ash'ari (d. 44 A.H.). 'Umar is reported to have advised him to acquaint himself with the "parallels and precedents" (of legal cases) and then to "weigh up" the cases (qis al-umura), deciding what in his judgement would be the most pleasing to God and nearest to the truth. From such beginnings as this reported advice of Umar, ray appears to have developed later into legal and technical concept of Qiyas, viz, to find out an essential common factor between two similar cases and to apply the rule of one to the other. It is, however, noteworthy that the result after the application of Qiyas by different persons is not necessarily one and the same. The reason is that the actual location of the common factor ("Mali) is open to difference of opinion. As such a given rule inferred by applying Qiyas is always subject to challenge, and can be denied by those who think differently. Qiyas comes last in al-Shafi'i's scheme of the legal theory. He regards it as. Weaker than Ijma'. He does not allow the use of Qiyas in the presence of a tradition (khabar). He takes it as something for the sake of need (manzilatu daruratin). As tayammum is allowed, he argues, in the absence of water during a journey, so is the case with Qiyas. Further, he contends that since no taharah is valid with tayammum when water becomes available, similarly use of Qiyas is invalid in the presence on a khabar. He seeks to prove the validity of Qiyas on the basis of the Qur'anic verse: "Whencesoever thou comest forth turn the face toward it so that men may have no argument against you." From this verse he infers that the use of Qiyas in reasoning is obligatory on Muslims. Explaining this verse he remarks that the man who is far away from the Ka'bah depends on the indications (dala'il) like stars and mountains. Similarly, he says, one should depend on the indications to reach a certain conclusion. These pro-Qiyas and pro-Ijtihad arguments are, in fact, aimed at the refutation of the use of unrestricted ra'y, which he thinks "arbitrary and subjective. The last source of Islamic law, according to the scheme, is Ijma'. We have already explained in this chapter its position in the order of the legal theory. Ijma' is a principle for guaranteeing the veracity of the new legal content that emerges as a result of exercising Qiyas and Ijtihad. It is, in fact, a check against the fallibility of Qiyas. There are points, which have been universally accepted and agreed upon by the entire Community. This sort of Ijma' that allows no difference of opinion is generally confined to obligatory duties (fard'id). This is known as Ijma' of the Commu¬nity. On the other hand, there are certain rules which we may call positive law that are agreed upon by the learned of a particular region, but they do not carry the force of the consensus of the Community. This is known a Ijma' of the learned (Ijma,' al-Khassah). The Ijma' of the learned (Ijma' al-Khassah), in the early schools, was a mechanism for creating a sort of integration of the divergent opinions which arose as a result of the individual legal activity of jurists. It seems that the whole system of law in the pre-Shafi'i period was held together and strengthened by this implicit or explicit principle. It represents the average general opinion of each region in respect of the positive law. It sets aside the stray and 'unsuccessful opinions circulating in each locality. It is important to note that the Ijma' of the learned is not the name of the decisions on legal issues taken by an assembly of Muslim jurists. It emerges, in fact, by itself through a process of integration, and creates for itself a position in the Community. It is significant to note that al-Shafi'i's concept of Ijma' is different from that of the early schools. He holds, as is evident from his writings, that Ijma' is something static and formal having no room for disagreement. That is why he is reluctant in accepting the validity of the Ijma' of the learned as a source of law due to the differences among them. Only the Ijma' of the Community is valid according to him. In support of his argument he says that the Community at large cannot neglect the Sunnah of the Prophet, which, however, the individuals may neglect. Further, he contends that the Community God willing can never agree on a decision opposed to the Sunnah of the Prophet or on an error." As such, he restricted Ijma' only to the fara'id. Ijma', therefore, according to al-Shafi'i, became merely a theoretical source of law than a practical one. However, despite his real position on Ijma' al-Shafi'i regards it as a source of law after the Qur'an and the Sunnah of the Prophet in case these sources are silent on a point, he folldws first the agreed opinion of the Companions. Then, in case of differences among them, he adopts the opinion of one Companion especially of each of the first four Caliphs. He argues finally on the basis of Qiyas which is strictly based on the Qur'an and the Sunnah of the Prophet alone. In fact, al-Shafi'i confines legal knowledge to the two basic sources. Namely the Qur'an and the Sunnah, which he calls aslan the two bases he regards these two sources as independent entities ('aynan), while Ijtihad, according to him, is not an 'ayn (entity), but something created by human intelligence.' He believes that the Qur'an and the Sunnah pro¬vide answers to all possible problems concerning religion. Thus, the whole emphasis throughout his writings centres on these two sources.