The ulema of the various schools have discussed the application of qiyas to juridical, theological,
linguistic, rational and customary matters, but the main question which needs to be discussed here is the
application of analogy in regard to prescribed penalties (hudud) and penances (kaffarat).
The majority of ulema do not draw any distinction in this respect, and maintain the view that qiyas is
applicable to hudud and kaffarat in the same way as it is to other rules of the Shari'ah. This is explained
by reference to the Qur'anic passages and the ahadith which are quoted in support of qiyas, which are
all worded in absolute terms, none drawing any distinction in regard to penalties: and since the evidence
in the sources does not impose any restriction on qiyas, it is therefore applicable in all spheres of the
Shari'ah.
[80. Zuhayr, Usul, IV, 51; Abu Zahrah, Usul, p. 205.]
An example of qiyas in regard to the hudud is the
application of the punishment of theft to the nabbash, or thief who steals the shroud of the dead, as the
common `illah between them is taking away the property of another without his knowledge. A Hadith
has also been quoted in support of this ruling.
[81. The following Hadith is recorded in Abu Dawud (Sunan, III, 1229, Hadith no. 4395):
'The hand of one who rifles the grave should be amputated, as he has entered the house of deceased.']
Similarly the majority of ulema
(excluding the Hanafis) have drawn an analogy between zina and sodomy, and apply the hadd of the
former by analogy to the latter.
[82. Shawkani, Irshad, p. 222.]
The Hanafis are in agreement with the majority to the extent that qiyas may validly operate in regard to
ta'zir penalties, but they have disagreed as to the application of qiyas in the prescribed penalties and
kaffarat. They would not, for example, approve of an analogy between abusive words (sabb) and false
accusation (qadhf), nor would they extend the hadd of zina by analogy to other sexual offences. These,
according to the Hanafis, may be penalised under ta'zir but not by analogy to the hudud. The main
reason that the Hanafis have given is that qiyas is founded on the 'illah, whose identification in regard
to the hudud, involves a measure of speculation and doubt. There is a Hadith which provides: `drop the
hudud in cases of doubt as far as possible. If there is a way out, then clear the way, for in penalties, if
the Imam makes an error on the side of leniency, it is better than making an error on the side of
severity'.
[83. Tabrizi, Mishkat, II, 1061, Hadith No 3570; Abu Yusuf, Kitab al Kharaj, p. 152; Ibn Qayyim, I'lam, I, 209.]
It is thus concluded that any level of doubt in ascertaining the `illah of hadd penalties must prevent their
analogical extension to similar cases.
[84. Abu Zahrah, Usul, p. 205.]
As stated above, the majority validate the application of qiyas in regard to kaffarat. Thus the analogy
between the two forms of breaking the fast (iftar), namely deliberate eating during daytime in
Ramadan, and breaking the fast by having sexual intercourse, would extend the kaffarah of the latter to
the former. Similarly the majority have validated the analogy between deliberate killing and erroneous
homicide for purposes of kaffarah. The Qur'an only prescribes a kaffarah for erroneous killing, and this
is extended by analogy to deliberate homicide. The common 'illah between them is the killing of
another human being. If kaffarah is required in erroneous killing, then by way of a superior analogy
(qiyas al-awla) the 'illah is even more evident in the case of a deliberate killing. Both are therefore
Principles of Islamic Jurisprudence ~
Kamali 202
liable to the payment of kaffarah, which is releasing a slave, or two months of fasting, or feeding sixty
persons. The Hanafis are once again in disagreement with the majority, as they maintain that for
purposes of analogy, the kaffarah resembles the hadd. Since doubt cannot be totally eliminated in the
identification of their effective causes, kaffarat may not be extended by means of analogy.
IV, 51.]
Notwithstanding the fact that the jurists have disagreed on the application of qiyas in penalties, it will
be noted that the ulema have on the whole discouraged recourse to qiyas in the field of criminal law.
Consequently, there is very little actual qiyas to be found in this field. This is also the case in modern
law, which discourages analogy in respect of penalties. The position is somewhat different to regard to
civil transactions (mu`amalat), in which qiyas is generally permitted.
Conflicts between Nass and Qiyas
[86. Abu Zahrah, Usul, p. 206.]
Since the 'illah in analogy is a general attribute which applies to all similar cases, there arises the
possibility of qiyas coming into conflict with the nusus. The question to be asked is how such a conflict
should be removed. Responding to this question, the ulema have held two different views, which may
be summarised as follows:
1) According to Imam Shafi'i, Ahmad b. Hanbal, and one view which is attributed to Abu Hanifah,
whenever there is a nass on a matter qiyas is absolutely redundant. Qiyas is only applicable when no
explicit ruling could be found in the sources. Since recourse to qiyas in the presence of nass is ultra
vires in the first place, the question of a conflict arising between the nass and qiyas is therefore of no
relevance.
[87. Abu Zahrah, Usul, p. 200.]
2) The second view, which is mainly held by the Malikis, also precludes the possibility of a conflict
between qiyas and a clear text, but does not dismiss the possibility of a conflict arising between a
speculative text and qiyas. Analogy could, according to this view, come into conflict with the `Amm of
the Qur'an and the solitary Hadith.
The Hanafis have maintained that the 'Amm is definitive in implication (qat`i al-dalalah), whereas qiyas
is speculative. As a rule, a speculative item cannot qualify a definitive one, which would mean that
qiyas does not specify the 'Amm of the Qur'an. The only situation where the Hanafis envisage a conflict
between qiyas and the `Amm of the Qur'an is where the `illah of qiyas stated in a clear nass. For in this
case, a conflict between the 'Amm of the Qur'an and qiyas would be that of one qat'i with another.
However, for the most part qiyas is a speculative evidence, and as such may not specify the 'Amm of the
Principles of Islamic Jurisprudence ~ Kamali 203
[85. Zuhayr, Usul,Qur'an. But once the 'Amm is specified, on whatever grounds, then it becomes speculative itself, at least
in respect of that part which remains unspecified. After the first instance of specification (takhsis), in
other words, the 'Amm becomes speculative, and is then open to further specification by means of qiyas.
For example, the word bay` (sale) in the Qur'anic text stating that 'God has permitted sale and
prohibited usury' (al-Baqarah, 2:275) is `Amm, but has been qualified by solitary ahadith which prohibit
certain types of sale. Once the text has been so specified, it remains open to further specification by
means of qiyas.
[88. Abu Zahrah, Usul, pp. 201-202.]
This was the Hanafis' view of conflict between a general text and qiyas. But the Malikis who represent
the majority view, consider the `Amm of the Qur'an to be speculative in the first place. The possibility is
therefore not ruled out, according to the majority, of a conflict arising between the nass and qiyas. In
such an event, the majority would apply the rule that one speculative principle may be specified by
another. Based on this analysis, qiyas, according to most of the jurists, may specify the `Amm of the
Qur'an and the Sunnah.
[89. Abu Zahrah, Usul, p. 203.]
As for conflict between qiyas and a solitary Hadith, it is recorded that Imam Shafi`i, Ibn Hanbal and
Abu Hanifah do not give priority to qiyas over such a Hadith. An example of this is the vitiation of
ablution (wudu') by loud laughter during the performance of salah, which is the accepted rule of the
Hanafi school despite its being contrary to qiyas. Since the rule here is based on the authority of a
solitary Hadith, the latter has been given priority over qiyas, for qiyas would only require vitiation of
salah, not the wudu'.
[90. Bukhari, Sahih (Istanbul edn.), I, 51 (Kitab al-Wudu', Hadith no. 34); Khan, Athar, p. 403.]
Although the three Imams are in agreement on the principle of giving priority to solitary Hadith over
qiyas, regarding this particular Hadith, only the Hanafis have upheld it. The majority, including Imam
Shafi'i, consider it to be Mursal and do not act on it.
Additionally, there are other views on the subject which merit brief attention. Abu'l Husayn al-Basri, for
example, divides qiyas into four types, as follows:
1 ) Qiyas which is founded in a decisive nass, that is, when the original case and the effective cause are
both stated in the nass. This type of qiyas takes priority over a solitary Hadith.
2) Qiyas which is founded in speculative evidence, that is, when the asl is a speculative text and the
'illah is determined through logical deduction (istinbat). This type of qiyas is inferior to a solitary
Hadith and the latter takes priority over it. Al-Basri has claimed an 'ijma on both one and two above.
3) Qiyas in which both the asl and the 'illah are founded in speculative nusus, in which case it is no
more than a speculative form of evidence and, should it conflict with a solitary Hadith, the latter takes
priority. On this point al-Basri quotes Imam Shafi'i in support of his own view.
Principles of Islamic Jurisprudence ~
Kamali 204
4) Qiyas in which the `illah is determined through istinbat but whose asl is a clear text of the Qur'an or
Mutawatir Hadith. This type of qiyas is stronger than two and three above, and the ulema have differed
as to whether it should take priority over a solitary Hadith.
[91. Basri, Mu`tamad, II, 162-64.]
The Malikis, and some Hanbali ulema, are of the view that in the event of a conflict between a solitary
Hadith and qiyas, if the latter can be substantiated by another principle or asl of the Shari'ah, then it
will take priority over a solitary Hadith. If for example the `illah of qiyas is `removal of hardship',
which is substantiated by several texts, then it will add to the weight of qiyas, and the latter will take
priority over a solitary Hadith. For this kind of evidence is itself an indication that the Hadith in
question is weak in respect of authenticity.
[92. Abu Zahrah, Usul, p. 204.]
Similarly, some Hanafis have
maintained that when a solitary Hadith, which is in conflict with qiyas, is supported by another qiyas,
then it must be given priority over the conflicting qiyas. This is also the view which Ibn al-'Arabi has
attributed to Imam Malik, who is quoted to the effect that whenever a solitary Hadith is supported by
another principle, then it must take priority over qiyas. But if no such support is forthcoming, then the
solitary Hadith must be abandoned. For example, the following Hadith has been found to be in conflict
with another principle: `When a dog licks a container, wash it seven times, one of which should be with
clean sand.
[93. Ibn Hazm, Ihkam, VIII, 79; Abu Zahrah, Usul, p. 205.]
It is suggested that this solitary Hadith is in conflict with the permissibility of eating the flesh of game
which has been fetched by a hunting dog. The game is still lawful for consumption notwithstanding its
having come into contact with the dog's saliva. There is, on the other hand, no other principle that could
be quoted in support of either of the two rulings, so qiyas takes priority over the solitary Hadith. Our
second example is of a solitary Hadith which is in conflict with one principle but stands in accord with
another. This is the Hadith of 'araya, which provides that `the Prophet (upon whom be peace) permitted
the sale of dates on the palm tree for its equivalent in dry dates'. This is permitted despite its being in
conflict with the rules of riba, However the permissibility in this case is supported by the principle of
daf` al-haraj `removal of hardship' in that the transaction of araya was permitted in response to a need,
and, as such, it takes priority over the qiyas which might bring it under the rules of riba.
(Hasan's trans.) II, 955, Hadith 3355; Ibn Hazm, Ihkam, VIII, 106; Zuhayr, Usul, IV, 50-58; Abu Zahrah, Usul, p. 205.]
Principles of Islamic Jurisprudence ~ Kamali 205
[94. Abu Dawud, SunanChapter Ten: Revealed Laws Preceding the Shari'ah of Islam
In principle, all divinely revealed laws emanate from one and the same source, namely, Almighty God,
and as such they convey a basic message which is common to them all. The essence of belief in the
oneness of God and the need for divine authority and guidance to regulate human conduct and the
values of morality and justice constitute the common purpose and substance of all divine religions. This
essential unity is confirmed in more than one place in the Qur'an, which proclaims in an address to the
Holy Prophet: `He has established for you the same religion as that which He enjoined upon Noah, and
We revealed to you that which We enjoined on Abraham, Moses and Jesus, namely, that you should
remain steadfast in religion and be not divided therein' (al-Shura, 42:13). More specifically, in a
reference to the Torah, the Qur'an confirms its authority as a source of inspiration and guidance: We
revealed the Torah in which there is guidance (huda) and light; and prophets who submitted to God's
will have judged the Jews by the standards thereof' (al-Ma'idah, 5:44). It is thus observed that
Muhammad, being one of the Prophets, is bound by the guidance that is found in the Torah. Further
confirmation for the basic harmony of the divinely revealed laws can be found in the Qur'anic ayah
which, in a reference to the previous Prophets, directs the Prophet of Islam to follow their guidance:
`Those are the ones to whom God has given guidance, so follow their guidance [hudahum]' (al-Anam
6:90). Basing themselves on these and similar proclamations in the Qur'an, the ulema are unanimous to
the effect that all the revealed religions are different manifestations of an essential unity.
241; Qasim, Usul, p. 173.]
This is, of course, not to say that there are no differences between them. Since each
one of the revealed religions was addressed to different nations at different points of time, they each
have their distinctive features which set them apart from the rest. In the area of halal and haram, for
example, the rules that are laid down by different religions are not identical. Similarly, in the sphere of
devotional practices and the rituals of worship, they differ from one another even if the essence of
worship is the same. The Shari'ah of Islam has retained many of the previous laws, while it has in the
meantime abrogated or suspended others. For example, the law of retaliation (qisas) and some of the
hadd penalties which were prescribed in the Torah have also been prescribed in the Qur'an.
Usul, p. 242; Badran, Usul, p.237.]
The general rule to be stated here is, however, that notwithstanding their validity in principle, laws that
were revealed before the advent of Islam are not applicable to the Muslims. This is especially so with
regard to the practical rules of Shari'ah, that is, the ahkam, in which the Shari'ah of Islam is selfcontained.
The jurists are also in agreement to the effect that the laws of the previous religions are not
to
be sought in any source other than that of the Shari'ah
of Islam itself. For the rules of other religions
do
not constitute a binding proof as far as the Muslims are concerned. The Shari'ah,
in other words, is
the
exclusive source of all law for the Muslims.
Principles of Islamic Jurisprudence ~ Kamali 206
[1. Abu Zahrah, Usul, p.
[2. Abu Zahrah,In view of the ambivalent character of the evidence on this subject, however, the question has arisen as
to the nature of the principle that is to be upheld: whether to regard the laws preceding the Shari'ah of
Islam as valid unless they are specifically abrogated by the Shari'ah, or whether to regard them as
basically nullified unless they are specifically upheld. In response to this, it is said that laws that were
introduced in the previous scriptures but which are not upheld by the Shari'ah, and on which no ruling
is found in the Qur'an or the Sunnah are not, according to general agreement, applicable to the Muslims.
The correct rule regarding the enforcement of the laws of the previous revelations is that they are not to
be applied to the followers of Islam unless they are specifically upheld by the Shari'ah.
Isma'il, Adillah, p.320.]
Once again the question arises as to whether the foregoing statement is in harmony with the Qur'anic
proclamations that were quoted above. The general response given to this is that the Prophet of Islam
was ordered to follow the previous revelations as a source of guidance only in regard to the essence of
the faith, that is, belief in God and monotheism. It has thus been pointed out that the word huda
`guidance' in the second ayah, and hudahum 'their guidance' in the third ayah quoted above only mean
tawhid, or belief in the oneness of God, which is undoubtedly the norm in the Shari'ah of Islam. Their
guidance cannot be upheld in toto in the face of clear evidence that some of their laws have been
abrogated. The reference is therefore to that aspect of guidance which is in common between Islam and
the previous religions, namely tawhid. It has been further suggested that the reference to 'Prophets' in
the second ayah above is confined, as the text itself suggests, to the Prophets of Bani Isra'il, and the
holy Prophet Muhammad is not one of them.
[4. Ghazali, Mustasfa, I, 134; Abu Zahrah, Usul, p. 242; Isma'il, Adillah, p.325]
The Qur'an on many occasions refers to the rules of previous revelations on specific issues, but the
manner in which these references occur is not uniform. The Qur'an alludes to such laws in the following
three forms:
1. The Qur'an (or the Sunnah) may refer to a ruling of the previous revelation and simultaneously make
it obligatory on the Muslims, in which case there remains no doubt that the ruling so upheld becomes an
integral part of the Shari'ah of Islam. An example of this is the Qur'anic text on the duty of fasting
which provides: 'O believers, fasting is prescribed for you as it was prescribed for those who came
before you' (al-Baqarah, 2:183). To give a similar example in the Sunnah, which confirms the ruling of
a previous religion, we may refer to the Hadith which makes sacrifice by slaughtering animals lawful
for Muslims. The believers are thus instructed to `Give sacrifice, for it is the tradition of your ancestor,
Abraham, peace be upon him'.
[5. Tabrizi, Mishkat, I, 466, Hadith no.1476; Badran, Usul, p. 235.]
2. The Qur'an or the Sunnah may refer to a ruling of the previous revelation but at the same time
abrogate and suspend it, in which case the ruling in question is to be abandoned and discontinued. An
example of this can be found in the Qur'an where a reference is made to the prohibition of certain
Principles of Islamic Jurisprudence ~ Kamali 207
[3. Badran, Usul, p.234;varieties of food to the Jews while at the same time the prohibitions are lifted from the Muslims. The
text thus provides: 'And to the Jews We forbade every animal having claws and of oxen and sheep, We
forbade the fat [. . .] Say: nothing is forbidden to eat except the dead carcass, spilled blood, and pork'
(al-An'am, 16:146). The second portion of this text clearly removes the prohibitions that were imposed
upon the Jews. For a similar example in the Sunnah, we may refer to the Hadith concerning the legality
of spoils of war where the Prophet has proclaimed: 'Taking booty has been made lawful to me, but it
was not lawful to anyone before me.'
[6. Muslim, Sahih, p.301, Hadith no. 1137; Badran, Usul, p.234.]
Likewise, the expiation (kaffarah) for sins was not acceptable under the Torah; and when a garment
became unclean, the unclean portion had to be cut out according to the rules of Judaism. But these
restrictions were lifted with the effect that the Shari'ah of Islam validated expiation for sins, and clothes
can be cleaned by merely washing them with clean water.
[7. Khallaf, Ilm, p.93; Isma'il, Adillah, p.320.]
3. The Qur'an or the Sunnah may refer to a ruling of the previous revelation without clarifying the
position as to whether it should be abandoned or upheld. Unlike the first two eventualities, on which
there is little disagreement among jurists, the present situation has given rise to wider differences of
opinion. To give an example, we read in the Qur'an, in a reference to the law of retaliation which was
enacted in the Torah: 'We ordained therein for them life for life, eye for eye, nose for nose, tooth for
tooth and wounds equal for equal' (al-Ma'idah, 5:48). Here there is no clarification as to whether the
same law has to be observed by the Muslims. In yet another passage in the same sura the Qur'an stresses
the enormity of murder in the following terms: 'We ordained for the children of Israel that anyone who
slew a person, unless it be for murder or mischief in the land, it would be as if he slew the whole of
mankind' (al-Ma'idah, 5:35). Once again, this ayah narrates a law of the previous revelation but does
not specify whether this also constitutes a part of the Shari'ah of Islam.
The majority of Hanafi, Maliki, Hanbali and some Shafi'i jurists have held the view that the foregoing is
a part of the Shari'ah of Islam and the mere fact that the Qur'an refers to it is sufficient to make the law
of retaliation binding on the Muslims. For the Lawgiver spoke of the law of the Torah to the Muslims
and there is nothing in the Shari'ah of Islam
either to abrogate it or to warrant a departure from it. This is the law of God which He spoke of to us
that He might be obeyed. It is on the basis of this conclusion that the Hanafis have validated the
execution of a Muslim for murdering a non-Muslim (i.e. a dhimmi), and a man for murdering a woman,
as they all fall within the meaning of the Qur'anic phrase 'life for life'.
Badran, Usul, p.235.]
[8. Khallaf, Ilm, p.94; Shaltut, Al-Islam, p. 489;
There are some variant opinions on this, but even those who disagree with the Hanafi
approach to this issue subscribe to the same principle which they find enunciated elsewhere in the
Qur'an. In particular, two ayat have been quoted, one of which proclaims, 'and the punishment of an
evil is an evil like it' (al-Shura, 42:40); and the other that, 'Whoever acts aggressively against you,
inflict injury on him according to the injury he has inflicted on you, and keep your duty to God [...]' (al-
Principles of Islamic Jurisprudence ~
Kamali 208
Baqarah, 2:194). It is thus concluded that these ayat provide sufficient evidence in support of the law of
retaliation even without any reference to previous revelations.
The majority of the Shafi'is, the Ash'arites, and the Mu'tazilah have maintained the view that since
Islam abrogated the previous laws, they are no longer applicable to the Muslims; and hence these laws
do not constitute a part of the Shari'ah of Islam unless they are specifically validated and confirmed.
They maintain that the Shari'ah norm regarding the laws of the previous religions is `particularity'
(khusus), which means that they are followed only when specifically upheld; whereas the norm with
regard to the Shari'ah itself is generality ('umum) in that it is generally applied as it has abrogated all the
previous scriptures.
[9. Shawkani, Irshad, p.240; Shaltut, Al-Islam, p. 489; Badran, Usul, p. 236.]
This restriction is necessitated in
view of the fact that the previous religions have not been correctly transmitted to us and have
undergone considerable distortion.
[10. Abdur Rahim, Jurisprudence. p.70.]
The proponents of this view have quoted
in support the Qur'anic text which declares, in a reference to different nations and communities: 'For
every one of you We have ordained a divine law and an open road' (al-Ma'idah, 5:48). Thus it is
suggested that every nation has a Shari'ah of its own, and therefore the laws that were revealed before
Islam are not binding on this ummah. Further evidence for this view has been sought in the Hadith of
Mu`adh b. Jabal which indicates only three sources for the Shari'ah, namely the Qur'an, the Sunnah and
ijtihad.
[11. Abu Dawud, Sunan (Hasan's trans.), III, 1019. Hadith no.3585.]
The fact that this Hadith has made no reference to
previous revelations must mean that they are not a source of law for the followers of Islam. This last
point has, however, been disputed in that when Mu`adh referred to the Qur'an, it was sufficient, as the
Qur'an itself contains numerous references to other revealed scriptures. Further more it is well-known
that the Prophet did not resort to the Torah and Injil in order to find the rulings of particular issues,
especially at times when he postponed matters in anticipation of divine revelation. This would
obviously imply that the Prophet did not regard the previous laws as binding on his own community.
Ghazali, Mustasfa, I, 133. The only exception which is cited in this connection is when the Prophet referred to the Torah on the stoning of Jews for adultery. But
this was only to show, as Ghazali explains, that stoning (rajm) was not against their religion, and not because the Prophet regarded the Torah as a source of law.]
The correct view is that of the majority, which maintains that the Shari`ah of Islam only abrogates rules
which were disagreeable to its teachings. The Qur'an, on the whole, confirms the Torah and the Injil,
and whenever a ruling of the previous scriptures is quoted without abrogation, it becomes an integral
part of the Shari'ah of Islam.
[13. Khallaf, `Ilm, p. 94.]
And finally, it may be added, as Abu Zahrah has pointed
out, that disagreement among jurists on the authority or otherwise of the previous revelations is of little
practical consequence, as the Shari'ah of Islam is generally self-contained and its laws are clearly
identified. With regard to retaliation, for example, notwithstanding the differences of opinion among the
jurists as to the precise import of the Qur'anic references to this subject, the issue is resolved, once and
for all, by the Sunnah which contains clear instructions on retaliation and leaves no doubt that it is an
integral part of the Shari'ah of Islam.
[14. Abu Zahrah, Usul, p. 242.]
Principles of Islamic Jurisprudence ~ Kamali 209
[12.Chapter Eleven: The Fatwa of a Companion
The Sunni ulema are in agreement that the consensus (ijma`) of the Companions of the Prophet is a
binding proof, and represents the most authoritative form of ijma'. The question arises, however, as to
whether the saying or fatwa of a single Companion should also be recognised as a proof, and given
precedence over evidences such as qiyas or the fatwas of other mujtahidun. A number of leading jurists
from various schools have answered this question in the affirmative, and have held the view that the
fatwa of a Companion is a proof (hujjah) which must be followed. Then argument is that following the
demise of the Prophet, the leadership of the Muslim community fell upon their shoulders, and a number
of learned Companions, with then intimate knowledge of the Qur'an and the teachings of the Prophet
were able to formulate fatwas and issue decisions on a wide range of issues. The direct access to the
Prophet that the Companions enjoyed during his lifetime, and their knowledge of the problems and
circumstances surrounding the revelation of the Qur'an, known as the asbab al-nuzul, put them in a
unique position to formulate ijtihad and to issue fatwas on the problems that they encountered. Some
ulema and transmitters of Hadith have even equated the fatwa of a Companion with the Sunnah of the
Prophet The most learned Companions, especially the four Rightly-Guided Caliphs, are particularly
noted for their contributions and the impact they made to the determination of the detailed rules of fiqh
regarding the issues that confronted them.
[1. Khallaf, `Ilm, p. 94; Mahmassani, Falsafah, p.98; Isma'il, Adillah, p. 281.]
This is
perhaps attested by the fact that the views of the Companions were occasionally upheld and confirmed
by the Qur'an. Reference may be made in this context to the Qur'anic ayah which was revealed
concerning the treatment that was to be accorded to the prisoners of war following the battle of Badr.
This ayah (al-Anfal, 8:67 is known to have confirmed the view which `Umar b. al-Khattab had earlier
expressed on the issue.
[2. Ghazali, Mustasfa, I, 136.]
The question arises, nevertheless, as to whether the fatwa of
a Companion should be regarded as a proof of Shari'ah or a mere ijtihad, which may or may not be
accepted by the subsequent generations of mujtahidun and the rest of the community as a whole. No
uniform response has been given to this question, but before we attempt to explore the different
responses which the ulema have given, it will be useful to identify who exactly a Companion is.
According to the majority (jumhur) of ulema, anyone who met the Prophet, while believing in him,
even for a moment and died as a believer, is a Companion (sahabi) regardless of whether he or she
narrated any Hadith from the Prophet or not. Others have held that the very word sahabi, which derives
from suhbah, that is 'companionship', implies continuity of contact with the Prophet and narration of
Hadith from him. It is thus maintained that one or the other of these criteria, namely prolonged
company, or frequent narration of Hadith, must be fulfilled in order to qualify a person as a sahabi.
Shawkani, Irshad, p. 70.]
Some observers have made a reference to custom (urf) in determining the duration of
contact with the Prophet which may qualify a Companion. This criterion would, in turn, overrule some
of the variant views to the effect that a sahabi is a person who has kept the company of the Prophet for
Principles of Islamic Jurisprudence ~ Kamali 210
[3.specified periods such as one or two years, or that he participated with the Prophet in at least one of the
battles.
[4. Isma'il, Adillah, p. 282.]
But notwithstanding the literal implications of the word sahabi, the majority
view is to be preferred, namely that continuity or duration of contact with the Prophet is not a
requirement. Some ulema have held that the encounter with the Prophet must have occurred at a time
when the person had attained the age of majority, but this too is a weak opinion as it would exclude
many who met the Prophet and narrated Hadith from him and attained majority only after his death.
Similarly, actual eye-witnessing is not required, as there were persons among the Companions like Ibn
Umm Maktum, who were blind but were still regarded as sahabi.
The fact of being a Companion may be established by means of continuous testimony, or tawatur,
which is the case with regard to the most prominent Companions such as the Khulafa' Rashidun and
many others. To be a sahabi may even be established by a reputation which falls short of amounting to
tawatur. Similarly, it may be established by the affirmation of another well-known Companion.
According to some ulema, including al-Baqillani, we may also accept the Companion's own affirmation
in evidence, as they are all deemed to be upright ('udul), and this precludes the attribution of lying to
them. There is, however, a difference of opinion on this point. The preferred view is that reference
should be made to corroborating evidence, which may affirm or refute a person's claim concerning
himself. This precaution is taken with a view to preventing false allegations and the admittance of selfstyled
individuals into the ranks of the Companions.
[5. Shawkani, Irshad, p.71; Isma'il, Adillah, p. 283.]
The saying of a Companion, referred to both as qawl al-sahabi, and fatwa al-sahabi, normally means an
opinion that the Companion had arrived at by way of ijtihad. If may be a saying, a considered opinion
(fatwa), or a judicial decision that the Companion had taken on a matter in the absence of a ruling in the
Qur'an, Sunnah and ijma`. For in the face of a ruling in these sources, the fatwa of a Companion would
not be the first authority on that matter. If the fatwa is related to the Qur'an and Sunnah, then it must be
on a point that is not self-evident in the source. There would, in other words, be a gap in our
understanding of the matter at issue had the Companion not expressed an opinion on it.
pp. 284-85.]
As stated earlier, there is no disagreement among the jurists that the saying of a Companion is a proof
which commands obedience when it is not opposed by other Companions. Rulings on which the
Companions are known to be in agreement are binding. An example of this is the grandmother's share
of one-sixth in inheritance on which the Companions have agreed, and it represents their authoritative
ijma`. The ulema are, however, in disagreement with regard to rulings which are based in opinion (ra'y)
and ijtihad, and in regard to matters on which the Companions differed among themselves.
95.]
There is general agreement among the ulema of usul on the point that the ruling of one Companion is
not a binding proof over another, regardless as to whether the ruling in question was issued by one of
Principles of Islamic Jurisprudence ~ Kamali 211
[6. Cf. Isma'il, Adillah,
[7. Khallaf, Ilm, p.the caliphs, a judge, or a leading mujtahid among their number. For the Companions were themselves
allowed to disagree with one another in matters of ijtihad. Had the ruling of one Companion been a
proof over another, disagreement among them would not have been tolerated. But as already noted, the
ulema of usul have differed as to whether the ruling of a Companion constitutes a proof as regards the
Successors (tabi`un) and the succeeding generations of mujtahidun.
There are three views on this, which may be summarised as follows:
[8. Amidi, Ihkam, IV, 149; Shawkani, Irshad, p. 243.]
1. That the fatwa of a Companion is a proof absolutely, and takes priority over qiyas regardless of
whether it is in agreement with the qiyas in question or otherwise. This is the view of Imam Malik, one
of the two views of Imam Shafi'i, one of the two views of Imam Ahmad b. Hanbal and of some Hanafi
jurists. The proponents of this view have referred to the Qur'anic text which provides in a reference to
the Companions: 'the first and foremost among the Emigrants and Helpers and those who followed
them in good deeds, God is well-pleased with them, as they are with Him' (al-Tawbah, 9:100). In this
text, God has praised 'those who followed the Companions'. It is suggested that this manner of praise
for those who followed the opinion and judgment of the Companions warrants the conclusion that
everyone should do the same . The fatwa of a sahabi, in other words, is a proof of Shari'ah. Another
Qur'anic ayah which is quoted by the proponents of this view also occurs in the form of a
commendation, as it reads in an address to the Companions: 'You are the best community that has been
raised for mankind; you enjoin right and you forbid evil' (Al-`Imran, 3:109). Their active and rigorous
involvement in the propagation of Islam under the leadership of the Prophet is the main feature of the
amr bi'l-ma'ruf (enjoining right) which the Companions pursued. The Qur'an praises them as `the best
community' and as such their example commands authority and respect.
192.]
[9. Abu Zahrah, Usul, p. 168; Zuhayr, Usul, IV,
It has, however, been suggested that the Qur'anic references to the Companions are all in the plural,
which would imply that their individual views do not necessarily constitute a proof. But in response to
this, it is argued that the Shari'ah establishes their uprightness ('adalah) as individuals, and those who
follow them in good deeds have been praised because they followed their opinion and judgment both as
individuals and groups. It is further pointed out that those who followed the Companions are praised
because they followed the personal opinion of the Companions and not because the latter themselves
followed the Qur'an and Sunnah. For if this were to be the case, then the Qur'anic praise would be of no
special significance as it would apply to everyone who followed the Qur'an and Sunnah, whether a
Companion or otherwise. If there is any point, in other words, in praising those who followed the
Companions, then it must be because they followed the personal views of the Companions. It is thus
concluded that following the fatwa of Companions is obligatory otherwise the Qur'an would not praise
those who followed it in such terms.
[10. Isma'il, Adillah, pp. 291-92.]
The proponents of this view have also referred to several ahadith, one of which provides; 'My
Companions are like stars; whoever you follow will lead you to the right path.'
Principles of Islamic Jurisprudence ~ Kamali 212
linguistic, rational and customary matters, but the main question which needs to be discussed here is the
application of analogy in regard to prescribed penalties (hudud) and penances (kaffarat).
The majority of ulema do not draw any distinction in this respect, and maintain the view that qiyas is
applicable to hudud and kaffarat in the same way as it is to other rules of the Shari'ah. This is explained
by reference to the Qur'anic passages and the ahadith which are quoted in support of qiyas, which are
all worded in absolute terms, none drawing any distinction in regard to penalties: and since the evidence
in the sources does not impose any restriction on qiyas, it is therefore applicable in all spheres of the
Shari'ah.
[80. Zuhayr, Usul, IV, 51; Abu Zahrah, Usul, p. 205.]
An example of qiyas in regard to the hudud is the
application of the punishment of theft to the nabbash, or thief who steals the shroud of the dead, as the
common `illah between them is taking away the property of another without his knowledge. A Hadith
has also been quoted in support of this ruling.
[81. The following Hadith is recorded in Abu Dawud (Sunan, III, 1229, Hadith no. 4395):
'The hand of one who rifles the grave should be amputated, as he has entered the house of deceased.']
Similarly the majority of ulema
(excluding the Hanafis) have drawn an analogy between zina and sodomy, and apply the hadd of the
former by analogy to the latter.
[82. Shawkani, Irshad, p. 222.]
The Hanafis are in agreement with the majority to the extent that qiyas may validly operate in regard to
ta'zir penalties, but they have disagreed as to the application of qiyas in the prescribed penalties and
kaffarat. They would not, for example, approve of an analogy between abusive words (sabb) and false
accusation (qadhf), nor would they extend the hadd of zina by analogy to other sexual offences. These,
according to the Hanafis, may be penalised under ta'zir but not by analogy to the hudud. The main
reason that the Hanafis have given is that qiyas is founded on the 'illah, whose identification in regard
to the hudud, involves a measure of speculation and doubt. There is a Hadith which provides: `drop the
hudud in cases of doubt as far as possible. If there is a way out, then clear the way, for in penalties, if
the Imam makes an error on the side of leniency, it is better than making an error on the side of
severity'.
[83. Tabrizi, Mishkat, II, 1061, Hadith No 3570; Abu Yusuf, Kitab al Kharaj, p. 152; Ibn Qayyim, I'lam, I, 209.]
It is thus concluded that any level of doubt in ascertaining the `illah of hadd penalties must prevent their
analogical extension to similar cases.
[84. Abu Zahrah, Usul, p. 205.]
As stated above, the majority validate the application of qiyas in regard to kaffarat. Thus the analogy
between the two forms of breaking the fast (iftar), namely deliberate eating during daytime in
Ramadan, and breaking the fast by having sexual intercourse, would extend the kaffarah of the latter to
the former. Similarly the majority have validated the analogy between deliberate killing and erroneous
homicide for purposes of kaffarah. The Qur'an only prescribes a kaffarah for erroneous killing, and this
is extended by analogy to deliberate homicide. The common 'illah between them is the killing of
another human being. If kaffarah is required in erroneous killing, then by way of a superior analogy
(qiyas al-awla) the 'illah is even more evident in the case of a deliberate killing. Both are therefore
Principles of Islamic Jurisprudence ~
Kamali 202
liable to the payment of kaffarah, which is releasing a slave, or two months of fasting, or feeding sixty
persons. The Hanafis are once again in disagreement with the majority, as they maintain that for
purposes of analogy, the kaffarah resembles the hadd. Since doubt cannot be totally eliminated in the
identification of their effective causes, kaffarat may not be extended by means of analogy.
IV, 51.]
Notwithstanding the fact that the jurists have disagreed on the application of qiyas in penalties, it will
be noted that the ulema have on the whole discouraged recourse to qiyas in the field of criminal law.
Consequently, there is very little actual qiyas to be found in this field. This is also the case in modern
law, which discourages analogy in respect of penalties. The position is somewhat different to regard to
civil transactions (mu`amalat), in which qiyas is generally permitted.
Conflicts between Nass and Qiyas
[86. Abu Zahrah, Usul, p. 206.]
Since the 'illah in analogy is a general attribute which applies to all similar cases, there arises the
possibility of qiyas coming into conflict with the nusus. The question to be asked is how such a conflict
should be removed. Responding to this question, the ulema have held two different views, which may
be summarised as follows:
1) According to Imam Shafi'i, Ahmad b. Hanbal, and one view which is attributed to Abu Hanifah,
whenever there is a nass on a matter qiyas is absolutely redundant. Qiyas is only applicable when no
explicit ruling could be found in the sources. Since recourse to qiyas in the presence of nass is ultra
vires in the first place, the question of a conflict arising between the nass and qiyas is therefore of no
relevance.
[87. Abu Zahrah, Usul, p. 200.]
2) The second view, which is mainly held by the Malikis, also precludes the possibility of a conflict
between qiyas and a clear text, but does not dismiss the possibility of a conflict arising between a
speculative text and qiyas. Analogy could, according to this view, come into conflict with the `Amm of
the Qur'an and the solitary Hadith.
The Hanafis have maintained that the 'Amm is definitive in implication (qat`i al-dalalah), whereas qiyas
is speculative. As a rule, a speculative item cannot qualify a definitive one, which would mean that
qiyas does not specify the 'Amm of the Qur'an. The only situation where the Hanafis envisage a conflict
between qiyas and the `Amm of the Qur'an is where the `illah of qiyas stated in a clear nass. For in this
case, a conflict between the 'Amm of the Qur'an and qiyas would be that of one qat'i with another.
However, for the most part qiyas is a speculative evidence, and as such may not specify the 'Amm of the
Principles of Islamic Jurisprudence ~ Kamali 203
[85. Zuhayr, Usul,Qur'an. But once the 'Amm is specified, on whatever grounds, then it becomes speculative itself, at least
in respect of that part which remains unspecified. After the first instance of specification (takhsis), in
other words, the 'Amm becomes speculative, and is then open to further specification by means of qiyas.
For example, the word bay` (sale) in the Qur'anic text stating that 'God has permitted sale and
prohibited usury' (al-Baqarah, 2:275) is `Amm, but has been qualified by solitary ahadith which prohibit
certain types of sale. Once the text has been so specified, it remains open to further specification by
means of qiyas.
[88. Abu Zahrah, Usul, pp. 201-202.]
This was the Hanafis' view of conflict between a general text and qiyas. But the Malikis who represent
the majority view, consider the `Amm of the Qur'an to be speculative in the first place. The possibility is
therefore not ruled out, according to the majority, of a conflict arising between the nass and qiyas. In
such an event, the majority would apply the rule that one speculative principle may be specified by
another. Based on this analysis, qiyas, according to most of the jurists, may specify the `Amm of the
Qur'an and the Sunnah.
[89. Abu Zahrah, Usul, p. 203.]
As for conflict between qiyas and a solitary Hadith, it is recorded that Imam Shafi`i, Ibn Hanbal and
Abu Hanifah do not give priority to qiyas over such a Hadith. An example of this is the vitiation of
ablution (wudu') by loud laughter during the performance of salah, which is the accepted rule of the
Hanafi school despite its being contrary to qiyas. Since the rule here is based on the authority of a
solitary Hadith, the latter has been given priority over qiyas, for qiyas would only require vitiation of
salah, not the wudu'.
[90. Bukhari, Sahih (Istanbul edn.), I, 51 (Kitab al-Wudu', Hadith no. 34); Khan, Athar, p. 403.]
Although the three Imams are in agreement on the principle of giving priority to solitary Hadith over
qiyas, regarding this particular Hadith, only the Hanafis have upheld it. The majority, including Imam
Shafi'i, consider it to be Mursal and do not act on it.
Additionally, there are other views on the subject which merit brief attention. Abu'l Husayn al-Basri, for
example, divides qiyas into four types, as follows:
1 ) Qiyas which is founded in a decisive nass, that is, when the original case and the effective cause are
both stated in the nass. This type of qiyas takes priority over a solitary Hadith.
2) Qiyas which is founded in speculative evidence, that is, when the asl is a speculative text and the
'illah is determined through logical deduction (istinbat). This type of qiyas is inferior to a solitary
Hadith and the latter takes priority over it. Al-Basri has claimed an 'ijma on both one and two above.
3) Qiyas in which both the asl and the 'illah are founded in speculative nusus, in which case it is no
more than a speculative form of evidence and, should it conflict with a solitary Hadith, the latter takes
priority. On this point al-Basri quotes Imam Shafi'i in support of his own view.
Principles of Islamic Jurisprudence ~
Kamali 204
4) Qiyas in which the `illah is determined through istinbat but whose asl is a clear text of the Qur'an or
Mutawatir Hadith. This type of qiyas is stronger than two and three above, and the ulema have differed
as to whether it should take priority over a solitary Hadith.
[91. Basri, Mu`tamad, II, 162-64.]
The Malikis, and some Hanbali ulema, are of the view that in the event of a conflict between a solitary
Hadith and qiyas, if the latter can be substantiated by another principle or asl of the Shari'ah, then it
will take priority over a solitary Hadith. If for example the `illah of qiyas is `removal of hardship',
which is substantiated by several texts, then it will add to the weight of qiyas, and the latter will take
priority over a solitary Hadith. For this kind of evidence is itself an indication that the Hadith in
question is weak in respect of authenticity.
[92. Abu Zahrah, Usul, p. 204.]
Similarly, some Hanafis have
maintained that when a solitary Hadith, which is in conflict with qiyas, is supported by another qiyas,
then it must be given priority over the conflicting qiyas. This is also the view which Ibn al-'Arabi has
attributed to Imam Malik, who is quoted to the effect that whenever a solitary Hadith is supported by
another principle, then it must take priority over qiyas. But if no such support is forthcoming, then the
solitary Hadith must be abandoned. For example, the following Hadith has been found to be in conflict
with another principle: `When a dog licks a container, wash it seven times, one of which should be with
clean sand.
[93. Ibn Hazm, Ihkam, VIII, 79; Abu Zahrah, Usul, p. 205.]
It is suggested that this solitary Hadith is in conflict with the permissibility of eating the flesh of game
which has been fetched by a hunting dog. The game is still lawful for consumption notwithstanding its
having come into contact with the dog's saliva. There is, on the other hand, no other principle that could
be quoted in support of either of the two rulings, so qiyas takes priority over the solitary Hadith. Our
second example is of a solitary Hadith which is in conflict with one principle but stands in accord with
another. This is the Hadith of 'araya, which provides that `the Prophet (upon whom be peace) permitted
the sale of dates on the palm tree for its equivalent in dry dates'. This is permitted despite its being in
conflict with the rules of riba, However the permissibility in this case is supported by the principle of
daf` al-haraj `removal of hardship' in that the transaction of araya was permitted in response to a need,
and, as such, it takes priority over the qiyas which might bring it under the rules of riba.
(Hasan's trans.) II, 955, Hadith 3355; Ibn Hazm, Ihkam, VIII, 106; Zuhayr, Usul, IV, 50-58; Abu Zahrah, Usul, p. 205.]
Principles of Islamic Jurisprudence ~ Kamali 205
[94. Abu Dawud, SunanChapter Ten: Revealed Laws Preceding the Shari'ah of Islam
In principle, all divinely revealed laws emanate from one and the same source, namely, Almighty God,
and as such they convey a basic message which is common to them all. The essence of belief in the
oneness of God and the need for divine authority and guidance to regulate human conduct and the
values of morality and justice constitute the common purpose and substance of all divine religions. This
essential unity is confirmed in more than one place in the Qur'an, which proclaims in an address to the
Holy Prophet: `He has established for you the same religion as that which He enjoined upon Noah, and
We revealed to you that which We enjoined on Abraham, Moses and Jesus, namely, that you should
remain steadfast in religion and be not divided therein' (al-Shura, 42:13). More specifically, in a
reference to the Torah, the Qur'an confirms its authority as a source of inspiration and guidance: We
revealed the Torah in which there is guidance (huda) and light; and prophets who submitted to God's
will have judged the Jews by the standards thereof' (al-Ma'idah, 5:44). It is thus observed that
Muhammad, being one of the Prophets, is bound by the guidance that is found in the Torah. Further
confirmation for the basic harmony of the divinely revealed laws can be found in the Qur'anic ayah
which, in a reference to the previous Prophets, directs the Prophet of Islam to follow their guidance:
`Those are the ones to whom God has given guidance, so follow their guidance [hudahum]' (al-Anam
6:90). Basing themselves on these and similar proclamations in the Qur'an, the ulema are unanimous to
the effect that all the revealed religions are different manifestations of an essential unity.
241; Qasim, Usul, p. 173.]
This is, of course, not to say that there are no differences between them. Since each
one of the revealed religions was addressed to different nations at different points of time, they each
have their distinctive features which set them apart from the rest. In the area of halal and haram, for
example, the rules that are laid down by different religions are not identical. Similarly, in the sphere of
devotional practices and the rituals of worship, they differ from one another even if the essence of
worship is the same. The Shari'ah of Islam has retained many of the previous laws, while it has in the
meantime abrogated or suspended others. For example, the law of retaliation (qisas) and some of the
hadd penalties which were prescribed in the Torah have also been prescribed in the Qur'an.
Usul, p. 242; Badran, Usul, p.237.]
The general rule to be stated here is, however, that notwithstanding their validity in principle, laws that
were revealed before the advent of Islam are not applicable to the Muslims. This is especially so with
regard to the practical rules of Shari'ah, that is, the ahkam, in which the Shari'ah of Islam is selfcontained.
The jurists are also in agreement to the effect that the laws of the previous religions are not
to
be sought in any source other than that of the Shari'ah
of Islam itself. For the rules of other religions
do
not constitute a binding proof as far as the Muslims are concerned. The Shari'ah,
in other words, is
the
exclusive source of all law for the Muslims.
Principles of Islamic Jurisprudence ~ Kamali 206
[1. Abu Zahrah, Usul, p.
[2. Abu Zahrah,In view of the ambivalent character of the evidence on this subject, however, the question has arisen as
to the nature of the principle that is to be upheld: whether to regard the laws preceding the Shari'ah of
Islam as valid unless they are specifically abrogated by the Shari'ah, or whether to regard them as
basically nullified unless they are specifically upheld. In response to this, it is said that laws that were
introduced in the previous scriptures but which are not upheld by the Shari'ah, and on which no ruling
is found in the Qur'an or the Sunnah are not, according to general agreement, applicable to the Muslims.
The correct rule regarding the enforcement of the laws of the previous revelations is that they are not to
be applied to the followers of Islam unless they are specifically upheld by the Shari'ah.
Isma'il, Adillah, p.320.]
Once again the question arises as to whether the foregoing statement is in harmony with the Qur'anic
proclamations that were quoted above. The general response given to this is that the Prophet of Islam
was ordered to follow the previous revelations as a source of guidance only in regard to the essence of
the faith, that is, belief in God and monotheism. It has thus been pointed out that the word huda
`guidance' in the second ayah, and hudahum 'their guidance' in the third ayah quoted above only mean
tawhid, or belief in the oneness of God, which is undoubtedly the norm in the Shari'ah of Islam. Their
guidance cannot be upheld in toto in the face of clear evidence that some of their laws have been
abrogated. The reference is therefore to that aspect of guidance which is in common between Islam and
the previous religions, namely tawhid. It has been further suggested that the reference to 'Prophets' in
the second ayah above is confined, as the text itself suggests, to the Prophets of Bani Isra'il, and the
holy Prophet Muhammad is not one of them.
[4. Ghazali, Mustasfa, I, 134; Abu Zahrah, Usul, p. 242; Isma'il, Adillah, p.325]
The Qur'an on many occasions refers to the rules of previous revelations on specific issues, but the
manner in which these references occur is not uniform. The Qur'an alludes to such laws in the following
three forms:
1. The Qur'an (or the Sunnah) may refer to a ruling of the previous revelation and simultaneously make
it obligatory on the Muslims, in which case there remains no doubt that the ruling so upheld becomes an
integral part of the Shari'ah of Islam. An example of this is the Qur'anic text on the duty of fasting
which provides: 'O believers, fasting is prescribed for you as it was prescribed for those who came
before you' (al-Baqarah, 2:183). To give a similar example in the Sunnah, which confirms the ruling of
a previous religion, we may refer to the Hadith which makes sacrifice by slaughtering animals lawful
for Muslims. The believers are thus instructed to `Give sacrifice, for it is the tradition of your ancestor,
Abraham, peace be upon him'.
[5. Tabrizi, Mishkat, I, 466, Hadith no.1476; Badran, Usul, p. 235.]
2. The Qur'an or the Sunnah may refer to a ruling of the previous revelation but at the same time
abrogate and suspend it, in which case the ruling in question is to be abandoned and discontinued. An
example of this can be found in the Qur'an where a reference is made to the prohibition of certain
Principles of Islamic Jurisprudence ~ Kamali 207
[3. Badran, Usul, p.234;varieties of food to the Jews while at the same time the prohibitions are lifted from the Muslims. The
text thus provides: 'And to the Jews We forbade every animal having claws and of oxen and sheep, We
forbade the fat [. . .] Say: nothing is forbidden to eat except the dead carcass, spilled blood, and pork'
(al-An'am, 16:146). The second portion of this text clearly removes the prohibitions that were imposed
upon the Jews. For a similar example in the Sunnah, we may refer to the Hadith concerning the legality
of spoils of war where the Prophet has proclaimed: 'Taking booty has been made lawful to me, but it
was not lawful to anyone before me.'
[6. Muslim, Sahih, p.301, Hadith no. 1137; Badran, Usul, p.234.]
Likewise, the expiation (kaffarah) for sins was not acceptable under the Torah; and when a garment
became unclean, the unclean portion had to be cut out according to the rules of Judaism. But these
restrictions were lifted with the effect that the Shari'ah of Islam validated expiation for sins, and clothes
can be cleaned by merely washing them with clean water.
[7. Khallaf, Ilm, p.93; Isma'il, Adillah, p.320.]
3. The Qur'an or the Sunnah may refer to a ruling of the previous revelation without clarifying the
position as to whether it should be abandoned or upheld. Unlike the first two eventualities, on which
there is little disagreement among jurists, the present situation has given rise to wider differences of
opinion. To give an example, we read in the Qur'an, in a reference to the law of retaliation which was
enacted in the Torah: 'We ordained therein for them life for life, eye for eye, nose for nose, tooth for
tooth and wounds equal for equal' (al-Ma'idah, 5:48). Here there is no clarification as to whether the
same law has to be observed by the Muslims. In yet another passage in the same sura the Qur'an stresses
the enormity of murder in the following terms: 'We ordained for the children of Israel that anyone who
slew a person, unless it be for murder or mischief in the land, it would be as if he slew the whole of
mankind' (al-Ma'idah, 5:35). Once again, this ayah narrates a law of the previous revelation but does
not specify whether this also constitutes a part of the Shari'ah of Islam.
The majority of Hanafi, Maliki, Hanbali and some Shafi'i jurists have held the view that the foregoing is
a part of the Shari'ah of Islam and the mere fact that the Qur'an refers to it is sufficient to make the law
of retaliation binding on the Muslims. For the Lawgiver spoke of the law of the Torah to the Muslims
and there is nothing in the Shari'ah of Islam
either to abrogate it or to warrant a departure from it. This is the law of God which He spoke of to us
that He might be obeyed. It is on the basis of this conclusion that the Hanafis have validated the
execution of a Muslim for murdering a non-Muslim (i.e. a dhimmi), and a man for murdering a woman,
as they all fall within the meaning of the Qur'anic phrase 'life for life'.
Badran, Usul, p.235.]
[8. Khallaf, Ilm, p.94; Shaltut, Al-Islam, p. 489;
There are some variant opinions on this, but even those who disagree with the Hanafi
approach to this issue subscribe to the same principle which they find enunciated elsewhere in the
Qur'an. In particular, two ayat have been quoted, one of which proclaims, 'and the punishment of an
evil is an evil like it' (al-Shura, 42:40); and the other that, 'Whoever acts aggressively against you,
inflict injury on him according to the injury he has inflicted on you, and keep your duty to God [...]' (al-
Principles of Islamic Jurisprudence ~
Kamali 208
Baqarah, 2:194). It is thus concluded that these ayat provide sufficient evidence in support of the law of
retaliation even without any reference to previous revelations.
The majority of the Shafi'is, the Ash'arites, and the Mu'tazilah have maintained the view that since
Islam abrogated the previous laws, they are no longer applicable to the Muslims; and hence these laws
do not constitute a part of the Shari'ah of Islam unless they are specifically validated and confirmed.
They maintain that the Shari'ah norm regarding the laws of the previous religions is `particularity'
(khusus), which means that they are followed only when specifically upheld; whereas the norm with
regard to the Shari'ah itself is generality ('umum) in that it is generally applied as it has abrogated all the
previous scriptures.
[9. Shawkani, Irshad, p.240; Shaltut, Al-Islam, p. 489; Badran, Usul, p. 236.]
This restriction is necessitated in
view of the fact that the previous religions have not been correctly transmitted to us and have
undergone considerable distortion.
[10. Abdur Rahim, Jurisprudence. p.70.]
The proponents of this view have quoted
in support the Qur'anic text which declares, in a reference to different nations and communities: 'For
every one of you We have ordained a divine law and an open road' (al-Ma'idah, 5:48). Thus it is
suggested that every nation has a Shari'ah of its own, and therefore the laws that were revealed before
Islam are not binding on this ummah. Further evidence for this view has been sought in the Hadith of
Mu`adh b. Jabal which indicates only three sources for the Shari'ah, namely the Qur'an, the Sunnah and
ijtihad.
[11. Abu Dawud, Sunan (Hasan's trans.), III, 1019. Hadith no.3585.]
The fact that this Hadith has made no reference to
previous revelations must mean that they are not a source of law for the followers of Islam. This last
point has, however, been disputed in that when Mu`adh referred to the Qur'an, it was sufficient, as the
Qur'an itself contains numerous references to other revealed scriptures. Further more it is well-known
that the Prophet did not resort to the Torah and Injil in order to find the rulings of particular issues,
especially at times when he postponed matters in anticipation of divine revelation. This would
obviously imply that the Prophet did not regard the previous laws as binding on his own community.
Ghazali, Mustasfa, I, 133. The only exception which is cited in this connection is when the Prophet referred to the Torah on the stoning of Jews for adultery. But
this was only to show, as Ghazali explains, that stoning (rajm) was not against their religion, and not because the Prophet regarded the Torah as a source of law.]
The correct view is that of the majority, which maintains that the Shari`ah of Islam only abrogates rules
which were disagreeable to its teachings. The Qur'an, on the whole, confirms the Torah and the Injil,
and whenever a ruling of the previous scriptures is quoted without abrogation, it becomes an integral
part of the Shari'ah of Islam.
[13. Khallaf, `Ilm, p. 94.]
And finally, it may be added, as Abu Zahrah has pointed
out, that disagreement among jurists on the authority or otherwise of the previous revelations is of little
practical consequence, as the Shari'ah of Islam is generally self-contained and its laws are clearly
identified. With regard to retaliation, for example, notwithstanding the differences of opinion among the
jurists as to the precise import of the Qur'anic references to this subject, the issue is resolved, once and
for all, by the Sunnah which contains clear instructions on retaliation and leaves no doubt that it is an
integral part of the Shari'ah of Islam.
[14. Abu Zahrah, Usul, p. 242.]
Principles of Islamic Jurisprudence ~ Kamali 209
[12.Chapter Eleven: The Fatwa of a Companion
The Sunni ulema are in agreement that the consensus (ijma`) of the Companions of the Prophet is a
binding proof, and represents the most authoritative form of ijma'. The question arises, however, as to
whether the saying or fatwa of a single Companion should also be recognised as a proof, and given
precedence over evidences such as qiyas or the fatwas of other mujtahidun. A number of leading jurists
from various schools have answered this question in the affirmative, and have held the view that the
fatwa of a Companion is a proof (hujjah) which must be followed. Then argument is that following the
demise of the Prophet, the leadership of the Muslim community fell upon their shoulders, and a number
of learned Companions, with then intimate knowledge of the Qur'an and the teachings of the Prophet
were able to formulate fatwas and issue decisions on a wide range of issues. The direct access to the
Prophet that the Companions enjoyed during his lifetime, and their knowledge of the problems and
circumstances surrounding the revelation of the Qur'an, known as the asbab al-nuzul, put them in a
unique position to formulate ijtihad and to issue fatwas on the problems that they encountered. Some
ulema and transmitters of Hadith have even equated the fatwa of a Companion with the Sunnah of the
Prophet The most learned Companions, especially the four Rightly-Guided Caliphs, are particularly
noted for their contributions and the impact they made to the determination of the detailed rules of fiqh
regarding the issues that confronted them.
[1. Khallaf, `Ilm, p. 94; Mahmassani, Falsafah, p.98; Isma'il, Adillah, p. 281.]
This is
perhaps attested by the fact that the views of the Companions were occasionally upheld and confirmed
by the Qur'an. Reference may be made in this context to the Qur'anic ayah which was revealed
concerning the treatment that was to be accorded to the prisoners of war following the battle of Badr.
This ayah (al-Anfal, 8:67 is known to have confirmed the view which `Umar b. al-Khattab had earlier
expressed on the issue.
[2. Ghazali, Mustasfa, I, 136.]
The question arises, nevertheless, as to whether the fatwa of
a Companion should be regarded as a proof of Shari'ah or a mere ijtihad, which may or may not be
accepted by the subsequent generations of mujtahidun and the rest of the community as a whole. No
uniform response has been given to this question, but before we attempt to explore the different
responses which the ulema have given, it will be useful to identify who exactly a Companion is.
According to the majority (jumhur) of ulema, anyone who met the Prophet, while believing in him,
even for a moment and died as a believer, is a Companion (sahabi) regardless of whether he or she
narrated any Hadith from the Prophet or not. Others have held that the very word sahabi, which derives
from suhbah, that is 'companionship', implies continuity of contact with the Prophet and narration of
Hadith from him. It is thus maintained that one or the other of these criteria, namely prolonged
company, or frequent narration of Hadith, must be fulfilled in order to qualify a person as a sahabi.
Shawkani, Irshad, p. 70.]
Some observers have made a reference to custom (urf) in determining the duration of
contact with the Prophet which may qualify a Companion. This criterion would, in turn, overrule some
of the variant views to the effect that a sahabi is a person who has kept the company of the Prophet for
Principles of Islamic Jurisprudence ~ Kamali 210
[3.specified periods such as one or two years, or that he participated with the Prophet in at least one of the
battles.
[4. Isma'il, Adillah, p. 282.]
But notwithstanding the literal implications of the word sahabi, the majority
view is to be preferred, namely that continuity or duration of contact with the Prophet is not a
requirement. Some ulema have held that the encounter with the Prophet must have occurred at a time
when the person had attained the age of majority, but this too is a weak opinion as it would exclude
many who met the Prophet and narrated Hadith from him and attained majority only after his death.
Similarly, actual eye-witnessing is not required, as there were persons among the Companions like Ibn
Umm Maktum, who were blind but were still regarded as sahabi.
The fact of being a Companion may be established by means of continuous testimony, or tawatur,
which is the case with regard to the most prominent Companions such as the Khulafa' Rashidun and
many others. To be a sahabi may even be established by a reputation which falls short of amounting to
tawatur. Similarly, it may be established by the affirmation of another well-known Companion.
According to some ulema, including al-Baqillani, we may also accept the Companion's own affirmation
in evidence, as they are all deemed to be upright ('udul), and this precludes the attribution of lying to
them. There is, however, a difference of opinion on this point. The preferred view is that reference
should be made to corroborating evidence, which may affirm or refute a person's claim concerning
himself. This precaution is taken with a view to preventing false allegations and the admittance of selfstyled
individuals into the ranks of the Companions.
[5. Shawkani, Irshad, p.71; Isma'il, Adillah, p. 283.]
The saying of a Companion, referred to both as qawl al-sahabi, and fatwa al-sahabi, normally means an
opinion that the Companion had arrived at by way of ijtihad. If may be a saying, a considered opinion
(fatwa), or a judicial decision that the Companion had taken on a matter in the absence of a ruling in the
Qur'an, Sunnah and ijma`. For in the face of a ruling in these sources, the fatwa of a Companion would
not be the first authority on that matter. If the fatwa is related to the Qur'an and Sunnah, then it must be
on a point that is not self-evident in the source. There would, in other words, be a gap in our
understanding of the matter at issue had the Companion not expressed an opinion on it.
pp. 284-85.]
As stated earlier, there is no disagreement among the jurists that the saying of a Companion is a proof
which commands obedience when it is not opposed by other Companions. Rulings on which the
Companions are known to be in agreement are binding. An example of this is the grandmother's share
of one-sixth in inheritance on which the Companions have agreed, and it represents their authoritative
ijma`. The ulema are, however, in disagreement with regard to rulings which are based in opinion (ra'y)
and ijtihad, and in regard to matters on which the Companions differed among themselves.
95.]
There is general agreement among the ulema of usul on the point that the ruling of one Companion is
not a binding proof over another, regardless as to whether the ruling in question was issued by one of
Principles of Islamic Jurisprudence ~ Kamali 211
[6. Cf. Isma'il, Adillah,
[7. Khallaf, Ilm, p.the caliphs, a judge, or a leading mujtahid among their number. For the Companions were themselves
allowed to disagree with one another in matters of ijtihad. Had the ruling of one Companion been a
proof over another, disagreement among them would not have been tolerated. But as already noted, the
ulema of usul have differed as to whether the ruling of a Companion constitutes a proof as regards the
Successors (tabi`un) and the succeeding generations of mujtahidun.
There are three views on this, which may be summarised as follows:
[8. Amidi, Ihkam, IV, 149; Shawkani, Irshad, p. 243.]
1. That the fatwa of a Companion is a proof absolutely, and takes priority over qiyas regardless of
whether it is in agreement with the qiyas in question or otherwise. This is the view of Imam Malik, one
of the two views of Imam Shafi'i, one of the two views of Imam Ahmad b. Hanbal and of some Hanafi
jurists. The proponents of this view have referred to the Qur'anic text which provides in a reference to
the Companions: 'the first and foremost among the Emigrants and Helpers and those who followed
them in good deeds, God is well-pleased with them, as they are with Him' (al-Tawbah, 9:100). In this
text, God has praised 'those who followed the Companions'. It is suggested that this manner of praise
for those who followed the opinion and judgment of the Companions warrants the conclusion that
everyone should do the same . The fatwa of a sahabi, in other words, is a proof of Shari'ah. Another
Qur'anic ayah which is quoted by the proponents of this view also occurs in the form of a
commendation, as it reads in an address to the Companions: 'You are the best community that has been
raised for mankind; you enjoin right and you forbid evil' (Al-`Imran, 3:109). Their active and rigorous
involvement in the propagation of Islam under the leadership of the Prophet is the main feature of the
amr bi'l-ma'ruf (enjoining right) which the Companions pursued. The Qur'an praises them as `the best
community' and as such their example commands authority and respect.
192.]
[9. Abu Zahrah, Usul, p. 168; Zuhayr, Usul, IV,
It has, however, been suggested that the Qur'anic references to the Companions are all in the plural,
which would imply that their individual views do not necessarily constitute a proof. But in response to
this, it is argued that the Shari'ah establishes their uprightness ('adalah) as individuals, and those who
follow them in good deeds have been praised because they followed their opinion and judgment both as
individuals and groups. It is further pointed out that those who followed the Companions are praised
because they followed the personal opinion of the Companions and not because the latter themselves
followed the Qur'an and Sunnah. For if this were to be the case, then the Qur'anic praise would be of no
special significance as it would apply to everyone who followed the Qur'an and Sunnah, whether a
Companion or otherwise. If there is any point, in other words, in praising those who followed the
Companions, then it must be because they followed the personal views of the Companions. It is thus
concluded that following the fatwa of Companions is obligatory otherwise the Qur'an would not praise
those who followed it in such terms.
[10. Isma'il, Adillah, pp. 291-92.]
The proponents of this view have also referred to several ahadith, one of which provides; 'My
Companions are like stars; whoever you follow will lead you to the right path.'
Principles of Islamic Jurisprudence ~ Kamali 212
No comments:
Post a Comment