adjudicated in a certain way, this would not entitle the claimant to take the law into his own hands. He
must follow proper procedures to prove his claim and to obtain a judicial decision.
[44 Shaltut, Al-Islam, p. 514.]
To distinguish the legal from non-legal Sunnah, it is necessary for the mujtahid to ascertain the original
purpose and context in which a particular ruling of the Sunnah has been issued and whether it was
designed to establish a general rule of law. The Hadith literature does not always provide clear
information as to the different capacities in which the Prophet might have acted in particular situations,
although the mujtahid may find indications that assist him to some extent. The absence of adequate
information and criteria on which to determine the circumstantial and non-legal Sunnah from that which
constitutes general law dates back to the time of the Companions. The difficulty has persisted ever
since, and it is due mainly to the shortage of adequate information that disagreement has arisen among
the ulema over the understanding and interpretation of the Sunnah.
Mutawalli, Mabadi', p. 38.]
[45. Ghazali, Mustasfa, II, 51; Badran, Bayan, pp. 41-42;
To give another example, juristic disagreement has arisen concerning a Hadith on the reclamation of
barren land which reads, 'whoever reclaims barren land becomes its owner.
873, Hadith no. 3067; Tabrizi, Mishkat, II, 889, Hadith no. 2945.]
[46. Abu Dawud, Sunan (Hasan's trans.), II,
The ulema have differed as to whether the Prophet uttered this Hadith in his prophetic capacity or in his
capacity as head of state. If the former is established to be the case then the Hadith lays down a binding
rule of law. Anyone who reclaims barren land becomes its owner and need not obtain any permission
from the Imam or anyone else. For the Hadith would provide the necessary authority and there would
be no need for official permission. If on the other hand it is established that the Prophet uttered this
Hadith in his capacity as Imam, then it would imply that anyone who wishes to reclaim barren land
must obtain the prior permission of the lmam. The Hadith in other words, only entitles the lmam to
grant the citizen the right to reclaim barren land. The majority of jurists have adopted the first view
whereas the Hanafis have held the second. The majority of jurists, including Abu Hanifa’s disciple, Abu
Yusuf, have held that the consent of the State is not necessary for anyone to commence reclaiming
barren land. But it appears that jurists and scholars of the later ages prefer the Hanafi view which
stipulates that reclaiming barren land requires the consent of the State. The Hanafi view is based on the
rationale of preventing disputes among people. The Malikis on the other hand only require government
consent when the land is close to a human settlement, and the Hanbalis only when it has previously
been alienated by another person.
[47. Abu Dawud, footnote 2534 at p. 873; Al-Marghinani, Hedaya (Hamilton's trans.)' p. 610.]
Disagreement has also arisen with regard to the Hadith that adjudicated the case of Hind, the wife of
Abu Sufyan. This woman complained to the Prophet that her husband was a tight-fisted man and that
despite his affluence, he refused to give adequate maintenance to her and her child. The Prophet
Principles of Islamic Jurisprudence ~
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instructed her to 'take [of her husband's property] what is sufficient for yourself and your child
according to custom.
[48. Tabrizi, Mishkat, II, 1000, Hadith no. 3342.]
The ulema have disagreed as to whether the Prophet uttered this Hadith so as to enact a general rule of
law, or whether he was acting in the capacity of a judge. If it be admitted that the Hadith consists of a
judgment addressing a particular case, then it would only authorize the judge to issue a corresponding
order. Thus it would be unlawful for a creditor to take his entitlement from the property of his debtor
without a judicial order. If it be established, on the other hand, that the Hadith lays down a general rule
of law, then no adjudication would be required to entitle the wife or the creditor to the property of the
defaulting debtor. For the Hadith itself would provide the necessary authority. If any official permission
is to be required then it would have to be in the nature of a declaration or clearance only.
p. 515.]
The Hanafis, Shafis and Hanbalis have held that when a man who is able to support his wife willfully
refuses to do so, it is for the wife to take action and for the qadi to grant a judgment in her favor. If the
husband still refuses to fulfill his duty, the qadi may order the sale of his property from whose proceeds
the wife may obtain her maintenance. The court may even imprison a persistently neglectful husband.
The wife is, however, not entitled to a divorce, the reason being that when the Prophet instructed Hind
to take her maintenance from her husband's property, she was not granted the right to ask for a divorce.
The Malikis are basically in agreement with the majority view, with the only difference that in the event
of the husband's persistent refusal, the Malikis entitle the wife to ask for a divorce. Notwithstanding
some disagreement as to whether the court should determine the quantity of maintenance on the basis of
the financial status of the husband, the wife, or both, according to the majority view, the husband's
standards of living should be the basis of the court decision. Thus the ulema have generally considered
the Hadith under consideration to consist of a judicial decision of the Prophet, and as such it only
authorizes the judge to adjudicate the wife's complaint and to specify the quantity of maintenance and
the method of its payment.
[50. Al-Khatib, Mughni al-Muhtaj, III, 442; Din, Al-Nafaqah, pp. 20-23.]
Sunnah which consists of general legislation often has the quality of permanence and universal
application to all Muslims. Sunnah of this type usually consists of commands and prohibitions which
are related to the Qur'an in the sense of endorsing, elaborating or qualifying the general provisions of
the Holy Book.
[51. Shaltut, Al-Islam, p. 516.]
Qur'an and Sunnah Distinguished
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The Qur’an was recorded in writing from beginning to end during the lifetime of the Prophet, who
ascertained that the Qur'an was preserved as he received it through divine revelation. The Prophet
clearly expressed the concern that nothing of his own Sunnah should be confused with the text of the
Qur'an. This was, in fact, the main reason why he discouraged his Companions, at the early stage of his
mission in any case.'
[52. The Prophet had initially ordered his Companions not to write anything other than the Qur'an from him. This was' however'
later amended and the Prophet permitted the writing of his Sunnah. Badran (Usul, pp. 83-84) refers to at least two instances where the Prophet allowed his
instructions to be reduced into writing.]
from reducing the Sunnah into writing lest it be confused with the Qur'an. The
Sunnah on the other hand was mainly retained in memory by the Companions who did not, on the
whole, keep a written record of the teachings of the Prophet. There were perhaps some exceptions as
the relevant literature suggests that some, though a small number, of the Companions held collections
of the Hadith of the Prophet which they wrote and kept in their private collections. The overall
impression obtained is, however, that this was done on a fairly limited scale.
The Companions used to verify instances of doubt concerning the text of the Qur'an with the Prophet
himself, who would often clarify them through clear instruction. This manner of verification is,
however, unknown with regard to the Sunnah.
[53. Shaltut, Al-Islam, p.511.]
The entire text of the Qur'an has come down to us through continuous testimony (tawatur) whereas the
Sunnah has in the most part been narrated and transmitted in the form of solitary, or Ahad, reports. Only
a small portion of the Sunnah has been transmitted in the form of Mutawatir.
The Qur'an in none of its parts consists of conceptual transmission, that is, transmission in the words of
the narrator himself. Both the concepts and words of the Qur'an have been recorded and transmitted as
the Prophet received them. The Sunnah on the other hand consists, in the most part, of the transmission
of concepts in words and sentences that belong to the narrators. This is why one often finds that
different versions of the one and the same Hadith are reported by people whose understanding or
interpretation of a particular Hadith is not identical.
The scope of ikhtilaf, or disagreement, over the Sunnah is more extensive than that which may exist
regarding the Qur'an. Whereas the ulema have differed in their understanding/interpretation of the text
of the Qur'an, there is no problem to speak of concerning the authenticity of the contents of the Qur'an.
But disagreement over the Sunnah extends not only to questions of interpretation but also to
authenticity and proof, issues which we shall further elaborate as our discussion proceeds.
Islam, p. 512.]
Priority of the Qur'an over the Sunnah
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As Sunnah is the second source of the Shari'ah next to the Qur'an, the mujtahid is bound to observe an
order of priority between the Qur'an and Sunnah. Hence in his search for a solution to a particular
problem, the jurist must resort to the Sunnah only when he fails to find any guidance in the Qur'an.
Should there be a clear text in the Qur'an, it must be followed and be given priority over any ruling of
the Sunnah which may happen to be in conflict with the Qur'an. The priority of the Qur'an over the
Sunnah is partly a result of the fact that the Qur'an consists wholly of manifest revelation (wahy zahir)
whereas the Sunnah mainly consists of internal revelation (wahy batin) and is largely transmitted in the
words of the narrators themselves. The other reason for this order of priority relates to the question of
authenticity. The authenticity of the Qur'an is not open to doubt, it is, in other words, qati, or decisive,
in respect of authenticity and must therefore take priority over the Sunnah, or at least that part of
Sunnah which is speculative (zanni) in respect of authenticity. The third point in favor of establishing
an order of priority between the Qur'an and the Sunnah is that the latter is explanatory to the former.
Explanation or commentary should naturally occupy a secondary place in relationship to the source.
Cf. Shatibi, Muwafaqat, IV, 3; Badran, Usul, p. 101.]
Furthermore, the order of priority between the Qur'an and Sunnah is
clearly established in the Hadith of Mu'adh b. Jabal which has already been quoted. The purport of this
Hadith was also adopted and communicated in writing by 'Umar b. al-Kattab to two judges, Shurayh b.
Harith and Abu Musa al-Ash'ari, who were ordered to resort to the Qur'an first and to the Sunnah only
when they could find no guidance in the Qur'an.
[56. Shatibi, IV, 4; Siba'i, Sunnah, p. 377; Badran, Usul, p. 82. Shatibi adds that two
other prominent Companions, 'Abd Allah b. Mas'ud, and 'Abd Allah b. 'Abbas are on record as having confirmed the priority of the Qur'an over the Sunnah ]
A practical consequence of this order of priority may be seen in the Hanafi distinction between fard and
wajib. The former is founded in the definitive authority of the Qur'an, whereas the latter is founded in
the definitive Sunnah, but is one degree weaker because of a possible doubt in its transmission and
accuracy of content. These are some of the factors which would explain the general agreement of the
ulema to the effect that the authority of Qur'an overrides that of the Sunnah.
[57. Shatibi, IV, 4.]
There should in principle be no conflict between the Qur'an and the authentic Sunnah. If, however, a
conflict is seen to exist between them, they must be reconciled as far as possible and both should be
retained. If this is not possible, the Sunnah in question is likely to be of doubtful authenticity and must
therefore give way to the Qur’an. No genuine conflict is known to exist between the Mutawatir Hadith
and the Qur'an. All instances of conflict between the Sunnah and the Qur'an, in fact, originate in the
solitary, or Ahad, Hadith, which is in any case of doubtful authenticity and subordinate to the overriding
authority of the Qur'an.
[58. Cf. Badran, Usul, p. 102.]
It has, however, been suggested that establishing such an order of priority is anomalous and contrary to
the basic role that the Sunnah plays in relation to the Qur'an. As the familiar Arabic phrase, al-Sunnah
qadiyah 'ala al-kitab (Sunnah is the arbiter of the Qur'an) suggests, it is normally the Sunnah which
explains the Qur’an, not vice versa. The fact that the Sunnah explains and determines the precise
meaning of the Qur’an means that the Qur'an is more dependent on the Sunnah than the Sunnah is on
Principles of Islamic Jurisprudence ~
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the Qur’an.
[59. While quoting Awza'i on this point, Shawkani (Irshad, p. 33) concurs with the view that the Sunnah is an independent source of Shari'ah,
and not necessarily, as it were, a commentary on the Qur'an only See also Shatibi, Muwafaqat, IV, 4.]
In the event, for example, where the
text of the Qur'an imparts more than one meaning or when it is conveyed in general terms, it is the
Sunnah which specifies the meaning that must prevail. Again, the manifest (Zahir) of the Qur'an may be
abandoned by the authority of the Sunnah, just as the Sunnah may qualify the absolute (mutlaq) in the
Qur'an. The Qur'an on the other hand does not play the same role with regard to the Sunnah. It is not the
declared purpose of the Qur'an to explain or clarify the Sunnah, as this was done by the Prophet
himself. Since the Sunnah explains, qualifies, and determines the purport of the Qur'an, it must take
priority over the Qur'an. If this is admitted, it would follow that incidents of conflict between the Qur'an
and Sunnah must be resolved in favor of the latter. Some ulema have even advanced the view that the
Hadith of Mu'adh b. Jabal (which clearly confirms the Qur'an's priority over the Sunnah) is anomalous
in that not everything in the Qur'an is given priority over the Sunnah.
[60. See Shatibi, Muwafaqat, IV, 5.]
For one
thing, the Mutawatir Hadith stands on the same footing as the Qur'an itself. Likewise, the manifest
(Zahir) of the Qur'an is open to interpretation and ijtihad in the same way as the solitary, or Ahad,
Hadith; which means that they are more or less equal in these respects. Furthermore, according to the
majority opinion, before implementing a Qur'anic rule one must resort to the Sunnah and ascertain that
the ruling in question has not been qualified in any way or given an interpretation on which the text of
the Qur'an is not self-evident.
[61. See Shatibi, Muwafaqat, IV, 5., see also Siba`i, Al-Sunnah, pp. 378-79.]
In response to the assertion that the Sunnah is the arbiter of the Qur'an, it will be noted, as al-Shatibi
points out, that this need not interfere with the order of priority in favor of the Qur'an. For in all cases
where the Sunnah specifies or qualifies the general or the absolute terms of the Qur'an, the Sunnah in
effect explains and interprets the Qur'an. In none of such instances is the Qur'an abandoned in favor of
the Sunnah. The word qadiyah (arbiter) in the expression quoted above therefore means mubayyinah
(explanatory) and does not imply the priority of the Sunnah over the Qur'an. The textual rulings of the
Qur’an concerning theft and the obligation of zakah have, for example, been qualified by the Sunnah.
However, it is only proper to say that in both these cases, the Sunnah elaborates the general rulings of
the Qur'an, and it would hardly be accurate to suggest that the Sunnah has introduced anything new or
that it seeks to overrule the Qur'an. When an interpreter explains a particular legal text to us, it would
hardly be correct to say that we act upon the words of the interpreter without referring to the legal text
itself.
[62. Shatibi, Muwafaqat, IV, 5.]
Furthermore, the explanatory role of the Sunnah in relationship to the Qur'an has been determined by
the Qur'an itself, where we read in an address to the Prophet in sura al-Nahl (16:44): 'We have sent
down to you the Remembrance so that you may explain to the people what has been revealed to them.'
The correct conclusion drawn from this and similar Qur'anic passages is that the Sunnah, being
explanatory to the Qur'an, is subordinate to it.
[63. Shatibi, Muwafaqat, IV, 6.]
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Is Sunnah an Independent Source?
An adequate answer to the question as to whether the Sunnah is a mere supplement to the Qur'an or a
source in its own right necessitates an elaboration of the relationship of the Sunnah to the Qur'an in the
following three capacities:
Firstly, the Sunnah may consist of rules that merely confirm and reiterate the Qur’an, in which case the
rules concerned originate in the Qur'an and are merely corroborated by the Sunnah. The question as to
whether the Sunnah is an independent source is basically redundant with regard to matters on which the
Sunnah merely confirms the Qur'an, as it is obvious that in such cases the Sunnah is not an independent
source. A substantial part of the Sunnah is, in fact, of this variety: all ahadith pertaining to the five
pillars of the faith and other such matters like the rights of one's parents, respect for the property of
others, and ahadith which regulate homicide, theft and false testimony, etc., basically reaffirm the
Qur'anic principles on these subjects.
[64. Siba'i, Al-Sunnah, p. 379; Khallaf, 'Ilm, p. 39; Badran, Usul, p. 102.]
To be more
specific, the Hadith that "it is unlawful to take the property of a Muslim without his express consent,
Bayhaqi, Al-Sunan al-Kubra', III, 10.]
merely confirms the Qur'anic ayah which orders the Muslims to "devour not
each other's properties unlawfully unless it is through trade by your consent (al-Nisa, 4:19). The origin
of this rule is Qur'anic, and since the foregoing Hadith merely reaffirms the Qur’an, there is no room for
saying that it constitutes an independent authority in its own right.
Secondly, the Sunnah may consist of an explanation or clarification to the Qur’an; it may clarify the
ambivalent (mujmal) of the Qur’an, qualify its absolute statements, or specify the general terms of the
Qur'an. This is once again the proper role that the Sunnah plays in relationship to the Qur’an: it explains
it. Once again a substantial part of the Sunnah falls under this category. It is, for example, through this
type of Sunnah that Qur'anic expressions like salah, zakah, hajj and riba, etc., have acquired their
juridical (shari') meanings. To give another example, with regard to the contract of sale the Qur'an
merely declares sale to be lawful as opposed to riba, which is forbidden. This general principle has later
been elaborated by the Sunnah which expounded the detailed rules of Shari'ah concerning sale,
including its conditions, varieties, and sales which might amount to riba. The same could be said of the
lawful and unlawful varieties of food, a subject on which the Qur'an contains only general guidelines
while the Sunnah provides the details.
[66. Ibn Qayyim, I'lam, II, 238; Siba'i, Al-Sunnah, p. 380; Badran, Usul, pp. 103-105.]
Again, on
the subject of bequest, the Qur'an provides for the basic legality of bequest and the rule that it must be
implemented prior to the distribution of the estate among the heirs (al-Nisa', 4:12). The Sunnah
supplements these principles by enacting additional rules which facilitate a proper implementation of
the general principles of the Qur'an.
[67. Badran, Bayan, p. 6.]
The foregoing two varieties of Sunnah between them comprise the largest bulk of Sunnah, and the
ulema are in agreement that these two types of Sunnah are integral to the Qur'an and constitute a logical
Principles of Islamic Jurisprudence ~
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whole with it. The two cannot be separated or taken independently from one another. It is considered
that the Sunnah which qualifies or elaborates the general provisions of the Qur'an on devotional matters
(ibadat), on the punishment of theft, on the duty of zakat, and on the subject of bequest, could only
have originated in divine inspiration (ilham), for these cannot be determined by means of rationality and
ijtihad alone.
[68. Badran, Bayan, p. 7.]
Thirdly, the Sunnah may consist of rulings on which the Qur'an is silent, in which case the ruling in
question originates in the Sunnah itself. This variety of Sunnah, referred to as al-Sunnah al-muassisah,
or 'founding Sunnah', neither confirms nor opposes the Qur'an, and its contents cannot be traced back to
the Holy Book. It is only this variety of Sunnah which lies in the centre of the debate as to whether the
Sunnah is an independent source of law. To give some examples: the prohibition regarding
simultaneous marriage to the maternal and paternal aunt of one's wife (often referred to as 'unlawful
conjunction'), the right of pre-emption (shuf'), the grandmother's entitlement to a share in inheritance,
the punishment of rajm, that is, death by stoning for adultery when committed by a married Muslim all
originate in the Sunnah
as
the Qur'an itself is silent on these matters.
40; Siba'i, Al-Sunnah, p. 380.]
[69. Ibn Qayyim, I'lam, II, 233; Khallaf, 'Ilm, p.
There is some disagreement among jurists as to whether the Sunnah, or this last variety of it at any rate,
constitutes an independent source of Shari'ah. Some ulema of the later ages (al-muta’akhkhirun),
including al-Shatibi and al-Shawkani, have held the view that the Sunnah is an independent source.
Shawkani, Irshad, p. 33; Siba'i, Al-Sunnah, p. 380.]
They have further maintained that the Qur'anic ayah in sura al-Nahl
(16:44 - quoted above) is inconclusive and that despite its being clear on the point that the Prophet
interprets the Qur'an it does not overrule the recognition of the Sunnah as an independent source. On the
contrary, it is argued that there is evidence in the Qur'an which substantiates the independent status of
Sunnah. The Qur'an, for example, in more than one place requires the believers to 'obey God and obey
His Messenger, (al-Nisa. 4:58; 4:80; al-Ma'idah, 5:92). The fact that obedience to the Prophet is
specifically enjoined next to obeying God warrants the conclusion that obedience to the Prophet means
obeying him whenever he orders or prohibits something on which the Qur'an might be silent. For if the
purpose of obedience to the Prophet were to obey him only when he explained the Qur'an, then 'obey
God' would be sufficient and there would have been no need to add the phrase 'obey the Messenger'.
Shatibi, Muwafaqat, IV, 7.]
Elsewhere the Qur'an clearly places submission and obedience to the Prophet at the
very heart of the faith as a test of one's acceptance of Islam. This is the purport of the ayah which reads:
'By thy Lord, they will not believe till they make thee the judge regarding disagreements between them,
and find in themselves no resistance against the verdict, but accept it in full submission' (al-Nisa, 4:65).
Furthermore, the proponents of the independent status of the Sunnah have quoted the Hadith of Mu'adh
b. Jabal in support of their argument. The Hadith is clear on the point that the Sunnah is authoritative in
cases on which no guidance can be found in the Qur'an. The Sunnah, in other words, stands on its own
feet regardless of whether it is substantiated by the Qur'an or not .
[72. Shatibi, Muwafaqat, IV, 8; Siba'i, Al-Sunnah, p. 383.]
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legislation, is explanatory and integral to the Qur'an.
[73. Cf. Abu Zahrah, Usul, p. 82.]
Al-Shafi'i's views on this
matter are representative of the majority position. In his Risalah, al-Shafi'i' states:
I do not know anyone among the ulema to oppose [the doctrine] that the Sunnah of the Prophet is of
three types: first is the Sunnah which prescribes the like of what God has revealed in His Book; next is
the Sunnah which explains the general principles of the Qur'an and clarifies the will of God; and last is
the Sunnah where the Messenger of God has ruled on matters on which nothing can be found in the
Book of God. The first two varieties are integral to the Qur'an, but the ulema have differed as to the
third.
[74. Shafi'i, Risalah, pp. 52-53.]
Al-Shafi'i goes on to explain the views that the ulema have advanced concerning the relationship of
Sunnah to the Qur'an. One of these views, which receives strong support from al-Shafi'i himself, is that
God has explicitly rendered obedience to the Prophet an obligatory duty (fard). In his capacity as
Messenger of God, the Prophet has introduced laws some of which originate in the Qur'an while others
do not. But all Prophetic legislation emanates in divine authority. The Sunnah and the Qur'an are of the
same provenance, and all must be upheld and obeyed. Others have held the view that the Prophetic
mission itself, that is the fact that the Prophet is the chosen Messenger of God, is sufficient proof for the
authority of the Sunnah. For it is through the Sunnah that the Prophet fulfilled his divine mission.
According to yet another view there is no Sunnah whose origin cannot be traced back to the Qur'an.
This view maintains that even the Sunnah which explains the number and content of salah and the
quantities of zakah as well as the lawful and forbidden varieties of food and trade merely elaborates
general principles of the Qur'an.
[75. Shafi'i, Risalah, pp. 52-53.]
More specifically, all the ahadith which provide
details on the lawful and unlawful varieties of food merely elaborate the Qur'anic declaration that God
has permitted wholesome food and prohibited that which is unclean (al-A'raf: 7:157).
388.]
The majority view, which seeks to establish an almost total identity between the Sunnah and the Qur'an,
further refers to the saying of the Prophet's widow, 'A'ishah, when she attempted to interpret the
Qur'anic epithet wa innaka la 'ala khuluqin 'azim ('and you possess an excellent character') (al-Qalam,
68:4). 'A'ishah is quoted to have said that 'his (the Prophet's) khuluq was the Qur'an'. Khuluq in this
context means the conduct of the Prophet, his acts, sayings, and all that he has approved. Thus it is
concluded that the Sunnah is not separate from the Qur'an.
[77. Qurtubi, Tafsir, XVIII, 227.]
Furthermore, the majority view seeks to establish an identity between the general objectives of the
Qur'an and Sunnah: The Sunnah and the Qur'an are unanimous in their pursuit of the three-fold
objectives of protecting the necessities (daruriyyat), complementary requirements (hajiyyat) and the
'embellishments' (tahsiniyyat).
[78. For further discussion see Chapter xiii on maslahah mursalah. ]
It is then argued that even
when the Sunnah broaches new ground, it is with the purpose of giving effect to one or the other of the
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objectives that have been validated in the Qur'an. Thus the identity between the Qur'an and Sunnah is
transferred, from one of theme and subject, to that of the main purpose and spirit that is common to
both.
[79. Cf. Siba'i, Al-Sunnah, p. 388-90.]
And finally, the majority explain that some of the rulings of the Sunnah consist of an analogy to the
Qur'an. For example, the Qur'an has decreed that no one may marry two sisters simultaneously. The
Hadith (cited below on page 71) which prohibits simultaneous marriage to the maternal and paternal
aunt of one's wife is based on the same effective cause ('illah), which is to avoid the severance of close
ties of kinship (qat' al-arham). In short, the Sunnah as a whole is no more than a supplement to the
Qur'an. The Qur'an is indeed more than comprehensive and provides complete guidance on the broad
outline of the entire body of the Shari'ah.
[80. Cf. Siba'i, Al-Sunnah, p. 388-90.]
In conclusion, it may be said that both sides are essentially in agreement on the authority of Sunnah as a
source of law and its principal role in relationship to the Qur'an. They both acknowledge that the
Sunnah contains legislation which is not found in the Qur'an.
[81. Cf. Siba'i, Al-Sunnah,, p. 385 ]
The difference
between them seems to be one of interpretation rather than substance. The Qur'anic ayat on the duty of
obedience to the Prophet, and those which assign to him the role of the interpreter of the Qur'an, are
open to variant interpretations. These passages have been quoted in support of both the views, that the
Sunnah is supplementary to the Qur'an, and that it is an independent source. The point which is basic to
both these views is the authority of the Prophet and the duty of adherence to his Sunnah. In the
meantime, both sides acknowledge the fact that the Sunnah contains legislation which is additional to
the Qur'an. When this is recognised, the rest of the debate becomes largely redundant. For what else is
there to be achieved by the argument that the Sunnah is an independent source? The partisans of the two
views have, in effect, resolved their differences without perhaps declaring this to be the case. Since the
Qur'an provides ample evidence to the effect that the Prophet explains the Qur'an and that he must be
obeyed, there is no need to advance a theoretical conflict between the two facets of a basic unity. Both
views can be admitted without the risk of running into a logical contradiction. The two views should
therefore be seen not as contradictory but as logical extensions of one another.
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must follow proper procedures to prove his claim and to obtain a judicial decision.
[44 Shaltut, Al-Islam, p. 514.]
To distinguish the legal from non-legal Sunnah, it is necessary for the mujtahid to ascertain the original
purpose and context in which a particular ruling of the Sunnah has been issued and whether it was
designed to establish a general rule of law. The Hadith literature does not always provide clear
information as to the different capacities in which the Prophet might have acted in particular situations,
although the mujtahid may find indications that assist him to some extent. The absence of adequate
information and criteria on which to determine the circumstantial and non-legal Sunnah from that which
constitutes general law dates back to the time of the Companions. The difficulty has persisted ever
since, and it is due mainly to the shortage of adequate information that disagreement has arisen among
the ulema over the understanding and interpretation of the Sunnah.
Mutawalli, Mabadi', p. 38.]
[45. Ghazali, Mustasfa, II, 51; Badran, Bayan, pp. 41-42;
To give another example, juristic disagreement has arisen concerning a Hadith on the reclamation of
barren land which reads, 'whoever reclaims barren land becomes its owner.
873, Hadith no. 3067; Tabrizi, Mishkat, II, 889, Hadith no. 2945.]
[46. Abu Dawud, Sunan (Hasan's trans.), II,
The ulema have differed as to whether the Prophet uttered this Hadith in his prophetic capacity or in his
capacity as head of state. If the former is established to be the case then the Hadith lays down a binding
rule of law. Anyone who reclaims barren land becomes its owner and need not obtain any permission
from the Imam or anyone else. For the Hadith would provide the necessary authority and there would
be no need for official permission. If on the other hand it is established that the Prophet uttered this
Hadith in his capacity as Imam, then it would imply that anyone who wishes to reclaim barren land
must obtain the prior permission of the lmam. The Hadith in other words, only entitles the lmam to
grant the citizen the right to reclaim barren land. The majority of jurists have adopted the first view
whereas the Hanafis have held the second. The majority of jurists, including Abu Hanifa’s disciple, Abu
Yusuf, have held that the consent of the State is not necessary for anyone to commence reclaiming
barren land. But it appears that jurists and scholars of the later ages prefer the Hanafi view which
stipulates that reclaiming barren land requires the consent of the State. The Hanafi view is based on the
rationale of preventing disputes among people. The Malikis on the other hand only require government
consent when the land is close to a human settlement, and the Hanbalis only when it has previously
been alienated by another person.
[47. Abu Dawud, footnote 2534 at p. 873; Al-Marghinani, Hedaya (Hamilton's trans.)' p. 610.]
Disagreement has also arisen with regard to the Hadith that adjudicated the case of Hind, the wife of
Abu Sufyan. This woman complained to the Prophet that her husband was a tight-fisted man and that
despite his affluence, he refused to give adequate maintenance to her and her child. The Prophet
Principles of Islamic Jurisprudence ~
Kamali 57
instructed her to 'take [of her husband's property] what is sufficient for yourself and your child
according to custom.
[48. Tabrizi, Mishkat, II, 1000, Hadith no. 3342.]
The ulema have disagreed as to whether the Prophet uttered this Hadith so as to enact a general rule of
law, or whether he was acting in the capacity of a judge. If it be admitted that the Hadith consists of a
judgment addressing a particular case, then it would only authorize the judge to issue a corresponding
order. Thus it would be unlawful for a creditor to take his entitlement from the property of his debtor
without a judicial order. If it be established, on the other hand, that the Hadith lays down a general rule
of law, then no adjudication would be required to entitle the wife or the creditor to the property of the
defaulting debtor. For the Hadith itself would provide the necessary authority. If any official permission
is to be required then it would have to be in the nature of a declaration or clearance only.
p. 515.]
The Hanafis, Shafis and Hanbalis have held that when a man who is able to support his wife willfully
refuses to do so, it is for the wife to take action and for the qadi to grant a judgment in her favor. If the
husband still refuses to fulfill his duty, the qadi may order the sale of his property from whose proceeds
the wife may obtain her maintenance. The court may even imprison a persistently neglectful husband.
The wife is, however, not entitled to a divorce, the reason being that when the Prophet instructed Hind
to take her maintenance from her husband's property, she was not granted the right to ask for a divorce.
The Malikis are basically in agreement with the majority view, with the only difference that in the event
of the husband's persistent refusal, the Malikis entitle the wife to ask for a divorce. Notwithstanding
some disagreement as to whether the court should determine the quantity of maintenance on the basis of
the financial status of the husband, the wife, or both, according to the majority view, the husband's
standards of living should be the basis of the court decision. Thus the ulema have generally considered
the Hadith under consideration to consist of a judicial decision of the Prophet, and as such it only
authorizes the judge to adjudicate the wife's complaint and to specify the quantity of maintenance and
the method of its payment.
[50. Al-Khatib, Mughni al-Muhtaj, III, 442; Din, Al-Nafaqah, pp. 20-23.]
Sunnah which consists of general legislation often has the quality of permanence and universal
application to all Muslims. Sunnah of this type usually consists of commands and prohibitions which
are related to the Qur'an in the sense of endorsing, elaborating or qualifying the general provisions of
the Holy Book.
[51. Shaltut, Al-Islam, p. 516.]
Qur'an and Sunnah Distinguished
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[49. Shaltut, Al-Islam,
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The Qur’an was recorded in writing from beginning to end during the lifetime of the Prophet, who
ascertained that the Qur'an was preserved as he received it through divine revelation. The Prophet
clearly expressed the concern that nothing of his own Sunnah should be confused with the text of the
Qur'an. This was, in fact, the main reason why he discouraged his Companions, at the early stage of his
mission in any case.'
[52. The Prophet had initially ordered his Companions not to write anything other than the Qur'an from him. This was' however'
later amended and the Prophet permitted the writing of his Sunnah. Badran (Usul, pp. 83-84) refers to at least two instances where the Prophet allowed his
instructions to be reduced into writing.]
from reducing the Sunnah into writing lest it be confused with the Qur'an. The
Sunnah on the other hand was mainly retained in memory by the Companions who did not, on the
whole, keep a written record of the teachings of the Prophet. There were perhaps some exceptions as
the relevant literature suggests that some, though a small number, of the Companions held collections
of the Hadith of the Prophet which they wrote and kept in their private collections. The overall
impression obtained is, however, that this was done on a fairly limited scale.
The Companions used to verify instances of doubt concerning the text of the Qur'an with the Prophet
himself, who would often clarify them through clear instruction. This manner of verification is,
however, unknown with regard to the Sunnah.
[53. Shaltut, Al-Islam, p.511.]
The entire text of the Qur'an has come down to us through continuous testimony (tawatur) whereas the
Sunnah has in the most part been narrated and transmitted in the form of solitary, or Ahad, reports. Only
a small portion of the Sunnah has been transmitted in the form of Mutawatir.
The Qur'an in none of its parts consists of conceptual transmission, that is, transmission in the words of
the narrator himself. Both the concepts and words of the Qur'an have been recorded and transmitted as
the Prophet received them. The Sunnah on the other hand consists, in the most part, of the transmission
of concepts in words and sentences that belong to the narrators. This is why one often finds that
different versions of the one and the same Hadith are reported by people whose understanding or
interpretation of a particular Hadith is not identical.
The scope of ikhtilaf, or disagreement, over the Sunnah is more extensive than that which may exist
regarding the Qur'an. Whereas the ulema have differed in their understanding/interpretation of the text
of the Qur'an, there is no problem to speak of concerning the authenticity of the contents of the Qur'an.
But disagreement over the Sunnah extends not only to questions of interpretation but also to
authenticity and proof, issues which we shall further elaborate as our discussion proceeds.
Islam, p. 512.]
Priority of the Qur'an over the Sunnah
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[54. Shaltut, Al-
Kamali 59
As Sunnah is the second source of the Shari'ah next to the Qur'an, the mujtahid is bound to observe an
order of priority between the Qur'an and Sunnah. Hence in his search for a solution to a particular
problem, the jurist must resort to the Sunnah only when he fails to find any guidance in the Qur'an.
Should there be a clear text in the Qur'an, it must be followed and be given priority over any ruling of
the Sunnah which may happen to be in conflict with the Qur'an. The priority of the Qur'an over the
Sunnah is partly a result of the fact that the Qur'an consists wholly of manifest revelation (wahy zahir)
whereas the Sunnah mainly consists of internal revelation (wahy batin) and is largely transmitted in the
words of the narrators themselves. The other reason for this order of priority relates to the question of
authenticity. The authenticity of the Qur'an is not open to doubt, it is, in other words, qati, or decisive,
in respect of authenticity and must therefore take priority over the Sunnah, or at least that part of
Sunnah which is speculative (zanni) in respect of authenticity. The third point in favor of establishing
an order of priority between the Qur'an and the Sunnah is that the latter is explanatory to the former.
Explanation or commentary should naturally occupy a secondary place in relationship to the source.
Cf. Shatibi, Muwafaqat, IV, 3; Badran, Usul, p. 101.]
Furthermore, the order of priority between the Qur'an and Sunnah is
clearly established in the Hadith of Mu'adh b. Jabal which has already been quoted. The purport of this
Hadith was also adopted and communicated in writing by 'Umar b. al-Kattab to two judges, Shurayh b.
Harith and Abu Musa al-Ash'ari, who were ordered to resort to the Qur'an first and to the Sunnah only
when they could find no guidance in the Qur'an.
[56. Shatibi, IV, 4; Siba'i, Sunnah, p. 377; Badran, Usul, p. 82. Shatibi adds that two
other prominent Companions, 'Abd Allah b. Mas'ud, and 'Abd Allah b. 'Abbas are on record as having confirmed the priority of the Qur'an over the Sunnah ]
A practical consequence of this order of priority may be seen in the Hanafi distinction between fard and
wajib. The former is founded in the definitive authority of the Qur'an, whereas the latter is founded in
the definitive Sunnah, but is one degree weaker because of a possible doubt in its transmission and
accuracy of content. These are some of the factors which would explain the general agreement of the
ulema to the effect that the authority of Qur'an overrides that of the Sunnah.
[57. Shatibi, IV, 4.]
There should in principle be no conflict between the Qur'an and the authentic Sunnah. If, however, a
conflict is seen to exist between them, they must be reconciled as far as possible and both should be
retained. If this is not possible, the Sunnah in question is likely to be of doubtful authenticity and must
therefore give way to the Qur’an. No genuine conflict is known to exist between the Mutawatir Hadith
and the Qur'an. All instances of conflict between the Sunnah and the Qur'an, in fact, originate in the
solitary, or Ahad, Hadith, which is in any case of doubtful authenticity and subordinate to the overriding
authority of the Qur'an.
[58. Cf. Badran, Usul, p. 102.]
It has, however, been suggested that establishing such an order of priority is anomalous and contrary to
the basic role that the Sunnah plays in relation to the Qur'an. As the familiar Arabic phrase, al-Sunnah
qadiyah 'ala al-kitab (Sunnah is the arbiter of the Qur'an) suggests, it is normally the Sunnah which
explains the Qur’an, not vice versa. The fact that the Sunnah explains and determines the precise
meaning of the Qur’an means that the Qur'an is more dependent on the Sunnah than the Sunnah is on
Principles of Islamic Jurisprudence ~
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the Qur’an.
[59. While quoting Awza'i on this point, Shawkani (Irshad, p. 33) concurs with the view that the Sunnah is an independent source of Shari'ah,
and not necessarily, as it were, a commentary on the Qur'an only See also Shatibi, Muwafaqat, IV, 4.]
In the event, for example, where the
text of the Qur'an imparts more than one meaning or when it is conveyed in general terms, it is the
Sunnah which specifies the meaning that must prevail. Again, the manifest (Zahir) of the Qur'an may be
abandoned by the authority of the Sunnah, just as the Sunnah may qualify the absolute (mutlaq) in the
Qur'an. The Qur'an on the other hand does not play the same role with regard to the Sunnah. It is not the
declared purpose of the Qur'an to explain or clarify the Sunnah, as this was done by the Prophet
himself. Since the Sunnah explains, qualifies, and determines the purport of the Qur'an, it must take
priority over the Qur'an. If this is admitted, it would follow that incidents of conflict between the Qur'an
and Sunnah must be resolved in favor of the latter. Some ulema have even advanced the view that the
Hadith of Mu'adh b. Jabal (which clearly confirms the Qur'an's priority over the Sunnah) is anomalous
in that not everything in the Qur'an is given priority over the Sunnah.
[60. See Shatibi, Muwafaqat, IV, 5.]
For one
thing, the Mutawatir Hadith stands on the same footing as the Qur'an itself. Likewise, the manifest
(Zahir) of the Qur'an is open to interpretation and ijtihad in the same way as the solitary, or Ahad,
Hadith; which means that they are more or less equal in these respects. Furthermore, according to the
majority opinion, before implementing a Qur'anic rule one must resort to the Sunnah and ascertain that
the ruling in question has not been qualified in any way or given an interpretation on which the text of
the Qur'an is not self-evident.
[61. See Shatibi, Muwafaqat, IV, 5., see also Siba`i, Al-Sunnah, pp. 378-79.]
In response to the assertion that the Sunnah is the arbiter of the Qur'an, it will be noted, as al-Shatibi
points out, that this need not interfere with the order of priority in favor of the Qur'an. For in all cases
where the Sunnah specifies or qualifies the general or the absolute terms of the Qur'an, the Sunnah in
effect explains and interprets the Qur'an. In none of such instances is the Qur'an abandoned in favor of
the Sunnah. The word qadiyah (arbiter) in the expression quoted above therefore means mubayyinah
(explanatory) and does not imply the priority of the Sunnah over the Qur'an. The textual rulings of the
Qur’an concerning theft and the obligation of zakah have, for example, been qualified by the Sunnah.
However, it is only proper to say that in both these cases, the Sunnah elaborates the general rulings of
the Qur'an, and it would hardly be accurate to suggest that the Sunnah has introduced anything new or
that it seeks to overrule the Qur'an. When an interpreter explains a particular legal text to us, it would
hardly be correct to say that we act upon the words of the interpreter without referring to the legal text
itself.
[62. Shatibi, Muwafaqat, IV, 5.]
Furthermore, the explanatory role of the Sunnah in relationship to the Qur'an has been determined by
the Qur'an itself, where we read in an address to the Prophet in sura al-Nahl (16:44): 'We have sent
down to you the Remembrance so that you may explain to the people what has been revealed to them.'
The correct conclusion drawn from this and similar Qur'anic passages is that the Sunnah, being
explanatory to the Qur'an, is subordinate to it.
[63. Shatibi, Muwafaqat, IV, 6.]
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Is Sunnah an Independent Source?
An adequate answer to the question as to whether the Sunnah is a mere supplement to the Qur'an or a
source in its own right necessitates an elaboration of the relationship of the Sunnah to the Qur'an in the
following three capacities:
Firstly, the Sunnah may consist of rules that merely confirm and reiterate the Qur’an, in which case the
rules concerned originate in the Qur'an and are merely corroborated by the Sunnah. The question as to
whether the Sunnah is an independent source is basically redundant with regard to matters on which the
Sunnah merely confirms the Qur'an, as it is obvious that in such cases the Sunnah is not an independent
source. A substantial part of the Sunnah is, in fact, of this variety: all ahadith pertaining to the five
pillars of the faith and other such matters like the rights of one's parents, respect for the property of
others, and ahadith which regulate homicide, theft and false testimony, etc., basically reaffirm the
Qur'anic principles on these subjects.
[64. Siba'i, Al-Sunnah, p. 379; Khallaf, 'Ilm, p. 39; Badran, Usul, p. 102.]
To be more
specific, the Hadith that "it is unlawful to take the property of a Muslim without his express consent,
Bayhaqi, Al-Sunan al-Kubra', III, 10.]
merely confirms the Qur'anic ayah which orders the Muslims to "devour not
each other's properties unlawfully unless it is through trade by your consent (al-Nisa, 4:19). The origin
of this rule is Qur'anic, and since the foregoing Hadith merely reaffirms the Qur’an, there is no room for
saying that it constitutes an independent authority in its own right.
Secondly, the Sunnah may consist of an explanation or clarification to the Qur’an; it may clarify the
ambivalent (mujmal) of the Qur’an, qualify its absolute statements, or specify the general terms of the
Qur'an. This is once again the proper role that the Sunnah plays in relationship to the Qur’an: it explains
it. Once again a substantial part of the Sunnah falls under this category. It is, for example, through this
type of Sunnah that Qur'anic expressions like salah, zakah, hajj and riba, etc., have acquired their
juridical (shari') meanings. To give another example, with regard to the contract of sale the Qur'an
merely declares sale to be lawful as opposed to riba, which is forbidden. This general principle has later
been elaborated by the Sunnah which expounded the detailed rules of Shari'ah concerning sale,
including its conditions, varieties, and sales which might amount to riba. The same could be said of the
lawful and unlawful varieties of food, a subject on which the Qur'an contains only general guidelines
while the Sunnah provides the details.
[66. Ibn Qayyim, I'lam, II, 238; Siba'i, Al-Sunnah, p. 380; Badran, Usul, pp. 103-105.]
Again, on
the subject of bequest, the Qur'an provides for the basic legality of bequest and the rule that it must be
implemented prior to the distribution of the estate among the heirs (al-Nisa', 4:12). The Sunnah
supplements these principles by enacting additional rules which facilitate a proper implementation of
the general principles of the Qur'an.
[67. Badran, Bayan, p. 6.]
The foregoing two varieties of Sunnah between them comprise the largest bulk of Sunnah, and the
ulema are in agreement that these two types of Sunnah are integral to the Qur'an and constitute a logical
Principles of Islamic Jurisprudence ~
Kamali 62
whole with it. The two cannot be separated or taken independently from one another. It is considered
that the Sunnah which qualifies or elaborates the general provisions of the Qur'an on devotional matters
(ibadat), on the punishment of theft, on the duty of zakat, and on the subject of bequest, could only
have originated in divine inspiration (ilham), for these cannot be determined by means of rationality and
ijtihad alone.
[68. Badran, Bayan, p. 7.]
Thirdly, the Sunnah may consist of rulings on which the Qur'an is silent, in which case the ruling in
question originates in the Sunnah itself. This variety of Sunnah, referred to as al-Sunnah al-muassisah,
or 'founding Sunnah', neither confirms nor opposes the Qur'an, and its contents cannot be traced back to
the Holy Book. It is only this variety of Sunnah which lies in the centre of the debate as to whether the
Sunnah is an independent source of law. To give some examples: the prohibition regarding
simultaneous marriage to the maternal and paternal aunt of one's wife (often referred to as 'unlawful
conjunction'), the right of pre-emption (shuf'), the grandmother's entitlement to a share in inheritance,
the punishment of rajm, that is, death by stoning for adultery when committed by a married Muslim all
originate in the Sunnah
as
the Qur'an itself is silent on these matters.
40; Siba'i, Al-Sunnah, p. 380.]
[69. Ibn Qayyim, I'lam, II, 233; Khallaf, 'Ilm, p.
There is some disagreement among jurists as to whether the Sunnah, or this last variety of it at any rate,
constitutes an independent source of Shari'ah. Some ulema of the later ages (al-muta’akhkhirun),
including al-Shatibi and al-Shawkani, have held the view that the Sunnah is an independent source.
Shawkani, Irshad, p. 33; Siba'i, Al-Sunnah, p. 380.]
They have further maintained that the Qur'anic ayah in sura al-Nahl
(16:44 - quoted above) is inconclusive and that despite its being clear on the point that the Prophet
interprets the Qur'an it does not overrule the recognition of the Sunnah as an independent source. On the
contrary, it is argued that there is evidence in the Qur'an which substantiates the independent status of
Sunnah. The Qur'an, for example, in more than one place requires the believers to 'obey God and obey
His Messenger, (al-Nisa. 4:58; 4:80; al-Ma'idah, 5:92). The fact that obedience to the Prophet is
specifically enjoined next to obeying God warrants the conclusion that obedience to the Prophet means
obeying him whenever he orders or prohibits something on which the Qur'an might be silent. For if the
purpose of obedience to the Prophet were to obey him only when he explained the Qur'an, then 'obey
God' would be sufficient and there would have been no need to add the phrase 'obey the Messenger'.
Shatibi, Muwafaqat, IV, 7.]
Elsewhere the Qur'an clearly places submission and obedience to the Prophet at the
very heart of the faith as a test of one's acceptance of Islam. This is the purport of the ayah which reads:
'By thy Lord, they will not believe till they make thee the judge regarding disagreements between them,
and find in themselves no resistance against the verdict, but accept it in full submission' (al-Nisa, 4:65).
Furthermore, the proponents of the independent status of the Sunnah have quoted the Hadith of Mu'adh
b. Jabal in support of their argument. The Hadith is clear on the point that the Sunnah is authoritative in
cases on which no guidance can be found in the Qur'an. The Sunnah, in other words, stands on its own
feet regardless of whether it is substantiated by the Qur'an or not .
[72. Shatibi, Muwafaqat, IV, 8; Siba'i, Al-Sunnah, p. 383.]
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Kamali 63
legislation, is explanatory and integral to the Qur'an.
[73. Cf. Abu Zahrah, Usul, p. 82.]
Al-Shafi'i's views on this
matter are representative of the majority position. In his Risalah, al-Shafi'i' states:
I do not know anyone among the ulema to oppose [the doctrine] that the Sunnah of the Prophet is of
three types: first is the Sunnah which prescribes the like of what God has revealed in His Book; next is
the Sunnah which explains the general principles of the Qur'an and clarifies the will of God; and last is
the Sunnah where the Messenger of God has ruled on matters on which nothing can be found in the
Book of God. The first two varieties are integral to the Qur'an, but the ulema have differed as to the
third.
[74. Shafi'i, Risalah, pp. 52-53.]
Al-Shafi'i goes on to explain the views that the ulema have advanced concerning the relationship of
Sunnah to the Qur'an. One of these views, which receives strong support from al-Shafi'i himself, is that
God has explicitly rendered obedience to the Prophet an obligatory duty (fard). In his capacity as
Messenger of God, the Prophet has introduced laws some of which originate in the Qur'an while others
do not. But all Prophetic legislation emanates in divine authority. The Sunnah and the Qur'an are of the
same provenance, and all must be upheld and obeyed. Others have held the view that the Prophetic
mission itself, that is the fact that the Prophet is the chosen Messenger of God, is sufficient proof for the
authority of the Sunnah. For it is through the Sunnah that the Prophet fulfilled his divine mission.
According to yet another view there is no Sunnah whose origin cannot be traced back to the Qur'an.
This view maintains that even the Sunnah which explains the number and content of salah and the
quantities of zakah as well as the lawful and forbidden varieties of food and trade merely elaborates
general principles of the Qur'an.
[75. Shafi'i, Risalah, pp. 52-53.]
More specifically, all the ahadith which provide
details on the lawful and unlawful varieties of food merely elaborate the Qur'anic declaration that God
has permitted wholesome food and prohibited that which is unclean (al-A'raf: 7:157).
388.]
The majority view, which seeks to establish an almost total identity between the Sunnah and the Qur'an,
further refers to the saying of the Prophet's widow, 'A'ishah, when she attempted to interpret the
Qur'anic epithet wa innaka la 'ala khuluqin 'azim ('and you possess an excellent character') (al-Qalam,
68:4). 'A'ishah is quoted to have said that 'his (the Prophet's) khuluq was the Qur'an'. Khuluq in this
context means the conduct of the Prophet, his acts, sayings, and all that he has approved. Thus it is
concluded that the Sunnah is not separate from the Qur'an.
[77. Qurtubi, Tafsir, XVIII, 227.]
Furthermore, the majority view seeks to establish an identity between the general objectives of the
Qur'an and Sunnah: The Sunnah and the Qur'an are unanimous in their pursuit of the three-fold
objectives of protecting the necessities (daruriyyat), complementary requirements (hajiyyat) and the
'embellishments' (tahsiniyyat).
[78. For further discussion see Chapter xiii on maslahah mursalah. ]
It is then argued that even
when the Sunnah broaches new ground, it is with the purpose of giving effect to one or the other of the
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objectives that have been validated in the Qur'an. Thus the identity between the Qur'an and Sunnah is
transferred, from one of theme and subject, to that of the main purpose and spirit that is common to
both.
[79. Cf. Siba'i, Al-Sunnah, p. 388-90.]
And finally, the majority explain that some of the rulings of the Sunnah consist of an analogy to the
Qur'an. For example, the Qur'an has decreed that no one may marry two sisters simultaneously. The
Hadith (cited below on page 71) which prohibits simultaneous marriage to the maternal and paternal
aunt of one's wife is based on the same effective cause ('illah), which is to avoid the severance of close
ties of kinship (qat' al-arham). In short, the Sunnah as a whole is no more than a supplement to the
Qur'an. The Qur'an is indeed more than comprehensive and provides complete guidance on the broad
outline of the entire body of the Shari'ah.
[80. Cf. Siba'i, Al-Sunnah, p. 388-90.]
In conclusion, it may be said that both sides are essentially in agreement on the authority of Sunnah as a
source of law and its principal role in relationship to the Qur'an. They both acknowledge that the
Sunnah contains legislation which is not found in the Qur'an.
[81. Cf. Siba'i, Al-Sunnah,, p. 385 ]
The difference
between them seems to be one of interpretation rather than substance. The Qur'anic ayat on the duty of
obedience to the Prophet, and those which assign to him the role of the interpreter of the Qur'an, are
open to variant interpretations. These passages have been quoted in support of both the views, that the
Sunnah is supplementary to the Qur'an, and that it is an independent source. The point which is basic to
both these views is the authority of the Prophet and the duty of adherence to his Sunnah. In the
meantime, both sides acknowledge the fact that the Sunnah contains legislation which is additional to
the Qur'an. When this is recognised, the rest of the debate becomes largely redundant. For what else is
there to be achieved by the argument that the Sunnah is an independent source? The partisans of the two
views have, in effect, resolved their differences without perhaps declaring this to be the case. Since the
Qur'an provides ample evidence to the effect that the Prophet explains the Qur'an and that he must be
obeyed, there is no need to advance a theoretical conflict between the two facets of a basic unity. Both
views can be admitted without the risk of running into a logical contradiction. The two views should
therefore be seen not as contradictory but as logical extensions of one another.
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