Introduction
Literally, Sunnah means a clear path or a beaten track but it has also been used to imply normative
practice, or an established course of conduct. It may be a good example or a bad, and it may be set by
an individual, a sect or a community.
[1. Thus we read in a Hadith, 'Whoever sets a good example - man sanna sunnatan hasanatan - he and
all those who act upon it shall be rewarded till the day of resurrection; and whoever sets a bad example - man sanna sunnatan sayyi'atan - he and all those who
follow it will carry the burden of its blame till the day of resurrection ' For details see Isnawi, Nihayah, II, 170; Shawkani, Irshad, p. 33.]
In pre-Islamic
Arabia, the Arabs used the word 'Sunnah' in reference to the ancient and continuous practice of the
community which they inherited from their forefathers. Thus it is said that the pre-Islamic tribes of
Arabia had each their own sunnah which they considered as a basis of their identity and pride.
see Guraya, Origins, p. 8ff; Ahmad Hasan, Early Development, p. 85.]
The opposite of Sunnah is bid'ah, or innovation, which is
characterized by lack of precedent and continuity with the past. In the Qur'an' the word 'Sunnah' and its
plural, sunan , have been used on a number of occasions (16 times to be precise). In all these instances,
sunnah has been used to imply an established practice or course of conduct. To the ulema of Hadith,
Sunnah refers to all that is narrated from the Prophet, his acts, his sayings and whatever he has tacitly
approved, plus all the reports which describe his physical attributes and character. The ulema of
jurisprudence, however, exclude the description of the physical features of the Prophet from the
definition of Sunnah.
[3. Siba'i, Al-Sunnah, p. 47; Azami, Studies, p. 3.]
Sunnah al-Nabi (or Sunnah al-Rasul), that is, the
Prophetic Sunnah, does not occur in the Qur'an as such. But the phrase uswah hasanah (excellent
conduct) which occurs in sura-al-Ahzab (33:21) in reference to the exemplary conduct of the Prophet is
the nearest Qur'anic equivalent of Sunnah al-Nabi.
you have, in the Messenger of God, an excellent example' (al-Ahzab, 33:21).]
[4. The ayah in question addresses the believers in the following terms: 'Certainly
The uswah, or example of the Prophet, was later
interpreted to be a reference to his Sunnah. The Qur’an also uses the word 'hikmah' (lit-wisdom) as a
source of guidance that accompanies the Qur'an itself. Al-Shafi'i quotes at least seven instances in the
Qur'an where 'hikmah' occurs next to al-kitab (the Book). In one of these passages, which occurs in sura
Al-Jum'ah (62:2), for example, we read that God Almighty sent a Messenger to educate and to purify
the people by 'teaching them the Book and the hikmah'. According to al-Shafi'i's interpretation' which
also represents the view of the majority, the word 'hikmah' in this context means the Sunnah of the
Principles of Islamic Jurisprudence ~ Kamali 47
[2. For details
Prophet.
[5. Shafi'i, Risalah, pp. 44-45; Siba'i, Al-Sunnah, p.50.]
Both the terms 'Sunnah' and Sunnah Rasul Allah' have been
used by the Prophet himself and his companions. Thus when the Prophet sent Mu'adh b. Jabal as judge
to the Yemen, he was asked as to the sources on which he would rely in making decisions. In reply
Mu'adh referred first to the 'Book of Allah' and then to the 'Sunnah of the Messenger of Allah'.
Dawud, Sunan (Hasan's trans.), III, 1019, Hadith no. 3585.]
In another Hadith, the Prophet is reported to have said, 'I left two things among you. You shall not go
astray so long as you hold on to them: the Book of Allah and my Sunnah (sunnati).
Ibn Qayyim, I'lam, I, 222.]
Principles of Islamic Jurisprudence ~ Kamali 48
[6. Abu
[7. Shatibi, Muwafaqat, III, 197;
There is evidence to suggest that the Sunnah of the Prophet was introduced into the legal theory by the
jurists of Iraq towards the end of the first century. The term 'Sunnah of the Prophet' occurs' for example,
in two letters which are addressed to the Umayyad ruler, 'Abd al-Malik b. Marwan (d. 86) by the
Kharijite leader 'Abd Allah b. lbad, and al-Hasan al-Basri. But this might mean that the earliest
available record on the establishment of terminology dates back to the late first century. This evidence
does not necessarily prove that the terminology was not in use before then.
[8. For details see Guraya, Origins, p. 5.]
Initially the use of the term ‘Sunnah’ was not restricted to the Sunnah of the Prophet but was used to
imply the practice of the community and precedent of the Companions. This usage of 'Sunnah' seems to
have continued till the late second century when al-Shafi'i tried to restrict it to the Sunnah of the
Prophet alone. Sometimes the Arabic definite article 'al' was prefixed to Sunnah to denote the Sunnah
of the Prophet while the general usage of Sunnah as a reference to the practice of the community, or its
living tradition, continued. By the end of the second century Hijrah, the technical/juristic meaning of
Sunnah appears to have become dominant until the ulema used it exclusively to imply the normative
conduct of the Prophet.
[9. Cf. Azami, Studies, p. 4.]
The ulema thus discouraged the use of such expressions as
the Sunnah of Abu Bakr or 'Umar. In their view, the proper usages of Sunnah were to be confined to
Sunnah Allah, and Sunnah Rasul Allah, that is the Sunnah of God, or His way of doing things, and the
Sunnah of His Messenger. But there were variant opinions among the ulema which disputed the
foregoing, especially in view of the Hadith in which the Prophet is reported to have said, 'You are to
follow my Sunnah and the Sunnah of the Rightly-Guided caliphs.'
But again, as al-Shawkani points out, it is possible that in this Hadith, the Prophet had used 'Sunnah' as
a substitute for 'tariqah' or the way that his Companions had shown.
Shawkani, Irshad, p.33.]
[10. Abu Dawud, Sunan, III, 1294, Hadith no. 4590;
Al-Shawkani's interpretation might suggest that the Prophet may not have used
'Sunnah' in the exclusive sense that the ulema later attempted to attach to this term.
In its juristic usage, 'Sunnah' has meant different things. To the ulema of usul al-fiqh, Sunnah refers to a
source of the Shari'ah and a legal proof next to the Qur'an. But to the ulema of fiqh, 'Sunnah' primarily
refers to a shar'i value which falls under the general category of mandub. Although in this sense,
Sunnah is used almost synonymously with mandub, it does not necessarily mean that Sunnah is
confined to the Mandub. For in its other usage, namely as a source of Shari'ah, Sunnah may authorize
and create not only a mandub but also any of the following: wajib, haram, makruh and mubah. Thus in
the usage of usul al-fiqh, one might say that this or that ruling has been validated by the Qur'an or by
the Sunnah' whereas a faqih would be inclined to say that this or that act is Sunnah, which means that it
is neither fard nor wajib, it is one of the five values which falls under the category of mandub.
Nihayah, II, 170; Shawkani, Irshad, p.33; Hitu, Wajiz, p. 264.]
Notwithstanding the fact that the ulema have used Sunnah and Hadith, almost interchangeably, the two
terms have meanings of their own. Literally, Hadith means a narrative, communication or news
consisting of the factual account of an event. The word occurs frequently in the Qur'an (23 times to be
precise) and in all cases it carries the meaning of a narrative or communication. In none of these
instances has Hadith been used in its technical sense, that is, the exclusive saying of the Prophet. In the
early days of Islam following the demise of the Prophet, stories relating to the life and activities of the
Prophet dominated all other kinds of narratives, so the word began to be used almost exclusively to a
narrative from, or a saying of, the Prophet.
[12. Cf. Azami, Studies, pp. 1-3 ]
Hadith differs from Sunnah in the sense that Hadith is a narration of the conduct of the Prophet whereas
Sunnah is the example or the law that is deduced from it. Hadith in this sense is the vehicle or the
carrier of Sunnah, although Sunnah is a wider concept and used to be so especially before its literal
meaning gave way to its juristic usage. Sunnah thus preferred not only to the Hadith of the Prophet but
also to the established practice of the community. But once the literal meanings of Hadith and Sunnah
gave way to their technical usages and were both exclusively used in reference to the conduct of the
Prophet, the two became synonymous. This was largely a result of al-Shafi'i's efforts, who insisted that
the Sunnah must always be derived from a genuine Hadith and that there was no Sunnah outside the
Hadith. In the pre-Shafi'i period, 'Hadith' was also applied to the statements of the Companions and
their Successors, the tabi'un. It thus appears that 'Hadith' began to be used exclusively for the acts and
sayings of the Prophet only after the distinction between the Sunnah and Hadith was set aside.
Hasan, Early Development, p. 48; Shabir, Authority of Hadith, pp. 2-3.]
There are two other terms, namely khabar and athar' which have often been used as alternatives to
'Hadith'. Literally, khabar means 'news or report', and athar, 'impression, vestige or impact'. The word
'khabar' in the phrase 'khabar al-wahid' for example, means a solitary Hadith. The majority of ulema
have used Hadith, khabar and athar synonymously, whereas others have distinguished khabar from
athar. While the former used synonymously with Hadith athar (and sometimes 'amal) is used to imply
the precedent of the Companions.
[14. Cf. Azami, Studies, p. 3.]
The majority of ulema have upheld the precedent of the Companions as one of the transmitted (naqli)
proofs. The jurists of the early schools of law are known to have based opinions on athar. Imam Malik
Principles of Islamic Jurisprudence ~ Kamali 49
[11. Isnawi,
[13. Cf. Ahmad
even went so far as to set aside the Prophetic Hadith in its favor on the strength of the argument that
athar represented the genuine Sunnah, as the Companions were in a better position to ascertain the
authentic Sunnah of the Prophet. There were indeed, among the Companions, many distinguished
figures whose legal acumen and intimate knowledge of the sources equipped them with a special
authority to issue fatwas. Sometimes they met in groups to discuss the problems they encountered, and
their agreement or collective judgment is also known as athar. For al-Shafi'i (d. 204/819) however,
athar does not necessarily represent the Sunnah of the Prophet. In the absence of a Hadith from the
Prophet, al-Shafi'i followed the precedent of Companions, and in cases where a difference of opinion
existed among the Companions, al-Shafi'i preferred the opinion of the first four caliphs over others, or
one which was in greater harmony with the Qur'an.
[15. Shafi'i, Risalah, pp.128-130.]
According to al-Shafi'i, the
Sunnah coming direct from the Prophet in the form of Hadith through a reliable chain of narrators is a
source of law irrespective of whether it was accepted by the community or not. He emphasized the
authority of the Hadith from the Prophet in preference to the opinion or practice of the companions. AlShafi'i'
contended that Hadith from the Prophet, even a solitary Hadith must take priority over the
practice
and opinion of the community, the Companions and the Successors.
Origins, p. 29; Ahmad Hasan, Early Development, pp. 49-51.]
[16. Shafi'i, Risalah, p.177; Guraya,
Al-Shafi'i directed his efforts mainly against the then prevailing
practice among jurists which gave preference to the practice of the community and the decisions of the
Companions, over the Hadith. Al-Shafi'i attempted to overrule the argument, advanced by Imam malik,
for example, that the Madinese practice was more authoritative than Hadith. In his Muwatta, for
example, Malik (d. 179/795) generally opens every legal chapter with a Hadith from the Prophet, but in
determining the detailed legal issues, he does not consistently adhere to the principle of the priority of
Hadith over athar. It is interesting to note that the Muwatta' contains 1,720 Hadiths, out of which 822
are from the Prophet and the remainder from the Companions, Successors and others. This would
suggest that Imam Malik was not overly concerned with the distinction between Hadith, and athar
which was to become the main theme of al-Shafi'i's endeavor to establish the overriding authority of the
Prophetic Hadith.
[17. Guraya, Origins, pp. 29-34.]
Proof-Value (Hujjiyyah) of Sunnah
The ulema are unanimous to the effect that Sunnah is a source of Shari'ah and that in its rulings with
regard to halal and haram it stands on the same footing as the Qur'an.'
[18. Shawkani, Irshad, p. 33.]
The Sunnah
of the Prophet is a proof (hujjah) for the Qur'an, testifies to its authority and enjoins the Muslim to
comply with it. The words of the Prophet, as the Qur'an tells us, are divinely inspired (al-Najm, 53:3).
His acts and teachings that are meant to establish a rule of Shari'ah constitute a binding proof.'
'Ilm, p. 37.]
While commenting on the Qur'anic ayah which states of the Prophet that 'he does not speak of
his own desire, it is none other than wahy sent to him', Al-Ghazali writes that some of the divine
Principles of Islamic Jurisprudence ~ Kamali 50
[19. Khallaf,
revelation which the Prophet received constitutes the Qur'an, whereas the remainder is Sunnah. The
words of the Prophet are hujjah on anyone who heard the Prophet saying them. As for us and the
generality of Muslims who have received them through the verbal and written reports of narrators, we
need to ascertain their authenticity.
[20. Ghazali, Mustasfa, I, 83.]
The proof of authenticity may be definitive
(qat'i), or it may amount to a preferable conjecture (al-zann al-rajih); in either case, the Sunnah
commands obedience of the mukallaf. All the rulings of the Prophet, especially those which correspond
with the Qur'an and corroborate its contents, constitute binding law.
[21. Khallaf, 'Ilm, p. 37.]
In more than one place, the Qur'an enjoins obedience to the Prophet and makes it a duty of the believers
to submit to his judgment and his authority without question. The following ayat are all explicit on this
theme, all of which are quoted by al-Shafi'i in his renowned work, Al-Risalah (P. 47ff):
And whatever the Messenger gives you, take it, and whatever he forbids you, abstain
from it (al-Hashr, 59:7).
Obey God and obey the Messenger and those who are in charge of affairs among you.
Should you happen to dispute over something, then refer it to God and to the
Messenger (al-Nisa', 4:58-59).
To refer the judgment of a dispute to God means recourse to the Qur'an, and referring it to the
Messenger means recourse to the Sunnah.
[22. Shatibi, Muwafaqat, IV, 7.]
In another passage, the Qur'an
emphasizes: 'Whoever obeys the Messenger verily obeys God' (al-Nisa 4:80). And finally, the Qur'an is
categorical to the effect that the definitive rulings of the Qur'an and Sunnah are binding on the believers
in that they are no longer at liberty to differ with the dictates of the divine will or to follow a course of
their own choice: 'Whenever God and His Messenger have decided a matter' it is not for a faithful man
or woman to follow another course of his or her own choice' (al-Ahzab, 33:36). In yet another place the
Qur'an stresses that submission to the authority of the Prophet is not a matter of mere formalistic
legality but is an integral part of the Muslim faith: 'By thy Lord, they will not believe till they make thee
a judge regarding disagreements between them and find in themselves no resistance against accepting
your verdict in full submission' (al-Nisa', 4:65). It is concluded from these and other similar passages in
the Qur'an that the Sunnah is a proof next to the Qur'an in all shar'i matters and that conformity to the
terms of Prophetic legislation is a Qur'anic obligation on all Muslims. 'The Companions have reached a
consensus on this point: Both during the lifetime of the Prophet and following his demise' they eagerly
obeyed the Prophet's instructions and followed his examples regardless as to whether his commands or
prohibitions originated in the Qur'an or otherwise. The first two Caliphs Abu Bakr and Umar; resorted
to the Sunnah of the Prophet whenever they knew of it. In cases when they did not know, they would
Principles of Islamic Jurisprudence ~
Kamali 51
issues. The Caliph Umar is also on record as having issued written instruction to his judges in which he
asked them to follow the Sunnah of the Prophet whenever they could not find the necessary guidance in
the Qur'an .
[23. Shawkani, Irshad, p. 36; Khallaf, 'Ilm, p. 38; Badran, Usul, p. 81.]
Classification and Value: I
Sunnah has been classified in various ways, depending, of course, on the purpose of classification and
the perspective of the investigator. However, two of the most commonly accepted criteria for such
classifications are the subject matter (matn) of Sunnah and the manner of its transmission (isnad). This
section is primarily concerned with the classification of Sunnah from the viewpoint of its subject
matter.
To begin with, the Sunnah is divided into three types, namely verbal (qawli), actual (fi'li) and tacitly
approved (taqriri). The other division of the Sunnah which will concern us here is its division into legal
and non-legal Sunnah.
The verbal Sunnah consist of the sayings of the Prophet on any subject, such as the Hadith 'fi al-sa'imah
zakah': livestock is liable to zakah .
[24. Abu Dawud, Sunan, II, 406, Hadith no. 1562; Amidi, Ihkam, III, 170.]
The Actual Sunnah
of the Prophet consists of his deeds and actual instructions, such as the way he performed the salah, the
fasting, the rituals of hajj, or the transactions he concluded such as sale and giving loans, etc. Similarly,
the fact that the Prophet authorized mutilation of the hand of the thief from the wrist illustrated, in
actual terms, how the Qur'anic ayah (al-Ma'idah' 5:38) should be implemented. This ayah simply
provides that the hand should be cut without specifying exactly from which part. The tacitly approved
Sunnah consists of the acts and sayings of the Companions which came to the knowledge of the Prophet
and of which he approved. The tacit approval of the Prophet may be inferred from his silence and lack
of disapproval, or from his express approval and verbal confirmation.
[25. Khallaf, 'Ilm, p. 36; Abu Zahrah, Usul, p. 89.]
An example of such a Sunnah is the report that two of the Companions went on a journey, and when
they failed to find water for ablution, they both performed the obligatory prayers with tayammum, that
is, wiping the hands, face and feet with clean sand. Later, when they found water, one of them
performed the prayers again whereas the other did not. Upon their return, they related their experience
to the Prophet, who is reported to have approved both courses of action. Hence it became Sunnah
taqririya.
[26. Tabrizi, Mishkat, I, 166, Hadith no 533; Shawkani, Irshad, p. 41; Khallaf, 'Ilm, p. 36.]
Another example of this is the
report that one of the prominent companions, 'Amr b. al-'As, said that in the campaign of Dhat al-Salasil
he had had a wet dream in the night , but owing to extreme cold he did not take a bath but instead
performed the morning Salah with tayammum. He then related this to the Prophet, who laughed but said
Principles of Islamic Jurisprudence ~
Kamali 52
nothing, which would imply that the act in question is permissible in similar circumstances, that is,
when extreme cold proves to be hazardous to health.
[27. Abu Dawud, Sunan, I, 88, Hadith no. 334; Badran, Usul, pp. 69-70.]
The sayings of Companions such as, 'we used to do such and such during the lifetime of the Prophet'
constitute a part of Sunnah taqririya only if the subject is such that it could not have failed to attract the
attention of the Prophet. An example of this is the saying of Abu Sa'id al-Khudri that 'for the charity of
'id al-Fitr, we used to give a sa' of dates or of barley'. This is a matter that could not have remained
hidden and therefore constitutes Sunnah taqriria. However, the statement of a companion which refers
to matters of an obscure type, or when the statement itself is vague and does not specify whether the
issue had arisen while the Prophet was alive - such statements do not constitute Sunnah taqriria.
Shawkani, Irshad, p. 61; Badran, Bayan, p. 74.]
The entire bulk of the Sunnah, that is, the sayings, acts and tacit enactments of the Prophet, may be
once again divided into two types: non-legal and legal Sunnah.
Non-legal Sunnah (Sunnah ghayr tashri'iyyah) mainly consists of the ritual activities of the Prophet (alaf'al
al-jibilliyyah) such
as the manner which he ate, slept, dressed, and such other activities as do not
seek
to constitute a part of the Shari'ah.
Activities
of this nature are not of primary importance to the
Prophetic
mission and therefore do not constitute legal norms. According to the majority of ulema, the
Prophet's
preferences in these areas, such as his favorite colors, or the fact that he slept on his right side
in
the first place, etc., only indicate the permissibility (ibahah)
of
the acts in question.
12; Khallaf, 'Ilm, p. 43.]
The reason given is that such acts could be either wajib or mandub or merely mubah.
The first two can only be established by means of positive evidence: wajib and mandub are normally
held to be absent unless they are proved to exist. Since there is no such evidence to established that the
natural activities of the Prophet fall into either of these two categories, there remains the category of
mubah and they fall in this category for which no positive evidence is necessary.
Principles of Islamic Jurisprudence ~ Kamali 53
[28.
[29. Shaltut, Al-Islam, p. 5
[30. Isnawi, Nihayah, II, 171; Hitu,
Wajiz, p. 272. As for the report that the prominent Companion, 'Abd Allah b. 'Umar used to imitate the Prophet in his natural activities too, it is held that he did so,
not because it was recommended (mandub), but because of his devotion and affection for the Prophet.]
On a similar note, Sunnah which partakes in specialized or technical knowledge such as medicine,
commerce and agriculture, is once again held to be peripheral to the main function of the Prophetic
mission and is therefore not a part of the Shari'ah. As for acts and sayings of the Prophet that related to
particular circumstances such as the strategy of war , including such devices that misled the enemy
forces, timing of attack, siege withdrawal these too are considered to be situational and not a part of the
Shariah.
[31. Shaltut, Al-Islam, p. 512; Khallaf, 'Ilm, p. 43.]
There are certain matters which are peculiar to the person of the Prophet so that his example concerning
them does not constitute general law. For instance, polygamy above the limit of four, marriage without
a dower, prohibition of remarriage for the widows of the Prophet, connected fasting (sawm al-wisal)
generality of Muslims.
[32. In particular note suras al-Nisa' (4:3), al-Baqarah (2:282) and al-Talaq (65:2).]
According to the majority
opinion, the position in regard to such matters is partly determined by reference to the relevant text of
the Qur'an and the manner in which the Prophet is addressed. When, for example, the Qur'an addresses
the Prophet in such terms as 'O you Messenger', or 'O you folded up in garments' (al-Muzzammil, 73:1;
al-Muddaththir, 74:1), it is implied that the address is to the Prophet alone unless there is conclusive
evidence to suggest otherwise.
[33. Hitu, Wajiz, p. 273; Khallaf, 'Ilm, p. 44.]
Certain activities of the Prophet may fall in between the two categories of legal and non-legal Sunnah
as they combine the attributes of both. Thus it may be difficult to determine whether an act was strictly
personal or was intended to set an example for others to follow. It is also known that at times the
Prophet acted in a certain way which was in accord with the then prevailing custom of the community.
For instance, the Prophet kept his beard at a certain length and trimmed his moustache. The majority of
ulema have viewed this not as a mere observance of the familiar usage at the time but as an example for
the believers to follow. Others have held the opposite view by saying that it was a part of the social
practice of the Arabs which was designed to prevent resemblance to the Jews and some non-Arabs who
used to shave the beard and grow the moustache. Such practices were, in other words, a part of the
current usage and basically optional. Similarly, it is known that the Prophet used to go to the 'id prayers
(salat al-'id) by one route and return from the mosque by a different route, and that the Prophet at times
performed the hajj pilgrimage while riding a camel. The Shafi'i jurists are inclined to prefer the
commendable (mandub) in such acts to mere permissibility whereas the Hanafis consider them as
merely permissible, or mubah.
[34. Shawkani, Irshad, p. 35ff; Abu Zahrah, Usul, p. 90; Hitu, Wajiz, p. 273.]
The legal Sunnah (Sunnah tashri'iyya) consists of the exemplary conduct of the Prophet, be it an act,
saying, or a tacit approval, which incorporates the rules and principles of Shari'ah. This variety of
Sunnah may be divided into three types, namely the Sunnah which the Prophet laid down in his
capacities as Messenger of God, as the Head of State or imam, or in his capacity as a judge. We shall
discuss each of these separately, as follows: (a) In his capacity as Messenger of God, the Prophet has
laid down rules which are, on the whole complementary to the Qur’an, but also established rules on
which the Qur'an is silent. In this capacity, the Sunnah may consist of a clarification of the ambiguous
(mujmal) parts of the Qur'an or specifying and qualifying the general and the absolute contents of the
Qur'an. Whatever the Prophet has authorized pertaining the principles of religion, especially in the area
of devotional matters (ibadat) and rules expounding the lawful and the unlawful, that is, the Halal and
haram, constitutes general legislation (tashri' 'amm) whose validity is not restricted to the limitations of
time and circumstance. All commands and prohibitions that are imposed by the Sunnah are binding in
every Muslim regardless of individual circumstances, social status, or Political office. In acting upon
these laws, the individual normally does not need any prior authorization by a religious leader or the
government.
[35. Shaltut, Al-Islam, p. 513.]
Principles of Islamic Jurisprudence ~
Kamali 54
The question arises as to how it is determined that the Prophet acted in one or the other of his three
capacities as mentioned above. It is not always easy to answer this question in categorical terms. The
uncertainty which has arisen in answering this question in particular cases is, in fact, one of the main
causes of juristic disagreement (ikhtilaf) among the fuqaha'. The ulema have on the whole attempted to
ascertain the main trust, or the direction (jihah) of the particular acts and saying of the prophet. An
enquiry of this nature helps to provide an indication as to the value of the Sunnah in question: whether
it constitutes an obligation, commendation, or ibadah on the one hand, or a prohibition or abomination
(karahah) on the other.
When the direction of an act is known from the evidence in the sources, there remains no doubt as to its
value. If, for example, the prophet attempts to explain an ambiguous ruling of the Qur'an, the
explanation so provided would fall in the same category of values as the original ruling itself.
According to the majority of ulema, if the ambiguous of the Qur'an is known to be obligatory' or
commendable, the explanatory Sunnah would carry the same value. For example, all the practical
instructions of the Prophet which explained and illustrated the obligatory Salah would be wajib and his
acts pertaining to the superiority prayers such as Salah on the occasion of lunar and solar eclipse salat
al-khusuf wa al-kusuf) would be mandub
.[36. Hitu, Wajiz, p. 274; Badran, Bayan, p. 41.]
Alternatively, the Sunnah may
itself provide a clear indication as to whether a particular rule which it prescribes is wajib, mandub, or
merely permissible. Another method of ascertaining the value of a particular act is to draw an analogy
between an undefined act and an act or saying whose value is known. Additionally, the subject-matter
of the Sunnah may provide a sign or an indication as to its value. With regard to prayers, for example,
the call to prayers, or adhan, and the call which immediately precedes the standing to congregational
prayer (i.e. the iqamah) are indications as to the obligatory nature of the prayer. For it is known from
the rules of Shari'ah that adhan and iqamah precede the obligatory Salah only. A salah which is not
obligatory such as the 'id prayer, or Salat al-istisqa' ('prayers offered at the time of drought'), are not
preceded by the preliminaries of adhan or iqamah. Another method of evaluating an act is by looking at
its opposite, that is, its absence. If it is concluded that the act in question would have been in the nature
of a prohibition had it not been authorized by the Prophet, then this would imply that it is obligatory.
For example, circumcision is evaluated to be an obligation. Since it consists essentially of the infliction
of injury for no obvious cause, had it not been made into an obligation, then it would presumably be
unlawful. Its validation by the Shari'ah, in other words, is taken as an indication of its wujub. This
explanation is basically applicable to all penalties that the Shari'ah has prescribed, although in most
cases the value of the prescribed punishment is understood from the direct rulings of the relevant texts.
And lastly, an act may require the belated performance (qada') of a wajib or a mandub, and as such its
value would correspond to that of its prompt performance (ada').
[37. Hitu, p. 275 ]
The foregoing are the categories of acts whose direction and value can be ascertained. However, if no
such verification is possible, then one must look at the intention behind its enactment. If a Prophetic act
Principles of Islamic Jurisprudence ~
Kamali 55
is intended as a means of seeking the pleasure of God, then it is classified as mandub; and according to
a variant view, as wajib. However, if the intention behind a particular act could not be detected either,
then it is classified as wajib, and according to a variant view as mandub; but the matter is subject to
interpretation and ijtihad.
[38. Hitu, p. 276.]
(b) All the rulings of Sunnah which originate from the Prophet in his capacity as imam or the Head of
State, such as allocations and expenditure of public funds, decisions pertaining to military strategy and
war, appointment of state officials, distribution of booty, signing of treaties, etc., partake in the legal
Sunnah which, however, does not constitute general legislation (tashri' 'amm). Sunnahs of this type may
not be practiced by individuals without obtaining the permission of the competent government
authorities first. The mere fact that the Prophet acted in a certain way, or said something relating to
these matters, does not bind individuals directly, and does not entitle them to act on their own initiative
without the express permission of the lawful authority.
[39. Shaltut, Al-Islam, p. 513.]
To give an example,
according to a Hadith 'whoever kills a warrior [in battle] may take his belongings'.
Hadith no. 2715; Ibn Qayyim, I'lam, II, 223.]
The ulema have differed as to the precise import of this Hadith. According to one view, the Prophet
uttered this Hadith in his capacity as Imam, in which case no-one is entitled to the belongings of his
victim in the battlefield without the express authorization of the Imam. Others have held the view that
this Hadith lays down a general law which entitles the soldier to the belongings of the deceased even
without the permission of the Imam.
[41. Shaltut, Al-Islam, p. 515.]
It has been observed that the Prophet might have uttered this Hadith in order to encourage the
Companions to do jihad in the light of the then prevailing circumstances. The circumstances may have
been such that an incentive of this kind was required; or it may be that it was intended to lay down a
general law without any regard for particular situations. According to Imam Shafi'i, the Hadith under
consideration lays down a general rule of Shari'ah. For this is the general norm in regards to the
Sunnah. The main purpose of the Prophet's mission was to lay down the foundations of the Shari'ah,
and unless there is an indication to the contrary, one must assume that the purpose of the Hadith in
general is to lay down general law.
[42. Shaltut, Al-Islam, p. 516.]
(c) Sunnah which originates from the Prophet in his capacity as a judge in particular disputes usually
consists of two parts: the part which relates to claims, evidence and factual proof and the judgment
which is issued as a result. The first part is situational and does not constitute general law, whereas the
second part lays down general law, with the proviso however, that it does not bind the individual
directly, and no-one may act upon it without the prior authorization of a competent judge. Since the
Prophet himself acted in a judicial capacity, the rules that he has enacted must therefore be
implemented by the office of the qadi.
[43. Shawkani, Irshad, p. 36; Khallaf, 'Ilm, p. 44.]
[40. Abu Dawud, Sunan, II, 758,
Hence when a person has a claim
Principles of Islamic Jurisprudence ~ Kamali 56
Literally, Sunnah means a clear path or a beaten track but it has also been used to imply normative
practice, or an established course of conduct. It may be a good example or a bad, and it may be set by
an individual, a sect or a community.
[1. Thus we read in a Hadith, 'Whoever sets a good example - man sanna sunnatan hasanatan - he and
all those who act upon it shall be rewarded till the day of resurrection; and whoever sets a bad example - man sanna sunnatan sayyi'atan - he and all those who
follow it will carry the burden of its blame till the day of resurrection ' For details see Isnawi, Nihayah, II, 170; Shawkani, Irshad, p. 33.]
In pre-Islamic
Arabia, the Arabs used the word 'Sunnah' in reference to the ancient and continuous practice of the
community which they inherited from their forefathers. Thus it is said that the pre-Islamic tribes of
Arabia had each their own sunnah which they considered as a basis of their identity and pride.
see Guraya, Origins, p. 8ff; Ahmad Hasan, Early Development, p. 85.]
The opposite of Sunnah is bid'ah, or innovation, which is
characterized by lack of precedent and continuity with the past. In the Qur'an' the word 'Sunnah' and its
plural, sunan , have been used on a number of occasions (16 times to be precise). In all these instances,
sunnah has been used to imply an established practice or course of conduct. To the ulema of Hadith,
Sunnah refers to all that is narrated from the Prophet, his acts, his sayings and whatever he has tacitly
approved, plus all the reports which describe his physical attributes and character. The ulema of
jurisprudence, however, exclude the description of the physical features of the Prophet from the
definition of Sunnah.
[3. Siba'i, Al-Sunnah, p. 47; Azami, Studies, p. 3.]
Sunnah al-Nabi (or Sunnah al-Rasul), that is, the
Prophetic Sunnah, does not occur in the Qur'an as such. But the phrase uswah hasanah (excellent
conduct) which occurs in sura-al-Ahzab (33:21) in reference to the exemplary conduct of the Prophet is
the nearest Qur'anic equivalent of Sunnah al-Nabi.
you have, in the Messenger of God, an excellent example' (al-Ahzab, 33:21).]
[4. The ayah in question addresses the believers in the following terms: 'Certainly
The uswah, or example of the Prophet, was later
interpreted to be a reference to his Sunnah. The Qur’an also uses the word 'hikmah' (lit-wisdom) as a
source of guidance that accompanies the Qur'an itself. Al-Shafi'i quotes at least seven instances in the
Qur'an where 'hikmah' occurs next to al-kitab (the Book). In one of these passages, which occurs in sura
Al-Jum'ah (62:2), for example, we read that God Almighty sent a Messenger to educate and to purify
the people by 'teaching them the Book and the hikmah'. According to al-Shafi'i's interpretation' which
also represents the view of the majority, the word 'hikmah' in this context means the Sunnah of the
Principles of Islamic Jurisprudence ~ Kamali 47
[2. For details
Prophet.
[5. Shafi'i, Risalah, pp. 44-45; Siba'i, Al-Sunnah, p.50.]
Both the terms 'Sunnah' and Sunnah Rasul Allah' have been
used by the Prophet himself and his companions. Thus when the Prophet sent Mu'adh b. Jabal as judge
to the Yemen, he was asked as to the sources on which he would rely in making decisions. In reply
Mu'adh referred first to the 'Book of Allah' and then to the 'Sunnah of the Messenger of Allah'.
Dawud, Sunan (Hasan's trans.), III, 1019, Hadith no. 3585.]
In another Hadith, the Prophet is reported to have said, 'I left two things among you. You shall not go
astray so long as you hold on to them: the Book of Allah and my Sunnah (sunnati).
Ibn Qayyim, I'lam, I, 222.]
Principles of Islamic Jurisprudence ~ Kamali 48
[6. Abu
[7. Shatibi, Muwafaqat, III, 197;
There is evidence to suggest that the Sunnah of the Prophet was introduced into the legal theory by the
jurists of Iraq towards the end of the first century. The term 'Sunnah of the Prophet' occurs' for example,
in two letters which are addressed to the Umayyad ruler, 'Abd al-Malik b. Marwan (d. 86) by the
Kharijite leader 'Abd Allah b. lbad, and al-Hasan al-Basri. But this might mean that the earliest
available record on the establishment of terminology dates back to the late first century. This evidence
does not necessarily prove that the terminology was not in use before then.
[8. For details see Guraya, Origins, p. 5.]
Initially the use of the term ‘Sunnah’ was not restricted to the Sunnah of the Prophet but was used to
imply the practice of the community and precedent of the Companions. This usage of 'Sunnah' seems to
have continued till the late second century when al-Shafi'i tried to restrict it to the Sunnah of the
Prophet alone. Sometimes the Arabic definite article 'al' was prefixed to Sunnah to denote the Sunnah
of the Prophet while the general usage of Sunnah as a reference to the practice of the community, or its
living tradition, continued. By the end of the second century Hijrah, the technical/juristic meaning of
Sunnah appears to have become dominant until the ulema used it exclusively to imply the normative
conduct of the Prophet.
[9. Cf. Azami, Studies, p. 4.]
The ulema thus discouraged the use of such expressions as
the Sunnah of Abu Bakr or 'Umar. In their view, the proper usages of Sunnah were to be confined to
Sunnah Allah, and Sunnah Rasul Allah, that is the Sunnah of God, or His way of doing things, and the
Sunnah of His Messenger. But there were variant opinions among the ulema which disputed the
foregoing, especially in view of the Hadith in which the Prophet is reported to have said, 'You are to
follow my Sunnah and the Sunnah of the Rightly-Guided caliphs.'
But again, as al-Shawkani points out, it is possible that in this Hadith, the Prophet had used 'Sunnah' as
a substitute for 'tariqah' or the way that his Companions had shown.
Shawkani, Irshad, p.33.]
[10. Abu Dawud, Sunan, III, 1294, Hadith no. 4590;
Al-Shawkani's interpretation might suggest that the Prophet may not have used
'Sunnah' in the exclusive sense that the ulema later attempted to attach to this term.
In its juristic usage, 'Sunnah' has meant different things. To the ulema of usul al-fiqh, Sunnah refers to a
source of the Shari'ah and a legal proof next to the Qur'an. But to the ulema of fiqh, 'Sunnah' primarily
refers to a shar'i value which falls under the general category of mandub. Although in this sense,
Sunnah is used almost synonymously with mandub, it does not necessarily mean that Sunnah is
confined to the Mandub. For in its other usage, namely as a source of Shari'ah, Sunnah may authorize
and create not only a mandub but also any of the following: wajib, haram, makruh and mubah. Thus in
the usage of usul al-fiqh, one might say that this or that ruling has been validated by the Qur'an or by
the Sunnah' whereas a faqih would be inclined to say that this or that act is Sunnah, which means that it
is neither fard nor wajib, it is one of the five values which falls under the category of mandub.
Nihayah, II, 170; Shawkani, Irshad, p.33; Hitu, Wajiz, p. 264.]
Notwithstanding the fact that the ulema have used Sunnah and Hadith, almost interchangeably, the two
terms have meanings of their own. Literally, Hadith means a narrative, communication or news
consisting of the factual account of an event. The word occurs frequently in the Qur'an (23 times to be
precise) and in all cases it carries the meaning of a narrative or communication. In none of these
instances has Hadith been used in its technical sense, that is, the exclusive saying of the Prophet. In the
early days of Islam following the demise of the Prophet, stories relating to the life and activities of the
Prophet dominated all other kinds of narratives, so the word began to be used almost exclusively to a
narrative from, or a saying of, the Prophet.
[12. Cf. Azami, Studies, pp. 1-3 ]
Hadith differs from Sunnah in the sense that Hadith is a narration of the conduct of the Prophet whereas
Sunnah is the example or the law that is deduced from it. Hadith in this sense is the vehicle or the
carrier of Sunnah, although Sunnah is a wider concept and used to be so especially before its literal
meaning gave way to its juristic usage. Sunnah thus preferred not only to the Hadith of the Prophet but
also to the established practice of the community. But once the literal meanings of Hadith and Sunnah
gave way to their technical usages and were both exclusively used in reference to the conduct of the
Prophet, the two became synonymous. This was largely a result of al-Shafi'i's efforts, who insisted that
the Sunnah must always be derived from a genuine Hadith and that there was no Sunnah outside the
Hadith. In the pre-Shafi'i period, 'Hadith' was also applied to the statements of the Companions and
their Successors, the tabi'un. It thus appears that 'Hadith' began to be used exclusively for the acts and
sayings of the Prophet only after the distinction between the Sunnah and Hadith was set aside.
Hasan, Early Development, p. 48; Shabir, Authority of Hadith, pp. 2-3.]
There are two other terms, namely khabar and athar' which have often been used as alternatives to
'Hadith'. Literally, khabar means 'news or report', and athar, 'impression, vestige or impact'. The word
'khabar' in the phrase 'khabar al-wahid' for example, means a solitary Hadith. The majority of ulema
have used Hadith, khabar and athar synonymously, whereas others have distinguished khabar from
athar. While the former used synonymously with Hadith athar (and sometimes 'amal) is used to imply
the precedent of the Companions.
[14. Cf. Azami, Studies, p. 3.]
The majority of ulema have upheld the precedent of the Companions as one of the transmitted (naqli)
proofs. The jurists of the early schools of law are known to have based opinions on athar. Imam Malik
Principles of Islamic Jurisprudence ~ Kamali 49
[11. Isnawi,
[13. Cf. Ahmad
even went so far as to set aside the Prophetic Hadith in its favor on the strength of the argument that
athar represented the genuine Sunnah, as the Companions were in a better position to ascertain the
authentic Sunnah of the Prophet. There were indeed, among the Companions, many distinguished
figures whose legal acumen and intimate knowledge of the sources equipped them with a special
authority to issue fatwas. Sometimes they met in groups to discuss the problems they encountered, and
their agreement or collective judgment is also known as athar. For al-Shafi'i (d. 204/819) however,
athar does not necessarily represent the Sunnah of the Prophet. In the absence of a Hadith from the
Prophet, al-Shafi'i followed the precedent of Companions, and in cases where a difference of opinion
existed among the Companions, al-Shafi'i preferred the opinion of the first four caliphs over others, or
one which was in greater harmony with the Qur'an.
[15. Shafi'i, Risalah, pp.128-130.]
According to al-Shafi'i, the
Sunnah coming direct from the Prophet in the form of Hadith through a reliable chain of narrators is a
source of law irrespective of whether it was accepted by the community or not. He emphasized the
authority of the Hadith from the Prophet in preference to the opinion or practice of the companions. AlShafi'i'
contended that Hadith from the Prophet, even a solitary Hadith must take priority over the
practice
and opinion of the community, the Companions and the Successors.
Origins, p. 29; Ahmad Hasan, Early Development, pp. 49-51.]
[16. Shafi'i, Risalah, p.177; Guraya,
Al-Shafi'i directed his efforts mainly against the then prevailing
practice among jurists which gave preference to the practice of the community and the decisions of the
Companions, over the Hadith. Al-Shafi'i attempted to overrule the argument, advanced by Imam malik,
for example, that the Madinese practice was more authoritative than Hadith. In his Muwatta, for
example, Malik (d. 179/795) generally opens every legal chapter with a Hadith from the Prophet, but in
determining the detailed legal issues, he does not consistently adhere to the principle of the priority of
Hadith over athar. It is interesting to note that the Muwatta' contains 1,720 Hadiths, out of which 822
are from the Prophet and the remainder from the Companions, Successors and others. This would
suggest that Imam Malik was not overly concerned with the distinction between Hadith, and athar
which was to become the main theme of al-Shafi'i's endeavor to establish the overriding authority of the
Prophetic Hadith.
[17. Guraya, Origins, pp. 29-34.]
Proof-Value (Hujjiyyah) of Sunnah
The ulema are unanimous to the effect that Sunnah is a source of Shari'ah and that in its rulings with
regard to halal and haram it stands on the same footing as the Qur'an.'
[18. Shawkani, Irshad, p. 33.]
The Sunnah
of the Prophet is a proof (hujjah) for the Qur'an, testifies to its authority and enjoins the Muslim to
comply with it. The words of the Prophet, as the Qur'an tells us, are divinely inspired (al-Najm, 53:3).
His acts and teachings that are meant to establish a rule of Shari'ah constitute a binding proof.'
'Ilm, p. 37.]
While commenting on the Qur'anic ayah which states of the Prophet that 'he does not speak of
his own desire, it is none other than wahy sent to him', Al-Ghazali writes that some of the divine
Principles of Islamic Jurisprudence ~ Kamali 50
[19. Khallaf,
revelation which the Prophet received constitutes the Qur'an, whereas the remainder is Sunnah. The
words of the Prophet are hujjah on anyone who heard the Prophet saying them. As for us and the
generality of Muslims who have received them through the verbal and written reports of narrators, we
need to ascertain their authenticity.
[20. Ghazali, Mustasfa, I, 83.]
The proof of authenticity may be definitive
(qat'i), or it may amount to a preferable conjecture (al-zann al-rajih); in either case, the Sunnah
commands obedience of the mukallaf. All the rulings of the Prophet, especially those which correspond
with the Qur'an and corroborate its contents, constitute binding law.
[21. Khallaf, 'Ilm, p. 37.]
In more than one place, the Qur'an enjoins obedience to the Prophet and makes it a duty of the believers
to submit to his judgment and his authority without question. The following ayat are all explicit on this
theme, all of which are quoted by al-Shafi'i in his renowned work, Al-Risalah (P. 47ff):
And whatever the Messenger gives you, take it, and whatever he forbids you, abstain
from it (al-Hashr, 59:7).
Obey God and obey the Messenger and those who are in charge of affairs among you.
Should you happen to dispute over something, then refer it to God and to the
Messenger (al-Nisa', 4:58-59).
To refer the judgment of a dispute to God means recourse to the Qur'an, and referring it to the
Messenger means recourse to the Sunnah.
[22. Shatibi, Muwafaqat, IV, 7.]
In another passage, the Qur'an
emphasizes: 'Whoever obeys the Messenger verily obeys God' (al-Nisa 4:80). And finally, the Qur'an is
categorical to the effect that the definitive rulings of the Qur'an and Sunnah are binding on the believers
in that they are no longer at liberty to differ with the dictates of the divine will or to follow a course of
their own choice: 'Whenever God and His Messenger have decided a matter' it is not for a faithful man
or woman to follow another course of his or her own choice' (al-Ahzab, 33:36). In yet another place the
Qur'an stresses that submission to the authority of the Prophet is not a matter of mere formalistic
legality but is an integral part of the Muslim faith: 'By thy Lord, they will not believe till they make thee
a judge regarding disagreements between them and find in themselves no resistance against accepting
your verdict in full submission' (al-Nisa', 4:65). It is concluded from these and other similar passages in
the Qur'an that the Sunnah is a proof next to the Qur'an in all shar'i matters and that conformity to the
terms of Prophetic legislation is a Qur'anic obligation on all Muslims. 'The Companions have reached a
consensus on this point: Both during the lifetime of the Prophet and following his demise' they eagerly
obeyed the Prophet's instructions and followed his examples regardless as to whether his commands or
prohibitions originated in the Qur'an or otherwise. The first two Caliphs Abu Bakr and Umar; resorted
to the Sunnah of the Prophet whenever they knew of it. In cases when they did not know, they would
Principles of Islamic Jurisprudence ~
Kamali 51
issues. The Caliph Umar is also on record as having issued written instruction to his judges in which he
asked them to follow the Sunnah of the Prophet whenever they could not find the necessary guidance in
the Qur'an .
[23. Shawkani, Irshad, p. 36; Khallaf, 'Ilm, p. 38; Badran, Usul, p. 81.]
Classification and Value: I
Sunnah has been classified in various ways, depending, of course, on the purpose of classification and
the perspective of the investigator. However, two of the most commonly accepted criteria for such
classifications are the subject matter (matn) of Sunnah and the manner of its transmission (isnad). This
section is primarily concerned with the classification of Sunnah from the viewpoint of its subject
matter.
To begin with, the Sunnah is divided into three types, namely verbal (qawli), actual (fi'li) and tacitly
approved (taqriri). The other division of the Sunnah which will concern us here is its division into legal
and non-legal Sunnah.
The verbal Sunnah consist of the sayings of the Prophet on any subject, such as the Hadith 'fi al-sa'imah
zakah': livestock is liable to zakah .
[24. Abu Dawud, Sunan, II, 406, Hadith no. 1562; Amidi, Ihkam, III, 170.]
The Actual Sunnah
of the Prophet consists of his deeds and actual instructions, such as the way he performed the salah, the
fasting, the rituals of hajj, or the transactions he concluded such as sale and giving loans, etc. Similarly,
the fact that the Prophet authorized mutilation of the hand of the thief from the wrist illustrated, in
actual terms, how the Qur'anic ayah (al-Ma'idah' 5:38) should be implemented. This ayah simply
provides that the hand should be cut without specifying exactly from which part. The tacitly approved
Sunnah consists of the acts and sayings of the Companions which came to the knowledge of the Prophet
and of which he approved. The tacit approval of the Prophet may be inferred from his silence and lack
of disapproval, or from his express approval and verbal confirmation.
[25. Khallaf, 'Ilm, p. 36; Abu Zahrah, Usul, p. 89.]
An example of such a Sunnah is the report that two of the Companions went on a journey, and when
they failed to find water for ablution, they both performed the obligatory prayers with tayammum, that
is, wiping the hands, face and feet with clean sand. Later, when they found water, one of them
performed the prayers again whereas the other did not. Upon their return, they related their experience
to the Prophet, who is reported to have approved both courses of action. Hence it became Sunnah
taqririya.
[26. Tabrizi, Mishkat, I, 166, Hadith no 533; Shawkani, Irshad, p. 41; Khallaf, 'Ilm, p. 36.]
Another example of this is the
report that one of the prominent companions, 'Amr b. al-'As, said that in the campaign of Dhat al-Salasil
he had had a wet dream in the night , but owing to extreme cold he did not take a bath but instead
performed the morning Salah with tayammum. He then related this to the Prophet, who laughed but said
Principles of Islamic Jurisprudence ~
Kamali 52
nothing, which would imply that the act in question is permissible in similar circumstances, that is,
when extreme cold proves to be hazardous to health.
[27. Abu Dawud, Sunan, I, 88, Hadith no. 334; Badran, Usul, pp. 69-70.]
The sayings of Companions such as, 'we used to do such and such during the lifetime of the Prophet'
constitute a part of Sunnah taqririya only if the subject is such that it could not have failed to attract the
attention of the Prophet. An example of this is the saying of Abu Sa'id al-Khudri that 'for the charity of
'id al-Fitr, we used to give a sa' of dates or of barley'. This is a matter that could not have remained
hidden and therefore constitutes Sunnah taqriria. However, the statement of a companion which refers
to matters of an obscure type, or when the statement itself is vague and does not specify whether the
issue had arisen while the Prophet was alive - such statements do not constitute Sunnah taqriria.
Shawkani, Irshad, p. 61; Badran, Bayan, p. 74.]
The entire bulk of the Sunnah, that is, the sayings, acts and tacit enactments of the Prophet, may be
once again divided into two types: non-legal and legal Sunnah.
Non-legal Sunnah (Sunnah ghayr tashri'iyyah) mainly consists of the ritual activities of the Prophet (alaf'al
al-jibilliyyah) such
as the manner which he ate, slept, dressed, and such other activities as do not
seek
to constitute a part of the Shari'ah.
Activities
of this nature are not of primary importance to the
Prophetic
mission and therefore do not constitute legal norms. According to the majority of ulema, the
Prophet's
preferences in these areas, such as his favorite colors, or the fact that he slept on his right side
in
the first place, etc., only indicate the permissibility (ibahah)
of
the acts in question.
12; Khallaf, 'Ilm, p. 43.]
The reason given is that such acts could be either wajib or mandub or merely mubah.
The first two can only be established by means of positive evidence: wajib and mandub are normally
held to be absent unless they are proved to exist. Since there is no such evidence to established that the
natural activities of the Prophet fall into either of these two categories, there remains the category of
mubah and they fall in this category for which no positive evidence is necessary.
Principles of Islamic Jurisprudence ~ Kamali 53
[28.
[29. Shaltut, Al-Islam, p. 5
[30. Isnawi, Nihayah, II, 171; Hitu,
Wajiz, p. 272. As for the report that the prominent Companion, 'Abd Allah b. 'Umar used to imitate the Prophet in his natural activities too, it is held that he did so,
not because it was recommended (mandub), but because of his devotion and affection for the Prophet.]
On a similar note, Sunnah which partakes in specialized or technical knowledge such as medicine,
commerce and agriculture, is once again held to be peripheral to the main function of the Prophetic
mission and is therefore not a part of the Shari'ah. As for acts and sayings of the Prophet that related to
particular circumstances such as the strategy of war , including such devices that misled the enemy
forces, timing of attack, siege withdrawal these too are considered to be situational and not a part of the
Shariah.
[31. Shaltut, Al-Islam, p. 512; Khallaf, 'Ilm, p. 43.]
There are certain matters which are peculiar to the person of the Prophet so that his example concerning
them does not constitute general law. For instance, polygamy above the limit of four, marriage without
a dower, prohibition of remarriage for the widows of the Prophet, connected fasting (sawm al-wisal)
generality of Muslims.
[32. In particular note suras al-Nisa' (4:3), al-Baqarah (2:282) and al-Talaq (65:2).]
According to the majority
opinion, the position in regard to such matters is partly determined by reference to the relevant text of
the Qur'an and the manner in which the Prophet is addressed. When, for example, the Qur'an addresses
the Prophet in such terms as 'O you Messenger', or 'O you folded up in garments' (al-Muzzammil, 73:1;
al-Muddaththir, 74:1), it is implied that the address is to the Prophet alone unless there is conclusive
evidence to suggest otherwise.
[33. Hitu, Wajiz, p. 273; Khallaf, 'Ilm, p. 44.]
Certain activities of the Prophet may fall in between the two categories of legal and non-legal Sunnah
as they combine the attributes of both. Thus it may be difficult to determine whether an act was strictly
personal or was intended to set an example for others to follow. It is also known that at times the
Prophet acted in a certain way which was in accord with the then prevailing custom of the community.
For instance, the Prophet kept his beard at a certain length and trimmed his moustache. The majority of
ulema have viewed this not as a mere observance of the familiar usage at the time but as an example for
the believers to follow. Others have held the opposite view by saying that it was a part of the social
practice of the Arabs which was designed to prevent resemblance to the Jews and some non-Arabs who
used to shave the beard and grow the moustache. Such practices were, in other words, a part of the
current usage and basically optional. Similarly, it is known that the Prophet used to go to the 'id prayers
(salat al-'id) by one route and return from the mosque by a different route, and that the Prophet at times
performed the hajj pilgrimage while riding a camel. The Shafi'i jurists are inclined to prefer the
commendable (mandub) in such acts to mere permissibility whereas the Hanafis consider them as
merely permissible, or mubah.
[34. Shawkani, Irshad, p. 35ff; Abu Zahrah, Usul, p. 90; Hitu, Wajiz, p. 273.]
The legal Sunnah (Sunnah tashri'iyya) consists of the exemplary conduct of the Prophet, be it an act,
saying, or a tacit approval, which incorporates the rules and principles of Shari'ah. This variety of
Sunnah may be divided into three types, namely the Sunnah which the Prophet laid down in his
capacities as Messenger of God, as the Head of State or imam, or in his capacity as a judge. We shall
discuss each of these separately, as follows: (a) In his capacity as Messenger of God, the Prophet has
laid down rules which are, on the whole complementary to the Qur’an, but also established rules on
which the Qur'an is silent. In this capacity, the Sunnah may consist of a clarification of the ambiguous
(mujmal) parts of the Qur'an or specifying and qualifying the general and the absolute contents of the
Qur'an. Whatever the Prophet has authorized pertaining the principles of religion, especially in the area
of devotional matters (ibadat) and rules expounding the lawful and the unlawful, that is, the Halal and
haram, constitutes general legislation (tashri' 'amm) whose validity is not restricted to the limitations of
time and circumstance. All commands and prohibitions that are imposed by the Sunnah are binding in
every Muslim regardless of individual circumstances, social status, or Political office. In acting upon
these laws, the individual normally does not need any prior authorization by a religious leader or the
government.
[35. Shaltut, Al-Islam, p. 513.]
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The question arises as to how it is determined that the Prophet acted in one or the other of his three
capacities as mentioned above. It is not always easy to answer this question in categorical terms. The
uncertainty which has arisen in answering this question in particular cases is, in fact, one of the main
causes of juristic disagreement (ikhtilaf) among the fuqaha'. The ulema have on the whole attempted to
ascertain the main trust, or the direction (jihah) of the particular acts and saying of the prophet. An
enquiry of this nature helps to provide an indication as to the value of the Sunnah in question: whether
it constitutes an obligation, commendation, or ibadah on the one hand, or a prohibition or abomination
(karahah) on the other.
When the direction of an act is known from the evidence in the sources, there remains no doubt as to its
value. If, for example, the prophet attempts to explain an ambiguous ruling of the Qur'an, the
explanation so provided would fall in the same category of values as the original ruling itself.
According to the majority of ulema, if the ambiguous of the Qur'an is known to be obligatory' or
commendable, the explanatory Sunnah would carry the same value. For example, all the practical
instructions of the Prophet which explained and illustrated the obligatory Salah would be wajib and his
acts pertaining to the superiority prayers such as Salah on the occasion of lunar and solar eclipse salat
al-khusuf wa al-kusuf) would be mandub
.[36. Hitu, Wajiz, p. 274; Badran, Bayan, p. 41.]
Alternatively, the Sunnah may
itself provide a clear indication as to whether a particular rule which it prescribes is wajib, mandub, or
merely permissible. Another method of ascertaining the value of a particular act is to draw an analogy
between an undefined act and an act or saying whose value is known. Additionally, the subject-matter
of the Sunnah may provide a sign or an indication as to its value. With regard to prayers, for example,
the call to prayers, or adhan, and the call which immediately precedes the standing to congregational
prayer (i.e. the iqamah) are indications as to the obligatory nature of the prayer. For it is known from
the rules of Shari'ah that adhan and iqamah precede the obligatory Salah only. A salah which is not
obligatory such as the 'id prayer, or Salat al-istisqa' ('prayers offered at the time of drought'), are not
preceded by the preliminaries of adhan or iqamah. Another method of evaluating an act is by looking at
its opposite, that is, its absence. If it is concluded that the act in question would have been in the nature
of a prohibition had it not been authorized by the Prophet, then this would imply that it is obligatory.
For example, circumcision is evaluated to be an obligation. Since it consists essentially of the infliction
of injury for no obvious cause, had it not been made into an obligation, then it would presumably be
unlawful. Its validation by the Shari'ah, in other words, is taken as an indication of its wujub. This
explanation is basically applicable to all penalties that the Shari'ah has prescribed, although in most
cases the value of the prescribed punishment is understood from the direct rulings of the relevant texts.
And lastly, an act may require the belated performance (qada') of a wajib or a mandub, and as such its
value would correspond to that of its prompt performance (ada').
[37. Hitu, p. 275 ]
The foregoing are the categories of acts whose direction and value can be ascertained. However, if no
such verification is possible, then one must look at the intention behind its enactment. If a Prophetic act
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is intended as a means of seeking the pleasure of God, then it is classified as mandub; and according to
a variant view, as wajib. However, if the intention behind a particular act could not be detected either,
then it is classified as wajib, and according to a variant view as mandub; but the matter is subject to
interpretation and ijtihad.
[38. Hitu, p. 276.]
(b) All the rulings of Sunnah which originate from the Prophet in his capacity as imam or the Head of
State, such as allocations and expenditure of public funds, decisions pertaining to military strategy and
war, appointment of state officials, distribution of booty, signing of treaties, etc., partake in the legal
Sunnah which, however, does not constitute general legislation (tashri' 'amm). Sunnahs of this type may
not be practiced by individuals without obtaining the permission of the competent government
authorities first. The mere fact that the Prophet acted in a certain way, or said something relating to
these matters, does not bind individuals directly, and does not entitle them to act on their own initiative
without the express permission of the lawful authority.
[39. Shaltut, Al-Islam, p. 513.]
To give an example,
according to a Hadith 'whoever kills a warrior [in battle] may take his belongings'.
Hadith no. 2715; Ibn Qayyim, I'lam, II, 223.]
The ulema have differed as to the precise import of this Hadith. According to one view, the Prophet
uttered this Hadith in his capacity as Imam, in which case no-one is entitled to the belongings of his
victim in the battlefield without the express authorization of the Imam. Others have held the view that
this Hadith lays down a general law which entitles the soldier to the belongings of the deceased even
without the permission of the Imam.
[41. Shaltut, Al-Islam, p. 515.]
It has been observed that the Prophet might have uttered this Hadith in order to encourage the
Companions to do jihad in the light of the then prevailing circumstances. The circumstances may have
been such that an incentive of this kind was required; or it may be that it was intended to lay down a
general law without any regard for particular situations. According to Imam Shafi'i, the Hadith under
consideration lays down a general rule of Shari'ah. For this is the general norm in regards to the
Sunnah. The main purpose of the Prophet's mission was to lay down the foundations of the Shari'ah,
and unless there is an indication to the contrary, one must assume that the purpose of the Hadith in
general is to lay down general law.
[42. Shaltut, Al-Islam, p. 516.]
(c) Sunnah which originates from the Prophet in his capacity as a judge in particular disputes usually
consists of two parts: the part which relates to claims, evidence and factual proof and the judgment
which is issued as a result. The first part is situational and does not constitute general law, whereas the
second part lays down general law, with the proviso however, that it does not bind the individual
directly, and no-one may act upon it without the prior authorization of a competent judge. Since the
Prophet himself acted in a judicial capacity, the rules that he has enacted must therefore be
implemented by the office of the qadi.
[43. Shawkani, Irshad, p. 36; Khallaf, 'Ilm, p. 44.]
[40. Abu Dawud, Sunan, II, 758,
Hence when a person has a claim
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