By Dr. WAQUAR ANWAR
SHARI’AH: Literally, it means path. And it refers to the way human beings should tread to please Allah. The concept emanates from the thoroughfare people have been passing through to fetch water. Let us suppose the example of a caravan moving in a desert in a particular direction. However, at a particular point in its route it takes a temporary turn to reach out to a water body, like a river or well, to fetch water and then come back to that point and move onward. As caravans in the past must also have trodden that way for water, an essential requirement for any movement in desert, the path must have become marked and obvious as a result of such persistent movements. Same is the case of ladies in villages who go to a well or river outside their village with their pitchers to fetch drinking water for their families. Such to-and-fro constant movement for this essential need for life makes the path so much obvious that even a newcomer would recognise it easily. Obviously, this path would be levelled, and be the easiest and shortest. That path is the exact connotation and meaning of the term Shari’ah.
The Qur’ān uses other expressions with similar meaning like Sirat al-Mustaqeem (the Qur’ān 1:5) and Sawa as-Sabeel (the Qur’ān 5:77; 28:22). The idea is simple and fascinating. The first couple on earth, Adam and Eve (May Allah be pleased with them) came in the full light of guidance from Allah and thereafter scores of prophets and their followers treaded the same path. Their way, the guided route, has become clear, illuminated and straight for anyone who seeks the road to please the Almighty Allah.
Human beings need guidance for their mind (thought process, faith, opinion and ideas); emotions (feelings, commitments, attachments, love, affection) and actions (dos and don’ts). This may, for ease of understanding, be called guidance for Mind, Heart, and Body. Man is able to get much of this guidance with the help of the mental faculties, the rationale, and experiences without any divine intervention. However, specific guidance is required in certain areas which is made available by Revelation. Allah arranged the system of Revealed Books and Prophets for this purpose. This is the exact area which concerns Islam and its Shari’ah, which is the summation of all required guidance made available to human beings through revelation. Shari’ah encompasses both faith and actions.
FIQH: Fiqh is not concerned with the faith aspect of a believer. It is concerned about the actions emanating from the faith. This Guidance for human behaviour in relationship with the Creator, Allah, and His creations, human beings and environment comprises Fiqh, which is a codified form of Shari’ah. It has a well-developed methodology known as Usul-al-Fiqh (Principles of Islamic Jurisprudence), which can be understood as “the law of making the law.”
The Qur’ān and Sunnat comprise the primary text and the source of Shari’ah. Out of more than six thousand six hundred verses of the Qur’ān about four hundred are related with dos and don’ts which comprise the primary text of Fiqh. And out of approximately fifty thousand recorded traditions of Prophet Muhammad (may peace and blessings of Allah be to him) about four thousand comprise the second source of Fiqh. These four thousand four hundred basic texts are the foundation stone of any ruling of the Shari’ah. At the secondary level the required rulings are derived with the help of the following two instruments:
- Ijma (Juridical Consensus), and
- Qiyas (Analogical Reasoning)
Ijma: The consensus of experts of Islamic jurisprudence which have been accepted by the Muslim community is called ijma. There are several examples of such consensus developing on specific issues during the period of companions of the Prophet and their disciples (tabein and taba-tabein). Obviously, the need of consensus would arise on matters where direct text from the Qur’ān and prophetic traditions (Sunnat) are not available. There is no specific process of developing a consensus. The importance and relevance of a juridical consensus is one tradition of the Prophet which says, “My ummah will never agree upon an error.”
Qiyas: It is the methodology of ijtihad which is an independent or original interpretation of problems not precisely covered by the Qur’ān, Hadith (traditions concerning the Prophet Muhammad’s life and utterances), and ijma (juridical consensus). Ijtihad is understood on the basis of a tradition of the Prophet. It is reported that when the Messenger of Allah ﷺ intended to send Muadh ibn Jabal to Yemen as governor, he asked, “How will you judge when the occasion of deciding a case arises?” He replied: “I shall judge in accordance with Allah’s Book.” The Prophet asked, “(What will you do) if you do not find any guidance in Allah’s Book?” He replied, “(I shall act) in accordance with the Sunnah of the Messenger of Allah ﷺ.” The Prophet asked, “(What will you do) if you do not find any guidance in the Sunnah of the Messenger of Allah ﷺ and in Allah’s Book?” He replied: “I shall do my best to form an opinion and I shall spare no effort.” The Messenger of Allah ﷺ then patted him on the breast and said: Praise be to Allah Who has helped the messenger of the Messenger of Allah to find something which pleases the Messenger of Allah. Although some experts have noted weakness in the chain of this tradition, but its content and message are accepted by all.
What Muadh, the companion of the Prophet, said as making the best efforts to form an opinion, has been developed as a methodology by Islamic Juridical experts. It is referred to as Qiyas. They were further inspired by another tradition of the Prophet which encourages scholars/judges to do Ijtihad. The Prophet said, “If a judge makes a ruling, striving to apply his reasoning and he is correct, he will have two rewards. If a judge makes a ruling, striving to apply his reasoning and he is mistaken, he will have one reward.” Hence sincerity in effort while making a ruling will be rewarded in any case.
The beauty of the system of Qiyas is that it logically links the new ruling to an available ruling, which was based on the primary text of the Qur’ān and Sunnat. Hence the new ruling is also a continuation of the primary text. Obviously, this process of extracting law through Qiyas is a result of human efforts and understandings and there is every possibility of difference of opinion. This possibility of more than one opinion adds to the versatility of Fiqh and is the primary cause of the creation of different schools of Islamic jurisprudence like Hanafi, Maliki, Shafai, and Hanbli.
The process of arriving at a new ruling through Qiyas involves finding the ‘effective cause/implication’ (Illat) of an ‘existing ruling’ (Asl) and apply it to the parallel case (Fara’) and arrive at required ‘legal injunction’ (Hukm). In other words, effective cause/implication (Illat) is common element of both the available ruling and the new required ruling.
Thus, texts of the Qur’ān and the traditions (Sunnat) of the Prophet, Ijma and Qiyas comprise the basic sources of law in Islam. In addition to these, seven other methodologies and concepts are given weightage and considered while arriving at any ruling:
1. Istihsan (Juridical Preference); 2. Masalah (Public Interest); 3. Urf (Custom); 4. Sadd al-Dhariah (Blocking ways to undesirable things); 5. Sharae Minqablana (Admissible Divine Revelation before the Qur’ān); 6. Madhhab Sahabi (Juridical Opinion of the Companions of the Prophet); 7. Istishab (Presumption of Continuity).
Istihsan (Juridical Preference): It is akin to the concept of equity in modern law. The result of analogical logic in Qiyas is not always acceptable on account of various factors and a decision other than what was logically arrived has to be taken. This is juridical preference.
Masalah (Public Interest): These are public interests which are in conformity with the intent of Shari’ah. These may be new things, not mentioned in the text of Shari’ah rulings as available at a particular point of time. However, these should not be in conflict with the intent of Shari’ah. Different schools of Islamic jurisprudence give different weightage to this factor, while all agree upon its relevance.
Urf (Custom): The custom, culture, manner of speaking and way of doing work are acceptable in Shari’ah and at times it acquires great importance. Laws are meant to be translated into practices and so it should take care of the way people of a particular area speak, work and behave.
Sadd al-Dhariah (Blocking ways to undesirable things): Anything which may on its own be permitted, but it leads to blocking of any undesirable thing. So even permitted things become forbidden in view of the final result. Another related concept is Fath al-Dhariah (Opening ways for desirable things) where something is permitted if it opens up a desirable outcome. The process of making law should consider these factors before giving final verdict.
Sharae Minqablana (Admissible Divine Revelation before the Qur’ān): The Qur’ān has described certain laws mentioned in earlier books. The Qur’ān has superseded some of them while it maintains silence about others. Such laws of earlier divine books which the Qur’ān describes but does not abrogate have been a source of law for Islamic scholars.
Madhhab Sahabi (Juridical Opinion of the Companions of the Prophet): The opinions and practices of the companions of the Prophet provide rich source of law and are taken care of while arriving at any new ruling in the Shari’ah. Their opinions and practices, as such, are not law but have due importance owing to their proximity to the Prophet.
Istishab (Presumption of Continuity): The doctrine of continuity plays an important role in deciding the permissibility or otherwise of anything. It is a basic premise, rather notion, that everything is permitted until proved otherwise. It is a positive approach that things should continue unhindered till their undesirability becomes obvious. Such affirmative attitude of accepting things as they exist and let those continue, minimises the need of law-making.
An Overview of Shari’ah
The formation of Shari’ah law highlights three distinctive aspects: First, that it is primarily based, directly or logically, on the texts of the Qur’ān and traditions of Prophet Muhammad (may peace and blessings of Allah be to him). If no such direct or logical connectivity with these texts is available, it may be a law, but not Shari’ah, as such. Human beings need different laws and rulings, like left-hand or right-hand driving, which may not be the concern of Islamic Shari’ah.
Second, that it has developed laws for making the law (Usul al-Fiqh), which is its characteristic feature. Third, that despite the availability of exact texts and detailed Usul al-Fiqh all aspects of life where guidance from Shari’ah cannot, rather need not, be spelt out in one go. Different issues crop up in different places at different points of time where Islamic rulings are required. The system of Ijtihad and Qiyas take care of such issues and it has been possible by Islamic juridical scholars to address new and newer issues. That is why Islamic Shari’ah has remained alive for the last more than one thousand and five hundred years and has proved the test of time. It never became, or would never become, redundant or mere part of history.
The primary texts of the Qur’ān are from the Creator and the Sunnat is from His Messenger ﷺ. These sources are uncorruptible. The Creator knows the needs of His creations, including human beings, for all times without any iota of possibility of any bias or misinformation, that man-made laws are bound to have. Thus, the Shari’ah takes care of the needs of human beings in two ways. One, that all aspects where the rulings would not change with the passage of time, like the provisions of prohibitions of interest, gambling, eating pork or the requirement of mutual consent in business transactions, etc. Second, the method of adjustments and new ruling done through human efforts sincerely in right directions.