Review of "Principles of Islamic Jurisprudence" by Mohammad Hashim Kamali
Posted 25 August 2011, sections on
urf and
istishab added 28 August at reader request.
Professor Kamali is currently the founding Chairman and CEO of the
International Institute of Advanced Islamic Studies based
in Kuala Lumpur, Malaysia. I had the honour of meeting him when I
visited Kuala Lumpur in May 2010 to attend the Sixth World Islamic
Economic Forum.
This
500 page book is probably the leading treatment of the subject in
English, and I recommend it to anyone seriously interested in Islamic
thinking.
This review uses some of Kamali’s chapter headings. I have not
attempted to cover all of Kamali's material but only those subjects
which I find particularly interesting or which give an important
insight into the work. Accordingly this review does not claim to be a
comprehensive summary of the book.
Introduction to usul al-fiqh
Fiqh is an Arabic word which can be translated as Islamic law. Its
primary sources are the Quran and the Sunnah (the sayings and the
actions of the Prophet Muhammad, peace be upon him, as recorded in the
hadith).
Usul al-fiqh is the study of the sources of Islamic law and the
methodology by which Islamic law is developed. Fiqh is the end product
of the application of usul al-fiqh which is best translated as Islamic
jurisprudence.
To be a competent Islamic jurist one must know both the law and the
methods by which it was developed. As an example, Kamali points out that
Islamic law prohibits theft. However the jurist needs to know the
source which in this case is given as the Quran 2.188
"Devour not each other's property in defiance of the law."
During the lifetime of the Prophet (pbuh) Islamic law existed in the
form of the Quran and the Prophet's rulings. However Islamic
jurisprudence was not required as any new problem not covered by
existing Islamic law could be referred to the Prophet (pbuh) for a
decision. That decision would then become a part of the expanded
Islamic law.
After the Prophet (pbuh) died, legal decisions were made by his
companions, inspired by their knowledge of his approach to decisions,
and they were not in need of any formal legal methodology or
jurisprudence. However with the passage of time those who had known the
Prophet (pbuh) passed away and gradually jurisprudence became a formal
methodology.
The first source of Shariah: the Quran
Whereas Kamali is careful to define Arabic terms when he first uses
them, he fails to do so with the word "Shariah" and the word is missing
from the glossary at the end of the book. I suspect that this apparent
oversight arises from the fact that Shariah is such an overarching
concept for Muslims. The original meaning of the Arabic word Shariah is
a path to water, which is of course a vital requirement in the Arabian
desert. In a religious sense, Shariah can be understood as the path to
salvation and encompasses all of the teachings and doctrines of Islam.
Given the importance of law to the practice of Islam, the common
English translation of Shariah as "Islamic law" is not unreasonable but
in my view it is more accurate to think of "Islamic law" as being fiqh
and to think of Shariah as something more overarching such as “Islamic
doctrine.”
Kamali explains that religious scholars are unanimous that the Quran
is the most fundamental source of the Shariah. Indeed, some scholars
consider it to be the only source, regarding all other sources as only
being explanatory of the Quran. However Kamali points out that while
the Quran contains over 6200 verses, less than 10% relate to law and
jurisprudence while the remainder deal with matters of belief, morality
and faith.
The definitive (qati) and the speculative (zanni)
Given the importance of the Quran, the way that it is to be read and
understood is fundamental. Kamali explains that rulings in the Quran
may be conveyed in text which is either unequivocal or in language that
is open to different interpretations.
A definitive text is one which is clear and specific; it has only
one meaning and admits of no other interpretations. Kamali gives the
example of Quran 4.12 which entitles a husband to half of the estate of
his deceased wife if she leaves no child:
"In what your wives leave, your share is a half, if they leave no child."
Kamali explains that a definitive text is binding upon everyone and is
not open to ijtihad (literally "exertion" and technically the effort a
jurist makes in order to deduce the law, when it is not self-evident,
from its sources.)
Conversely, speculative verses of the Quran are those which are open
to interpretation and ijtihad. Kamali explains that the best
interpretation is that derived from the Quran as a whole while the
Sunnah is another source that supplements the Quran and helps with its
interpretation.
Kamali illustrates this with Quran 4.23
"Prohibited to you are your mothers and your daughters." The prohibition of marriage with one's mother is definitive.
However the Arabic word for
"your daughters"
could be taken literally which would be any girl for whom you are the
biological father. Alternatively the juridical meaning could be applied
which limits the meaning to a legitimate daughter. The jurists
disagree which meaning applies. Kamali states that the Hanafi school
(there are four main schools of Islamic law named after their founders)
follow the first meaning prohibiting marriage to your illegitimate
daughter. Conversely the Shafi school follow the second interpretation
permitting marriage with your illegitimate daughter.
The Sunnah
Kamali starts by explaining the meaning of the word.
"Literally, Sunnah means a clear path or a beaten track but it is
also used to imply normative practice, or an established course of
conduct. A Sunnah may be a good example or a bad one, and it may be set
by an individual, a sect or a community. In pre-Islamic Arabia, the
Arabs use the word "Sunnah" in reference to the ancient and continuous
practices of the community that they inherited from their forefathers.
Thus it is said that the pre-Islamic tribes of Arabia each had their
own Sunnah, which they considered the basis of their identity and
pride. The opposite of Sunnah is bidah, or innovation, which is
characterised by lack of precedent and continuity with the past."
The scholars of jurisprudence consider Sunnah as referring to all
that is narrated from the Prophet (pbuh), his acts, his sayings and
whatever he has tacitly approved.
Kamali explains that although scholars have used Sunnah and hadith
almost interchangeably, the words have distinct meanings. Sunnah occurs
16 times in the Quran and is always used to imply an established
practice or course of conduct. Hadith occurs 23 times in the Quran and
in each case carries the meaning of a narrative or communication. None
of the occurrences in the Quran use the word hadith in its technical
exclusive sense of being a saying of the Prophet (pbuh). In juristic
terms, Kamali states that hadith is a narration of the conduct of the
Prophet (pbuh) whereas Sunnah is the law that is deduced from that
conduct.
Proof-value (status) of Sunnah
Kamali explains that the scholars are unanimous that Sunnah is a
source of Shariah. As the Quran commanded Muslims to obey the Prophet
(pbuh), his words were obligatory for anyone who heard them. For the
rest of us who receive them through the verbal and written reports of
narrators, we need to ascertain their authenticity which may be
definitive or it may be a preferable conjecture; in either case such
established reports should be followed.
However, the Sunnah divides into two categories, non-legal and legal.
Non-legal Sunnah mainly consists of the natural activities of the
Prophet (pbuh) such as the way he ate, slept and dressed. According to
the majority of scholars, the Prophet’s (pbuh) preferences in these
areas such as his favourite colours were peripheral to his prophetic
mission and are therefore not part of the Shariah. The same would apply
to what the Prophet (pbuh) did in very particular circumstances such
as the timing of military actions; these are considered situational and
not part of the Shariah.
In some cases it is difficult to determine the status. For example,
the Prophet (pbuh) kept his beard at a particular length and trimmed
his moustache. The majority of scholars have regarded this as an example
that believers must follow. Conversely other scholars consider that
the Prophet (pbuh) was simply following the social practice of the
Arabs at that time which was designed to prevent resemblance to the
Jews and to some non-Arabs who used to shave their beards and grow
their moustaches. This view makes the style of facial hair optional.
The legal Sunnah consists of the actions of the Prophet (pbuh) which
were expressly intended to set an example. This legal Sunnah itself
divides into three types depending upon the capacity in which the
Prophet (pbuh) was acting:
- the Messenger of God
- the head of state or imam
- a judge
Rules which the Prophet (pbuh) laid down in his capacity of Messenger
of God pertaining to the principles of the religion, especially in the
area of devotional matters and setting out what is permissible and
what is prohibited are general legislation whose validity is not
restricted by the limitations of time and circumstance. Instead they
apply to all Muslims everywhere. The individual Muslim should act upon
these laws without needing prior authorisation from a religious leader
or the government.
Conversely action which the Prophet (pbuh) authorised in his
capacity as the imam can only be acted upon by other Muslims with prior
authorisation of the imam for the time being. This would include
matters such as government administration, signing treaties, division
of the spoils of war, the declaration of war etc. Kamali points out
that sometimes determining the status is difficult. He cites the
hadith:
"Whoever kills a warrior [in battle] may take his belongings."
Kamali states:
"Imam Malik held that the Prophet (pbuh) offered 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 authorisation of the
imam. The majority 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."
Sunnah originating from the Prophet (pbuh) in his capacity as a
judge in particular disputes usually has two parts. One is situational
relating to the specific dispute and does not constitute general law.
The second part, being the judgement itself lays down general law.
However nobody may act upon it without the prior authorisation of a
competent judge since the Prophet (pbuh) himself was acting in a
judicial capacity.
The distinction between the Quran and Sunnah
The Quran was recorded in writing from beginning to end during the
Prophet's (pbuh) lifetime. He was anxious to ensure that his own Sunnah
was not confused with the text of the Quran and initially discouraged
his companions from writing down his Sunnah.
Accordingly, while we have a single agreed text of the Quran, open
only to disputes regarding its meaning in certain cases, most of the
Sunnah is only available in the form of narrations from transmitters and
many of the hadith which have come from different lines of
transmission differ in their detailed content. Unlike the Quran, the
Sunnah faces issues not only of interpretation but also of
authenticity. Kamali discusses this later in the book.
The priority of the Quran over the Sunnah
Kamali is categorical that the Sunnah is the second source of the
Shariah after the Quran. Accordingly the jurist looking for the solution
to a legal question must resort to the Sunnah only when he fails to
find any guidance in the Quran. If there is a clear text in the Quran,
it takes priority over any conflicting ruling of the Sunnah.
The reason the Quran takes priority is that it consists entirely of
manifest revelation whereas the Sunnah, even though inspired by God, is
largely transmitted in the words of the narrators and also is open to
questions of authenticity. Conversely, the authenticity of the Quran is
not open to doubt. Furthermore, the Sunnah is explanatory of the Quran.
Kamali cites the Prophet (pbuh) sending Muadh ibn Jabal as a judge
to the Yemen and asking him how he would reach his decisions. Muadh
responded that he would first refer first refer to the
"book of God" and then to the
"Sunnah of the messenger of God."
He points out that this example was expressly referred to by the
second Caliph Umar ibn al-Khattab in writing addressed to two judges
who were ordered to resort to the Quran first and the Sunnah only when
they could find no guidance in the Quran.
Is Sunnah an independent source?
Kamali explains that there are three types of relationship between the Quran and the Sunnah.
- Sunnah which simply confirms something which is already in the Quran.
- Sunnah which explains, clarifies or amplifies an existing teaching of the Quran.
- Rulings in the Sunnah on which the Quran is silent.
Kamali states that the first two varieties listed above constitute
the majority of the Sunnah and that the ulama consider that these two
types are integral to the Quran and constitute a logical whole with it.
He goes on to say:
"It is considered that the Sunnah that qualifies or elaborates the
general provisions of the Quran on devotional matters (ibadat), on the
punishment for theft, on the duty of Zakah and on the subject of
bequests, could only have originated in divine inspiration (ilham), for
these cannot be determined by means of rationality and ijtihad alone."
He states that it is the third category which is the subject of
debate as to whether the Sunnah is an independent source of law, and
proceeds to discuss the alternative arguments of scholars.
Classification and value of hadith
Kamali explains in this section the methodology applied to evaluate
hadith for genuineness and reliability. As he has written a separate
book on this subject, this review does not try to summarise his
exposition within the current book.
The highest category of hadith is mutawatir which means 'continuously recurrent.' This means
"a report by an indefinite number of people related in such a way as to
preclude the possibility of the agreement to perpetuate a lie.” Kamali explains that the majority of ulama regard the authority of a mutawatir hadith as equivalent to that of the Quran.
The next category down is a mashur (well-known) hadith. The schools
of thought differ on the level of certainty that a mashur hadith gives.
Rules of interpretation - deducing the law from its sources
Kamali explains that in Arabic there are two common words for "interpretation" namely tafsir and tawil.
Tafsir literally means "explanation" and basically aims at
explaining the meaning of a given text and deducing the ruling from it
within the confines of the words and sentences. Accordingly the
explanation follows immediately from the content of the text.
The word tawil could be translated as "allegorical interpretation"
but Kamali prefers to use the Arabic word. Tawil goes beyond the
literal meaning of words and sentences and reads into them a hidden
meaning which is often based upon speculative reasoning and ijtihad. It
should only be used when there is evidence to justify the departure
from the manifest meaning of a text.
Tawil itself fall into two categories:
- remote or far-fetched
- relevant
Kamali illustrates remote tawil with the example of the Hanafi
interpretation of a hadith. One of the companions of the Prophet (pbuh),
Firuz al-Daylami embraced Islam having married two sisters before he
became a Muslim. The Prophet (pbuh) ordered him to
"retain one of the two, whichever you wish, and separate from the other."
The Hanafi interpretation is that al-Daylami was instructed to
contract a new marriage with one of the sisters if he had previously
married both in a single contract of marriage. However if he had
married each sister in a separate contract, he was to retain the one
whom he had married first without requiring a further marriage
contract.
Their logic for this tawil interpretation is that there is a rule of
Shariah prohibiting two women being married in a single contract.
However the jurists regard this Hanafi interpretation as remote and not
supported by the wording of the hadith. As a new convert to Islam,
al-Daylami would not be expected to be familiar with the detailed rules
of Shariah. Accordingly had the Prophet (pbuh) intended the
interpretation given by the Hanafis, he would have clarified his ruling
himself.
As an illustration of relevant tawil, Kamali cites the Quranic verse 5.6
"O believers, when you stand for salah [prayer], wash your faces and your hands up to the elbows."
The interpretation is that ablution is required before standing for
prayer since the contrary interpretation of performing ablution after
starting to pray makes no sense.
Rules of interpretation – textual implications
Kamali explains that the law normally requires compliance not only
with the obvious meaning of a sacred text but also with its implied
meanings and indirect implications and inferences that could be drawn
from the text. He explains that Hanafi jurists have distinguished four
levels of meaning in declining order of priority.
(1) The explicit meaning (Ibarah al-Nass)
This is the immediate meaning of the text derived from its obvious
words and sentences. Such a meaning conveys a definitive ruling on its
own without needing corroborative evidence.
(2) The alluded meaning (Isharah al-Nass)
As well as the explicit meaning, a text may also can be an
additional meaning that is logically necessary. This alluded meaning may
be easily detectable or may need deeper investigation.
Kamali gives the example of Quran 2.233
"it is his [father's] duty to provide them with maintenance and clothing according to custom." The
explicit meaning is the father's duty to support his child. However a
further implication is that a child’s descent is solely attributed to
the father. Furthermore when combined with the hadith
"you and your property both belong to your father"
the text provides authority for the father if in dire need to take
what he needs of his child’s property without seeking the child’s
permission.
(3) The inferred meaning (Dalalah al-Nass)
This is a meaning derived from the spirit and rationale of a text
even when it is not indicated in the words and sentences. Instead it is
derived through analogy and some scholars have in fact treated it as
equivalent to analogical deduction (qiyas jali) which is discussed
later.
Kamali gives the example of Quran 17.23
"and say not "Fie" to them [one's parents]"
where the explicit meaning is uttering words of contempt to your
parents. The inferred meaning is that all forms of abusive behaviour
and acts which offend your parents are forbidden.
(4) The required meaning (Iqtida al-Nass)
This is a meaning on which the text itself is silent but which must
be read into the text if the text is to fulfil its proper objective.
Kamali gives the example of Quran 5.
3 "Unlawful to you are the dead carcass and blood". Although the text does not refer to eating, that is a necessary implication for the text to convey a complete meaning.
Kamali gives an example of how the explicit meaning takes priority over the alluded meaning. Quran 4.93 states
"Whoever deliberately kills a believer; his punishment will be permanent hellfire."
The explicit meaning of this verse is that a murderer is punished in
the hereafter. However there is an alluded meaning that a murderer does
not need punishment in this lifetime as they will be punished after
death. Yet Quran 2.178 provides
"retaliation is prescribed for you in cases of murder" and the explicit meaning of that verse takes priority over the alluded meaning of verse 4.93.
Kamali also gives an example of the conflict between the alluded meaning and the inferred meaning. Quran 4.92 states
"The expiation (kaffarah) of anyone who erroneously kills a believer is to set free a Muslim slave."
The explicit meaning of the text is straightforward. The inferred
meaning is that freeing a Muslim slave is also required in the case of
intentional killing. However the following verse 4.93 quoted above has
an alluded meaning that murder is so heinous that there is no room for
expiation so that the killer is not required to free a slave. The
alluded meaning of 4.93 takes priority over the inferred meaning of 4.92
so the murderer is not required to pay expiation, although he is of
course subject to retaliation.
This demonstrates the Hanafi school order of priority mentioned earlier.
However the Shafi school considers that the inferred meaning takes
priority over the alluded meaning on the grounds that the inferred
meaning is based on the language and rationale of the text whereas the
alluded meaning is not. Accordingly the Shafi school would require the
murderer to pay expiation as well as suffering retaliation.
The divergent meaning (Mafhum al-Mukhalafah)
Kamali explains that the rule is that a legal text never implies its
opposite meaning and that any attempt to obtain two divergent meanings
from one and the same text goes against the principles of
interpretation. Accordingly the Hanafi school basically consider that
the divergent meaning is not a valid method of interpretation. However
it is used on a restricted basis by the Shafi school but also (despite
the preceding comment) by the Hanafi school in certain cases.
A divergent meaning is one which is derived from the words of the
text but in a way that diverges from the explicit meaning. Looking at
the examples Kamali discusses in his book, I think it is fair to say
that a divergent meaning consists of trying to derive a legal ruling by
looking at the opposite of the explicit meaning of a text.
Kamali gives the example of Quran 6.145
"Say,
I find nothing in the message that is revealed to me forbidding anyone
who wishes to eat except the dead carcass and blood shed forth."
Looking at the final part of this verse, the divergent meaning would be
to say that since blood shed forth is prohibited, blood which is not
shed forth is lawful for consumption. That is regarded as improper
reasoning.
Abrogation (Naskh)
In today's world abrogation is one of the most controversial issues
in Islam. At the risk of extreme oversimplification, many of the verses
in the Quran that were revealed in Mecca convey a universalistic
message of religious tolerance while some of the verses revealed later
in Medina can be interpreted as "warlike" or intolerant of non-Muslims.
If one regards these later verses as abrogating the earlier ones, one
can paint an image of Islam that is narrow and exclusionary. This is
done today both by non-Muslims wishing to criticise Islam but also by
some Muslims (for example the adherents of Al Qaeda) who contend that
the only relationship between Islam and other religions is one of
unavoidable military conflict.
Literally the word naskh means 'obliteration.' Kamali writes:
"Naskh may be defined as the suspension or replacement of one
Shariah ruling by another, provided the latter is of subsequent origin,
and that the two rulings are enacted separately from one another.
According to this definition, naskh operate with regard to the rules of
Shariah only, a proviso which precludes the application of naskh to
rulings that are founded in rationality ('aql') alone."
Kamali makes a number of points in his discussion of the subject:
- Abrogation applies almost exclusively to the Quran and the Sunnah but not to ijma and qiyas.
- It is confined to the period while the Prophet (pbuh) was alive.
- Ijma cannot abrogate a clear ruling of the Quran or the
Sunnah since one can never conclude a valid ijma that contradicts
the Quran or the Sunnah.
- A Quranic ruling or a mutawatir hadith cannot be abrogated
by a weaker hadith, by ijma or by qiyas. These are not of equal
authority to the foregoing. That is also the reason why there can
be no abrogation after the Prophet (pbuh) died.
- Statements of fact in the Quran (such as the destruction of
the people of Thamud by a storm) cannot be abrogated since that
would imply that the original statement in the Quran had been
false.
- Some Quranic teachings (for example the attributes of God) are inherently incapable of being abrogated.
- The text itself may preclude the possibility of abrogation.
For example Quran 24:4 states that persons who are convicted of
slanderous accusation may never be admitted as witnesses. The word
“never” indicates that this is a principle valid for all time and
therefore not capable of being abrogated.
- There are varying views as to whether a hadith can abrogate
the Quran. The general view is that a ruling of the Quran may be
abrogated by another Quranic text or by a mutawatir hadith. The
Hanafi view permits abrogation of the Quran by a mashhur hadith as
that is almost as strong as a mutawatir hadith.
Conversely Shafi and ibn Hanbal considered that no hadith could abrogate
the Quran. Shafi explains his view by reference to Quran 16:101 'and when we substitute one ayah in place of another ayah, and God knows best what He reveals.' According
to Shafi, this text is self-evident on the point that an ayah of
the Quran can only be abrogated or replaced by another ayah. That
argument is further strengthened by Quran 10:15 'Say: it is not for me to change it of my own accord. I only follow what is revealed to me.' which makes it clear that the Prophet (pbuh) himself cannot change any part of the Quran.
However Kamali explains that despite Shafi’s arguments, the
majority opinion of scholars is that the Sunnah can abrogate the
Quran (and vice versa.)
Kamali points out that the scholars are not unanimous about whether
abrogation has actually occurred in the Quran. He mentions that
al-Suyuti claimed to have identified 21 occurrences of abrogation within
the Quran while Shah Wali Allah accepted only five of those as genuine
abrogation contending that all of the rest can be reconciled. Another
scholar, Abu Muslim al-Isfahani denied the existence of abrogation in
the Quran altogether. However the majority view is that abrogation
within the Quran does take place as the ayahs quoted earlier attest to
it. The commentators in the minority who contend that there is no
abrogation consider that the ayahs mentioned in these quotations as
being substituted refer not to ayahs of the Quran but to previous
Scriptures such as the Torah and the Bible.
Kamali accepts the majority view that abrogation has occurred within
the Quran but points out the divergence regarding the number of
instances, quoting the varying counts of abrogation identified by
different scholars:
- 214 Ibn Hazm al-Zahiri
- 213 Wahbatullah Ibn Salamah
- 247 Jalaml al-Din Ibn Jawzi
- 500 The Mutazilites
- 66 Abd al-Qadir al Baghdadi
- 21 Jalal al-Din al-Suyuti
- 5 Shah Wali Allah
- Zero - Abu Muslim al-Isfahani
Kamali goes on to explain the tendency of modern scholars to reduce
the instances of abrogation to the lowest possible number. He points out
that some of the large numbers above arise from confusing naskh with
takhsis (specification, i.e. making a ruling more specific) and also
occasions where the effective cause of a ruling disappears:
"Similarly, large numbers of Quranic ayat that advocated patience
and tolerance towards the unbelievers were claimed to have been
abrogated by the ayat that authorised fighting the unbelievers. There
was in reality no abrogation and both rulings were valid under
different circumstances. The earlier ayat applied at a time when the
Muslims were small in number and weak, and the latter when they
acquired military power."
Kamali goes on to draw upon criticism of the approach of some early
Muslim scholars in the book “The Islamic Theory of International
Relations: New Directions for Islamic Methodology and Thought” by Abdul
Hamid Abu Sulayman. Kamali writes:
"The broad sweep of naskh was, however, taken so far as to
invalidate a major portion of the Quran. This is precisely the case
with regard to the ayah of the sword (ayah al-sayf) which reads: 'and
fight the polytheists all together as they fight you all together, and
know that God is with those who restrain themselves' (al-Tawbah, 9:36).
Influenced by the prevailing pattern of hostile relations with
non-Muslims, some jurists took an extreme position in interpreting this
ayah, and claimed that it abrogated all preceding ayat pertaining to
patients, tolerance and the right of others to self-determination.
Although scholars are not in agreement on the exact number of ayat that
were abrogated as a result, Mustafa Abu Zayd has found that the ayah
of the sword abrogated no less than 140 ayat in the Holy Book. Jurists
who were inclined to stress the aggressive aspect of jihad could only
do so by applying abrogation to a large number of Quranic ayat, and
'using abrogation in this manner has', Abu Sulayman contests, 'indeed
narrowed the Quranic experience' and undermined the egalitarian
substance of its teachings. In many passages the Quran calls for peace,
compassion and forgiveness, and promotes a set of moral values such as
moderation, humility, patience and tolerance whose scope could not be
said to be confined to relations among Muslims alone."
Kamali's overall conclusion is to express doubt about the theory of abrogation:
"My general comment is that the theory of naskh and most of its
cited examples are also open to a variety of doubts. Naskh as a whole
is really too controversial to command the alleged support of the
majority (jumhur) of Muslim scholars in its favour. To say that there
were instances where some of the rulings of Sunnah, or even of the
Quran, were amended due to the change of circumstances is not in doubt.
But then to extend the scope of this essentially circumstantial
phenomenon to a juridical doctrine with a theory, definition and
typology of its own is less than warranted. Naskh is basically factual
and has little juridical substance of its own, nor does it seem to have
a direct bearing on the substance of legal theory."
Consensus of opinion (ijma)
Ijma is defined as the unanimous agreement of the mujtahidun
(jurists competent to formulate independent tradition-based opinions in
legal or theological matters) at any point in time after the death of
the Prophet (pbuh). It was clearly not relevant while the Prophet
(pbuh) was alive since during his lifetime only he was able to lay down
religious decisions. Only the views of mujtahidun are taken into
account; the opinions of laymen do not matter.
Kamali states four requirements for ijma:
- There must be a number of mujtahidun available when the
issue is encountered. Ijma can never come from a single mujtahid
or from a minority of mujtahidun.
- The majority view of the scholars is that unanimity of the
mujtahidun is required to establish ijma. Accordingly if some
scholars dissent, there cannot be ijma.
- The agreement of the mujtahidun must be demonstrated by their expressed opinion.
- Although some scholars disagree, the generally accepted view
is that any level of dissent disqualifies the existence of ijma.
Analogical reasoning (qiyas)
Qiyas is a method for extending the application of Shariah from an
original case to a new case because the latter has the same effective
cause as the original case. This does not involve creating new law but
only the extension of existing law. Kamali gives some simple examples:
- The Quran in 62:9 prohibits buying and selling goods from
the last call of Friday prayer until the Friday prayer is
concluded. Using qiyas this prohibition is extended to all other
kinds of transactions since the effective cause, namely diversion
from prayer, is common to all transactions.
- There is a hadith that the killer shall not inherit from his
victim. Using qiyas this ruling is extended to bequests so that
the killer can also not benefit from the will of his victim.
Revealed laws preceding the Shariah of Islam
The scholars are unanimous that all of the revealed religions
(Judaism, Christianity and Islam) are different manifestations of an
essential unity. The Shariah of Islam has retained many of the previous
laws while abrogating or suspending others.
This chapter discusses the following alternative propositions:
- The laws preceding Islam are valid unless they are specifically abrogated by the Shariah of Islam.
- The preceding laws are nullified for Muslims unless they are specifically upheld by the Shariah of Islam.
After discussing the issue, Kamali concludes that proposition two is correct.
Custom (urf)
While the Quran and the Sunnah are the primary and secondary sources of Islamic law, there are also tertiary sources.
Kamali defines urf as "
Recurring practices that are acceptable to people of sound nature." He goes on to explain
"Custom
that does not contravene the principles of Shariah is valid and
authoritative; it must be observed and upheld by a court of law."
In my view this is similar to the way that English common law
developed from the customs and practices of the Anglo-Saxons living in
England. It also shows that although the teaching of the Prophet (pbuh)
radically transformed pre-Islamic Arab society, it did not replace
previous practices that did not conflict with Islam. Kamali writes:
"The ulama have generally accepted urf as a valid criterion for the
purposes of interpreting the Quran. To give an example, the Quranic
commentators have referred to urf in determining the precise amount of
maintenance a husband must provide for his wife. This is the subject of
sura al-Talaq (65:7) which provides 'Let those who possess means pay according to their means.' In this ayah, the Quran does not specify the exact amount of maintenance, which is to be determined by reference to custom."
Kamali goes on to discuss the requirements for the existence of a
valid urf and also points out that custom will change from time to time
as society itself changes.
Presumption of continuity (istishab)
Kamali explains that the word istishab literally means escorting or
companionship and is used in the sense that the past accompanies the
present without any interruption or change. He writes:
"For the Shafis and the Hanbalis, istishab denotes 'continuation of that which is proven and negation of that which had not existed'.
Istishab, in other words, presumes the continuation of both the
positive and negative until the contrary is established by evidence."
As an illustration, if someone who owes a debt claims that it is no
longer his liability, he needs to prove that he has repaid it.
Conversely if someone wishes to claim that another person owes him
money, it is up to the claimant to prove that the debt has come into
being.
Personal reasoning (ijtihad)
Ijtihad is the most important source of Islamic law after the Quran
and the Sunnah. It incorporates all of the processes for deriving
Islamic law covered in the book such as consensus of opinion, analogy,
juristic preference, considerations of public interest etc. The literal
meaning of ijtihad is "striving" and of course it relates to
intellectual exertion rather than physical exertion.
Ijtihad can only be practised by an appropriately qualified person, a
mujtahid who must be a Muslim of sound mind who has attained a level
of intellectual competence that enables him to form an independent
judgement. There are detailed requirements regarding expert knowledge
of the Arabic language, of the Quran including the details of the
revelation of its verses, of the hadith and of the work of earlier
religious scholars.
Ijtihad is not possible where there is an existing clear ruling of
the Quran or the Sunnah. However ijtihad may be practised where the
meaning of the text of the Quran is unclear, where a hadith is unclear
or where a hadith is clear in its terms but the reliability of the
hadith is uncertain.
Ijtihad is a religious duty; once a person is appropriately
qualified as a mujtahid he may no longer follow the rulings of others by
imitation (taqlid) but must reach his own decision by practising
ijtihad and his conclusion then becomes binding upon himself.
The divisibility of ijtihad
The scholars disagree on the question of whether qualification to
practice ijtihad is divisible. Some consider that the requirements to be
a mujtahid can only be met in full and that once somebody is so
qualified he can practice ijtihad in all areas of the Shariah.
Conversely other scholars consider that a person can be learned in a
particular area of the Shariah only and be qualified to practice
ijtihad within that limited area but not within other parts of the
Shariah. In practice many of the most prominent imams have acknowledged
their limited knowledge in certain areas; Imam Malik is said to have
admitted that for at least 36 issues he did not know the right answer
even though there are no doubts regarding his competence as a
fully-fledged mujtahid.
Did the Prophet (pbuh) practice ijtihad?
Kamali has a section discussing this interesting question. The
scholars generally agree that the Prophet (pbuh) practised ijtihad in
temporal and military matters, but differ regarding whether he practised
ijtihad on Shariah questions.
Some scholars point to Quran 53:3
'he says nothing of his own desire, it is nothing other than revelation sent down to him.’ They
contend that this ayah implies that all of the rulings of the Prophet
(pbuh) consist of divine revelation so that none of them constitute
ijtihad.
Kamali explains that the majority view is that in the above ayah
"it" refers to the Quran itself and not to every word that the Prophet
(pbuh) spoke. In particular, there are instances in the Quran where
earlier decisions of the Prophet (pbuh) are overruled and he is
reprimanded by God while being given a divine pardon for his mistakes.
This majority view is also supported by the Sunnah, for example the
hadith
'when I do not receive a revelation, I adjudicate among you on the basis of my opinion.'
Restrictions on ijtihad
As part of a drive to impose restrictions on ijtihad, the scholars
of the fifth/eleventh century classified the right to practice ijtihad
into different categories, eventually reaching seven categories:
- Full mujtahid who derives rulings from the evidence in the
original sources without being restricted by the rules of a
particular school of thought. Quite critically, with the exception
of the Hanbali school, the other three schools of thought
concluded that independent ijtihad had been discontinued; the so-called
"closure of the gate of ijtihad."
- Mujtahidun who are limited to expanding the law within the
confines of a particular school of thought while adhering to the
principles laid down by the imam of that school.
- Mujtahidun on particular issues only. While the
practitioners within these first three categories are called
mujtahidun, the scholars in the following four categories have
been classified as imitators.
- The so-called ashab al-takhrij who did not deduce rulings
but were knowledgeable about existing doctrine and able to
indicate which view was preferable in cases of ambiguity or for
particular prevailing conditions.
- The ashab al-tarjih who were competent to make comparisons
and distinguish the correct (sahih), the preferred (rajah, arjah)
and the agreed upon (mufti biha) views from weaker ones.
- The ashab al-tashih who could distinguish between the
manifest (Zahir al-riwayah) and the rare or obscure (al-nawadir)
views of the schools of thought to which they belonged. Kamali
points out that categories 4-6 overlap somewhat and could easily be
consolidated into one.
- The muqallidun (‘imitators’) who lack the abilities of any of the above classes.
Over the last 200 years there has been movement back towards the
wider practice of ijtihad, seeking to renovate Islam by going back to
the original sources of the Quran and Sunnah rather than being confined
to the rulings of earlier jurists.
A new scheme for usul al-fiqh
Kamali points out that the methods of usul al-fiqh are conspicuously
absent in the legislative and judicial decision-making processes of
contemporary Muslim majority countries. He points out the theoretical
orientation of usul al-fiqh:
“Usul al fiqh is often described as a theoretical, rather than
empirical, discipline, which is studied more for its own sake than as a
means by which to develop the law in relation to new issues. This is
one of the problems of the legal theory of usul, which took a turning
for the worse with the domination of taqlid around the fourth/tenth
century. With the so-called closure of the door of ijtihad, the ulama
resorted less and less to the sources of Shariah for finding solutions
to problems. Instead of addressing social issues and attempting to find
new solutions, the ulama of later ages (al-muta akhkhirun) occupied
themselves mainly with the elaboration, annotation, abridgement,
summaries and glossaries of the works of their predecessors. At first,
ijtihad was discouraged. Then in the fifth/eleventh and sixth/twelfth
centuries, scholars were restricted to tarjih, or giving preference to
the opinion of one Imam or another on questions of fiqh. However tarjih
was also discouraged and scholars were restricted to choosing between
rulings within a single madhab [school of thought]. In this way the
door to independent legal thought was shut and then barred.”
Kamali emphasises the lack of empiricism in the work of the ulama
and the fact that they paid little attention to developing systematic
rational knowledge regarding law and social structure. He also points
out that usul al-fiqh was developed by private jurists working in
isolation from government and often with unfriendly relations with
government. This rift began with the Umayyad rulers and became deeper
under the Abbasids.
He considers that usul al-fiqh could be considerably improved by
integrating the Quranic principle of consultation into its procedures
and also by becoming more connected with the practicalities of
government.
Conclusion (Kamali's last chapter)
Kamali reminds us that Shariah is not static:
“It is equally evident that the methodology of usul al-fiqh would
have little meaning and purpose if the Shariah were meant to be a fixed
and unchangeable entity. Usul al-fiqh is predicated on the idea of
development and growth, and functions as a vehicle of accommodation and
compromise between the normative values of Shariah and the
practicalities of social change.”
Overall, he seeks some form of integration between the elected
representative assemblies that democratic Muslim majority countries
that have set up and usul al-fiqh.
Reviewers concluding comments
Despite being 500 pages long, the book was easy to read because the
importance of the subject matter and Kamali’s clear writing style keeps
one reading. He brings out the differences between the various schools
of thought, and is not afraid to offer his own opinions.
Reading the book will give both Muslims and non-Muslims a much
deeper appreciation of the richness of Islamic thought. It shows the
great care Muslims have taken over the interpretation of the Quran and
Sunnah, and how they were able to extend these sources to generate new
law as circumstances changed.
All too often, some Muslims assert that theirs is the only true
interpretation of Islam, with their assertions often being accompanied
by threats of takfir (pronouncement that a person has ceased to be a
Muslim) directed against anyone who dares to disagree with them.
Reading this book will equip Muslims to treat such assertions with the
scepticism that they deserve.
Sumber:
http://www.mohammedamin.com/Reviews/Principles-of-Islamic-jurisprudence.html
