Sources of Islamic law
By Haider Zaman
The Holy Quran is undoubtedly the basic and primary source of Islamic law. Next in the order of importance are the traditions of the Prophet (peace be upon him). Most of the Quranic injunctions and admonitions can be correctly understood only when they are viewed in the light of what the Prophet said or what he did in the situation to which the injunction or admonition pertains.
In addition, the Prophet also provided guidance to the people in all such cases where the Quran was silent.
The third source of Islamic law is Ijma which means consensus of opinions of those who are well known for their piety and are well versed in the subject. This particular course was frequently resorted to by Hazrat Abu Bakr, who, while deciding on an issue, had to first refer to the Quran. Not finding any solution therein, he used to take recourse to the traditions of the Prophet.
If there was no precedent in the traditions he would then consult his companions and the issue used to be decided by consensus. The Quran specifically advised the Prophet to consult his companions in the conduct of affairs (3:159). It also treats those who do their work through consultation as the people being rightly guided (42:38).
The fourth source of Islamic law is Ijtihad which means the use of one's judgment or common sense while deciding an issue. When the Prophet appointed Muaad bin Jabal as the governor of Yemen, he asked him how would he decide various issues that might be brought before him for adjudication. Jabal replied that he would decide them in the light of what the Quran said in regard to the matters at issue.
Then the Prophet asked him what would he do if he couldn't find the appropriate solution or answer in the Quran. Jabal said that he would refer to the traditions of the Prophet. The Prophet again asked him what he would do if he couldn't find any answer or solution in the traditions. Jabal replied that he will use his own judgment which was approved by the Prophet.
Thus, the use of Ijtihad which was sanctioned by the Prophet became another source of Islamic law. And it was this particular source that played a vital role in the evolution and development of Islamic jurisprudence. Recourse to this source was unfortunately discontinued after the 11th century A.D. It may also be pointed out that the Quran too emphasizes the use of intelligence and common sense whether it be in matters of faith or otherwise (67:10).
The fifth source, popularly known as Qiyas i.e. reasoning by analogy, originated in the days of Hazrat Umar as caliph. The caliph, while instructing Abu Musa Ashaari about the procedure he had to follow while deciding various issues that might be brought before him, directed "when you do not find any judgment or issue in the Quran or traditions and are in doubt about it, ponder over the question and ponder again.
Then look for edicts on similar issues and decide accordingly." This obviously implied generalization of a particular dictum on the basis of community of features. In other words, the decision or ruling already given on an issue had to be followed in giving decisions on all issues having the same features coming up for decision thereafter.
The practice of citation of case law in the present day judicial proceedings is based exactly on the same principle. A decision given by a superior court in one case is followed by the lower courts in all subsequent cases involving the same issues arising out of similar facts under the same law. Qiyas, it may be added, is not the same thing as Ijtihad, one can take recourse to Ijtihad without there being any edict on the like or similar issue.
The Quran is the last book of guidance from Allah. We cannot expect any more divine guidance to come. It is also a fact that the Quran is a complete code of life, providing guidance in respect of every aspect of life. This guidance is, however, provided through injunctions, admonitions and enunciation of principles, mostly in broad terms. This is so because human society is not a static entity or object.
Human society has undergone radical changes in a short span of time. That's why most of the guidance provided to human beings is not so specific or minute in details. Neither the Quran nor the traditions provide specific solutions to all the problems and issues that can possibly confront us in life. That's why the Prophet asked Muaad bin Jabal about what he would do if he couldn't find any solution to an issue in the Quran or in traditions.
We cannot avoid changes specially those occurring in various aspects of socio-economic life. The Quran rather supports continuous improvement and progress in the right direction (2:148) (13:11) (20:114). Nor can we bypass or cross the limits imposed by the Quran and traditions in the form of principles and guidelines. But at the same time, the Quran and traditions provide enough guidance in this regard (29:69).
With the aid of Ijma, Ijtihad and Qiyas we can suitably adjust our responses to such changes or work out solutions to the new problems within the parameters laid down by the Quran and he traditions. For example, Hazrat Umar changed the rate of Jizyah when the circumstances so demanded. Likewise, we cannot abolish zakat or change its rate but we can regulate or reformulate the methods of its collection and spending within the limits of the guidelines provided by the Quran and tradition.
It is time we started taking recourse to the two important sources of Islamic law, namely, Ijma and Ijtihad wherever practicable. The principles of Qiyas are already being followed in the judicial proceedings. But we need recourse to Ijma and Ijtihad to resolve issues mostly on which there is no consensus such as the social rights of men and women in the changed situation, interest-free banking system, consent marriage, rajam and divorce through three pronouncements, etc. If we go on keeping these issues unresolved for an indefinite period, the chances are that the very claim that the Quran is a complete code of life may be challenged by its own followers.
Thus, Ijma, Ijtihad and Qiyas are the most useful sources of Islamic law, which, if properly utilized, can meet the requirements of relevant situations at all times. Ijma, however, does not mean mere expression of several opinions in unison, nor Ijtihad implies mere exercise of discretion or an emotional or whimsical decision.
Ijma implies the agreement of persons of piety and learning over an issue after thoroughly examining the pros and cons of the matter in the light of Divine guidance. Likewise, Ijtihad implies exercise of judgment based on careful consideration of all the aspects and the pros and cons of the issue in the light of relevant guidance, and the use of reasoning and common sense while arriving at the conclusion.
While taking recourse to Ijtihad in regard to certain social rights and obligations of men and women, the Quranic guidance such as guarding of modesty (33:35) avoiding indecency (42:37) avoiding excesses (5:87), maintaining balance (55:8), observing the principles of moderation (2:143) and not with-holding from others things that are due to them (11:85) cannot be ignored.
Some people are of the view that persons capable of exercising Ijtihad are no longer available and this probably could be the main reason for discontinuance of recourse to Ijtihad. But the fact remains that Muaad bin Jabal who was allowed by the Prophet to exercise Ijtihad was a young, though learned and well informed, person from Khazraj tribe.