Making sense of islamic law E-Book

Abbas Segujja

• Herausgeber: Books on Demand
• Kategorie: Bildung
• Sprache: Englisch

Seitenzahl: 355

Veröffentlichungsjahr: 2015

Beschreibung

'The important point here is that though these stories do not necessarily have to be true beyond doubt, their existence and survival up to this day is interesting in itself. For, they bring out the very thing the different cultural environments of our scholars have, willingly or not, tried to suppress and conceal namely, that spirit of freedom and openness (of democracy, if you like) that was enjoyed by the Muslims of the first generation.' Testimonials: "An in-depth and outstanding survey of the history of Islamic Law and Its implementation in past and present Muslim societies, especially in regard to women and Muslim political thought. Abbas’ reflections challenge traditional interpretations and open up for renewal and change in the context of our present time." (Aminah Tonnsen, author and lecturer, Copenhagen.) "This book removes the mystique often considered part of Islamic law as described by most scholars. This book makes the Sharia friendly to the common person." (Hadayai Majeed, Women’s Rights Advocate, Conley GA.)

Leseprobe

Contents

ACKNOWLEDGEMENT

INTRODUCTION

PART ONE: THE SHARI’A IN THEORY

1. SOURCES OF THE SHARI’A

THE QUR’AAN

THE SUNNAH

CONSENSUS OF SCHOLARS

LEGAL ANALOGY

2. AIM OF THE SHARI’A

Indispensable Needs

Important Needs

Complementary Needs

Challenges

3. APPLICABILITY

Interpreting the Shari’a

Shari’a and local conditions

Shari’a And Change

PART TWO: THE SHARI’A IN PRACTICE

4. WOMEN IN SHARI’A

Before Islam

After Islam

WOMAN AS PERSON

WOMAN AS LEGAL PERSON

WOMAN AS A MEMBER OF SOCIETY

5. STATE AND SHARI’A

In The Qur’aan

In The Sunnah

The Constitutional Issue of Succession

Substance of Muslim State Conduct

Minorities in an Islamic State

Cross-Border Relations

CONCLUSION

References:

About the author

To my wife, Jasmin, and our children,the seat of my love, joy, hope and inspiration.

ACKNOWLEDGEMENT

Many things have contributed to the coming into existence of this work. But the one I can clearly point out is the years I have spent teaching (and at the same time learning) Islam with the Islamic Study Group in Copenhagen, Denmark. The free and open discussions, which characterises our study stimulated and encouraged me. The lively and healthy atmosphere at our ‘meetings’ is such that for every answer we reach, a new question is provoked.

This work is a humble attempt on my part to answer just a few of those questions but I am very grateful to the Group for the part they have played in developing my ideas and for the encouragement they have rendered me during the actual writing.

I am particularly grateful to Mr. Momodou Camara and A.B.C. Dyfan who put their computer knowledge at my service and had the patience to bear with all my inquiries at any time, Mr. (now late) Ndione Abdoulaye, may his soul rest in peace, whose personal library I have freely used and with whom I have discussed some of the topics in the book, and Mr. Omar Nsereko for his contribution to its production.

May God reward all those who have contributed in one way, or another to the accomplishment of this work. May you all increase in knowledge and faith.

I am, however, solely responsible for the views and opinions expressed in this work.

INTRODUCTION

I am of the conviction that the word Islamic law, though widely used in contemporary writings, must be used with caution. For, on one hand, it does not reflect the true nature of the Islamic rules and regulations. There is a fundamental difference between the Islamic ‘legal’ teachings and the law, as the modem world knows it. While the later clearly demarcates the sacred from the profane, the case is rather different in the former. Here, the two worlds are fused together. But this does not mean that every thing in the Islamic law is dictated from above. It only means that its recommended omissions or commissions are attached a spiritual dimension, which is not the case in modern law.

Probably it is in confirmation of this difference that the word law (qaanun in Arabic) is neither used in the Qur’aan nor in Muslim legal literature. Ironically, it is in their philosophical works where it is abundantly used. The word one frequently comes across in the Qur’aan and in Muslim writings in this regard is Shari’a. This is a distinct word with no parallel in other languages. Literally, it means a way or path; while technically it denotes Muslim law or the way they conduct their affairs, worldly or otherwise.

And on the other, the word Shari’a, which is taken by many to mean Islamic Law, is a combination of two fundamentally different things; revelation or wahy, as contained in the Qur’aan and the practices of the Prophet, and man’s understanding and interpretation of it. The last-mentioned is called fiqh, which literally means understanding. That is to say that, part of the Shari’a is divine and part of it is not. But they work together.

And it is this dual nature of the Shari’a that this book intends to explore; in terms of how much room did revelation leave to man (Muslims in this respect), and how man has played or not played his part.

We are living in the fifteenth century of the Islamic calendar. This simply means that the Shari’a (the subject matter of this book) has also been with us for the same length of time. In addition to that, Islam today has a following of more than a billion people, living in almost every country the world over.

To a reform-minded analyser of the Muslim people, this fact is more than vital. For, it is only through the examination of the impact of time and space on a given culture or people that one may know what, if any, changes are necessary or even inevitable.

In the following pages, I shall try to critically show how Muslims, especially in the formative period of Islam, have struggled with this equation of time and space in their effort to adjust their lives in accordance with the tenets of their faith.

On the theoretical part of this struggle, Muslims have widened the range of sources from which their law is taken. This will be discussed in the first part of the book. In the second, the scope of discussion is confined to two very important practical areas namely, women and state. Though, in my view, the whole Muslim legal enterprise is in dire need for revision and, in most cases, reform, these two domains are long over due.

The discussions on these areas are intended to engage and direct the Muslim public towards a sincere and constructive self-criticism, a difficult and painful task but without which, no real progress can take place.

My hope is that this book will contribute to the reluctantly growing debate on reform in Islam, both from within and from without.

PART ONE:

THE SHARI’A IN THEORY

1. SOURCES OF THE SHARI’A

At the age of forty, a man named Muhammad, of the Qureish tribe in central Arabia, announced to his people that he had received a revelation from God. Apart from his righteousness he held no social position what so ever, being an un-lettered orphan and coming from a poor, though reputable, clan of the Hashimites. This revelation was to continue through the last third of his life forming a basis by which he transformed a primitive tribal people into a society ruled by law. That society became later on, and still is, the reference to all Muslim people for their spiritual and legal aspirations.

The revelation Muhammad received was recorded in a book best known as the Qur’aan. But the Qur’aan is basically not a legal document per se. It is rather a spiritual book whose main concern is man’s place in the creation and how he relates to The Creator. However this prime concern of the Qur’aan (and of other religious scriptures, for this matter) links automatically with human behaviour. The Qur’aan demands virtue of its followers in exchange for God’s grace. And this is where it steps in to regulate man-to-man relationship.

But at the age of sixty-three or so, after receiving and conveying the last portion of that revelation, the Prophet passed away. It was now up to the faithful to comply with the revelation he left them as best as they could. This they did. But the Prophet’s death itself proved not to be easy to cope with. For, that vacuum could not be filled. This, coupled with the rapid spread of Islam to new territories beyond the Arabian borders, posed serious challenges to both the revelation and the Muslim mind that was entrusted with its implementation. New situations were emerging every day, especially regarding the administration of those territories, that were neither faced by the Prophet himself nor covered by the revelation he left his followers with.

What were Muslims supposed to do? If they opted to leave events direct the revelation, revelation would loose its validity. And if they were to separate the two and leave each to manage its own affairs, this too would have deprived revelation of its credibility. Both possibilities were not acceptable to those early Muslims. They had to act, and act quickly. In a responsible manner, they turned to the revelation itself and in it they found clues to the solution.

The revelation as contained in the Qur’aan and as they understood it was not a book dealing in closed cases. It was rather one that held quite positive and progressive views on the affairs of the people it was legislating for. It gave them not one but several ways of looking at a given situation.

Some of these possible alternatives the Qur’aan makes available to its followers (or so it is claimed) so as to enable them deal with novel situations of life will constitute the subject matter of our discussion in the following pages.

The wide range of sources from which it draws its laws and the different opinions expressed by Muslim scholars in their discussions of those sources is enough indication as to its dynamism and flexibility.

A survey of different Muslim jurisprudence literature will show that there are several sources through which an action or word can be judged right or wrong. Depending on the school whose literature one consults, they will at least include some of the following:

The Qur’aan.

The Prophet’s practices and teachings (Sunnah).

The consensus of Shari’a experts (Ijmaa’).

Legal analogy (Qiyaas).

Public good or interest (Maslahah).

Customs.

Practices of the first-generation Muslims.

Previous revelations.

Qur’aan and Sunnah are unanimously agreed upon among Muslim scholars as sources of the Shari’a and they are called the Primary or Revealed Sources. However, though these two sources work together, their authenticity is not of the same degree. While the authenticity of the Qur’aan is an established fact among those scholars, the case is somehow different regarding that of the Sunnah. As we shall soon see, Muslims are up to date not agreed upon the reliability of a great deal of what goes today as Sunnah or the teachings of the Prophet. The third and fourth sources, Consensus and Analogy, are generally accepted as sources of the Shari’a though some legal schools have quite strong reservations, if not objections to them. Those who agree on these four being sources of the Shari’a law base their opinion on that classical report of the Prophet’s conversation with one of his disciples, Mua’dh bin Jabal, as he sent him to Yemen as governor:

“How will you decide the cases brought before you? He asked. I shall decide them according to the book of God. Mua’dh answered. And what if you find no answer in the Book of God? Then I shall decide according to the practice (Sunnah) of God’s Messenger. And what if you find no answer in his practice? Then I shall exercise my own judgement without the least hesitation”. Thereupon, the story goes, the Prophet slapped him upon the chest and said: “Praise be to God who inspired my delegate to that which pleases me”. (Ibn Qayyim, vol. 1, p. 202).

I have particularly used this reference, of all others that make mention of this story, because of the additional explanation the author puts forward in defence of its authenticity. An explanation, which has a bearing on, what is to be discussed later on the development of the second source of the Shari’a, Sunnah. For, as far as Ibn Qayyim is concerned, the strict technicalities put forward by scholars are not the only way to determin the authenticity of a repport.

The last two of the four sources, and of course all the remaining sources, are said to be covered by the independent reasoning mentioned in the above story. But there is also a verse from the Qur‘aan itself that is believed, by those who hold the above view, to support their point of view. The Qur‘aan says:

“0 you who have attained to faith! Pay heed unto God, and pay heed unto the Apostle and unto those of you entrusted with authority: and if you are at variance over any matter refer it unto God and the Apostle…” (4:59).

Thus, as far as they are concerned, “God” here refers to the Qur’aan, “The Apostle” to the Sunnah, “Those entrusted with authority” to Ijmaa’ and “referring matters to God and His Apostle” to Qiyaas.

It must be said, though, that neither the Qur’aan nor the Prophet specifically names the last two sources. They are purely a result of Muslim ingenuity in their efforts to understand and implement the message of the Qur’aan.

The remainder of the sources are subject to conflicting opinions even among those who regard them to be sources of law in Islam. Nevertheless, Shari’a exponents have made use of this or that source at one time or another as situations demanded.

Apart from Public Good and Custom which will be referred to later on, we shall limit our discussion of these sources to the first four namely, Qur’aan, Sunnah, ljmaa’ and Qiyaas. For, as it will be demonstrated, the acceptance of the later is dependent on the acceptance of the former.

THE QUR’AAN

According to Muslims, it is the absolute word of God. Though revealed in human tongue, it kept its divinity in essence, form and style. It came to the Prophet gradually according to the need of his people, a process whose completion took twenty-three years.

The Prophet’s mission can be divided into two distinctive periods: the Mecca period, which lasted for thirteen years, and the Medina period where he spent the last ten years of his life. Accordingly, qur’aanic revelations are divided into two; those that were revealed during Muslim’s stay in Mecca and those that came after they had migrated to Medina. A great deal of the Mecca revelations concentrate on matters spiritual, while those of Medina emphasise the legislative side of revelation but without being exclusively so. What has perplexed many non-Muslim writers about the Qur’aan is this lack of separation between worldly and spiritual matters: one verse will regulate social life and in the same breath make references to the nature of the life-to-come and what awaits people therein. As we are about to see, the Qur’aanic message is overwhelmingly spiritual and that may explain this phenomenon.

Muslim scholars have done a pains-taking study of the Mecca-Medina revelation phenomenon. In fact they have made it a full branch of what they call Sciences of the Qur’aan (U’Iuumul-qur’aan). Some of the typical points they have investigated under this branch of qur’aanic studies are, for example:

Which verses or chapters were revealed in Mecca and which were revealed in Medina. Mecca verses that appear in Medina chapters and vice versa (due to the fact that the Qur’aan is not arranged chronologically). Medina verses that were addressed to non-believers in Mecca, and Medina ones that were intended for the Muslim audience in Medina. Even the time of the day or the season of the year in which a certain verse was revealed were scrutinised by the scholars.

This was not mere exercise of intellectual curiosity on the part of Muslim scholars. The information and knowledge gained from these inquiries was considered important (and has been used) in their efforts to uncover the meaning of the Qur’aan especially as far as legislation is concerned. The context and circumstances that called for a given verse or ordinance were, and still are, vital to understanding the message of the Qur’aan.

Theme

At any level one reads the Qur’aan, two unmistakable themes stand out. Firstly, it talks of an eternal covenant between God and man by which man accepted the consequences of being created as an intelligent and free being. After this, God concurs on him the honour of being His trustee on earth. By this covenant and the trusteeship, man-to-God relationship was established; man would by his free will abide by the Will of God.

The Qur’aan says: “And whenever thy Lord brings forth offspring from the loins of the children of Adam, He calls upon them to bear witness about themselves:

“Am I not your Lord?” - to which they answer: “Yea, indeed, we do bear witness thereto!” (7:172)

And:

“When your Lord said to the angels: “I am placing on the earth one that shall rule as My trustee,” they replied: Will You put there one that will do evil and shade blood, whereas it is we who praise Your glory and sanctify Your name?” He said:“I know what you know not.” (2:30)

And:

“…descend you all from this state (into the next), there shall certainly come unto you guidance from Me: and those who shall choose to follow My guidance have nothing to fear or to regret; but those that shall choose to deny and reject Our revelation shall be the inmates of fire…” (2.38)

If man was to live alone, this covenant would have been enough but he was intended to be a social being. Of course, with his God-given intelligence he could have been able to reasonably organise and run his own life. The problem, however, is man himself. For, he is not only intelligent but also free to choose among the different choices life presents to him. Immersed in the pursue of his own interests, he would run into two difficulties namely, of confusing real interests with imaginary ones and that of conflicting with his fellow man’s interests, real or imaginary.

Muslims, as well as other believers for this matter, agree that without certain standards on which to base his conduct towards both himself and others, man’s society would be shaky indeed. As one contemporary writer beautifully summarises this concept: “No nation or community can know happiness unless and until it is truly united from within, and no nation or community can be truly united from within unless it achieves a large degree of unanimity as to what is right and what is wrong in the affairs of men; and no such unanimity is possible unless the nation or community agrees on a moral obligation arising from a permanent absolute moral law…” (Asad M 1981, p. 6).

For those who prescribe to it, revelation issues from the Permanent and Absolute and as such the standards it sets are, for them, the best guarantee for a healthy and sound man-to-man relation.

Legal Injunctions

The Qur’aan contains six thousand and two hundred verses. This far, the majority of the scholars agree. Above that, there are different opinions on the exact additional number of verses. This, though, should not be taken to mean that there are different Qur’aans, each with its own version. The major reason for this discrepancy is the disagreement between the scholars on the exact definition of a verse. To some, a full sentence constitutes a verse, even if it does not end with a full stop. While to others, a full stop denotes the end and the beginning of a verse, even if the meaning is not complete.

Take for instance, the opening chapter. The majority take it to have seven verses, though they differ on their divisions. While other opinions range from six to nine verses. And so on. (Al-suyouti, p. 96–105; Lasheen MS, p. 44; Al-Qattaan M, p. 146)1

But no matter which of the opinions above one adopts, the verses that deal with legislation proper according to the majority of the scholars do not exceed two hundred verses. Of these, the most detailed ones are those concerning religious observances (l’baadaat) and those regulating family matters. The reason for this being that the pace of change in these domains is either non-existent or very slow. And as such detailed laws would be not only desirable but also suitable. But as we shall see later on, this stability is not and cannot be a permanent situation in regard to some family matters. And as such, revelation did not give its final say, as many tend to believe.

This leaves the whole range of human interactions and transactions regulated only in general terms. Many aspects of some essential branches of law such as Civil, Criminal, Constitutional, International law…. etc., the Qur’aan leaves to man to work out the details. This is where the above mentioned sources come into the picture, not only to elaborate on those general rules and principles, in order to keep pace with the ever-changing world, but also to fill gaps uncovered by the Qur’aan. For, obviously such a small number of laws cannot be expected to deal with the whole range of human life experience.

But this point (of the limits which revelation has set upon itself) cannot be convincingly concluded without looking at what the Qur’aan says about it. For, there are verses in it whose apparent meaning would suggest the opposite of the above contention namely, that it recognises no such limits and that, on the contrary, it has answers to all human conditions and situations. Does not the Qur’aan say for, example, in 6:38 that:

“We have left out nothing unmentioned in the Book”

And then in 16:89 that:

“…For, to you We have revealed the Book which manifests (the truth) about all things…”

And in 5:3 that:

“Today have I perfected your religious law for you….”

Such Qur’aanic statements have split Muslim scholars into two camps: those who see the Qur’aan as a Book providing ready-made detailed rules and regulations about everything in life, and those who see it, though detailed on some matters, as only setting general principles and values by which a believer can find solutions for this ever-changing life.

To me the conclusion that the Qur’aan explained everything, based on the above or other similar verses, is far fetched. First of all, the phrase in 6:38 is knowingly or unknowingly taken out of its general context and considered on its own. For, the word ‘Book’ which is taken to refer to the Qur’aan denotes rather the ‘Original Tableau’ (an Islamic metaphysical terminology for a tableau) on which every thing in creation is inscribed and not to the Qur’aan.

Now, we remain with the other two verses, which seem to categorically state that, the Qur’aan can stand by itself and need no supplement whatsoever. But this conclusion is also only apparent. For if these verses were in support of the above claim then the role of the Prophet’s Sunnah as a supplementary source to the Qur’aan (as it will be seen later) will be greatly curtailed. Besides, real life is squarely in contrast with such a claim; no law can exhaust all human situations, present and future, and the Qur’aan, though from God, was never intended to do so because, as I will urge later on, that would deprive man of his humanity.

However, if those who contend that the Qur’aan contains everything mean that the few laws therein combined with the general principles can point to a right solution to a particular problem, that could form a common ground with their opponents. Otherwise, any talk on their part of any source of the Shari’a besides the Qur’aan will be self-defeating.

In Ibn Qayyim’s classical book ‘I’laammul-muwaqqi’in’ there is a letter of great relevance to this discussion. He himself calls it “a great letter that has achieved approval and acceptance of scholars” and he devotes an entire volume (more than three hundred pages) of his book to commenting on this one-page letter. It is attributed to Omar, the second successor of the Prophet, and written to his governor in Basra, Abdullah Bin Qais, best known as Abu Mousa Al-Ash’ari. He says among other things: “…use your reasoning in cases that are brought before you but for which you do not find directives, neither from the Qur’aan nor from the Sunnah, understand similitude and make comparison…” (vol. 1, p. 86)

As it is evident, it was Omar’s opinion that the Qur’aan did not have all the answers and that personal reasoning, taking the spirit of scripture into consideration, could come up with solutions good enough for human use. In other words, the limits the Qur’aan sets on itself by leaving some aspects of life unregulated, must be seen as a deliberate act and a blessing on the part of God as to avail to man the opportunity to realise his potential, mentally and spiritually. This is also in line with the Islamic belief that the Qur’aan is the last portion in the chain of revelations God sent to man. This being so, its message then must, of necessity, have a built-in mechanism that insures its growth and applicability. Otherwise, it will be out lived by man’s ever-changing living conditions.

This mechanism is alluded to by the very nature of the Qur’aanic enactments, some of which are classified, by God Himself, as unequivocal and others as allegorical:

“He it is who has revealed to you the Book, containing messages that are clear in and by themselves- and these are the essence of the Book- as well as others that are allegorical. But those whose hearts are infected with disbelief go after the allegorical so as to create confusion, by seeking to explain it. But no one save God knows its final meaning. And those who are deeply rooted in knowledge say: We believe it; the whole is from our Lord…” (3:7).

The first category are those verses, regardless of their subject matter, whose meaning is clear, self-evident and can be drown directly from the wording of the ordinance in question. These are what the Qur’aan calls the foundation of the divine writ (Ummulkitaab). In other words it is such injunctions that represent the key to a better understanding of the message of the Qur’aan.

Scholars have however conflicting views as to which injunctions precisely these two categories refer to. A view attributed to Ibn Abbas, an eminent companion of the Prophet, confines the first category in the values and principles contained in chapter 6:151–152 and chapter 17:23–38 respectively. (Lasheen M. S., p. 156– 164). Briefly, they read as follows:

“Say: Come, 1 will convey to you what your Lord has made binding on you:

That you shall not serve other gods besides Him,

That you shall show kindness to your parents,

That you shall not kill your children for fear of poverty,

That you shall not commit shameful act,

That you shall not take any human being’s life,

Do not tamper with the property of the orphans,

Give just weight and full measure,

Speak for justice,

Give to the near of kin their due, and also to the destitute, and to the traveller in need,

Do not squander your substance wastefully; Be neither miserly nor prodigal,

You shall not commit adultery,

Keep your promises,

Do not stand for what you have no knowledge of; Do not walk proudly on the earth, Be true to the covenant of God.”

In the face of so many unsubstantiated opinions on this matter, Ibn Abbas’ view is very plausible due to the fact that most of the values the above verses embody are universal values recognisable by most of the people as such, regardless of the social or religious affiliations one may have. Thus constituting a firm basis on which the largest degree possible of unanimity, mentioned earlier, can be found.

The second category comprises those teachings whose wording can imply more than one meaning. It is this type of injunctions that have to be referred to the fundamental principles laid down by the teachings of the first category.

One remaining point on this subject is the possibility of interpreting the injunctions of this last category. Not only because they, by their nature, can carry more than one meaning but more importantly because God Himself seems to rule out that possibility. What is to be understood by His saying that “…nobody can know their full meaning except God…? “

Apart from recognising legitimising human differences in understanding, this point represents one of the most subtle and fabulous points on Qur’aan exegesis. For, it depends on the way one reads this verse; if the comma in this verse is placed immediately after the word God then the meaning will be that as stated above but if the comma were to be placed after the phrase “and the people of insight” then the meaning changes to include man in understanding and interpreting the Word of God.

Both opinions find support among prominent Qur’aan interpreters of the first generation. But as the supporters of the second opinion are reported to have rightly noted, it is incomprehensible that God would send teachings to mankind, for their benefit, and then deny anybody the capacity to understand their intent. (Ibid). Thus, there must be some people of good knowledge and insight who can interpret God’s words.

There are indicators and clues in the Qur’aan as to the meaning it wants its followers to adopt, of all the others. The Qur’aan is the best explainer of itself, as they say. And the Prophet by virtue of his duty explained and commented on the Qur’aan by way of living it. Yet he never exhausted the word of God. For, as the Qur’aan puts it:

“Say: If the waters of the sea were ink with which to write the words of my Lord, the sea would surely run dry before the words of my Lord were spent, even if it was replenished by another sea.”

It is the Muslim mind then, that is entrusted with that formidable task of progressively unfold that inexhaustible word of God (so to say) in order to keep it in touch with people’s conditions, each community or generation according to its needs and capacity to draw from that Word.

To this, must be added the fact that Qur’aanic legal statements are not arranged in any legally comprehensible order. They are rather fused with purely spiritual teachings, as mentioned above, and one has to go through the whole Book in order to gather and compare all verses relating to a particular issue.

What this simply means is that though man (a Muslim for this matter) had no say in the issuing of the word of God, he practically owns it; to him it was revealed and on his shoulders the task of implementing it was laid. In this, Muslim scholars have seen a freedom, granted by the very word of God, to progressively understand, interpret and implement the teachings of the Qur’aan. Hence, the bulk of legal literature known as Alfiqh Al-Islami (Islamic legal thought), which the different legal schools have produced, that is far bigger than the Qur’aan and the Sunnah combined. Thus the Shari’a, though based on the two sources above, is largely a practical product of Muslim scholar’s insight and sense of imagination, as they tried to implement the teachings they contain into their daily lives.

Unfortunately, this freedom and boldness in dealing with Qur’aanic teachings hardly exceeds the first five centuries of Muslim history. From then on, apart from a few brilliant scholars, Muslim thought has depended heavily on the products of its ancestors with little or no addition at all.

Revelation-On-Demand

As we saw above, the overall purpose of revelation is to provide man with a yardstick, so to say, that enables him to recognise the Real from the imaginary and the Absolute from the limited. But it did not ignore the particulars or special cases in human life. The Muslims that witnessed the coming of the Qur’aan had their own life with special concerns or problems that demanded solutions. They used to come to the Prophet with those questions, which he answered when and if he could. He used the best of his own understanding of the intent of the revelation or the usage and customs of his own culture as reference, provided they did not contradict the spirit of the revelation, as we shall see later. Where he could not, he referred the matter to God and sooner or later a revelation would come with a response on the specific subject matter.

Yet, some times a verse or verses would be revealed with reference to contemporary or historical events of which Muslims had no knowledge. They would again turn to the Prophet for an explanation. The explanations issuing from the above two situations are what is known in Qur’aanic studies as the science of the reasons behind revelations (1’lm asbaab nnuzoul). Some of such Qur’aanic teachings are easily identifiable as they start with the phrase “They ask you…” or similar phrases.

Muslims of later generations were, and still are, at a disadvantage in this regard compared to those who, not only witnessed the coming of the revelation but also, had the Prophet in their midst. They could refer their difficulties in comprehending the full implications of this or that verse to him.

After the Prophet’s generation, Muslims had to depend on reports attributed to him or his immediate companions for answers on some difficult points of the revelation. But these reports, as we shall see, are a mixture of reliable and non-reliable ones. This calls for an additional vigilance and insight on the part of a scholar and a great measure of caution on that of lay Muslims in their efforts to distinguish between the two.

The legislative significance of knowing the reasons behind some particular injunctions of the Shari’a cannot be underestimated. For, it is one of the most relevant means at a scholar’s disposal to, first of all, know the wisdom behind a legal enactment and, secondly, to recognise the general from the particular and the extendable from that which is limited to a certain milieu or people, all of which are very important elements of legislation. And the second source of the shari’a (the Sunnah) is not different in this respect.

THE SUNNAH

There are to terms one comes across when dealing with the Prophet’s practices or teachings. One is sunnah, another is hadith. Sunnah literally means custom or way of doing things and as such Sunnah is a process. The early Muslims’ use and understanding of this term do not differ from this literal meaning; it was used to refer to the whole range of pre and early Islamic customs and usage. While the word hadith literally means a saying or a conversation. But when it is used in Islamic studies it denotes recordings and reports on the Sunnah and as such it is static, it only reports what happened or what was said.

However, these two terms are some times used interchangeably to refer to the Prophet’s teachings by word, deed or approval. His word includes only those words he said by way of teaching or conveying God’s message to his people. This is what can be called hadith proper. The qualification above, however, must be accorded utmost importance if the sacred is not to be confused with the profane. That is to say that not all what the prophet said was revelation. Some times he taught by deeds and his followers had only to do likewise. At other times the initiator of the word or deed was not the Prophet himself but rather one of his followers either in the Prophet’s presence or in his absence. He gave his approval to the word or action in question if it did not contradict his teachings. Pre-Islamic Arabian customs were also approved or rejected by using the same criterion. Those that were approved of became part of the Shari’a.

Relation to Qur’aan

Technically, the Sunnah is one degree less in value than the Qur’aan. For, though, its message was inspired by God, formulation and articulation of its wording was left to the Prophet. While he played no role in the Qur’aanic revelation other than receiving and transmitting, his role widened here to include the choice of the final shape the message took. This is what makes the Sunnah divine only in content. Practically, however, this discrepancy does not exist. Qur’aan and Sunnah are one and the same, as far as implementation of the teachings contained therein is concerned. Thus, when a Muslim is faced with a certain situation, clarification is sought first from the Qur’aan and then from the Sunnah…and so on, as we saw in the story above. To this, Muslim practice has been consistent, at least as far as the first four sources are concerned after which ambiguity sets in due to differences among the legal schools on the eligibility of the remaining sources. But once a solution is found and a rule established, be it from Qur’aan or from Sunnah, that rule carries the authority of the Shari’a, and violation of it or deviation from it is tantamount to violating God’s rule. From this respect the Sunnah is as divine as the Qur’aan.

The Qur’aan says: “He that obeys the Apostle obeys God.” But if no other reason is given to justify the authority of Sunnah on the Shari’a in particular and on a Muslim’s life in general, one would suffice namely, that the Qur’aan as it came, and as it stands today, needed a great deal of explanation. It was the practice of the Prophet (in other words, his Sunnah) that explained and interpreted those Qur’aanic enactments whose purpose was left unclear. For example, when the Qur’aan asks its followers to perform the daily ritual prayers, it does so without specifying how or when they are to be performed. Hence, without the Sunnah a Muslim in many cases would not know what exactly is demanded of him. But this is not the only content and purpose of the Sunnah.

For, when we look at the Prophet’s teachings we find that for almost every rule stated in the Qur’aan there is a similar one, though not identical, in the Sunnah confirming the former. In this case, Qur’aan and Sunnah collaborate in establishing the Shari’a.

There are also indications in the Sunnah to the effect that the Prophet had the power and authority to, independently, create law. It is this last-mentioned of the three functions that has confused many a scholar, let alone lay Muslims. How much authority do the Prophet’s words, deeds and approvals carry, and which of them do constitute law and which of them do not?

There has always been a tendency among Muslims to regard every thing that has reached us about the Prophet, be it word or deed, as law which we are obliged to follow. This is based on a misinterpretation of a single verse in the Qur’aan which says that:” He does not speak out of his fancy, but it is an inspired revelation.” (53:3), which obviously does not include the Prophet’s words or deeds that were out of the scope of doing his mission.

Moreover, the majority of early Muslims looked at the Prophet as a human being (though more perfect) and as such his words and deeds did not acquire sacredness just by virtue of his being a prophet. They did so by God’s nomination; what was clearly specified and classified by God as law would be so and what was not would not be. Hence, a distinction must be drawn between those words and practices of the Prophet that were clearly part and parcel of his mission, and accordingly binding on Muslims to follow, and those which were mere expressions of his natural traits and personality. Without the least suggestion that his personality is of no value to Muslims, this line has to be drawn if Sunnah is to regain its legislative dynamism.

Credibility

The most sighted point against the Sunnah is the credibility of the reports that were supposed to transmit it to us. It is alleged that it is difficult to ascertain the credibility not only of the reports but also that of the reporters. But to see this allegation in its proper perspective, one has to follow the developments that brought the Sunnah to us in the form we know it.

The fact is that the Prophet devoted his greatest attention and effort to preserving the word of God, the Qur’aan. It was recorded in writing as soon as it was revealed. It was memorised and committed to hearts. And finally it was studied and practised. It must be said that no such effort was accorded to the Sunnah; it was never officially recorded in writing (there were some individual recordings but they were very few and not complete). On the contrary, there are reports to the effect that the Prophet prohibited or at least discouraged committing his teachings, apart from the Qur’aan, to writing. (Amin A, p. 208– 224). Obviously, his first and foremost concern was not to confuse Qur’aan with anything else. For, as we saw above Qur’aan is divine, heart and soul, while Sunnah is only partly so.

But it seems from later events that this was not the prophet’s last word on the matter, it was only a temporary measure until Qur’aan took root in the hearts of Muslims. However, his move to officially write something beside the Qur’aan came to nothing as it came too late. It is reported that at the end of his life, at his deathbed in fact, he asked for a piece of paper to write something for his followers. Something “with which they will never go astray”. It was only Omar (his second successor) among the present that objected to the Prophet’s order saying that: “The Prophet is overwhelmed by pain, we have the Book of God, and it is enough”. When Muslims started arguing for and against the matter, the Prophet closed it and decided not to write anything, anyway.

One can only speculate on the reasons behind Omar’s objection to that piece of paper. Probably it is the importance that would have been attached to it, it being the last document or statement the Prophet had bequeathed his followers, just before his death. This would have certainly overshadowed the Book of God. That danger of exchanging the Qur’aan for a few exhortations (naturally he could not have written in a moment what he had taught and did in twentythree years) was understandably unacceptable to Omar. Perhaps the Prophet himself overruled his own decision on the same considerations, hoping that what he did not accomplish his companions would.

So, Muslims were left with the task of searching for, collecting, assessing and then recording, the Prophet’s teachings and practices. On this, all Muslim denominations agree, apart from the Shi’ites; they claim to posses a book from the Prophet himself containing all his teachings. But then instead of it being an open book to all, like the Qur’aan, access to it is strictly reserved for their imams. (Al-A’skari AM 1995, vol.1, p. 501–546).