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Lecture to 3rd medical students on 27th November 1999, Kulliyah of Medicine, International Islamic University, Kuantan, Malaysia
OUTLINE
1.0 QUR’AN
A. Definition
B. Basic characteristics
C. Source of legal rulings
D. Source of legal principles
E. Interpretation
2.0 SUNNAT
A. Definition
B. Classification
C. Hujjiyat al sunnat
D. Source of legal rulings and principles
E. Interpretation
3.0 CONSENSUS, IJMA
A. Definition
B. Classification
C. Hujjiyat al ijma
D. Methods
E. Contemporary challenges
4.0 ANALOGY, QIYAAS
A. Definition
B. Classification
C. Hujjiyat al qiyaas
D. Methods
E. Contemporary challenges
5.0 OTHERS
A. Naqli
B. Aqli
C. Sadd al dhari'at
D. Maslahat
E. Public opinion
1.0 QUR’AN
A. DEFINITION
DEFINITION OF THE QUR'AN, TA'ARIF AL QUR'AN
The Qur'an is technically defined as the book revealed to Muhammad, messenger of Allah, written in the mushaf, transmitted from him to us in a continuous unbroken chain of transmission with no shubhat, al kitaab al munazzal ala rasuli al laah muhammad SAW al maktuub fi al masahif al manquul ilaina 'anhu naqlan mutawatiran bila shubhat.
DEFINING CHARACTERISTICS OF THE QUR'AN, KHAWAAS AL QUR'AN
We can list and elaborate on the defining characteristics of the Qur'an from the definition above. This elaboration gives us a deeper understanding of the function of the Qur'an as a source of law.
The Qur'an is Allah's word revealed to Muhammad SAW. The language, meaning, and sentence structure are all from Allah and there is no human contribution to them
The Qur'an is Allah's word both word, lafdh, and meaning, ma'ana. This is in contrast to most hadith which is revelation from Allah in its meaning but the words used are those of the prophet
The Qur'an was transmitted in a continuous unbroken chain, naql bi al tawaatir. The prophet used to read verses of the Qur'an to his companions who immediately committed it to memory. He used to repeat the verses to them many times during salat, in ordinary conversations, and in his sermons. He had 7 scribes who wrote down each verse. He told them the chapter and the exact location in the chapter where it belonged. The various written records of the Qur'an were collected by Abubakr and put in the custody of Hafswat. The 3rd khalifat Othman Ibn Affan retrieved them and in consultation with all the companions, prepared one official version of the Qur'an in the Quraishi dialect. This version was sent to all the cities, amswaar, and was used. In addition to the written record, Muslims all down the century have committed the Qur'an to memory.
The Qur'an is protected from any additions or subtractions, mahfuudh min al ziyadat aw al nuqsaan There is only one version of the Qur'an in the whole Muslim world. Any distortions would have led to variations in the different texts.
B. BASIC CHARACTERISTICS
MIRACULOUS NATURE OF THE QUR'AN, I'IJAAZ AL QUR'AN
The Qur'an is a miracle and challenge, mu'ujiz. Its miraculous nature is manifested in 5 ways: linguistic, historical, futuristic, and scientific.
Linguistic excellence, balaaghat: speakers of the Arabic language appreciate the depth and sophistication of the Qur'anic language. The power of the language persists even in translation.
Futuristic: The Qur'an gave information about events in the future that turned out to be true. This miracle is continuous as we see events today or in the future that the Qur'an foretold.
Historical: The Qur'an gives information about historical events that are corroborated by other historical sources.
Scientific: The Qur'an mentions scientific facts not known in Arabia 14 centuries ago and which were validated by recent discoveries.
CONTENTS/THEMES OF THE QUR'AN, AHKAAM AL QUR'AN:
The Qur'an consists basically of three main themes: (a) The creed, aqiidat. (b) Spiritial refinement, tahdhiib akl nufuus. (c) Practical guidance on actions and words of individuals, aqwal wa af'al al mukallafiin. Most of the Qur'an's more than 6000 verses are concerned with the first two categories. Usually the term ahkaam is reserved for the third category. Its verses are called ayat al ahkaam and are distributed as follows: marriage and family, munakahaat, 70 verses; transactions, mu'amalat, 70 verses; crime and punishments, jinayaat, 30 verses; economics, iqtisaad, 10 verses, judicial procedures, qadha, 13 verses; government, nidham al hukm, 10 verses; and international law, qanun dawli, 25 verses.
NATURE OF THE QURAN:
The Qur'an is comprehensive and complete. It however deals with issues in a generic and not specific way. Specific issues are very few. The verses may be clear, muhkamat, or allegorical, mutashabihat. The Qur'an does not indoctrinate but tries to engage and challenge the human intellect to think and deliberate. The Qur'an is unique in its manifestation of intellectual freedom. The opinions of the worst people on earth like Nimrod and the Quraishi polytheists are recorded in the Qur'an in direct speech then they are rebuffed. This shows that it is evidence and clear logical thought that in the end is victorious. False ideas should be challenged rather than be suppressed.
C. THE QUR'AN AS A SOURCE OF LEGAL RULINGS
QUR'ANIC EXPLANATION OF LEGAL RULINGS, BAYAAN AL QUR'AN LI AL AHKAAM:
In the preponderant majority of situations the Qur'an only gives general legislative foundations, mabadi, and principles, qawaid. Detailed or particular rulings are few and are given for the most important aspects of the law.
METHODOLOGY OF THE QUR'AN IN EXPLAINING LEGAL RULINGS:
The Qur'an uses the following terminology: wajib, manduub, haram, makruuh,& mubaah. The same terminology has been adopted by jurists making it easy to refer legal opinions directly to the Qur'an. In some verses these terms are implied and are not mentioned by name. The term amr, and kitaab are used to mean wajib. The terms nahy and uqubat imply haram.
QUR'ANIC EVIDENCE FOR LEGAL RULINGS, DALAALAT AL QUR'AN ALA AL AHKAAM:
Evidence from the Qur'an on legal rulings can either be definitive, qatui, or probable, dhanni. A qatai verse can have only one meaning. A dhanni verse can have more than one meaning. The discovery of the true and intended meaning requires special expertise in the science of exigesis of the Qur'an, tafsir al Qur'an.
QURAN AS A PRIMARY SOURCE:
The Qur'an is the primary source of law. All other recognized sources are secondary to the Qur'an and are validated by it. Knowing the circumstances of the revelation of a verse, sabab al nuzuul, helps understand the hukm of the verse. Exigesis, tafsir, of the Qur'an based on personal opinion, ra'ay, is to be avoided.
D. SOURCE OF LEGAL PRINCIPLES
As mentioned above, the Qur'an is very comprehensive. It however does not provide the specifics of the majority of legal rulings. Its comprehensiveness is then in its provision of principles and methodology of the law. Specific rulings can then be derived using the Qur'anic principles and the Qur'anic methodology.
E. INTERPRETATION
Ta'awil al Qur'an is figurative or metaphorical interpretation of the Qur'an as opposed to literal interpretation. A moderate position is needed between what is literal and what is metaphorical. Only the most erudite in Qur'anic sciences can attempt the process of ta'awil.
2.0 SUNNAT
A. DEFINITION
DEFINITION OF SUNNAT:
The definition of sunnat varies according to the discipline. Sunnat in Arabic means way or custom. Jurists define sunnat as the nafilat or mandub in physical acts of worship, ibaadaat jasadiyyat. The scholars of usul al fiqh define sunnat as words, qawl, excepting the Qur'an; actions, fi’il, and implicit consent, iqraar originating from the prophet Muhammad (SAW). Sunnat is part of revelation because what the prophet said was not from him but from Allah (surat al najm:3). The Qur'an is considered revelation that is recited, wahy matluw, and the sunnat is considered revelation that is not recited, wahy ghayr matluw.
DEFINITION OF HADITH
The term hadith is used in a general term to refer to sayings and actions of the prophet. This includes what was said and sone as a prophet and as a human being living in Arabia at that time in history. Thus his food preference and manner of recreation are hadith but not all are sunnat because they may not be legislation. Not every hadith is sunnat, laysa kullu hadith sunnat.
A hadith consists of the chain of narrators, sanad, and the text, matn. The sanad is the chain of narrators starting from the companion until the author of the book of hadith collection. The sahabi is defined as one who met the prophet, believed in him, and died as a Muslim. The tabiu is one who as a Muslim met a companion and died as a Muslim.
There are three methods of reporting of hadith: hearing from the sheikh, simaa min al sheikh, repeating hadith infront of sheikh, simaa alayhi, reading hadith infront of the sheikh, qira’at alayhi; the Sheikh writing a hadith for the student, mukatabat; receiving a written hadith from the Sheikh with without authorization to teach it to others, munawalat; permission by the Sheikh for the student to repeat and teach hadiths learned, ijazah
There are 11 commonly recognized books of hadith named after their authors and are classified into 4 categories: (a) The most authentic books, sihaah: Sahih al Bukhari and Sahih Muslim. (b) Sunan are books arranged according to the chapters of the law books, abwaab al fiqh, and contain only legal matters without issues of aqidat and siyar: Sunan Abu Daud, Sunan al Tirmidhi, Sunan al Nisai, Sunan Ibn Majah, Sunan al Darimi (c) Muwattaat: Muwatta Malik (d) Masaniid: Musnad Ahmad Ibn Hanbal, Musnad Zayd bin Ali, and Musnad al Tayalisi.
Hadith collections can also be classified as jawamiu, mustakhraj, mustadrak, (a) Jawamiu: Collections that combine aqaid, ibadaat, muamalaat, and siyar are called al jamiu for example al jamiu al shahiih li al Bukhari. (b) Ma'aajim: These are books in which hadiths are classified according to the name of the sheikh or teacher usually in alphabetical order for example al mu'ujam al kabiir, al mu'ujam al awsat, and al mu'ujam al swaghiir by al Tabrani. (c) mustakhraj is a collection in which the author gets a different chain of a narration for a hadith in any book of hadith. This increases the credibility of the hadith. (c) Mustadrak is a book that collects hadiths using the criteria of an author like Bukhari and those hadiths were not documented by Bukhari.
Sciences of hadith, uluum al hadith. The sciences of hadith are divided into essentially two types: 'ilm dirayat al hadith and 'ilm riwayat al hadith. The former is concerned with the chain of narration. The latter is concerned with the text of the hadith, matn. Scholars of hadith are called muhaddithuun. A muhadith is one who memorises the chain of narrators, knows the reliability, adaalat, of the narrators, and can critique hadith. A person who just hears hadith is not called a muhaddith.
DEFINITION OF ATHAR: Athar is what was reported from the sahabat and tabiun as words and actions. Some scholars consider athar and hadith to have the same meaning.
B. CLASSIFICATION
CLASSIFICATION OF SUNNAT, AQSAAM AL SUNNAT
Sunnat can be classified as words, sunnat qawliyat, actions, sunnat fi'iliyat or …. sunnat taqririyat. Sunnat qawliyat may be reported by exact words, lafdh, or by meaning, ma'ana, which involves paraphrasing the words of the prophet. Sunnat can also be classified according to the number of its narrators as sunnat mutawatirat, sunnat mash'hurat or sunnat al ahad. It can also be classified as legislative, sunnat tashri'iyat, and non-legislative, sunnat ghayr tashri'iyat.
Sunnat al mutawatirat is one that is reported by a great number of narrators. It was reported by so many persons from the prophet and the succeeding generations that it is impossible for them to concur on a false report, tawatu ala al kadhb. The narration considered here must be by physically being with the source, mushahadat, hearing from the source, simau, but not reading about the source. Sunnat mutawatirat can be classified into two types: reported using the exact words, tawatur al lafdh, or reported in paraphrase by meaning, tawatur al ma'ana.
Sunnat mashhoor is reported by 1 or 2 companions and then became mutawatir in the generation of the followers. It is reported by many narrators but less than the number of al sunnat al mutawatirat.
Sunnat al aahaad is one reported by very 1 or 2 in the first 2 generations. There are many arguments about the reliability of sunnat al aahad. Some jurists reject in while others accept it. There is disagreement in which fields it can be considered valid: issues of creed, 'aqiidat or legal rulings, ahkaam. The arguments are involved and we need not go into them at this stage.
Sunnat tashri'iyat has a source in the Qur'an . Sunnat ghayr tashri'iyat has no source in the Qur'an and is not legally binding. An example of the latter are stories that the prophet told as a human being and not as a messenger.
GRADING OF HADITH, MUSTALAH AL HADITH
Sahiih: The highest level of hadith is sahiih. It is the most authentic. It is defined as hadith whose chain of narration is continuous and consists of reliable,dhaabit, trustworthy, 'adl, narrators and at the same time is not shaadh or mu'allal. The term sahiih li ghayrihi is used to refer to a hadith which falls short of the criteria of sahiih but is reported through several chains of transmission which raises it to the level of sahiih. The sahih has the following grades: 1st grade: what Bukhari and Muslim concurred on, muttafaq alyhi. 2nd grade is what Bukhari reported but was not reported by Muslim. 3rd grade is what Muslim reported but Bukhari did not report. 4th grade is hadith reported in other books according to the criteria of both Bukhari and Muslim. 5th grade is hadith reported in another book on the criteria of Bukhari. 6th grade is hadith reported in another book according to the criteria of Muslim. 7th grade is hadith classified as sahiih by authors other than Bukhari and Muslim.
Jayyid: When this term is used to describe a hadith classified as hasan, that hadith reaches almost the level of sahiih.
Hasan: A hadith is described as hasan if all the chain of its narrators are accurate, dhabt, and reliable, 'adl, and it is not shaadh or mu'allal.
Saalih: This is a general term used to describe a hadith that is either sahiih or hasan and therefore fulfils the criteria for being used as daliil.
Muttafaq alayhi: This is hadith reported by both Bukhari and Muslim from the same sahabi
Mutawaatir: is a hadith that was narrated by so many narrators that it is impossible for them to concur and agree on a lie on condition all report what they saw, heart, or experienced, mahsuus. It could be mutawatir lafdhi or mutawatir ma'anawi.
Ma'aruuf: is a hadith narrated by a trusted narrator and differs from the narration of a reporter classified as weak.
‘Aziiz: This is a hadith that is reported independently by two different people who are in the same generation. This makes it a stronger hadith.
Maqbool: is one whose narrator has been assessed as truthful and is used as daliil
Mudabbaj: is a hadith that one student reports from another like Abu Hurairah reporting from Aisha
Musalsal: is a hadith in which the narrators agree in reporting practical actions like the manner of shaking hands.
Muharraf: This is a hadith that has a term whose consonants are the same but the vowels are changed thus changing the pronunciation and meaning.
Dhaif: A hadith that lacks the attributes of the sahiih and hasan and is therefore not acceptable as daliil.
Musnad: is a hadith whose chain of narrators goes back all the way to the prophet
Muttasil: This is hadith that has a continuous chain of narrators.
Mawquf: is a word or action reported from the tabiu.
Mursal: This is a report by a tabiu saying that the prophet said without mentioning the sahabi who taught him. Some jurists do not consider such a report daliil.
Munqatiu: is a hadith whose chain of narration is incomplete
Maqloob: is when the chain is transmitters is by error linked to a different hadith
Mudhtarib: Is a hadith reported in several narrations that are contradictory which weakens the hadith. The contradiction may be in the chain of transmitters or in the meaning, matn.
Shaadh: Is a narration by a trusted reporter that differs from what others are reporting. It does not mean reporting what nobody else reported. If a narrator of a higher grade of credibility, awthaq, reports a narration different from a group of reliable reporters, thuqaat, the hadith is classified as mahfuudh which is a type of shaadh.
Munkar: This is a hadith by a narrator graded as weak and it differs from what the reliable narrators reported
Mudarraj: is a hadith in which a narrator makes a comment at the end of a hadith and those who narrate from him consider the comment part of the words of the prophet
Mu'allaq: is a hadith in which one or more narrators are left out from the chain of transmitters
Ghariib: This is a hadith reported by only one narrator. This terminology is different from ghariib al hadith which is a sub-discipline of hadith sciences that studies strange terms and words in hadith that are not commonly known or used.
Mu'allal: This is a hadith that on a cursory look is good but there is a hidden 'illat in either its sanad or matn that weakens it. The illat may be described as qadihat.
musalsal -
Mawdhu'u: is a hadith that is fabricated. It is forbidden to report it.
Mawquuf: is a hadith that is reported as the word or action of a sahabi with no reference to transmission from the prophet
Mansuukh: is a hadith whose hukm has been abrogated by a later hadith
Mukhtalaf al hadith: Is a hadith that is accepted but apparently contradicts another one whilst it is possible to combine the two hadiths together with ease.
Shaahid: This is a hadith that is similar to another either lafdh and ma'ana or in ma'ana only but is reported by from a different companion.
Mutabiu: Is a hadith similar to another in lafdh and ma'ana and reported from the same companion
Mutashabihu: is hadith in which the names of the narrators are the same as those of another hadith but the names of the fathers of the narrators are different in pronunciation and not in writing.
Matruuk: This is a hadith that is rejected because of suspicion that a narrator is telling a lie for example any narration of a person known to be a liar is rejected even if there is no evidence that he ever lied about hadith
CRITIQUE OF HADITH
Dhabt refers to rigor in memory and is of two types: memorization by heart, dhabt swadr and preservation by writing, dhabt kitaabat.
'Adl: This term is used by scholars to hadith to refer to a Muslim who is an adult, intellectually competent, who does npt commit major sins, and does not repeatedly commit minor sins, and who has no trait that destroy social respectability, muru'at.
The abadalah: Abdullah bin Abbaas, Abdullah bin Omar, Abdullah bin Amre bin al Aaas, Abdullah bin al Zubayr
The 10 promised jannat, al a'sharat al mubasharuun bi al jannat: Abubakar, Omar bin al Khattab, Othman bin 'Affan, Ali bin Abi Taalib, Twalhat bin Obaidullah, al Zubayr ibn al Awaam, Sa'ad bin Abi Waqqaas, Sayied bib Zaid, Abd al Rahman bin Awf, Abu Obaidah Aaamir bin al Jarraah.
Mubham: This term is used to refer to a narrator whose name is not mentioned in the sanad or matn be it a man of a woman.
Grades of narrators (positive), maraatib ta'adiil al ruwaat, by Ibn Abi Haatim: 1st grade: the following terms are used: thiqat, mutqin, hujjat, 'adl haafidh, dhaabit. 2nd grade: Swadduuq, mahaluhu al swidq, la ba-asa bihi. 3rd grade: sheikh. 4th grade: swaalih al hadiith.
Grades of narrators (negative), maraatib of jarh, by Ibn Abi Haatim: 1st grade: Soft, layyin al hadiith, refers to a narrator whose narration is written and is examined before accepting. 2nd grade: Not strong, laisa bi qawwiy, refers to a narrator who is not strong and is less than 1st grade. 3rd grade: weak, dhaif al hadiith, the hadith is not thrown away but is considered. 4th rejected, matruuk al hadith: this is a liar whose report is not written at all.
C. HUJJIYAT al SUNNAT
SUNNAT AND QUR'AN
The relation between sunnat and Qur'an can take various shapes. The sunnat can agree with the Qur'an. The sunnat may explain and elaborate the Qur'an (surat al nahal: 44). The sunnat may make particular, takhsis, what the Qur'an mentioned in general or generic terms. The sunnat may also explain a general principle from the specifics of the Qur'an. The sunnat may bring forth matters that the Qur'an did not mention at all.
DALIIL HUJJIYAT AL SUNNAT
Three types of evidence: The evidence for considering sunnat as a valid source of law is from the Qur'an, consensus, and logic.
Qur'an: The Qur'an enjoined believers to obey the prophet; this obedience implies following his sunnat. Surat al Nisa:59, Surat al Anfal:46, Surat al Hashr: 7, Surat al Nur: 63
Consensus, ijma: leading jurists of the ummat of all generations have concurred that sunnat is a source of law. Imaam al Shafie played a very important role in establishing the role of sunnat,
Logic: It is logical that the purpose of sending revelations through human messengers was to provide humans with a human model that they can see and follow. It is therefore understandable that the word and the actions of the prophet are part of the revelation and are therefore a source of law.
D. SUNNAT AS A SOURCE OF LEGAL RULINGS and PRINCIPLES
SECOND SOURCE OF LAW:
The sunnat comes second to the Qur'an as a source of law.
DALIIL FROM SUNNAT:
The daliil of the sunnat may be definitive, qatai, or probable, dhanni. An action of the prophet is evidence of clear-cut permission, mutlaq al idhn. His leaving an action is evidence of clear-cut prohibition, mutlaq al nahy. His iqraar is evidence of clear-cut rafiu al haraj. It is preferable but not obligatory to follow the prophet's choice in actions that he permitted others to carry out but desisted himself. If he ordered an action but did not himself do it, it is preferable but not obligatory to follow the prophet's choice.
E. INTERPRETATION
The sunnat is interpreted in the light of general principles of the Qur'an. It is also interpreted in the light of the historical social situation in Arabia at that time. The Arabic language is also used in interpretation of terms and words.
3.0 SCHOLARLY CONSENSUS (IJMA)
A. DEFINITION
DEFINITION OF IJMA
Ijma is agreement of all mujtahids existing at one time on a particular legal ruling based on nass. The agreement of the non-mujtahid is not considered. Consensus on a matter not related to a legal ruling like consensus of surgeons on a surgical procedure is also not recognized as a source of law. Consensus not based on daliil is not recognized as a source of law.
B. CLASSIFICATION
TYPES OF IJMA
Two types of ijma are recognized, Ijma sariih & ijma sukuuti. Ijma sariih requires a meeting of the mujtahids, exchange of views and reaching a consensus. This however was not practical except in the early days of Islam when there were few mujtahids all in one place in Madina. In the modern times, ijma sariih is once again possible because of the easy transportation and telecommunication. Ijma sukuuti arises when one mujtahid expresses an opinion that becomes widely known and no other mujtahid challenges him. There are some scholars who do not consider ijma sukuuti as valid ijma.
C. HUJJIYAT al IJMA
EVIDENCE FOR IJMA
The Qur;'anic evidence is in two verses: 4:115 & 4:59. Evidence from the sunnat is Hakim 1:116 & Ahmad 3600. The prophet taught that the whole ummat can not concur on an error, ya yajitamiu ummati ala al dhalaal. La yajitamiu ummati ala al khata
CONDITIONS FOR VALIDITY OF IJMA
The following conditions must be fulfilled for ijma to be considered valid: (a) Several mujtahids must exist and must be involved in the consultation. (b) The agreement must be unanimous, ijma kaamil. There are some opinions that agreement of the majority, ijma al akthariyat, suffices. (c) Each mujtahid must be free to express his views. (d) The agreement of the mujtahids is not their own opinions. Their agreement must be based on evidence (Qur'an and sunnat) and not on qiyaas or ijtihad. Basing ijma on Qur'an and sunnat ensures unanimous agreement because all the mujtahids are using the same source.
D. METHODS OF IJMA
The modern way of undertaking ijma is by use of Fiqh Academies, majmau al fiqh, to which existing mujtahids can be invited to debate issues of law and issue a legal opinion. Persons trained in law should rely on expert witnesses from other disciplines in debating issues that require such expertise.
E. CONTEMPORARY CHALLENGES
Change of ijma: Mujtahids of a later generation can not review the ijma unless conditions have changed.
4.0 ANALOGY (QIYAS)
A. DEFINITION
DEFINITION OF QIYAS
Qiyas is use of a ruling of one matter for another matter when the two share the same illat.
PILLARS OF QIYAAS, ARKAAN AL QIYAAS:
There are 4 pillars in the procedure of qiyaas: the index case, al asl, the legal ruling on the index case, hukm al asl; the new case, al farau, and the underlying explanation or reason, al illat. The asl is the issue for which a ruling based on Qur'an and sunnat is available. The hukm al asl is the established ruling. The fara'u is the new issue for which a ruling is needed. Illat is the underlying reason or explanation that is shared between the asl and the fara'u. The 'illat must be an objective attribute that does not vary from person to person and not from circumstance to circumstance.
DIFFERENCE BETWEEN 'ILLAT AND HIKMAT:
The 'illat is immediately obvious but the hikmat may not be. For example the 'illat of breaking the fast for a traveler is the journey and the hikmat is the difficulty involved in travelin, mashaqqat. 'Illat is what the human intellect can work out based on empirical observation and reason. The underlying hikmat is known only by Allah because human knowledge is limited. The 'illat in acts of worship is beyond the reach of humans, al 'illat fi al ibadaat mahjubat. The 'illat in mu'amalat is easier for humans to work out. This explains why qiyaas is used rarely in ibaadaat and is widely used in mu'amalaat.
The following examples illustrate the fact that the hikmat is not always obvious to humans: The 'illat of breaking the fast for a traveler is difficulty, mashaqqat, but not all travelers experience difficulty but they can enjoy the exemption. There is deterrent punishment for qadhf bi al zina but not for qadhf bi al kufr when in human logic the latter is a more serious matter. The hand of a thief who uses trickery and stealth is cut off but not that of the robber who uses force when in human logic the latter is a more serious issue.
B. CLASSIFICATION: TYPES OF QIYAAS
QIYAS al ILLAT
The term qiyaas is most often used to refer to qiyaas al illat which is based on an identifiable cause or explanation underlying both the asl and the fara'u. The other 2 types of qiyas are disputed and are not commonly used.
Qiyas al illat can be classified as: higher qiyaas, qiyas al awlah, equivalent qiyaas, qiyaas al masaawi; and lower qiyaas, qiyaas al adnah. In qiyas al awlah the illat is stronger in the farau than in the asl. In qiyas al masaawi, the illat in the farau is as strong as the illat in the asl. In qiyaas al adnah the illat is weaker in the farau than in the asl.
QIYAS al SHUBHAT
This type of qiyaas is not accepted by all jurists. It may not be considered as true qiyaas.
QIYAS al MA'ANA
This is also referred to as dalaalat al lafdh, connotation of a term. It may not be considered as true qiyaas.
HUJJIYAT al QIYAAS
EVIDENCE OF VALIDITY OF QIYAS
Qur' an: surat al hashr:2
Sunnat: The hadith of Muadh Ibn Jabal on being sent to Yaman is definitive proof of the validity of qiyaas. Qiyaas is ijtihad using reasoning, al qiyaas ijtihad bi al ra'ay. The Prophet and companions used qiyaas in many matters.
Logic: Qiyas enables extract valid legal rulings about issues that were not explicitly mentioned in the Qur'an and sunnat.
CONDITIONS OF VALIDITY
Conditions of the asl, shuruut al asl: the asl must be established by nass (Qur'an and sunnat) and not by another qiyaas
Conditions of the index ruling, shuruut hukm al asl: (a) The legal ruling must be practical, hukm sharai 'amali. (b) The ruling must be understandable, ma'aquul al ma'ana, ie based on 'illat that is understandable logically. (c) It must have an 'illat that can be established in the fara'u (d) the hukm must not be specific for the asl only. It is only generalizable types of hukm that can be used in qiyaas.
Conditions of the new case, shuruut al farau: (a) No nass exists for the fara'u (b) the 'illat of the asl must be present in the fara'u.
Conditions of the underlying reason, shuruut al ' illat: (a) A clear description or attribute, wasf dhaahir. (b) Consistent description, wasf mundabit. (c) Description related to the legal ruling, wasf munaasib li al hukm. The relation may be defined by the nass or may be derived by consideration of maslahat. (d) Description beyond the asl, wasf muta'adiyat li al asl, and not specific to that asl but is generic and is generalizable. (e) The 'illat is recognized by the law and with no prior abrogation.
D. METHODS OF QIYAAS
Methods of recognising 'illat: (a) Text, nass. (b) Scholarly consensus, ijma. (c) trial, sabb, and exclusion, taqsiim. (d) delineating the actual illat from the nass, tanqiih al manaat. The word manaat means illat.
Azimat & rukhsat: qiyaas is based on aziimat and not rukhsat
5.0 OTHER SOURCES OF THE LAW
A. SOURCES THAT ARE TRANSMITTED, MASADIR NAQLIYAT
PRE-ISLAMIC LAWS. SHARA'U MAN QABLANA
There are 5 types of past laws. Some of them were confirmed by the Qur'an making them laws for us as well. Some were abrogated by the Qur'an. Some were not mentioned at all in the Qur'an or sunnah. Some were mentioned in the Qur'an and sunnah without mentioning whether they were permitted or not. The last category is the point of contention among the jurists.
WORD OF THE COMPANION, QAWL AL SAHABI
A companion, sahabi, is defined as one who saw the Prophet, believed him, and stayed around him for some time and died as a Muslim.
The jurists concurred that the word of the sahabi is accepted as a source of law in the following 2 circumstances: (a) if the sahabi's opinion could not have been derived by reason, ra'ay, or ijtihad, and must therefore by exclusion have been sunnat from the prophet. (b) if the opinion of the companion is one on which all the other companions concurred.
The jurists do not agree regarding a word of a sahabi based on reason, ra'ay. The arguments are involved and are beyond the scope of this manual.
CUSTOM or PRECEDENT, 'URF
'Aadat is the same as 'urf. We will use the term 'urf in this volume because the word 'aadat has been used to refer to normal physiological activities of life.
'Urf is defined as a custom or precedent that is very common and does not contradict the nass. 'Urf may verbal, 'urf qawli, or action, 'urf fi'ili. 'Urf may be recognized in a certain group or people, in one place or all over the world.
The correct custom, al 'uruf al sahiih, is what does not contradict textual evidence, nass; or a recognized interest, maslahat mu'atabarat, and does not lead to evil, mafsadat.
A bad custom, 'urf faasid, is one that contradicts the law and brings harm, jalb al dharar, or keeps away a benefit, dafiu al maslahat.
'Urf changes with changes of time and place.
'Urf is considered a valid source of law, al aadat muhakkamat. 'Urf is accepted as an implicit condition in transactions, al ma'aruf urfan ka al mashrut shartan.
The validity of using 'urf as a source of law, hujjiyat al urf, is based on ijma, maslahat, and sadd al dhari'at.
B. SOURCES BASED ON REASON, MASADIR AQLIYAT
ISTISHAAB
Definition: This is continuation of an existing ruling either affirming, ithbaat, or denying, dafau. Matters are left as they are until there is evidence to the contrary. Recourse is made to istishaab if there is no daliil.
Types of istishab: The following are under the doctrine of istihbab: (a) the original position is that of permission, al ibahat al asliyyat. (b) Presumption of innocence until proved otherwise, bara'at asliyyat. (c) A legal ruling is affirmed until its contrary is established by evidence, thubuut al hukm ila an ya'ati daliil. (d) Certainty can not be re moved by doubt, al yaqiin la yazuul bi al shakk. (e) Any doubts are in favor of the suspect, al shakk li saalih al muttaham, because of the law principle, it is better to err in freeing the true culprit than to condemn an innocent person, al khatau bi baraat al mutahim ahsan min idanat bariu.
ISTIHSAAN
Definition: This is preference for one qiyaas over another because of evidence that the mujtahid feels more confortable with or which is stronger. The evidence or reasoning may not be obvious, qiyaas khiffi.
Types of istihsan: (a) Excepting a part from a whole. (b) Preference of an unstated qiyaas over a clear stated one
Methods of istihsaan: The following can be used as bases for istihsaan: (a) text, nass (b) consensus, ijma (c) custom, 'urf (d) necessity, dharuurat (e) benefit, maslahat (f) unstated qiyaas
Basis of validity, hujjiyat al istihsan: Istihsan is preference of one daliil over another and not basing a legal ruling on personal whims. Imaam al Shafei condemned istihsaan and said that it is a form of usurping legislative authority, man istahsna faqad shara'a.
ISTISLAAH
Definition of maslahat: It is obtaining a benefit, jalb manufa'at, and preventing a harm, dafiu mafsadat. Preventing a harm has priority over obtaining a benefit, , dafiu al mafsadat muqaddamu ala jalb al maslahat. Maslahat is not recognized in 'ibaadaat because the rulings on 'ibadat are from the law-giver do not admit of any addition or subtraction. Maslahat is used extensively in mu' amalaat because human interest is the primary purpose of the law.
Types of maslahat: (a) Recognized, maslahat mu'utabarat, are those related to the 5 purposes of the law like jihad for protection of diin, qisaas for protection of life, prohibition of alcohol for protection of the intellect, prohibition of zina for protection of the progency, nasl, and prohibition of theft for the protection of wealth. (b) Abrogated, maslahat mulghaat: These are imaginary and are not real like the benefit of the usurer from usury or refusal to go for jihad on the grounds of the interest of prptecting life (c) Maslahat mursalat: The law did not mention any explicit text about their recognition or abrogation. Most discussions are about maslahat mursalat because the other two are clear and give rise to no disputes.
Examples of the use of maslahat: Collection of the Qur'an, jamau al Qur'an, by Abubakr and Othman; Omar Ibn al Khattab shaved the head of Nasr bin al Hajjaaj and exiled him outside Madina because women were attracted to him.
Conditions of maslahat mursalat, shurut al maslahat al mursalat: The Malikis who use maslahat more than other schools of law gave the following conditions for its validity: (a) Conform, mulaimat, to maqasid al shariat. (b) Logical, ma'aquul. (c) Necessary, dharuuri. (d) Public and not personal or private interest. (e) Real and not imaginary benefit.
C. SADD AL DHARI'AT
DEFINITION OF DHARI'AT
Dhari'at is the means that leade to an evil act, wasilat ila al mafsadat. Acts that are considered means to evil can be intrinsically haram or mubaah. The case of those that are haram is straight forward. Our subsequent discussion will be centered on acts that are mubaah and lead to mafsadat that require complicated consideration.
CLASSIFICATION OF DHARI'AT
Dhari'at is classified into three types: (a) Those that rarely lead to evil like growing grapes that may be used for making alcohol or looking at a fiancee that could in rare cases lead to sexual immorality. (b) Those that have a high probability of leading to evil ie the potential for evil is greater than the potential for good like selling weapons of war that in most cases end up being used for violence; seclusion with a strange woman, khuluwu bi ajnabiyyat; and a judge accepting gifts. (c) Those that are misused for a purpose other than their original function like marrying a thrice-divorced woman then divorcing her so that she can return to her original husband.