Sources of Law

Following notes on Sources of Law have been taken from Principles of Mahomedan law By D.F Mulla.

The Quran:

THE primary source of laws in the Muhammadan system is revelation (wahi ).

Quran was revealed in parts to the Prophet of Arabia during a space of twenty or twenty-five years.

Most of the verses, which embody rules of law, were revealed to settle questions that actually arose for decision ; some in order to repeal objectionable customs like infanticide, gambling, usury and unlimited polygamy ; some for effecting social reforms such as by raising the legal status of women, settling the question of succession and inheritance on an equitable basis, providing protection for the rights of minors fed other persons under disability ; and some lay down the principles of punishment for the purpose of securing peace and order.

These rules principally occur in the Suratu’l-Baqara, Suratu’n-Nisa’, Siiratu Ali ‘Imran, Suratu’l-Ma’ida, Suratu’n-Niir, Siiratu’t-Talaq and Siiratu Bani-Isra’il.

Difference between Quran and The Traditions:

The difference between the Qur’an and the precepts lies in the fact that the former contains the very words of God, while the precepts were delivered in the Prophet’s own language.

Further, no doubt can reasonably be entertained as to the authenticity of any verse of the Qur’an, the whole of which is held to be mutawatir, that is, proved by universally accepted testimony.

There are but a few precepts some say five or six which can be said to be so proved. The reason for this is that, while the texts of the Qur’an were collected by the authority of the State soon after the death of the Prophet, the traditions were not so collected.

IJMA’ AND CUSTOMS

IJMA’ OR CONSENSUS OF JURISTIC OPINION

Definition of Ijma

• Ijma‘ is defined as agreement of the jurists among the followers of Muhammad in a particular age on a question of law.

Texts in Quran in support of Ijma

Its authority as a source of laws is founded on certain Qur’anic and traditional texts.

The principle underlying these texts is expressed in especially apt terms in one of them which says :

‘ Whatever the Muslims hold to be good is good before God.’

The other texts relied on in this connexion are the following :

‘ My followers will never agree upon what is wrong.’

(Uddi’s Commentary, vol. ii, p. 34.)

‘ It is incumbent upon you to follow the most numerous body.’

(A tradition, see Kashfu’Msrar, vol. iii, p. 258)

Whoever separates himself (from the main body) will go to hell.’

(A tradition, see U4di’s Commentary, vol. ii, p. 34 ; Taqrir ‘, vol. iii, p. 85.)

Do not be like those who separated and divided after they had received clear proofs.’

(A Qur’anic verse, see ‘Taudih’, p. 299.)

‘ Obey God and obey the Prophet and those amongst you who have authority.’

(A Qur’anic verse, see ‘ Suratu’n-Nisa’.)

‘ If you yourself do not know, then question those who do.’

(Ibid, see ‘Taudih ‘ on margin of ‘Talwfh’, p. 514.)

“You are the best of men, and it is your duty to order men to do what is right and to forbid them from practising what is wrong.’

(Ibid, see’ ‘ Bazdawi ‘, vol. Hi, p. 255.)

Ijma is an essential principle of Sunni jurisprudence:

The four Sunni Schools of law hold Ijma’ to be a valid source of laws.

Ijma’ is an essential and characteristic principle of Sunni jurisprudence, one upon which the Muhammadan community acted as soon as they were left to their own resources and were called upon to solve the first and most important constitutional problem that arose on the Prophet’s death, namely, the selection of the spiritual and executive head of the community.

The election of Abu Bakr to the Caliphate by the votes of the people was based, as is well known, on the principle of Ijma’.

Some Shi’ahs, Kharjis and Nazzam do not recognize this source of Law:

Among the Shi’ahs some jurists hold that questions relating to the Shari’at cannot be authoritatively determined by mere consensus of opinion, while other ‘ Shi’ah jurists, though admitting the authority of Ijma’, base it on a presumption that, when the Mujtahids agree in a certain view, they voice the opinion of the invisible Imam.

Argument in Support of Ijma:

In a Qur’anic text ‘ To-day we have completed your religion.’ , it is laid down that God has completed the Islamic religion, and it is also laid down that it will last forever, and that Muhammad was the last of the Prophets.

In the Qur’an, however, only a few rules of law have been enunciated, and these are by no means sufficient to cover the numerous questions that arise from day to day.

If we add to this the fact that the Prophet is dead, and we can no longer have his guidance, it necessarily follows that any rule of law, which is not found to be explicitly laid down in the Qur’an or by the precepts of the Prophet, must be capable of being deduced from them.

Ijma of different kinds:

Ijma’ is of several grades in point of authority.

Absolute Ijma’ insures certainty of belief so that any one not believing in the validity of a rule based on such Ijma’ becomes chargeable with unbelief.

An Ijma’ is said to belong to this category if it be one in strict conformity with the requirements of law and proved by infallible testimony.

Then there are other Ijma’s which impart binding authority to the rulings founded upon them, but do not ensure certainty of belief.

These are Ijma’s which are either not constituted in strict accordance with the law or not proved by universal testimony.

Again Ijma’s of the Companions have in some respects a higher authority than Ijma’s of other jurists.

Qualifications of a Mujtahid:

Fakhru’l-Islam lays down generally that he must be conversant with the science of law in both the branches, namely, the principles of jurisprudence (Usul) and the rules of law in the different departments (Faru’).

It is necessary for a jurist that he should have knowledge of the Qur’an and be able not only to read it, but also to understand it and interpret its meaning.

He should be familiar with the traditions reported from the Prophet and be able to distinguish the authentic from the non-authentic, the universally known and the well known from traditions of isolated origin, and should also know the nature of authority attached to each class of traditions.

He must be conversant with the rules and methods of analogical deduction.

How far is heresy (unorthodoxy) a disqualification?

According to Sadru’sh-Shari’at and many other Hanafi jurists, Ijma’ is confined to the orthodox sects so that in their opinion heretics generally have no voice in Ijma’, while according to other authoritative Hanafi jurists, such heretics alone are to be excluded whose heretical doctrines amount to infidelity or who actively propagate their views.

The Shafi’fs and Malikis would only exclude those heretics whose doctrines amount to infidelity.

The orthodox sects are called Ahlu’s-Sunnat wa’l-Jama’at, i.e. followers of the traditionary religion and the main body, a name which is appropriated by men belonging to the four Schools of law with whose jurisprudence we are concerned.

As regards those heretics, who attempt to convert men to their own doctrines and preach against the rest of the Muslims, this very fact, which shows that their minds are biased, disqualifies them from joining in Ijma’, because a prejudiced mind cannot arrive at the truth.

Examples of Different forms of heresy:

The Kharijis who did not accept the Caliphate of ‘Ali, and also held the view that the commission of any sin however trivial turned a Muslim into a nonbeliever, and those Shi’ahs who disputed the right of ‘Umar and ‘Uthman to the Caliphate are classed as heretics, whose doctrines indicate biased minds.

As belonging to the class of heretics who are excluded from Ijma’, because of holding doctrines involving unbelief, may be mentioned men who profess that God’s knowledge extends only to the actual creation and not beyond it, and those Shi’ahs who say that it was ‘Ali whom God originally intended to vest with the mission of the Prophet, and that it was through a mistake of the angel Gabriel that Muhammad received his high office.

Among the heretics who are disqualified there are also men whose conduct and doctrines indicate not only bias but a hardened conscience, for instance, that class of Shi’ahs who scoff at the Companions of the Prophet like Abu Bakr, ‘Umar and ‘Uthman and invent slanderous stories regarding them.

Transgressor of Law whether a disqualification:

According to accepted Hanafi opinion, a fasiq or transgressor of the religious injunctions is excluded from these deliberations. The argument of those who hold this view is that the opinion of a man who does not act up to his doctrines is liable to distrust.

According to the accepted Shafi’is opinion and probably also Maliki opinion, mere transgression is no disqualification.

Ijma not confined to jurists of any particular age or country

According to the accepted opinion of all the four Sunni Schools, Ijma’ is not confined to any particular age or country.

The Malikis recognize the validity of Ijma’ of the Companions and their successors residing at Medina, without reference to the opinion of others.

According to one reported version of Imam Hanbal’s opinion, which is also said to be the opinion of some other jurists, Ijma’ is confined to the Companions.

Opinion of jurists of Medina:

Malik says that sacred learning, if not confined to Madina, was mostly to be found there, meaning during the time of the Companions and their successors, and that special sanctity attached to that sacred city, as it was the place where the Prophet took refuge and carried out the greater part of his mission.

Two traditions are also relied upon in support of the Maliki view. ‘ Medina throws out its dross as fire the dross of metal ‘, and ‘ Islam will stick to Medina as a serpent to its hole”.

These traditions are, however, interpreted by other jurists as being merely indicative of the sacred character of the city.

Against this claim, it is urged that men, learned in the Qur’an, the Hadith, and the law, dispersed to all parts of Arabia, some during the Prophet’s lifetime, and others after his death. They further point out that Mecca is no less sacred than Madina.

Opinion of the Companions of the Prophet:

Those jurists who would restrict Ijma’ exclusively to the Companions, contend that most of the texts relied upon as authority, such as: ‘ You are the best of men ‘, ‘ My followers will never agree upon an error ‘, and the like refer to the Companions alone.

But the generality of jurists say that the words are of general application, and there is no reason why a limited meaning should be put upon them.

Opinion of the Descendants of the Prophet alone:

The Shi’ahs, specially the Imamiyas and the Zaidiyas, admit the authority of collective decision of the descendants of the Prophet alone.

They point in support of their contention to a verse of the Qur’an in which it is laid down:’ God wishes to cleanse the people of the house (of the Prophet) of impurities ‘, and also to a precept of the Prophet to the effect: ‘ I am leaving among you two sheet anchors, if you hold by them, you will not go wrong, the Book and my descendants.’

The Sunnis explain the Qur’anic verse as having reference not to the Prophet’s descendants, but to his wives, and say further that it means no more than that they had been purged of unbelief. As regards the tradition, they argue that its proof rests on isolated testimony, and cannot, therefore, support a doctrine of absolute authority like Ijma’.

Opinions of the First four Caliphs:

There have been some Hanafi doctors such as Qadi Abu Khazim in the reign of Mu’tadid Billah, who held that concurrent decision of the first four Caliphs has the effect of Ijma’, and this, according to one version, was the opinion of Hanbal.

Conditions related to the constitution of Ijma:

According to the accepted doctrine of the four Sunni Schools, there must be unanimity of opinion among all the jurists of the age, in which the decision in question is arrived at, in order that such decision may have the force of Ijma’ in the absolute form.

The reason, why unanimity is insisted on for Ijma’ in the absolute form is thus stated : every jurist individually is liable to err, and the texts, it is urged, raise a presumption of infallibility only in favour of the entire body.

But, if the majority of jurists who agree in a certain conclusion do not admit that those who dissent from them possess the qualifications of a jurist, such dissent will not preclude the formation of absolute Ijma’.

Some doctors go further and hold that Ijma’ of the majority of jurists is of absolute authority, even though they do not question the qualifications of the dissentient minority.

The Hanafis, the Shafi’is, and the Malikis hold that, if the number of dissentients be not large, the view of the majority will be a valid and binding authority, though not absolute in the sense that a person disputing it would become an infidel.

The jurists, who hold that the opinion of the majority is sufficient for the purposes of absolute Ijma’, interpret the texts in question as meaning most and not all. They contend, that if it were otherwise, the doctrine would be practically impossible of realization.

It may be observed that, though Ijma’ in the absolute sense is difficult of realization at the present day, the value of the doctrine in its practical aspect cannot be materially affected by that fact once it is conceded that the opinion of the majority is of binding authority.

When is Ijma completed?

According to the Hanafis the Malikis and most Shafi’is an Ijma’ is completed as soon as the jurists  of the age in which the question arose has come to an agreement thereon, after they have had sufficient time to mature their deliberations.

But according to one version of Hanbal’s opinion and some Shafi’i doctors, it is necessary to wait until the age in which the jurists who were parties to the Ijma’ have come to an end, or, in other words, until all of them have died without any one having withdrawn his assent or changed his opinion.

Once a question is decided, it cannot be reopened by individual jurists

According to the generally received Sunni view, when a question is determined by consensus of opinion, it is not open to individual jurists of the same or subsequent age to come to a different conclusion, except when the matter is one in which some jurist, before the formation of the Ijma’, was known to have entertained a different view, or a jurist a party to the Ijma’ happened afterwards to change his view.

For instance, if the Companions of the Prophet agreed in laying down a certain law, some among them along with the successors might not subsequently come to a different conclusion, unless the matter was one in which before such agreement some of the Companions had expressed a different view.

One Ijma may be reversed by a subsequent Ijma

Ijma’ of one age may be reversed by subsequent Ijma’ of the same age, in which case the first resolution ceases to have operation.

Similarly Ijma’ of one age may be repealed by Ijma’ of a subsequent age with one exception, namely, an Ijma’ arrived at by the Companions of the Prophet is incapable of being repealed afterwards.

In the opinion of Shafi’is, which is also reported to be the view of Hanbal, consensus of opinion has no force in determining the law in a matter on which the Companions of the Prophet had expressed conflicting views.

In support of the Shafi’i view it is urged that, if Ijma’ be allowed in a matter in which some of the Companions had previously expressed a different opinion, then it would follow that those Companions were misled, because a law established by consensus of opinion is regarded as so indisputably right, that any one disputing it makes himself liable to a charge of infidelity. Such a reflection on a Companion of the Prophet is not allowed.

The Hanafis answer that every Mujtahid is liable to err, so is a Companion. They, however, concede that Ijma’ in such circumstances would not be absolute, so that any one disputing the decision would not incur the guilt of infidelity.

The number of jurists participating in the Ijma need not be large

In order that a valid Ijma’ may be arrived at, it is not necessary according to the Hanafis and the Malikis that the number of jurists participating in the deliberation should be large. But their number must not, according to some, be less than three, according to others not less than two.

Ijma may be based on Quran, Hadith, or Analogy

Ijma’ may be based on a text of the Qur’an or of Hadith or on analogy. This is the view of all the Sunni Schools.

The Mu’tazilis and the Zahirites, on the other hand, do not admit the validity of an Ijma’ which is based on an isolated tradition, or on analogical reasoning.

They say that, since a concurrent decision is absolute in its legal effect, the authority on which it is supported must also be of a conclusive nature.

The election of Abu Bakr to the Caliphate is a well-known instance of Ijrna’ based on analogy. The Companions held that he was the fittest person for the office, on the analogy of the fact that during his lifetime the Prophet himself once permitted him to lead the prayers, the argument being that the man who was considered a proper leader of the Muslims in matters of religion was so a fortiori in the rest of their affairs.

Another instance of Ijma’, based on analogy is the law laying down a sentence of eighty stripes for the offence of drunkenness. The analogy is based on the sentence for slander, because a drunken man having no control over his tongue is likely, it is said, to utter words of slander.

Proof of Ijma

The next question relates to the nature of evidence by which the fact that a particular question has been determined by consensus of opinion may be proved.

It may be proved, either as a matter of universal or continuous notoriety, or as being well known among the people. There is no difference so far among the four Sunni Schools.

But the Hanafis add that it may also be proved by isolated information. Imam Ghazzali among the Shafi’i jurists is of opinion that Ijma’ resting upon isolated testimony is of no authority, and there are some Hanafis who take the same view.

Legal effect of Ijma

The law laid down by consensus of opinion is authoritative and binding. In its theological aspect, however, according to the Hanafis, it is only when such collective determination conforms in its constitution and proof strictly to the requirements of the law that it can be said to be absolute in the sense that it would ensure certainty of belief, so that any one disputing its authority would be guilty of infidelity.

According to the accepted Shafi’i and Malik! doctrines, a man disputing the authority of Ijma’ does not become guilty of infidelity, except when the decision is in respect of matters, which are established by clear authority and universally accepted as such, such as the obligation to observe the daily prayers, to fast during the Ramadan, to pay zakat and to perform pilgrimage, the unlawfulness of whoredom, of drinking intoxicating liquor, of dealing in usury, and the lawfulness, of marriage, sale, lease and the like.

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