Principles of Islamic legal theory
[Republished after revision]
The divine guidance bestowed on humankind through the means of the Prophets, is primarily derived from the Holy Book of Quran, and customary practices of God’s Messengers (Sunnah), both of which are regarded as the most authentic sources of the Word of God. Every student of religion must approach these sources keeping in mind certain fundamental principles for their interpretation and elucidation, which have been included in our book ‘Meezan’, under the section ‘Fundamental Principles of the Quran’. A summary of those Principles can also be found in our book, ‘Maqaamaat’, under the same title. Apart from these fountains of knowledge, the method of ‘ijtihaad’ (independent legal reasoning) can be considered, if required, as a means of conceptualizing the Will of God. In addition to resolving many issues, this method is also an attempt to understand those divine directives which have not been spelt out directly and comprehensibly in the Quranic verses but are, in fact, applications of those very decrees in their essence, and have been entrusted to people’s judgement to decode. Qiyas is one such form of ijtihad. The word used in the Quran for it is ‘istimbaat’ (inference), and the knowledge discipline that is a product of this methodology, is known as fiqh, or jurisprudence. A substantial and crucial part of it is the ‘fiqha al-nabi’ (Prophetic jurisprudence). The next in importance come the legal and theological injunctions of the religious clergy and the jurists. The term ‘Principles of Islamic legal theory’ is used to understand and explain these aforementioned categories of legal reasoning and derivation of laws and opinions. These principles are given as follows:
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- Every opinion established about religious matters would be directed at fulfilling the objectives of the religion; the objectives which the Quran itself has laid out. In our view, these objectives are aimed at purification of knowledge and actions in every aspect of human beings’ individual as well as collective lives. This purpose of sanctification must be kept in view as a foundational and fundamental principle of religious discourse when we ascertain the authenticity of isolated reports, or adopt or reject any opinion and interpretation that is offered.
- In this essay, ‘Quran’ and ‘Sunnah’ is also a reference to the directives given therein, as well as the objectives and common principles which form the basis of God’s Shariah, or laws. This is regardless of whether those directives are laid out clearly in the text of the Quran, or have been determined by the method of logical induction. An example of the former case (textual evidence) would be, “Allah has declared all pure things as edible, and all impure things as forbidden for consumption.” An illustration of the latter case in point (reasoning by induction) would be, “Every worship ritual is a symbolic expression of human beings’ connection with God.”
- Fiqh is, essentially, an entire branch of these very directives, motives, and foundational principles. And its place within religion should remain only that – a subset or a branch. If it were to transgress this position accorded to it and supplant the authority of the Quranic edicts, or if it attempts to alter their purport and thereby supersede them, then perforce, it would stand to be rejected.
- Each religious commandment holds value in itself. This is what is also referred to as its ‘meaning’ and ‘objective’. The application of a commandment in a newly emerging situation, or its exemption and rejection, will wholly depend on the purport and objective of the particular commandment.
- The following are the three principles of reasoning which are adopted in Fiqh: Firstly, making a case for the set through its subsets; for if the parts exist, so should their whole. Secondly, deducing the parts from the whole, since the whole comprises its parts or subsets. Hence, if someone deliberates on the whole and gains a thorough understanding of it, she will find that it testifies to each of its component parts. After all, this is why the whole is termed as such, and its components are just that – its parts. Thirdly, making an argument for other branches and components on the basis of one or a few, principally through providing evidence of the whole. Therefore, a component would first and foremost establish an argument for its superset, which in turn would open modes for understanding for the rest of its components.
- “Fiqha al-nabi” holds nothing less than an extraordinary significance in this discipline, i.e., Principles of Islamic legal theory. Most of it has been handed down through history in the form of isolated reports. The heedfulness called for while attributing anything to Prophet Muhammad (PBUH) himself, also demands that these isolated reports be accepted as authentic and reliable only if they, at the very least, meet the requirements of being ‘sound’ (hassan), in the categorization by the muhaddisiin (experts on Hadith). The weak reports and traditions which came through multiple sources, usually came as administrative decisions of the time; even so, they can be evoked as a way to further corroborate one’s judgment. The reason being that in matters such as these, the foundational methods of reasoning are based on those principles which pass the rigour of knowledge and intellect. What is to be done if divorce is given in violation of the methods specified for it? Any answer that might be given in response to this query, would be in the nature of an administrative resolution, and if even a weak Hadith report could be offered in its support, it would certainly elicit more confidence in the given opinion. The matter of the divorce of Rukana bin Abd-i Yazid is one example of this. The Hadith reported by Abu Dawudd, Ibn Majah, Tirmidhi, and Musnad Ahmad, substantiate this very argument, and have been cited in my book ‘Meezan’, under the section entitled ‘The Social Shariah’, and it has been clarified in the footnotes that even though these narrations are weak as per their chain of transmission, if they are all compiled together, it adds to their authenticity.