Fixed and Variable Aspects of Islamic Legislation

Sources of Islamic Legislation

It is unanimously accepted that the Holy Qur'an and the pure sunna are the sources of legislation and the custodians of Islamic thought and knowledge.

Imam Muhammad Baqir (a.s.), the master and authority of the jurists and one of the Imams of the Prophet's household from whom Allah removed all filth and purified with the utmost purification, summarized this belief in the following words:

"Surely Allah, Blessed and Exalted, is He Who did not leave out any matter of which the community stands in need, but He revealed it in His Book and explained it to His Apostle (s.a.w.). And He assigned a limit to everything and a proof indicating it. And He specified a punishment for whoever transgresses the limit."

The Imams of Ahl-lul-Bait (a.s.) have, indeed, enriched Islamic legislation with their expositions and elaborations of the Book and the Prophetic tradition. This exposition was a real continuation of Shari`a laws, so it is part of the sunna. The great jurist Shahid Sayyid Muhammad Baqir Sadr described this fact in these words: "Thus it becomes clear that changing the rules of the Shari`a, through abrogation, is also one of the factors that bring about conflict originating from this factor, and only affects the stipulation emanating from the Prophet (s.a.w.) not those from the Imams (a.s.).

This is so because the period of legislation ended with the close of the Prophetic era and the narrations that emanated from the Infallible Imams (a.s.) were only an elaboration on the Prophet's legislations."

Since the Book and the sunna together are the sources of Islamic legislation, the two other sources i.e., intellect and consensus (ijma') are secondary sources serving as ways to discover the legislation and not, themselves, legislators. The intellect, as a source of legislation, is defined as "an issue perceptible to the intellect while it is able to deduce a Shari`a rule from it. An example of these issues is the intellectual proposition that enjoining a thing entails enjoining its prerequisities (muqaddimat).

Consensus (ijma) has been defined by the Shi'a Imamiyya School as: "The consensus of scholars with legal opinions from among the preceding jurists of the period of occultation, on a certain ruling, while the verbal source specifying the ruling remains unknown. These jurists have met a situation that evokes a state of conviction and a settled belief which detects the existence of a legislative proof possessed by the jurists and those who preceded them."

In addition to these secondary sources mentioned above, some Islamic schools recognized sources, such as, analogy `qiyas', discretion `istihsan', public good `masalih mursalah', teaching of the companions `madhhab al-Sahbi'….etc. A lot of debate has taken place on the weight of evidence `hujjiya' and the nature of these sources.

Both the Imamiyya school and the other Islamic schools, which subscribe to the idea that all forms of analogy are evidence, regarded the analogy in which the basis or cause `illa' is expressed in the clear law `Mansu al-Illa' and analogy in which the deduced law holds a prior position to that of the clear stipulation on which the analogy is based `Qiyas al-Awlawiyya' as evidence. The only point of conflict between the two views is analogy of comparison `qiyas al-Tamsili'; that is, to compare a part of a question to a part of another and the analogy in which the basis or cause is deduced rather than expressed in the clear stipulation.

The Holy Qur'an and the Pure Sunna contain rich and adequate legislative material. In the Qur'an alone there are hundreds of verses directly enacting laws and rules or conveying thoughts, and legislative concepts from which laws can be formulated. Thousands of Prophetic traditions serve as illucidation to those verses and legislative roles. Hundreds of these texts form the general legislative fundamentals that contribute in enriching legislation and expanding its horizons.

To illustrate, we shall review some of these verses, traditions and narrations to observe the special feature of the constituent of Islamic legislation. Allah, the Most High says:

"Surely Allah enjoins justice and the doing good (to others) and the giving to the kindred, and He forbids indecency and evil and rebellion…" Holy Qur'an (Nahl 16: 90)

"…and has not laid upon you any hardship in religion…" Holy Qur'an (Hajj (22: 788)

"…Allah desires ease for you, and He desires not hardship for you,…" Holy Qur'an (Baqara 2: 77)

"Take alms out of their property - you would clean them and purify them thereby…" Holy Qur'an (Tawba 9: 103)

"…(all) good things are made lawful for you…" Holy Qur'an (Ma'ida 5:5)

"Say: My Lord forbids only indecencies, such of them as are apparent and such as are concealed,…" Holy Qur'an (A'raf 7: 33)

"O David, surely We have made you a ruler in the land; so judge between men justly and follow not desire,…" Holy Qur'an (Sad 38: 26)

"O you who believe, fulful the obligations…" Holy Qur'an (Ma'ida 5: 1)

"...and Allah has allowed trading and forbidden usury…" Holy Qur'an (Baqara 2: 275)

"…and women have rights similar to those against them in a just manner,…" Holy Qur'an (Baqara 2: 228)

"And surely We have honoured the children of Adam, and We carry them in the land and the sea, and We provide them with good things, and We have made them to excel highly most of those whom We have created." Holy Qur'an (Isra' 17: 70)

These verses of the Qur'an carrying ample legislative principles have their counterparts in the pure sunna. A large number of legislative traditions present the bases for legislative principles from which many laws can be formulated. Other traditions and Prophetic statements provide us with legislations and rules that govern individual relations, situations and positions while carrying a general sense suitable for application in identical cases.

Here, we shall mention some traditions that take the form of legislative principles:

The Holy Prophet (s.a.w.) says:

"No one shall harm nor be harmed."

"Obligation has been suspended in my ummah in respect to nine cases:Mistake, forgetfulness, what they do under duress, what they do not know, what they cannot do, what they are forced to do by circumstances, envy, evil omen, and thought over a devilish insinuation concerning creation, as long as nothing isgiven as evidence." It has been reported from him (s.a.w.) that:

"A Muslim is a brother to a Muslim, he shall not cheat him nor act treacherously towards him nor backbite him. His blood is prohibited, so is his property except by his permission…"

"In Islam, men are equal…"

"Men from their origin in Adam are alike and equal."

"Men are equal like the teeth of a comb."

"Allah has enjoined on the rich (to spend) what will suffice the poor, so if the poor suffer starvation Allah reserves the right to hold the rich responsible…" "Every loan to which a profit accrues is interest (riba)."

"I was not sent to amass wealth, but to spend it."

"Believers shall conduct their affairs according to their terms."

"Everything is lawful to you until you know that it is unlawful."

"There is no obedience to a creature where disobedience to Allah is involved." "The ruler is a shepherd and he is responsible for his flock." "Religion is nothing but love."

"Desire for your brother what you desire for yourself. Dislike for him what you dislike for yourself."

"Surely, your body has a right over you."

Just as the Qur'an and the Prophet's sayings constitute a source for legislation and regulating social life, his confirmation of actions he regards to be in conformity with Qur'anic legislation and his practical life and behaviour provide a wide horizon for legislative material.

These sources deal with such matters as the fitness of the legal rules, his relationship with the governors, army commanders and the community at large, his legal responsibilities, etc. This field of legislation forms the constitutional subject matter in modern legal jargon.

The narrations reaching us from the Imams of the Prophet's household, like the Qur'an and the Prophet's sayings, present copious materials for legislation. These narrations elucidate and serve as a commentary on the Qur'an and Prophetic tradition, sunna. This source material serves as foundations for legislation, addressing social problems and regulating human life with its various spheres. Islamic jurists rely on these fundamentals to deduce rules for novel conditions.

A careful study of the samples of these verses and traditions that run into hundreds of ideological and legislative texts with a fundamental and general nature, not limited by time or space, will reveal the secret behind the eternal aspect of Islamic legislation, its universality and ability to cover social evolution and development and play a leadership role in overall human existence. The law in its capacity as the source of order in human life contributes immensely in man's progress or backwardness according to the nature of the law and its world view.

Law, Ijtihad and Human Evolution

Among the most widespread terms in human existence is "The Law". All people understand the meaning of law and perceive its impact in daily life as a result of their encounter with the laws governing relationships and functions of human activity. The machinery of government and its various activities, the market, societies, parties, trade unions, courts of law, commerce, banks and financial institutions, companies, land tenure, traffic regulations in the cities, etc.; all of these issues are subject to the law which regulates them.

Thus, the law is defined as: "A set of rules which regulates individual behaviour in the society and the respect of which is guaranteed by the supreme authority even by force where necessary. This is the general meaning of the word law."

According to some scholars, the word Qanun (law) is an arabicized word borrowed from Latin. The use of the word spread in Arabic language and Islamic culture after the period of translation, when many works were translated into Arabic from Latin, Greek, Hindu, and other languages. The word "Qanun" is applied to any rule that orders the relationship between two or more things in a permanent, decisive or general way, whether it pertains to nature, thought or the society. Thus, "Qanun" is used in the fields of medicine, physics, logic and chemistry; in regulating social relationships such as international relations where we have international law, commercial enterprises where it is called commercial law and in family relations, the term law of personal status is used.

While the law guarantees an ordered society in civil matters, it also contributes, in no small measure, to development and the evolution of human life if it is based on scientific foundations, and takes into consideration the reality of human existence. On the other hand, if a law is not built on a scientific basis and disregards the social reality it leads mankind to backwardness and retardation.

The Holy Qur'an has employed the terms `shir'ah', `shar'', `shari'ah', `minhaj' and `hadd'; all of these mean way or path which regulates different social relationships. It states:

"He has made plain to you the religion which He enjoined upon Nouh and which We have revealed to you…" Holy Qur'an (Shura 42: 13)

"…For every one of you We appointed a law and a law…" Holy Qur'an (Ma'da 5: 48)

"Then We made you follow a course in the Affair, so follow it…" Holy Qur'an (Jathiya 45: 18)

"…These are the limits of Allah, so go not near them…" Holy Qur'an (Baqara 2: 188)

"…and whoever goes beyond the limits of Allah, he indeed wrongs his own soul…" Holy Qur'an (Talaq 65: 1)

The investigation of the sources and rules of Islamic legislation and legislative thought reveals a comprehensive programme and an encompassing organization for human life, covering all the incidents and situations, at the time of revelation, the new developments that result from changes and improve-ments in ways of living and the evolution of science and knowledge. The sources of this all-encompassing feature is the Legislator, Himself. The Omniscient, All-Powerful Lord invested Islamic legislation, via its texts and concepts, with a miraculous power of grasping the needs of mankind. The texts and concepts of the Shari`a covers the changes in ways of living through two main principles: The general, `amm' and the absolute, `mutlaq'.

To be able to appreciate the scientific nature, the precision and the ability of Islamic legislation to cover both the fixed and changing aspects of life, we shall introduce two legislative fundamentals:

1- Cases where a rule exists in the Book and the Sunna. 2- Permissibility of exercising independent judgement, `ijtihad', and the method of deducting rules, `istinbat'.

1- Cases where a rule exists in the Book and the Sunna:

By exploring the primary legislative sources, i.e., the Book and the Sunna, we learn that numerous forms of expression are used for the laws in these sources. This calls for a scientific method by which the laws can be comprehended and the ground for istinbat is prepared.

The most prominent forms of expressing the laws are the following:

a- A clear and unambiguous stipulation `nass' which carries no generalization and for which no conflicting counterpart exists. Examples of this rule include the forbidding of wine and the obligation of prayer and fasting.

b- A generalized rule which needs explanation.

c- A rule liable to conflict or contradiction with another, like a situation of permissiveness and the forbidding of a single matter or enjoining a thing and forbidding it. These type of conflicts are, in reality, only outward in nature for contradiction does not exist in Islamic legislation.

For this reason, scholars of Islamic jurisprudence have prepared scientific bases for combining the import of those seemingly contradictory narrations. For instance, they explained that enjoining a thing as well as proscribing it at the same time means disliking it `Karahah', considering the prohibition in such case as disliking not forbidding `Hurma', being that another statement carries permissibility in its import.

d- General and absolute rules that act as general legislative principles applicable to limitless areas coming under their domain.

e- The existence of statements specifying the general rule or limiting the absolute. For example, the permissibility of selling, expressed in the words of Allah, the Glorious: "...and Allah has allowed trading and forbidden usury…"Holy Qur'an (Baqara 2: 275), is limited by a number of conditions among which is the permissibility of items for sale. The general rule forbidding interest is specified by narrations, such as the saying of the noble Prophet (s.a.w.): "There is no (prohibition) of interest between us and those with whom we are at war; we can collect interest from them but we will not give it to them."

f- The justified legislation and a unity of criteria for some rules and enactments making their rules to affect other similar issues in human life, like the prohibition of wine, affects all substances producing the same effect as wine i.e., intoxication.

g- Laws which prohibit things that are less abominable, atrocious or harmful than those things that these laws control, which are more harmful and abominable, for instance, the saying of the Almighty Lord: "Say not `Fie' to them (parents)…"Holy Qur'an (Isra` 17: 23). This prohibition includes that which is worse than saying a word of contempt, as well as, enjoins the practicing of good and kindness to parents.

h- The existence of texts confirming exemption from obligation in cases in which we are in doubt concerning the existence of any obligation. The scholars of principles of jurisprudence term these statements as the principle of innocence (asl-ul-bara'a).

From the foregoing, we have seen all the cases in which the rule exists or probably exists in the Book or Sunna, expressing that it is not possible to apply the Shari`a law except in the first case, but in all the other cases we cannot know the law except by way of ijtihad and exerting scientific efforts.

2. Permissibility of Ijtihad and Istinbat:

We shall start by defining the term `Ijtihad' as a concept and a technical term so that its meaning and value in enriching jurisprudence and Islamic law and treating new issues and problems accompanying the realities of life can be understood.

Definition of Ijtihad:

Literal Meaning: Al-Jawhari states in Qamus al-Sihah that: "Jahd and Juhd mean ability. Aljahd: Difficulty. The verb jahada is used to describe an utmost effort in something. And Ijtihad and Taj?hud means to exert one's efforts and take pains."

And Ragib al-Isfahani said: "Jahd and Juhd mean ability and difficulty. And Ijtihad means: Exerting one's ability and bearing troubles and difficulties…" Technical Meaning: The term Ijtihad is a technical expression common among jurists and scholars of principles of jurisprudence, `usul al-fiqh'. It has a definition, limits of its permissibility, its method and proofs of its legal acceptability. The specialists define Ijtihad as: "The exertion of effort in deriving Shari`a rules. In this sense, to deduce or derive rules from the Shari`a sources is called Ijtihad."

Al-Akhund reported a scientific definition of Ijtihad from other scholars that Ijtihad is: "An aptitude that enables (its possessor) to deduce a secondary legal rule from the source, wether that ability to deduce is actually exerted or a practicable potentiality."

The permissibility of ijtihad and the extent of its legality has been a subject of academic debate for many centuries. The view held by the proponents of ijtihad held sway and the Muslims depend on it in deriving legal rules (Islamic laws) for various cases for which no clear rule occurs in the Shari`a. We can understand from the definition of Ijtihad that it is the ability, occasioned by knowledge, to deduce or derive the law, the derivation of which needs learned effort. It also alludes to the act of actual deduction of a rule from its Shari`a (legal) proofs.

Therefore, Ijtihad is:

1- A scientific practice. 2- Derivation of a rule from the legal sources. 3- The scope of ijtihad is limited to the issues about which no clear and defined rule occurs. As a corollary, it is not permissible to attempt ijtihad in the case of a clear rule `nass'.

In view of this, a principle regulating and controlling the process of ijtihad and delimiting its scope is established by the following stipulation: "There is no ijtihad where there is a stipulation `nass'.

Thus, nass is defined as: "A legal proof whose import is specific to a defined matter and no other import is probable in respect to this proof." 4- From the definition we can realize that the rule issuing from independent judgement is the one susceptible to change. Another ijtihad, based on a different understanding of the same proof or dropping this proof for a more appropriate one, can change the first. The new ijtihad reaches a different conclusion and rule on the same issue.

Ijtihad plays its greatest role in deducing Islamic law with regard to new issues that daily arise in the human society, by deducing new rules from the principles and proofs, which renders the Islamic legislation capable of embracing human evolution in various fields. This capacity to cover new areas is occasioned by the existence of a number of elements constituting the backbone of Islamic legislation. Some of this elements are:

1- The Principle of Innocence `asl-ul-bara'a': The absolution from obligation as long as no categorical proof is established to confirm it. 2- Bestowing on the legal ruler `hakim al-Shar'i the competence to enact laws, in the light of the Book and the Sunna, suitable for existing situations and conditions in areas where no obligatory rules (enjoining or prohibiting) are found. 3- The generality of the text and its embracing of the new occurrences, as the law comprises what governs. 4- The absoluteness of the text and its embracing of the new occurences, which broaden the scope of the absolute aspect of legislation thereby including limitless items.

In this way, the process of ijtihad becomes active, within the boundaries of these wider principles, deducing laws and rules for new situations in the areas of worship, politics, economics, social relations, health, food and drinks, etc. These new issues are thus declared as lawful or forbidden or obligatory, and / or make it valid or invalid, etc., as the case may be.

When a mujtahid encounters a new subject or issue, he starts the process of ijtihad by studying the substance of the individual laws to ascertain whether a clear ruling can be obtained for the matter at hand. Where such a rule is easily obtained, like the prohibition of wine or the obligation of prayers, he confirms the ruling for the new question. But if the rule is not obtained, then he turns to the general and absolute rulings which comprise the limitless matters of the laws, like:

"Anything which its effect is similar to the effect of wine, is unlawful" or "any act without which an obligatory act cannot be fulfilled is, itself, obligatory" or "no one shall harm nor be harmed" or "and never Allah will make for the infidels a way (to triumph) against the believers."Holy Qur'an (Nisa' 4: 141) and "fulful the contracts"Holy Qur'an (Ma'ida 5: 1) and "and those who fulfil their promise when they make a promise" Holy Qur'an (Baqara 2:177) and "everything is (allowed) absolute except where a prohibition is declared" , and "what leads to an unlawful act is itself unlawful", or "every loan that attracts a benefit is usury".

If the question at hand does not come under individual rulings or the general and the absolute, then, the mujtahid resorts to the principle of innocence and deduces that we are free from any obligation. In this way, all the new areas are grasped by the Islamic legislation. It is worthy to mention that the said principle also is confirmed by proofs from the Book and the Prophet's Sunna.

With this explanation, the process of ijtihad and the steps necessary for deducing laws become clear. Islamic scholars have founded the field of principles of jurisprudence and laid down its general laws in a scientific method that caters to the work of deduction `istinbat'. They defined this field as "the study of the common constituents encountered in deducing legal rulings."

Similarly, these scholars developed rules in Islamic jurisprudence `Qawa'id al-Fiqhiyya' such as the rule of obligation `Qa'idatul Ilzam', the rule of "no harm" `Qa'idatu al-Dharar', the rule of actual control over or possession of a thing `Qa'idat al-Yad', the rule of validity of a Muslim's deeds `Qa'idat Sihat Amal al-Muslim', and the rule of liability `Qa'idat al-Dhaman', etc.

The two rules `Qawa'id al-Usuliyya wal Fiqhihiyya' represent the legal principles that prepare the ground for deducing legal rulings. These principles serve the purpose of enriching Islamic legislation in a permanent way by supplying the prerequisites of istinbat.

The aspect of ijtihad, that is relayed to the issue of the fixed and variable among the laws of ijtihad is that of understanding; i.e., to understand the content of the texts, its import and aim. This is true both in the cases of specified individual situations or comprehen-sive general or absolute formulations. It should be noted that the scientific methodology in natural and social sciences is based on two fundamental issues:

1- Identifying the individual happening. 2- Identifying the general law applicable to individual issues, irrespective of time and space.

In fact, a science studying any aspect of human life is nothing other than a set of general principles and laws that are applicable to individual cases sharing similar conditions and situations, although not specified by time or space.

This definition of science is not only applicable to fields like medicine, physics, chemistry, psychology, and sociology, but, also to Islamic jurisprudence and legislation. The fact that some questions in Islamic jurisprudence are not covered by individual proofs and not by proofs of general or absolute meaning, signifies that concerning such questions, Islamic legislation does not prescribe hard and fast obligations and man shall be free to act as he wishes. The ruling will, therefore, be innocence and exemption from any responsibility.

Primarily, innocence `bara'a' is upheld as long as no proof of obligation is established, just as permissibility of all things is held sway until proof of prohibition is confirmed. By considering what Islamic legislation declared lawful through individual and general enactments, what is permissible according to the principle of lawfulness, and that about which man is exempted and his possible slip overlooked through the principle of innocence, we would conclude that large fields of man's existence are left for him to act according to his discretion.

Here, he can specify his course of action whether in collective organization and legislating for the good of the state, or issues affecting individual life. These areas are susceptible to variation and change subject to the bases of the rules and benefits in regard. We shall discuss these bases and acquiring benefits later on in, among other topics, the section on secondary laws.

It is important to note that unlawful matters are a limited few in Islamic legislation, and the purpose of prohibiting them is to protect humanity. They include prohibition of adultery, sodomy, wine, murder, theft, interest, hoarding, injustice, environmental pollution, backbiting, fraud, deceit, carrion, blood, etc. Thus, Allah, the Glorious states:

"Say: (O Our Apsotle Muhammad) Come you! I will recite (unto) you what your Lord has forbidden to you…" Holy Qur'an (An'am 6: 151)