Table of Contents
INTRODUCTION
ISLAMIC LEGAL LAWS
IJTIHAD (JURISTIC REASONING)
Endnotes
Introduction
Praise be to Allah Who deserves all praise and thanks,
Peace and the blessings of Allah be upon the master of
humankind, Prophet Muhammad, his infallible household,
the righteous among his companions and those who follow
the right path till the Day of Judgment.
Certainly, Allah the Most High, is the main source for
Islamic laws which are distinguished from man-made laws,
whether made by a single man or drafted by a body of men
and approved through public vote.
Indeed, Public vote or referendum on man made laws
does not grant them legality as long as these laws
contradict the Divine Laws revealed through heavenly
Scriptures.
Therefore, what the Islamic Shari'ah decrees as
'lawful' or 'unlawful' is not according to people's whims
and fantasies but according to the commandments of Allah,
the All Knowing and All-Wise, Who created man from sperm,
and knows what is in the interests of His creatures, and
what harms their body and soul.
The laws of Allah were revealed to all Divine
Messengers in different eras and geographical places, in
accordance with the intellectual progress of a society,
and reached their perfection through the Glorious Qur'an
and its universal message.
Therefore, the Shari'ah as the legal code of
Islam is called, is not bound by time and place and is
designed to cater to the different needs of the human
race till eternity. The Holy Qur'an which contains the
fixed sanctions is to be supplemented by the genuine
traditions of Prophet Muhammad (s.a.w.) for the practical
implementation of the Shari'ah. Thus the dynamism
of the Shari'ah, on one hand, declares clear and
fixed 'Particular laws' and on the other, presents
'General Laws' through which qualified juriconsult
experts known as mujtahids in Islamic terminology,
arrive at a decision.
In the light of this 'Legislative Reality', the Shari'ah
accompanies and follows not only the development stages
of 'Life Reality' for an individual or a society, but
also anticipates and ably resolves all future
developments through its simple, deep and fairly wide
mechanism by giving judgments in all fields of life.
Another merit is that Islamic law gives the mukalaf
(one who is of age responsible for Islamic obligations) a
proper perspective of the right to talk, listen, or
abstain. In other words, it acquaints him with the
Almighty's judgments and laws, and makes him practically
mould his acts and behavior accordingly.
Al-Balagh Foundation presents 'Islamic Laws' to its
dear readers, humbly imploring Allah the Most High, to
make it a step towards the spreading of Islamic culture
and ideology.
Al-Balagh Foundation
Islamic Legal
Laws
What
is Meant by Lawful and Unlawful?
Humankind gifted with the powers of will and
intellect, is free to chart out its course in life,
whether good or evil.
Through these two powers, man is able to create or cause
any action, as well as abstain from any particular act
and avoid its occurrence.
Through these powers, actions or causes come out from
the stage of possibility to actual deed or commitment.
Man is free to eat, drink, till the land, make airplanes,
build cities and plan and run factories...etc. as well as
indulge in evil and destructive acts such as drinking a
wine, oppressing and killing fellow humans, and
destroying the fruits of progress.
The
Reason Behind Lawfulness (Ibahah):
Allah, the Almighty created man on earth and supplied
him with the means of life. He made the earth and what is
in it and what is on it for the benefit of man and
surrounded it with cosmic system which suits the
circumstances of life on it.
He made the relation between the sun, the moon,
gravitation and the gaseous atmosphere,...etc. suitable
for life on earth.
He prepared for man on its surface, underneath the
ground and in the seas and rivers, all the necessities of
life and its progress. He created plants and animals,
seas and rivers, mines, and mountains, the air and the
birds which fly, all for the sake of man and his
interests. He provided him with the blessings and sense
of goodness and gave him all he needs without any defect
or deficiency in the system of creation and its relation
to man and life.
This excellent creation and perfection is a clear
proof for whoever thinks carefully and sincerely
concerning the wonders of life, where harmony prevails
between man and nature without the least disorder or
confusion. Man finds all the essential needs of life such
as food, water, air, light, heat, moisture on this planet
and the force of gravitation, the pressure of air, the
percentage of oxygen, the elements of soil, are in exact
proportion to enable him to live and practice life
systematically and orderly.
Allah the Most High, says:
"Allah is He Who created the heavens and
the earth and sent down water from the clouds, then
brought forth from it fruits as a sustenance for you, and
He has made the ships subservient to you to run their
course in the sea by His command, and He has made the
rivers subservient to you. And He has made subservient to
you the sun and the moon, pursuing their courses; and He
has made subservient to you the night and the day. And He
gives you of all you ask of Him, and if you count Allah's favors, you will not be able to number them. Surely man
is very unjust, very ungrateful."
Holy Qur'an (14:32-34)
Without this perfection and exactitude in the system
of existence, life will be impossible for man on this
land.
How beautifully Allah the Exalted, puts it:
"...the handiwork of Allah, Who has made
everything thoroughly. Surely He is aware of what you
do."
Holy Qur'an (27:88)
Should all these things be not lawful for man? It was
difficult for him to behave with or make use of them but
Allah through His kindness, justice and wisdom enabled
man to utilize these bounties of existence and granted
him the power and ability to exploit them, then He
legislated laws in a way that man exceeds not the
prescribed limits.
From this connection between the principle of creation
and man and life. We can conclude that laws are the
origin of all necessities of human life, and that every
thing in this life is allowed for man. It is among his
own rights to practice them and make use of them with the
exception of what is forbidden.
Nothing is forbidden for man except what is harmful
and dangerous for his body and soul and what contradicts
and not in harmony with the system of life.
The Almighty Allah, says:
"And what reason have you that you
should not eat of that on which Allah's name is mentioned, when He has
already made plain to you what He has forbidden to you - except that
which you are compelled to. And surely many lead (people) astray by
their low desires through ignorance; surely your Lord - He best knows
the transgressors."
Holy Qur'an (6:120)
"Say: Come! I will recite what your Lord
has forbidden to you:...."
Holy Qur'an (2:152)
In Islam, the forbidden things or acts are limited and
whatever else beside, is to enjoy according to a system
which preserves the way of life and provides balance and
harmony in every human activity. Therefore, the Qur'an
condemns the attitudes of those who straiten life both
upon themselves and upon other by preventing and
prohibiting what is made lawful by Allah on His servants.
The Qur'an questions the behavior of such people.
"Say: Who has forbidden the adornment of
Allah which He has brought forth for His servants, and
the good provision?.."
Holy Qur'an (7:32)
In Islam, the concept of lawful halal and
forbidden haram in life is not to prevent man and
paralyse his life and activities. But Islam's view is
exactly the opposite as explained by the two
above-mentioned verses of the Holy Book. Islam considers
all useful things permissible for man and prohibits on by
harmful acts which lead him towards confusion in life.
The wise declarations of the Qur'an confirm this
opinion and restrict the prohibitions only to wickedness,
lewdness and abominable acts and things.
"Say (O' Muhammad unto mankind): My Lord
forbids only indecencies, such of them as are apparent
and such as are concealed, and sin and unjust rebellion,
and that you associate with Allah for which he has sent
down no authority, and that you say of Allah what you
know not."
Holy Qur'an (7:33)
"Those who follow the Messenger - Prophet,
the Ummi (the one who neither reads nor writes), whom the
y find mentioned in the Torah and the Gospel. He enjoins
them good and forbids them evil, and makes lawful to them
the good things and prohibits to them impure things, and
removes from them their burden and the shackles which
were on them. So those who believe in him and honour him
and help him, and follow the light which has been sent
down with him - these are the successful."
Holy Qur'an (7:157)
As is clear from these verses the reason behind
prohibition is for the betterment of human society. The
Qur'an focuses on three main prohibitions, namely.
Wickedness, Lewdness?? and Abomination.
These three are used to specify the degrees of
ugliness and harm in the forbidden things or acts -
whether material or spiritual.
The word 'khabith' in Arabic language means
'what is disliked because of its wickedness and vileness
whether, tangible or not.[1] Hence, the word 'khabith'
and its derivations altogether mean what is disliked,
impure, every corrupt thing or every forbidden act. For
example, the word 'khaba'th' means what the Arabs
used to dislike and not to eat such as snakes and beetles
while the word 'khobth' means 'deceit' so far as
gold and silver are concerned.
But the word fuhush (lewdness or obscenity) in
Arabic language refers to 'what makes wickedness great
concerning of sayings and actions'.
And we can understand the meaning of the word munker
(abomination) if we know that the Arabs say 'when a man
is disguised means his state is changed from happiness to
dislike' .
We understand through this literary analysis the main
prohibitions like khaba'ith (filth or wickedness),
fawahish (lewdness or obscenity), and munkirat
(abomination). Thus, it is clear Islam never forbids good
and healthy things in life including food, drink and
natural human behavior...save they are contaminated by
the three main prohibitions which are dangerous and
harmful for the body and soul of man.
The Meaning of a Divine Law (Hukum):
A close scrutiny of human life and incidents,
attitudes, activities and dealings, concerning it, could
be divided as follows:
1- Man's relations with his Creator is evident in acts
such as prayer, fasting, hajj (pilgrimage)...etc.
2- Man's relation with his self is evident from such
actions as cleanliness, ritual purity, taking care of his
adornment and bodily needs, ...etc.
3- Man's relations with fellow humans such as his
family, the society he lives in, matrimonial rights,
inheritance, trade, politics...etc.
4- Man's relations with animal, plants, nature and its
resources and treasures or his relations with things,
products, materials,...etc.
5- Man's psychological and scientific relations with
the above-mentioned altogether.
All these activities and relations are inter-related
and inter-act in all stages of life, and hence the need
to organize them and classify them into obligations, the
lawful and the prohibited, etc.
Thus, this organization and classification, of man's
relations, attitudes and activities, is called a law
based on Islamic Shari'ah. For instance, Islam
makes knowing of Allah the Creator, prayer, social and
economic justice as obligatory, and it makes the
resources of the earth lawful for all, while it forbids
injustice, wine, backbiting, manslaughter, etc. and it
declares urine to be impure, and rules that whoever kills
another intentionally and unjustly and is connected with
him (the dead) through the relation of inheritance, never
inherits...etc.
Islam, in order to organize life and build up a
healthy and harmonious society legislates a law.
Therefore, a law based on Islam can be defined as Divine
legislation or Shari'ah which organizes human life is
keeping with the wonders of creation and nature.
Consequently the circle of these laws is extended
according to the elasticity of the circle of life - small
or big - and which implies all its developments.
So Islamic law contains a great legislative power and
a unique ability to cater the healthy needs of the
individual and society.
The secret behind an Islamic legislation is its being
everlasting, original and dynamic. A Muslim finds Divine
law for all his actions and deeds. There is no issue in
life, whether big or small but has both a law based on Shari'ah
(hukum) and a certain legislative situation which
clarifies the responsibility of man and his practical
attitude in an obvious lawful way, which says: 'There
is no occurrence but Allah has made a Divine Judgment
regarding it'.
On one side, man, according to Islamic legislation,
enjoys an extensive and clear view of behavior, while on
the other side, he possesses practical measures through
which he can specify and adjust this view continuously
according to the laws of Shair'ah.
This practical measure becomes obligatory for man on
reaching the period of maturity in order to follow upon
its guidance which will bring him happiness and ward off
misery.
Hence, we understand the saying of the Messenger of
Allah, Prophet Muhammad (s.a.w.) about the dynamism of Shari'ah
for mankind: "I bring you both the welfare of
this world and the next."
Kinds of Laws:
Should we track man's daily conduct and his activities
and attitudes, we will find it most difficult to count
them. Every man produces hundreds of quotes and does
hundreds of deeds. Within himself countless thoughts,
ideas and feelings flow. For instance, he can eat, drink,
sleep, marry, steal, commit adultery, kill, cheat, tell
lies, pray, worship, monopolize, be kind to the destitute
and orphans, laugh, become desperate, be pessimistic and
optimistic, produce medicines, make tools of torture,
believe in Allah, think and discover sciences and
knowledge...etc.
It is a list of both evil and good deeds. They are not
equal in respect to their benefit and harm to the
individual who does them, and the society which absorbs
their effects.
Islam regards human activities, such as actions,
sayings, ideas and feelings with due attention. Islam
puts these activities into a variety of categories, and
so every activity is precisely weighed and described in
respect to its nature and impact on man himself. Islam
does so to show the path before man, and put forward a
criterion by which man evaluates his activities, develops
them, and steers himself clear from evil and crime.
Man is also urged to mobilize his energies in the
domain of good and constructive works and preserve them
from being dissipated and lost. These energies granted to
man by his Creator are not to become tools of destruction
and sources of calamities and torture to man. The
ultimate goal, is thus, attaining Allah's pleasure.
On the basis of these considerations and goals, man's
deeds fall into five categories, where every activity is
valued according to its positive or negative effects on
man and his varied relationships.
These categories, as stated by the scholars are:
- - Permitted (Mubah)
- - Recommended (Mustahab)
- - Disapproved but not unlawful (Makruh)
- - Forbidden (Muharam)
- - Obligatory (Wajib)
1- The Permitted (Mubah): It is an act
in which a sane person mukalaf[2] who has reached
his puberty has full freedom to do it or leave it aside.
Within the circle of the permission, such a person is
never asked concerning what he does or leaves of the
permitted actions.
Examples of permissible acts are countless and
innumerable in the life of a man. For instance, a mukalaf
is free to choose the work that best suits him/her. He is
free to do research and think on the sciences of nature
and life.
He is free to select the suitable system to run the
social and political offices and establishments; to
determine the food, clothing and residence he
likes...etc. He is also free to use what suits his
inclinations, circumstances and abilities...on the
condition that all his actions should not exceed the
limits and exceptions set by Islam.
It is worth mentioning that the sphere of the
permitted Mubah is the widest among the daily
social human behaviors, for all acts are, as a rule,
permitted according to the most well-known religious
judgment. Everything is permissible except the one
forbidden by a Divine law.
2- The Recommended (Mustahab): It is any
ac t that the Muslim is urged to do, whereby he is viewed
a performer of the good and so deserves divine reward and
Allah's pleasure. But no punishment is set for any one
who leaves it or considers it easy, because, if done, its
fruits will be to his benefit, and if left or ignored no
harm will result from it.
In the life of the individual or a group, recommended
acts are numerous. Greeting others, paying visits to
friends and neighbours, giving alms, being tidy and
elegant, and many rites like du'a (supplication),
night prayers (superogatory), fasting during the holy
months of Rajab and Sha'ban, reciting the
Qur'an, are but a few examples of recommended acts.
The recommended deeds in Islam uplift mark to a lofty
spiritual position and make him do the maximum possible
acts of good in his life on earth to obtain Allah's
pleasure in the Hereafter.
The Muslim does the recommended deeds out of a sublime
moral motivation, without the slightest feelings of fear
or coercion. He is propelled by love and longing to walk
on the path leading to perfection and continuous
enrichment in this life.
3- The Disapproved But Not Unlawful (Makruh):
Makruh could be defined as an act a Muslim, is
urged to avoid although it is not unlawful. It is
preferable to avoid such acts in the interests of self or
society. However, Islam does not set a punishment for the
Muslim who does it, because it is not considered haram.
Islam stops short of making it haram, and only
urges the Muslim to avoid it, as it is likely to lead to
harm or corruption.
This law is very effective in blocking the ways ending
in the commission of haram acts.
The exhortation to avoid the makruh is the
second factor, following the urging to accomplish the mustahab,
that supports the key laws of wujub and hurma
in uplifting man spiritually to attain higher, sublime,
spiritual stages so that he can ward off harm and danger
in human life. Examples of makruh are: urinating
in stagnant water, sleeping till after sunrise, eating in
a state after intercourse or sexual discharge without
performing the obligatory bath, ablutions, and making
large scale advertisement to sell unworthy things...etc.
4-The Forbidden (Muharam): It is any act
that Islam prohibits the religiously responsible Muslim,
from committing, and sets a punishment for the
transgressors, while praising and rewarding the one who
totally abstains from such acts. It is a procedure Islam
takes to check the deviation that man may be led to
perversion and the wrong and unnatural expression of
motives and desires which are harmful to his body and
soul.
It is a law which checks chaos and corruption and nips
dangers and crimes in the bud. Doing the haram
distances the human soul from nearness to Allah and
blocks the process of sublimity. As haram action
contains deep psychological» bodily, spiritual, and
social risks, Islam sets both legal and social punishment
for the transgressor, in addition to the severe
punishment in store for him in the Hereafter.
Islam does not leave the matter unexplained. The Holy
Qur'an makes it clear that the goal of forbidding certain
acts is not disturbing man, depriving him, or making him
deal dispiritedly with life. To the contrary, Islam aims
at something else, as mentioned in the following verse:
"Say: My Lord has only prohibited
indecencies, those of them that are apparent as well as
those that an concealed, and sin and rebellion without
justice, and that you associate with Allah for which He
has sent down no authority, and that you say against
Allah what you know not".
Holy Qur'an (7:33)
"Those who follow the Apostle whom the y
find written down with them in the Torah and the Ummi,
Evangel, (who) enjoins them good and forbids them evil,
and makes lawful to them the good things and makes
unlawful to them the impure things, and removes from them
their burden and the shackles which were upon them; so
(as for) those who believe in him and honour him and help
him, and follow the light which has been sent down with
him, those are the successful".
Holy Qur'an (7:157)
Examples of haram acts are premeditated
killing, usury, drinking wine, taking other people's
property by force, disseminating harmful ideas and
distributing morally reprehensible books and
publications, and so on.
5. The Obligatory (The Wajib): It is any
act that Islam makes obligatory on a mukalaf
Muslim in a decisive and final way and which, under no
circumstances, can he/she ignore. Islam sets punishment
for whoever leaves it intentionally, and rewards for
whoever performs it perfectly. Prayer, fasting, zakat,
khums, jihad, ruling justly, being kind to
parents, enjoining good and forbidding evil, fighting
oppression and tyranny, having love and affection for the
Prophet (s.a.w.) and his Household, being truthful,
obeying the orders of the Islamic state that rules by the
Qur'an, are among the unavoidably obligatory duties in
Islam.
Such duties and obligations were not ordained except
for the welfare of mankind, preserving life and order,
and safeguarding humankind's security in this world and
the Hereafter.
Should we try to examine the laws of the obligations
in Islam» study them analytically, trace their results
and practical consequences in life, we would see that
they effectively conduce to balance life, preserve the
order of human nature, and nurture a systematic
relationship between man and his Creator on one hand and
man and society on the other.
The philosophy of the obligations in Islam is based on
making the wajib a quantity in an equation whose
other quantity is right and reward or punishment. What is
obligatory is ordained to deepen the feeling of
responsibility on the part of the Muslim, emphasize the
relation between right and duty, narrow the circle of
egoism and to foster human conscience which opens one's
eyes to the concepts of justice and equity. Man realizes,
through these duties and obligations, that every human
being has the right to live, and duties to perform
without which social life and the ties with Allah the
Glorified, cannot be balanced.
The secret behind the wajib and divine
obligations in Islam, should we try to know, lies in the
fact that man, when performing such duties, adds to the
chain of good, a new link which makes it more effective
as it expands man's best tendencies in his inner, and
bears good fruit through interaction between the human
self and the surrounding environment. Such results can be
regarded as a criterion by which man's intentions are
measured, and be the basis for his reward or punishment.
If the original law is amended by any accidental cause
then the new law possesses the same legitimacy the
original one had. It is an indivisible religious
obligation that the responsible Muslim has to perform, or
be given the choice of performing or leaving it according
to the nature of the law.
If fasting, for instance, is obligatory under normal
circumstances, it is haram for the sick to fast.
Then fasting is, in this case, legitimately haram
in a decisive way. If the sick person fasts, his action
is not legitimate but is haram and ensues some
consequences set and explained by Islam.
Every Occurrence has a Divine Judgment:
The Islamic texts of Shari'ah and its general
concepts state for the jurisprudents fuqaha and
the experts of Islamic legislation, to formulate the
widest applicable rule of jurisprudence which says: "Never
is there any occurrence without a divine judgment
concerning it," as an expression of the spirit
of the Shari'ah and an explanation of its reality.
To look for a source for such rule and its source of
lightening, we will find many contexts in the Holy Qur'an
and the Prophetic tradition hadith which we
referred to in our previous books of this series,
therefore, there is no need for repeating them.
It is better to mention here a quotation from Imam
Ja'far al-Sadiq (a.s.) which refers to the same subject:
"Never is there anything without a law
concerning it or a known sunnah (Prophetic
tradition)."[3]
This rule has a wide ideological and a legislative
impact which not only participates in developing the life
of Muslims and expanding the sphere of their activities
but also in its adaptability to Islamic Shari'ah
in order to strengthen the bonds between a Muslim and his
Creator.
This rule confirms that no deed or intention done by
man - whether good or evil; useful or harmful; concerning
individuals or groups unless Islam views its opinion
regarding it should fall under one of the following
categories: prohibited; obligatory; permitted; disliked;
recommended.
Man's acts altogether, being small or big, are
described under one of the five above-mentioned
categories. In Islam there is a divine judgment for each
of them. This generality in Islam gives a Muslim a
general rule under which he measures all his actions and
evaluates them before performing or committing them.
This universality in Islamic Shari'ah helps man
to correct his behavior; protect the society against
disorder and chaos; shows him the right path towards
safeguarding the rights, responsibilities and interests
against loss and waste; develops in him the spirit of
moral and legal consciousness; and instills in him the
spirit of responsibility. Therefore, he never takes any
decision nor practices any action before he thinks and
specifies his legal (Islamic) duty and responsibility
towards it.
Thus, a man comprehends in all actions and subjects by
taking legal opinion into consideration. For instance, if
he finds it (an action) obligatory, will surely try to do
his duty and perform his responsibility in the best and
absolute way.
But if he sees it prohibited, he will not only refrain
from doing it but will also try to avoid what leads
towards vain and disaster.
If he sees is it an act permissible, he will freely do
it or leave it aside.
And if he sees it undesirable or recommended, he is
free to do or abandon it. But due to his sincerity for
achieving perfectness in his belief and also as a result
of his religious spirit, it is better for him to educate
himself of the merits of recommended deeds and leave the
undesirable ones.
Necessity and Change of a Divine Law:
As we mentioned in the previous chapter that the
divine judgment hukum is connected with the
nature of an action and its impact. And it is the
identical description of the subject which decides
(specifies) the nature of a divine judgment hukum,
such as prohibition, obligation; permission...etc; it is
a divine judgment itself which discloses the nature of
the topic (subject).
Hence, a single action does not have more than one hukum
(a divine judgment) in an occurrence. For instance,
drinking wine cannot be described in its reality save
with prohibition: jihad (holy struggle) cannot be
described other than an obligation...etc. Sometimes, it
may happen that man may face some external and unexpected
circumstances which may lead to the change of the divine
judgment hukum or require the change of
peculiarity of an action itself.
Indeed, Islamic legislation deals with such facts with
more reality and accuracy. Islam permits the shelving of
the original given judgment- the first real judgment -
temporarily, if some unavoidable and extraordinary ,
circumstances happen. In such cases, man is obliged
either to refuse or change such judgment in order to
ward off danger, hardship and harm against him or his
interests.
With this observance, the aim of the exceptional
legislation - the secondary real judgment - is
safeguarding the essential purpose of Islamic legislation
itself which is primarily in the interest of man and
society and is to avoid loss and corruption.
According to this Islamic principle, topics of many
subjects could be changed. It may happen that an
obligatory or permissible act becomes prohibited or a
prohibited and permissible act becomes obligatory:
For example, Islam makes it permissible for a Muslim
to do a forbidden act if circumstances compel him to do
so or by doing so he will be able to ward off, through an
impending danger himself or his property or honour. But
once such an emergency or compulsion ends, the permission
to commit the forbidden will end too.
Allah, the Exalted says:
"...then whoever is driven by necessity,
not desiring, nor exceeding the limit, no sin is upon
him. Surely Allah is Forgiving, Merciful."
Holy Qur'an (2:173)
To go along with this wise declaration of the Holy
Qur'an, the following jurisprudential rule is formed "At
the time of necessity, the forbidden becomes
permissible".
On the basis of this rule, Islam permits a hungry man
at the point of death to eat carrion or the flesh of a
dead animal. He may even take by force his legitimate
needs from other's properties - if others do not supply
his need - in order to ward off destructive hunger of
himself and his family.
For this reason, Islam gives the oppressed the right
to backbite the oppressor.
The Almighty, Allah says;
"Allah loves not the public utterance of
hurtful speech, except by one who bas been wronged. And
Allah is ever Hearing, Knowing."
Holy Qur'an (4:148)
Another example for the change of a divine judgment hukum is: the change of a
permissible act mubah through transforming it from
the state of permission ibahah into the state of
an obligation wujub or a prohibition hurmah,
according to an urgent necessity which requires such
change in order to deal with objectivity and reality with
this urgent and exceptional circumstance, until affairs
return to their natural course. Thus the natural
legislation plays its role as stated in the origin of
legislation. Examples of permissible acts mubah
which become forbidden, are many, among them is
"Every permissible act mubah in which no
interest can be achieved except by leaving it aside or
harm and loss is resulted for doing it- because of an
urgent cause."
For example: Some permitted foods whose eating becomes
dangerous for man's life and his health. Like a patient
who insists on using certain kind of food prevented by a
doctor and which may cause him damage and harm. If he
eats such food, which may harm his health or causes him
death, he will do a forbidden act and thus commits sin
for refusing his doctor's advice.
As this change of permission happens in the individual
field, it may also happen in other fields including
social, economic, political...etc.
Regarding the change of the laws of permission in the
social field is what happened in Iran when the great
jurist mujtahid[4] Mirza Hassan Shirazi who
proclaimed his famous verdict fatwa from Najaf in
1891, December about the prohibition of smoking under
temporary circumstances.
Because tobacco was monopolized by a British colonialist
company at that time, so his verdict was a declaration
for an economic war against the usurper colonialists.
Consequently smoking became forbidden after its being
permissible and lawful because Muslim interests were in
danger and required the taking of a decision for the sake
of safeguarding the rights of the Muslim community and
protecting it from the exploiting enemy. Thus this
prohibition took its effect and became obligatory for all
Muslims to refrain from tobacco until its main causes
were removed. Iranian Muslims including the mother of the
then Qajarid king Naseruddin Shah adhered to the
prohibition until the agreement with the British company
Laws cancelled in early 1892. Thus giving back Muslims
the rights to control their own wealth and property.
In similar situations wajib kifa'i[5] becomes wajib
'aini[6] as the necessity is concerned. For example:
If an Islamic state, based on Islamic rules, requests
that the Muslim country is in need of scientific
specialization in special branches of science because of
the general interest and it demands that some qualified
individuals should do their duty concerning this
specialization. This specialization becomes wajib
'aini which was hither-to wajib kifa'i. Thus
it becomes obligatory for concerned individuals to
specialize in such fields.
Another example is, if a truly Islamic state gives the
responsibility or a post in the governmental system to
qualified individuals, it becomes obligatory for such
individuals to respond to the state's decision without
having the right to refuse except in case of a reasonable
legal excuse. There are many different examples
concerning this subject which are outside the purview of
this book.
Before proceeding further, we state once again that
such changes in the original hukum are only of a
temporary nature caused by expediency in the interests of
an Islamic state and the society, and certainly not
against public interests. It should, however, be kept in
mind that there is no other viable solution except this
temporary change under pressing circumstances, and solely
in the interest of Islam and Muslims, by a competent
Islamic authority and in conformity with the Divine laws
of the Supreme Law-Maker and His Wisdom.
The change of divine judgments - caused by urgent
circumstances- does not mean to play with the spirit of Shari'ah
or scheme against its aims at the whims and narrow
interests of unqualified leaders or so-called experts. It
is not correct to take this capability in the Islamic Shari'ah
as a mean (a cover) to change the judgments and laws or
play with them according to one's own will.
This change in judgments has special principles and
rules which should be followed in a way which leads to
the guarding of principles and rules related to
formulating and discovering laws in general.
Regarding the change of judgment- which comes out of
a case of expediency - the new judgment has not only its
legitimacy as the first one but is also considered as
commandment binding upon the concerned group or society.
Likewise, if fasting is compulsory for every mukalf
person, provided that some conditions are met, it becomes
prohibited for the sick. The prohibition of such fasting
becomes like any other legal prohibitions and the sick
person's fasting becomes a forbidden act which deserves
other laws.
Major Prohibitions In Islam:
If we study the forbidden things in Islam deeply and
in detail, we will find that proscribing them is a step
taken by Islam to protect humanity from perverse conduct
and keep it away from dangers and evils.
Through these injunctions Islam protects man's psyche,
body and soul within the individual sphere, and it
safeguards other human relations and community life,
within society from the risks of subversion, perversion
and decadence.
Ideologically, Islam makes unbelief and distrust in
Allah haram. Also, attributing injustice,
incarnation and the like, to Allah the Glorious is haram.
Islam also makes haram superstition,
charlatanism, blind imitation and anything that enslaves
the mind's inquisitive and creative activity, and
prevents a good understanding of life and existence. The
relationship between man and Allah remains firm and
binding, as it is the source of all human conduct and
orientation, and it is the stimulus that moves it on the
right path.
With regard to man's self, Islam makes haram
anything that may lead to pollute man's inner life, kill
his conscience and moral intuition, and that which may
change his life to total misery and helplessness, and his
conduct to an animalistic one devoid of any human
feelings. Thus Islam makes malevolence, hatred.
despondency, mistrust, etc. haram, in order to
uplift the human soul to the highest level of perfection
and cleanliness, and to protect and purify it from
unhealthy traits and crookedness of conscience.
With respect to man's body, Islam makes haram
all the activities, practices, and actions that are
detrimental to health. Therefore, wine-drinking,
adultery, eating the flesh of swine, dogs and many other
unhealthy animals or for that matter animals killed by
strangulation, carrion, and blood are all haram.
When Islam protects man's psyche and his body on the
one hand, it pays due attention to protect the community
from crime and harmful practices in the domains of
sociology, politics, economy, the judiciary, education
and so on.
Accordingly, Islam makes haram, oppression,
usury, monopoly, cheating, theft, telling lies,
backbiting, false witness, cursing, bribery, homicide,
gambling, teaching and spreading harmful ideologies and
ideas like those made popular through pornographic
literature, films and pictures.
By so doing, Islam secures the health of both the
individual and the society.
Islam rules that carnal sins which constitute the most
grave danger to man and environment are haram.
A good look at these sins, and a deep pondering over
them in the light of social experience, scientific
research and sound thinking, illustrates to what degree
they are dangerous to both the life of the individual and
the stability of the society, and so helps one to
understand the wisdom behind making these deeds haram
in Islam.
It is of a great benefit to cite these prohibited
things, which Islam warns Muslims not to commit, as
painfully severe punishment is in store for them should
they commit such acts, which if committed, may endanger
life and social order.
The following are the main haram things:
1. Polytheism. 2. Desperation and despondency about
one's fate and the idea that Allah will never have mercy
on him. 3. The belief that Allah will never punish
oneself. 4. Undutifulness towards one's parents. 5.
Homicide. 6. Falsely accusing a married woman of
committing adultery. 7. Taking away the orphan's
possessions and money unjustly. 8. Fleeing the
battlefield of jihad. 9. Usury. 10. Adultery. 11.
Sodomy. 12. Witchcraft. 13. Perjury. 14. Bearing false
witness. 15. Concealing testimony (about something one
knows and can help establishing justice by giving it).
16. Drinking wine. 17. Breaking pledges. 18. Cutting off
relations with one's near of kin. 19. Emigration from the
Muslim homeland to a place where one's faith becomes a
risk. 20. Theft. 21. Telling lies about Allah, His
Apostle, Imams and common people or attributing to them
something which they did not say. 22. Cannibalism. 23.
Drinking blood. 24. Eating swine or flesh of animals that
are slaughtered without mentioning Allah's name on them.
25. Ill-gotten money earned by selling wine, or gained
through prostitution, dancing, as well as money gained
through bribery, and the salaries given by the oppressive
regimes when one cooperates with them to prop up
injustice and implement their corrupt schemes. 26. Giving
short measure and weight. 27. Supporting the oppressors.
28. Pride. 29. Extravagance. 30. Squandering money. 31.
Fighting the faithful and callers to Islam. 32. Working
as dancers and musicians. 33. Backbiting. 34. False
accusation. 35. Cursing the faithful, insulting and
humiliating them. 36. Talebearing. 37. Pandering or
acting as pimps. 38. Cheating. 39. Sanctimoniousness. 40.
Hypocrisy. 41. Ignoring or belittling one's sins and
transgressions...
Apart from these forbidden actions there are a lot
more which result in corruption, haram and the
ruination of life.
Haram acts are the plague and the greatest
danger threatening the life of both the individual and
society. Only by steering clear of them, can humankind
protect and preserve their body and soul from decay and
perfidy.
Medical, social and psychological studies have
recently uncovered the grave dangers caused by the haram.
Astonishing figures are emerging from research
institutes, about the crimes, ailments and anomalous
phenomena and cases in the communities that have dropped
the concepts of halal and haram from their
behavior. Such statistics show how urgent it is and
necessary to set to work in saving the human race and
finding a way out of the predicament in which they
wallow, after discarding the divine values and yielding
to the bestial way of life. They should return to the
straight path of Allah, which is the proof of the
Almighty's kindness, mercy and generosity.
Ijtihad
(Juristic Reasoning)
Ijtihad and a
Divine Law:
A law (hukum) based on Islam can he defined as
divine legislation or Shari'ah which organizes
human life and his divers relations. (Ijtihad is
the process practiced by a jurisprudent to discover
secondary divine legislation (laws) regarding the
organizing of human life and his diverse relations or
endeavoring to discover and deduce the Islamic laws and
regulations from their sources like the laws concerning
worship, possession, business, property, judiciary,
politics and family affairs...etc.)
Ijtihad is a learning (knowing) process and has
a important, progressive and civil role in the life of an
individual and the society altogether with the state. It
also participate in developing the civil life and opening
the legislative prospects before it. Without the process
of Ijtihad, many human activities are difficult to
develop in the sphere of an Islamic life.
Human society is a developing entity. Human actions,
relationships and activities are ever-increasing and
ever-expanding. Many things are invented that were
non-existent before. Banks, insurance companies, radio
and television and the other discoveries are new
phenomena which are to be used correctly and in harmony
with Islamic teachings. If there are no fuqaha'
(jurisprudents), how could codes and regulations
concerning such institutions be derived at?
This process of Ijtihad is responsible for
catering to all the needs of the human society and
providing answers to all questions which may arise in
this field. Without the process of Ijtihad, a
faithful Muslim will find himself in a dilemma.
The First Attitude: To petrify, solidify
and isolate every new development in life because he has
no knowledge concerning his legal responsibility or duty
and the ambiguity of such special legislative laws
concerning new affairs in human life...
The Second Attitude: To dissolute from
any legal responsibility or obligation and dissolve
absolutely in a non-Islamic civilization and principles;
to take laws and concepts and specify situations and
behavior by depending on non-Islamic civilizations,
principles and ideologies.
In both cases, the attitude will be a tragedy against
the dynamic goals of Islam and to stop the spread of the
ever-lasting Divine Legislation.
Besides these two attitudes, another attitude which is
more dangerous than the two, the idea that Islam is
incapable of establishing a developed society and
international entity for the Muslim nation and which puts
obstacles in its path of progress, which in other words
would mean the absence of Divine Mercy and Kindness from
the world of mankind and to leave it in disorder and
chaos. All these are against the aims of Islam and which
contradict the spirit of Shari'ah and the
principles of the ever-lasting Islamic Message as the
Holy Qur'an and the Prophetic sunnah.
The Most High says:
"...and We ban reveal the Book to you
explaining all things, and a guidance and mercy and good
news for those who submit."
Holy Qur'an (16:89)
A holy tradition (hadith) says:
"Almighty Allah has revealed in the Qur'an the
declaration of all things. He has not left anything
needed by His servants unexplained so that no one would
say: if (only) this has been revealed in the Qur'an. Yes
indeed He has revealed it."[7]
Imam al-Sadiq (a.s.) describes the nature of the
Islamic message in the following words:
"The Qur'an is certainly alive and does not
die. It moves as the night and the day, and as the sun
and the moon. Its teachings should be obeyed by the last
man on earth as it had been obeyed by the first
one."[8]
By contemplating on these Islamic texts, one realizes
that the Qur'an is the origin of Islam; the source of its
message; a vehicle for its laws, principles and concepts
and a torch which sends the rays of guidance on the
planet more brighter or serene than the sun and the moon.
But it is not in our capability nor any one else to
understand (realize) life perfectly through the Qur'an
nor to discover the laws of life and the Islamic laws
from the treasures of this Book (the Qur'anic verses are
treasuries, whenever a treasury is opened, you should
look at it).[9]
This richness of laws and the large ideological wealth
which the Qur'anic verses contain need scientific efforts
and an ideological declaration capable of drawing from
this inexhaustible spring and meet the future needs from
these unfathomable treasuries.
It is natural, that to comprehend the deepness of the
Qur'an with its legal proof is not clear nor specified in
every situation and affair and it is not in the capacity
of a jurisprudent (Faqih or Mujtahid) to
take this responsibility in the first grade. But it was
the task of the Minister of Revelation (Prophet Muhammad
(s.a.w.) to comprehend and expound the spirit of the
Book; to interpret its meanings and to formulate its laws
and practical legislation in life under Divine Guidance.
Thus the relation between the two - the Book and the sunnah
- looks like to a great extent the relation between a
constitution and a law.
The constitution makes clear the essential origin of
legislation and prescription of law. For instance, the
clause speaks of the right to own property, but it is the
law-maker which clarifies its details, and drafts the
laws necessary for practical execution of this
constitutional article and declaration of its details.
In like manner, the task of the Prophetic traditions sunnah
is to translate the contents of the Qur'an and formulate
them as practical laws for life.
For more details, it is worth mentioning that the sunnah
is not a Prophetic judgment for formulating the Qur'anic
spirit and explaining its contents through laws as the
case in the relation between the constitution and law.
The sunnah is a Divine revelation and
instruction both in its meaning and contents save that
its literary pronunciation and form is said by the
Messenger of Allah (s.a.w.) himself.
For example, the Holy Qur'an ascribes (determines)
that the paying of the poor-dues zakat is
obligatory but without clarifying its amounts or
quantities nor the things on which it should be paid. But
it is the Prophetic Tradition sunnah which looks
after it by explaining it in detail. This explanation and
detail has come through the utterance and practice of the
Noble Messenger and his human normal speech. In order to
continue the advantageous role of the sunnah,
Allah willed that it should have leaders (Imams)
after the Prophet who represent the conscious side and
comprehend the spirit of the Qur'an and its contents in
accordance with the Prophet's practice.
Therefore, the Imams of the Prophet's infallible
Household, the Ahlul-Bait (peace be upon them all)
represent the blessed path of guidance for the ummah.
After them comes the role of the Jurisprudents (mujtahids
or fuqaha') who undertake the task of judgment by
reasoning in the light of the Qur'an and the sunnah
to meet the changing needs of the human society. Thus,
the dynamism of Ijtihad which is wide open till
our present day, was necessary to expand the horizons of
the Shari'ah and to enrich the human society with
concepts and laws which are necessary for organizing the
progress of mankind.
Therefore, Ijtihad is necessary wajib kifa'i
and there should at least be a Mujtahid, in every
age and era, to whom Muslims refer and upon whom they
depend for understanding the Shari'ah and
discovering its laws.
Islam has two main sources:
A- The Book (The Qur'an).
B- The Sunnah (The Prophetic Tradition).
It is only in the light of these two sources that laws
should be made. The tragedy of Muslims, is, certain
persons took fallible sources besides these two, and on
the basis of their whims and personal opinions qiyas
imposed themselves on unsuspecting and simple-minded
Muslims as Imams or leaders of schools of Jurisprudence.
Later on, the ruling Abbasid Caliphs, who were total
strangers to Islam and its teachings arbitrarily
sanctioned the legitimacy of four self-contradictory
schools of jurisprudence on the Muslims, ruling that the
door of Ijtihad was closed.
But in Islamic Shari'ah, it is not necessary to
accept these sources (the sources of qiyas and the
like to which certain Mujtahids depend other than
the Book and the Sunnah) except what tallies with
the spirit of the Book and the sunnah. However,
the followers of the schools of the Prophet's Ahlul-Bait,
have always stayed clear of these innovations and kept
the dynamism of Ijtihad open on the basis of the
Book and the sunnah. Therefore, it is the duty of
a rightly guided mujtahid or faqih cancel
in all periods any of these sources which contradict the
Book and the sunnah or bold no water before a
scientific justification.
How does a Jurisprudent (faqih) practice the Process of
Extrapolation?
Most Muslims are ignorant with the meaning of Ijtihad
and some even believe that the process of Ijtihad
is related to a certain class of religious men (scholars)
because of their religious position as is the case with
the post of a pope in a church. Some also think that all
laws of jurisprudence and legal opinions are only
personal views of a faqih (Jurisprudent) who
decides and appreciates laws according to his own
judgments or justifies the events and accidents and an
answer for certain considerations at random.
Certainly this kind of understanding represents the
ignorance with Islamic law (Shari'ah),
Jurisprudence and Ijtihad.
In Islam, both Jurisprudence Fiqh and Ijtihad
have no relation with any personal opinion or qiyas.
Ijtihad is a complete scientific practice as
defined before and has its own sources, proofs,
principles, methods and precisions like all other fields
of science and human knowledge such as logics, physics,
mathematics...etc.
As the logician, physicist and mathematician, in their
respective fields, cannot coin laws or devise formulas
from themselves at random, so does the true jurisprudent faqih
who is also not able to draft or frame any law from
himself because the nature of Shari'ah and its
lawful and ideological structure (constitution) not only
does not allow him to do that but also stands against
those who forge or play with its laws.
Thus, any law which lacks proofs and principles from
the Book and the sunnah and contradicts these
scientific regulations is not an Islamic law, but is
simply the low desire of that law maker against the
spirit of the Shari'ah in order to deceive simple
people.
Why do the Jurisprudents (Fuqaha') differ:
Many people wonder why it is that the mujtahids
differ at times in their fatwas, when the basis of
their Ijtihad are the same. It should be observed
that difference in scientific opinions is not to be taken
as a sign of a substantial defect in the quest for
knowledge. It is rather, a sign that knowledge moves in
progressive steps towards perfection. Differences of
opinions are to be found in all sciences, not just in fiqh.
There may, for example, be more that one opinion about
the therapy for a particular patient's ailment, and all
of these opinions may be superseded later on by the
development of new methods of dealing with that malady.
Thus, this difference can be seen in the light of
difference between scientists and should be regarded as
stages to be passed in its route to perfection.
It should be remembered that the mujtahid
formulates his opinions after pushing his research and
study as far as he can; that is all that is expected of
him, for he is neither infallible nor the knower of the
unseen.
The most important and dangerous question which
remains unanswered is that why do the mujtahids
differ among themselves in their religious opinions
concerning an issue while there is one Shari'ah
and its laws are one? Or why do the mujtahids'
religious opinions differ concerning one subject?
To answer the question, we should differentiate
between the two cases: the case in which the differences
are founded on sound bases and lawful practice.
The second case is that the differences are made out
of extemporaneous Ijtihad which is not founded on
a sound base nor is scientific according to the spirit of
Shari'ah and its sources.
The first difference is a natural result of a sound
scientific reasoning and the mujtahids are excused
for any short comings nor could they be punished on the
day of Resurrection because their intention was sincere.
It is the second case or difference which is neither Ijtihad
nor Fiqh but it is a haphazard act against the
spirit of Shari'ah and its principles, and the
person responsible and his blind followers will be held
responsible on the day of Resurrection.
The science of jurisprudence - as we explained - is
similar to other sciences and human knowledges. As each
of these sciences has its own rules, principles, the
Islamic Shari'ah has its own principles and laws
too.
As the physicist, in the previous example, tries to
spend all his scientific efforts to discover laws related
to physics within the framework of its nature, existence;
or the logician who devotes all his efforts to discover
the laws of thinking according to its intellectual basis,
and it is not for them to coin laws of their own on mere
fancy; so does a mujtahid (faqih), who has
no ability or right to make laws and principles in a
haphazard manner, and then try to legitimatize them. If
anyone has dared to do this, then his laws should
scientifically analyzed on the basis of the Qur'an and
the sunnah.
The same idea is applied to a physicist and logician
who sometimes makes a mistake in discovering scientific
laws and rules and that this wrong discovery does not
represent the true law of physics and logics but it
represents the understanding of a scientist who made a
mistake in identifying the law. The case is the same
concerning the faqih who may sometimes make a
mistake while practising the act of deriving Islamic laws
from their original sources - the Book and the sunnah
- but his mistake is not done blindly and at random but
due to his insufficiency or inadequacy in his scientific
tools or his self capacity which causes him to be unable
in deriving legal law as it is formulated in the world of
law and a divine Shari'ah.
This is the reason why the faqih is excused
when he makes a mistake in arriving at the right law.
The main differences, whether being among the mujtahids
of various Islamic schools of jurisprudence such as Hanafi,
Shafi'i, Shi'ah, Maliki...etc. or among the mujtahids
of one school, belong to the following reasons:
1- Linguistic difference concerning some texts of the
Holy Qur'an and Prophetic traditions due to the
difference in grammar, meaning or in reading which leads
to the difference in understanding and formulating laws.
For example, their difference in the following verse of
ablution when the Almighty Allah says:
"O you who believe, when you rise up for
prayer, wash your f aces, and your hands up to the
elbows, and wipe your heads, and your feet up to the
ankles. And if you are under an obligation, then wash
(yourselves)..."
Holy Qur'an (5:6)
Whoever among the scholars considers the word 'feet'
grammatically is joined to 'faces', makes its washing
obligatory and whoever considers the word 'feet' as
joined to 'heads' makes its wiping obligatory.
Or their difference in the meaning of 'quru"
in the Almighty's saying:
"And the divorced women should keep
themselves in waiting for three monthly courses
(quru');..."
Holy Qur'an (2:228)
Scholars (faqihs) differ among themselves concerning
the linguistic meaning of the word 'quru";
some consider it as the period of cleanness (tuhur)
while others explain it as period of menstruation (haydh).
Each of these two opinions depend on their own linguistic
interpretation or understanding because the word 'quru"
in Arabic language is called for both the period of
cleanness (tuhur) and the period of menstruation (haydh).
In accordance with this linguistic difference,
scholars differ among themselves in waiting period of a
divorced woman; is it three periods of cleanness - after
divorce - or is it three complete months because what is
meant by 'quru" is the period of menstruation
(haydh) because the word haydh is a
symbolic name for woman's monthly period by considering
it as a monthly period which occurs once every month.
Another example, is (heir difference in reading the
Almighty's saying 'hata yatharna' (until they have
become clean) in the following verse:
"And they ask you about menstruation. Say
it is a discomfort; therefore, keep aloof from the women
during the menstruation and do not go near them until
they have become clean; then when they have cleansed
themselves, go in them as Allah has commanded you; Surely
Allah loves those who turn much (to Him), and He loves
those who purify themselves."
Holy Qur'an (2:222)
Whoever reads the word 'they have become clean' as
stressed, does not allow to make sexual intercourse with
women during the period of menstruation until they have
become clean (i.e. to take the ritual bath) but whoever
reads it without stress allows to make sexual intercourse
with her whenever cleanness is achieved (i.e. the
stopping of blood).
Or their difference concerning whether the command
denotes (signifies) obligation or permission; whether a
prohibition indicates prohibition or reprehensibility;
whether the word denotes reality or figurative or their
difference among the texts like generalization,
restriction, universality or specification...etc.
2. The difference concerning the meaning of a text (of
the Book (Qur'an) and the Prophet's sunnah).
Indeed scholars may differ in their understanding the
signification of a text and its meaning like their
difference in the following saying of Allah, the Most
High:
"Divorce may be (pronounced) twice; then
keep (them) in good fellowship or let (them) go with
kindness..."
Holy Qur'an (2:229)
"So if he divorces her (the third time),
she shall not be lawful to him afterwards until she
marries another husband. If he divorces her, there is no
blame on them both if they return to each other (by
marriage),..."
Holy Qur'an (2:230)
Surely the reason of difference in understanding
Allah's saying (divorce is twice) is the appearance of
jurisprudential laws based on personal opinions, with
some ruling prohibition of a wife to her husband if he
divorces her three times by simply saying that 'you are
divorced'; depending on his understanding of the above
mentioned verse (divorce is twice). At the third time,
after passing a greater separation, he has no right to
marry her until she marries another husband and if the
new husband divorces her, then only the first husband has
the right to marry her after completion of her monthly
waiting period.
But another group explains the Almighty's saying
(divorce is twice) that divorce should be achieved
practically but not simply orally in order that a wife
becomes forbidden to her husband. The Holy Qur'an does
not mean merely the repetition of word (verbal) but it
means the real occurrence of the permitted divorce in
which the wife returns to her husband's house twice. As a
result, if a third divorce occurs, she becomes haram
(forbidden) for him to remarry. For more explanation, if
the husband divorces his wife, he has the right to marry
her again; if she returns and he divorces her the second
time, he also has the right to take her back but if she
returns and he divorces her for the third time, she
becomes haram for him to remarry unless all the
following conditions are fulfilled:
a. She permanently remarries another man.
b. The wife and her second husband have sexual
intercourse.
c. The second husband either divorces her or dies.
d. She completes her waiting period (iddah) for
the second husband.
3. The difference whether some laws are repealed or
not, for example their difference regarding the law of
temporary marriage (mut'ah).
4. The difference caused by accepting or rejecting
certain narrations or traditions. Scholars after a
thorough scientific analysis of chain of transmitters,
accept or reject a tradition.
Traditions which contradict the Qur'anic concept or a
proved Prophetic tradition, are normally discarded as
spurious. If the sources or the chain of transmitters are
sound and the wordings in conformity with the Qur'an and
the sunnah, then the tradition is as accepted as
satisfactory.
5. The difference in considering the validity and
invalidity of some of these sources and how to make use
of them, such as: analogy, approbation, intellectual
proofs, and consensus of opinions.
Some scholars depend on some of these sources in
formulating laws while others refuse to do so pointing
out the drawbacks of these sources.
Thus, this is the main reason behind the difference
among the scholars of Islamic schools and the followers
of opinion. Therefore, it is necessary to submit all
disputed independent reasoning opinions among the Muslims
to a thorough scientific criticism in order to remove the
clouds of personal fanaticism and bigotry, and arrive at
the ultimate truth keeping in the mind the aims of
Islamic Shari'ah in reforming and uniting the
Muslim communities.
Objective Statutes (Regulations):
At the end of this research, it is useful to point out
the main principles which serve as necessary conditions
in the process of juristic reasoning (Ijtihad).
Among them are the following:
1- Certainly, the Book (Qur'an) and the Prophet"
tradition (sunnah) are two main sources in
formulating Islamic laws.
2- No one has the right to give his own Ijtihad
in any case whenever there is a legal law in the Book of
Allah and the Prophet's sunnah.
"...And whatever 'he Messenger gives you
accept it, and whateve he forbids you, abstain (there
from);...)"
Holy Qur'an (59:7)
3- Only one judgment for one subject falling under
the same circumstances and conditions, and which
represents the pure legal opinion.
Therefore, in the process of juristic reasoning (Ijtihad),
one should distinguish between aim and its result. The
aim is to arrive at the truth and discover a true law.
i.e. one law for the same subject but sometimes one finds
the jurists having various laws for the same subject.
This does not mean the correctness of all ideas. Thus
the truth of formulating of law depends on the soundness
of the juristic reasoning or the system of Ijtihad
and its sources. Therefore, not every source or method of
reasoning is sound or has the capacity to formulate the
right law.
4- The laws discovered by the faqih are only
estimated but not final and should therefore be subjected
to scientific discussion and strict legal scrutiny.
5- As a result of the previous point, we should
understand that the process of juristic reasoning is a
critical one in which discovered opinion undergoes a
thorough accurate criticism, and evaluation in order to
arrive at the correct law. No juristic reasoning could be
considered sound if it is not subjected to criticism and
scientific discussion.
6- Juristic reasoning should be pure and free from any
fanaticism or internal and external factors such as
political and sectarian tendencies and should be capable
of withstanding scientific analysis and criticism.
Therefore, Ijtihad is a scientific process based
on research and inquiry.
Who is a
Jurisprudent (Faqih):
As it is not in one's capacity to discover laws
concerning physics and logics unless one is well
acquainted with; the same idea can also be said
concerning Ijtihad and formulating Islamic laws.
In order to be Faqih, one should be able to
discover secondary legal laws from their original sources
including the Holy Qur'an and the pure Prophetic
tradition and other sources. In other words the Faqih
is a person who has the greatest expert in deriving the
rules of the Shari'ah from their sources. He
should be familiar with Arabic language to an extent that
he understands the Qur'an and the sunnah both
linguistically and legally and which fits the spirit of
revelation and the Message.
He should be absolutely well-acquainted with the Holy
Qur'an and its sciences to an extent which enables him to
understand and discover legal laws and judgments.
He should be well-versed with the Prophetic tradition
to the extent he should distinguish true and satisfactory
hadiths through studying them and their chain of
transmitters in addition to his understanding of the sunnah
and its circumstances and having the ability to discover
laws which go with the Qur'anic concepts.
Among the qualities necessary for a Faqih is
his being acquainted with what other scholars discover in
their studies and sciences which help him in organizing
and comprehending the jurisprudential thought and
deepening the procedure of Ijtihad (exercising of
independent judgments) like the science of principles of
jurisprudence» dogmatic theology, logics, philosophy,
jurisprudence...etc.
Thus, the experts (fuqaha') of Shari'ah
today upon whom Muslims depend for laws as did those
before them, are the most excellent example in science,
comprehension, and legislation.
Another important qualification which should be found
in the Faqih (mujtahid) is faithfulness,
loyalty, honesty, integrity, objectivity because he is
the seeker of the truth and the one responsible before
the Almighty Allah concerning his judgments, and legal
rulings.
He should also be well known for intelligence,
literary taste, an accurate comprehension manners and
ability of discovering and extraction in order to
practice his responsibility successfully and precisely.
Consequently, Ijtihad and its distinguished
experts and scholars are those who spend all their
efforts and abilities sincerely in order to supply
instinctive knowledge of Ijtihad and the skill of
discovering the laws.
In addition to this, Islamic law lays down that a mujtahid
should be a free man and of legitimate birth who is past
the age of puberty, and is sane, and just besides
possessing other moral and legal qualities, such as piety
and abstention from all that the Shari'ah forbids
and fulfillment of all its obligation.
However, it is sometimes difficult to distinguish the
most learned among the mujtahids and as a result
more than one mujtahid may be followed in taqlid
at one time (though not, of course, by the same person),
as is the case at present, but any such multiplicity does
not result in any practical disagreement on legal matters
among the followers of the school of Ahlul-Bait.
What is Taqlid:
Taqlid literally means 'to follow or imitate'.
In Islamic legal terminology it means to follow a mujtahid
or faqih in religious laws and commandments.
In our everyday life we follow and imitate others in
many things. We like to feel that we are taking the
advice of experts in matters outside our own knowledge.
Whoever wants to build a house explains the basic idea of
of his wishes to his builder and then submits to his
advice as to how he should go about the actual
construction; the invalid follows the treatment advised
by his doctor; a litigant consults a lawyer, when drawing
up his case for presentation in court. The examples are
abundant; in most cases the advice is taken voluntarily,
but sometimes the citizen in a country may be required by
law to seek his expert's advice and act upon it.
For example, he is allowed to take some particularly
dangerous drug. The clearest example is obviously in case
of a legal dispute between two parties, where they are
required to take their grievance to a judge and abide by
his decision if they cannot settle their dispute
amicably. The practice of taqlid is an example of
the same kind: the person who is not an expert in
jurisprudence is legally required to follow the
instructions of the expert, i.e. the mujtahid.
The Holy Qur'an instructs Muslims to seek guidance
from the people of learning in matters about which they
lack knowledge: "Question the people of
remembrance if you do not know."(21:7)
It is an obligation in Islamic law to study everything
which is necessary for the spiritual and material
development and well-being of an Islamic community, but
it is an obligation which is known as a Wajib Kifa'i.
In the present instances, for example, the Islamic
society has need of experts in the medical science, in
physics, chemistry, engineering, education, and so forth,
and as long as there is a lack of knowledge in these
areas. It is an obligation for the community as a whole
to acquire it, i.e. a group of Muslims should devote
themselves to research so as to benefit the Islamic
people as a whole. Similarly, an Islamic society without
experts in the field of Shari'ah cannot properly
consider itself Islamic, and so it is an obligation for a
group of persons from the same society to devote
themselves to the study of the religious sciences, so as
to provide divine guidance for all Muslims.
This is the meaning contained in the Qur'anic verse which
says:
"...why should not then a company from
every party of them go forth that they may acqu/pe
ding in the religion, and that they may
warn their people when they return to them, that they may
beware?"
Holy Qur'an (9:122)
Through the research, it became obvious for us that
every act (deed) a man does or a situation in which he
stands or anything with which he deals with should be
according to a legal law of Islam.
It is also obligatory for every Muslim to be familiar
with Islamic laws and decrees which organize man's
activity and movements including performance of rituals
and business dealings...etc.
It is obligatory for every Muslim either to be a mujtahid
or to follow a particular mujtahid who is
well-qualified in giving verdicts and acts according to
his rulings and thus performs his duty, organizes his
activity and affairs related to him. The process of
depending upon the mujtahid's religious rulings in
performing one's religious duties is called Taqlid.
So taqlid is the relation of Islamic sciences
between a mujtahid and the followers of his legal
rulings. And it is a necessity which must be practiced by
the one who is not qualified as faqih or who has
not reached the degree of Ijtihad. As long as this
practice needs an expert (a mujtahid) in
jurisprudence and Shari'ah, it becomes necessary
to rely on him (the mujtahid) and ask of him
whatever difficulty we face in Islamic jurisprudence in
the same manner as we depend on a doctor, pharmacist, an
expert in other sciences in which there is such need to
consult them because of their knowledge in this domain
concerning what should be done and what should be
abstained from.
Therefore, it is obligatory for every mukalaf,
to follow a mujtahid who is well-qualified in
delivering verdicts in order to be able to act and
practice according to the Creator's Will and Guidance.
Praise be to Allah, Lord of the
worlds.
Endnotes
1- Raghib al-Isfahani - Mu'jam Mufradat al-fadh
al-Qur'an.
2- Mukalaf: In Islam, a boy or girl is considered
adult on reaching puberty, and thus has to perform all
obligatories.
3- Kulaini, Usul min al-Kafi, p. 59, vol. 1, printed
in 1388 A.H.
4- Mujtahid: A person who is an expert in Islamic
jurisprudence (fiqh); he is also called faqih. He has a
particular power and retigious authori and significance.
5- Wajib Kifa'i: An action which remains obligatory
upon the Muslims as long as it remains unfulfilled, but
if Some individuals carried it out, other Muslims are
absolved from the responsibility, like the profession of
medicine, judiciary, agriculture, bidding for what is
right and bathing the corpse and praying for him...etc.
6- Wajib 'aini: A deed which is obligatory upon an
individual and the obligation still exists even if others
perform it tike the daily ritual prayer, and
fasting...etc.
7- Kulaini, Usul min al-Kafi, p. 59, vol. 1, printed
in 1388 A.H.
8- The late Abul-Qasim al-Khu'i, Tafsir al-Bayan, p.
23, printed in 1394 A.H. -1974 A. D.
9- Ibid, p. 30.
The material for this page are
reproduced with permission from the Al-Balagh Foundation.