Law-making in Islamic context

Q324 :A religious teacher working in South Indian state of Tamil Nadu (having studied in the Islamic University of Madinah) has been stressing most emphatically that Muslims can only follow the Qur'an and the Sunnah of the Prophet. There are no other guides or sources to follow. In scholarly books, however, consensus, or "Ijmaa" and analogy, or "Qias", are mentioned as sources for lawmaking. Many people have found the discrepancy most confusing. It will be most appreciated if you could clarify this apparent contradiction.

A324 : I will start by saying that there is no contradiction between the two opinions advanced by the teacher from the Islamic University of Madinah and the written work which has mentioned the other two sources. This is due to the fact that both the other procedures of consensus and analogy can only operate within the framework of the Qur'an and the Sunnah, or Hadith. This places them within the criterion established by Islam which makes the Qur'an and the Sunnah the only acceptable lawmaking authority. What your scholar has been saying is indisputable. To rely on the Qur'an and the Sunnah is the basic requirement of Islam. Indeed, it is the practical implementation of the declaration by which a person becomes Muslim. That declaration states: "I bear witness that there is no deity save Allah and I bear witness that Muhammad is Allah's Messenger." As you realize, this declaration is made of two parts. The first stresses the Oneness of Allah as the only God and Lord in the universe. This means that He alone has the authority to legislate. Whatever legislation He enacts must be obeyed by all human beings. The second part makes it absolutely clear that it is only through Allah's Messenger, Muhammad (peace be upon him) that we receive Allah's commandments, instructions and legislation. There is no other way for those to be conveyed to us. Anyone who claims a role to communicate to us a legislation, other than the Prophet Muhammad (peace be upon him), is an impostor. Allah has given us a detailed code to implement in our lives. However, no legal code which aims to be applicable to all communities in all periods of time can give in advance a ruling for every situation human life may present. As human life develops, certain things or practices are discarded while new ones are adopted. Changing situations require different rulings. This is the reason why the lawmaking authority in every country provides for the repeal of past laws and the enactment of new ones in their place. This cannot be done in Islam, because the authority to legislate belongs to Allah. No one can repeal Allah's law. How do we, then, deal with developing situations? To answer this, I have two Hadiths to quote: The Prophet sent his companion, Moath ibn Jabal, to the Yemen as a governor. Before Moath left, the Prophet asked him, "How will you adjudicate in matters that will be put to you?" Moath answered, "According to Allah's Book (i.e. the Qur'an)." The Prophet then asked him, "What if you find nothing to guide you?" Moath answered, "Then according to the Sunnah of Allah's Messenger." The Prophet repeated his question. "What if you find nothing to help you?" Moath said, "I will use my discretion, making every effort to arrive at the right decision." The Prophet said: "Praise be to Allah who has guided Allah's messenger to implement what pleases Allah and His Messenger." The Prophet is quoted to have said: "My nation will never agree on something which is wrong." These two Hadiths give us the basis on which analogy and consensus rely as legitimate sources of rulings. We note that in the first Hadith, the Prophet refers to the possibility that a ruler or a judge may find nothing in the Qur'an or the Sunnah to help him arrive at the right ruling in a certain case. The method of deduction explained by Moath is one of scholarly discretion. What this means is that he will consider what may be analogous to the case in hand of matters that have a clear judgment in the Qur'an and the Sunnah. This then is scholarly discretion. The Prophet was pleased with this method and stated that it was satisfactory to Allah and to himself. The second Hadith is clear. It does not mean that every single person in the Muslim community should agree to something for the consensus to take place. What it means is that the scholars in a particular time may unanimously arrive at a certain decision. If they do, then that decision cannot be wrong. A clear case which explains both matters is the verdict on smoking. When the question whether tobacco smoking is permissible in Islam was put to scholars in the past, many of them did not object strongly to it, although some pointed out that it was reprehensible or discouraged, due to its smell and other factors. However, when more recently the question was put to a number of scholars together with the medical evidence about the damage tobacco can cause to health, a verdict of total prohibition was returned by an overwhelming majority of them. Obviously, there is no specific ruling in the Qur'an or the Sunnah to tell us that smoking tobacco, as such, is forbidden. Scholars, however, relied on the general rules which apply to Islamic law, such as the one which states that: "No damage may be caused, whether to self or to others." Since smoking causes serious health damage, it is considered forbidden. Some scholars also added that a smoker should not go to the mosque because of the bad smell of tobacco. In this, they have drawn on the analogy with garlic and onion. The Prophet says that a person who has just eaten garlic or onion should not attend congregational prayer in order not to annoy other worshippers. All this is a ruling based on analogy. However, the question was put to ten leading scholars of the University of Al Azhar and to Dar El-Ifta in Saudi Arabia. Altogether, answers were given by fourteen scholars, twelve of them returning a verdict that smoking is completely forbidden, the other two put their ruling only a shade less than forbidden, making it as "strongly reprehensible." However, more and more scholars, everywhere in the Muslim world, are giving an ever clearer verdict of prohibition on smoking. Those who are still reluctant to make such a ruling are certainly less aware of damage tobacco causes to health. Hence, we see a case of consensus being progressively built. If one day a large council of eminent scholars from all over the Muslim world is formed and it holds an annual meeting to consider cases and situations that are put to it, then the rulings passed by this council will enjoy a degree of consensus. Therefore, they will be binding on Muslims. However, if one or two scholars expressed a different view on a certain matter, each view is given its value, as long as it is based on a clear understanding of the question and a scholarly interpretation of Qur'anic and Hadith statements. An example may be given from the rulings published by the Fiqh Council of the Muslim World League, which may be considered as the nucleus of the council I would love to see formed. A few years ago, this council considered questions on insurance, and returned a verdict of prohibition on many types of insurance, allowing only the ones which may be included under the general title of "cooperative insurance". One eminent scholar, Sheikh Mustafa Al-Zarqa, took a different view, allowing most forms of insurance. In its published decision, the council referred to this disagreement and stated that the view of Sheikh Al-Zarqa must be given its due respect. I hope I have made it clear that whether we arrive at the decision through consensus or through analogy, we are following the Sunnah of the Prophet and not deviating from the Qur'an and the Hadith.

Our Dialogue ( Source : Arab News - Jeddah )