These 200 verses lie scattered throughout the text of the Koran: they do not constitute a separate code. Then, some verses are deemed to be abrogating verses and some the abrogated ones. Generally, speaking the earlier verses are deemed to be abrogated by the later one. The rules and the principles of law are laid down only in that portion of the Koran which was revealed to the Prophet at Medina.
The revelations made at Ìàññà pertain to theology, Islam and philosophy of life. The faithful believes that the Koran, the holy book of the Muslims, does not merely contain the divine revelation, but it has existed from eternity. It is a book which shows the right path to human beings, which distinguishes truth from falsehood, and right from wrong. The contents of the Koran have spiritual value. Since the Koran is of divine origin, it is postulated that Muslim law cannot be changed or modified by any human agency. Thus, in India, the Muslims proclaim that their law cannot be reformed by the Union Parliament or the State Legislature. It is historical fact of great significance that the Koran was not reduced to writing during the life time of the Prophet. The extant Koran was compiled from the version given by Osman, the third Caliph, from his memory.
The work of compilation was undertaken during the Caliphate of Abu Bakr and Omar, under the supervision of Hazrat Bin Sabit with whom other Kureishites collaborated. This version, known as the Osman edition is considered to contain the authentic text of the Koran. Since the Koran occupies a pre-eminent position among the sources of Muslim law, any study of Muslim law should naturally being with the examination of the rules and principles contained in it, howsoever scanty and insufficient these might be. All the writers on Muslim law agree that the legal norms laid down in the Koran came into existence as a solution to the contemporary socio-economic as well as political problems. In other words, the Koranic verses dealing with legal norms came into existence as legal precedents of the Islamic society of the early seventh century. Although the Koran is not a code of law and the Prophet was not a law-giver, the Muslim jurists and scholars have interpreted it as a code, and the classical jurists worked out a body of rules of construction applicable to the legal norms found in the Koran.
2. The Sunna:
The term “Sunna” literally means “a path, a procedure, a way of action”, i.e., some kind of practice and precedent. In Muslim law, the term has come to mean the utterances, deeds and the practices of the Prophet. It also includes the unspoken approval of a course of conduct. The Sunna must be distinguished from the hadis the latter term is applied to the story of a particular instance or occurrence, while the former is the rule of law deduced from the instance or occurrence, i.e.
, the practice of the Prophet or his model behaviour. The Sunna differs from the Koran inasmuch as the Koran is said to contain the very words of God, while the Sunna embodies the practices, the deeds, the actions and the approvals of the Prophet. In its wider connotation, the term Sunna is applied to the traditions or precedents not merely emanating from the Prophet, but also from his Companions, Successors. As to the traditions emanating from the Prophet, all schools of law agree that an authentic tradition is as much binding as the verses in the Koran, but as to the traditions of others, there is no such unanimity. Remoter is a tradition from the Prophet, the lesser is its authenticity.
Thus, there is a great divergence of opinion as to which of the traditions are authentic and which are not. Shafi is categorical in saying that an authentic Sunna is infallible, universal and eternal. The Sunnis and the Shias differ fundamentally on the acceptance of the Sunna. The Shias would not accept a Sunna unless it originated from the household of the Prophet, while the Hanajis go to the extent of accepting even isolated traditions. There are numerous collections of Sunna. Some of them are undoubtedly spurious. No one is certain as to their exact number. The Sunna is not confined to legal norms.
They also deal with theology, trade, ethics, government, etc. As it often happens with such texts, may be? Sunna are contradictory. Shafi held the view that a conflict between two or more Sunna should be resolved by a process of harmonious construction. In case such a harmonization is not possible, then the one, which is keeping with the Koran, should be accepted as authentic. Sunna as continuation of pre-Islamic Sunna: The fact of the matter is that the concept of the Sunna was adopted by the Muslim jurists from the pre-Islamic Arabia. It is an Arab legacy to Islam. In pre-Islamic Arabia, it denoted normative customs or precedents.
The entire conservatism of the Arabs found expression in the Sunna. In the words of Schacht, it was “this ancient Arab concept of sunna which was to become one of the central concepts of Islamic law”. In Islamic law, the term Sunna originally had a political and administrative connotation.
It referred to the policy and administration of the Caliphs. The question whether the administrative acts of Abu Bakr and Umar should be regarded as binding precedent, cropped up at a time when a successor to Umar had to be appointed. One of the charges against the third Caliph was that he had deviated from the policy of his predecessors and defiled the Koran. Thus, originated the concept of the “Sunna of the Prophet”. As Schacht has put it very aptly, in their search for theoretical foundations, the ancient schools of law transferred the terms “Sunna of the Prophet” from its political and theological into a legal context, and identified with it the Sunna, the idealised practice of the local community and the doctrine of its scholars. Shafi, however, did not recognize the Sunna as idealised practice, but identified it with the formal traditions coming from the Prophet. Shafi, thus, started the process of limiting the scope of the Sunna, and, at the same time, placed them even higher to the Koran.
He maintained that one should not conclude, as the ancient schools of law did, that the Companions of the Prophet knew the intentions of their master best, and would, therefore, not hold an opinion incompatible with them. A fortiori, Shafi maintained that practices originating from persons other than the Companions of the Prophet had no authority whatsoever. Thus, the concept of “living tradition of the Prophet”, so ably developed by the ancient schools of law, was given a go by. On the other hand, Shafi held the view that the traditions of the Prophet could not be invalidated even by reference to the Koran. He took for granted that the Koran had to be interpreted in the light of the tradition, and not, vice versa. In the latter development of Muslim law, an attempt was made to incorporate the view of Shafi into the living traditions of the Prophet. Sunna, coming from Prophet and his companions: The Sunna, whether considered as a body of traditions coming down from the Prophet as well from his Companions, Successors, and Successors of Successors, or from the general body of the ulema, or coming only from the household of the Prophet is a very important source of Muslim law.
In the words of Fyzee, the main distinction between the former two sources, and the latter two, lies in this that “the Koran and the sunna look to the past, while consensus and the Kiyas deal with the future of the Islamic jurisprudence”. The assumption is that the Koran and the Sunna, both being of divine origin, are the fundamental sources of Muslim law. They are also immutable. The orthodox view holds that the human beings have to exercise their intellect to understand them, but in that process, they cannot be modified. In the acceptance of the principle, that the learned among human beings have the authority to expound the meaning of the Koran and the Sunna, lies the real vitality of Muslim jurisprudence. It is this principle which gave birth to Ijma and Kiyas as the most dynamic concepts in Muslim law. In the words of Schacht, “Islamic law represents an extreme case of jurists’ law; it was created and developed by private specialists; legal science and not the State plays the part of legislator, and scholarly handbooks have the force of law”.
Snouck Hurgronje considered the Ijma as the “foundation of foundations” and the movable element in law. The fact of the matter is that in the historical process of the development of Muslim law, no single element has played such a vital role as has Ijma. The validity of the Ijma is based upon a Sunna of the Prophet which declares that “God will not allow His people to agree on an error”. This Consensus (Ijma) of the scholars, representing the common denominator of doctrine achieved in each generation, expresses the synchronous aspect of the living tradition of each school”. The Hanafi law-givers unequivocally assert that the law must change with the changing time, or, as Malik puts it, new facts require new decisions.
The Ijma, i.e., the consensus of the learned, is a fundamental aspect of the Sunni jurisprudence. According to the Sunni doctrine, the Muslim mujtahids (jurists) alone can have a say in the formation of the Ijma. The mujtahid must be deeply learned in the science of law, and he must possess the power of rendering correct judgment and of making analogical deductions. In matters of law, Ijma of the entire community is not acceptable. It is the Ijma of the learned which has precedence and is authoritative. Although all the schools of Sunnis accept the Ijma as a source of law, yet each of them bases it on different principles.
Abu Hanifa considered it to be based on the principle of istihasan (equity), Malik on istislah (consideration of public interest), and Shafi on Kiyas. The only person among the Sunni jurists who did not accept ijtihad was Hanbal, a confirmed traditionalist. Hanbal, on the other hand, formulated the doctrine or usuf (root) derived from a Sunna. In his work, Musned, be collected over 80,000 ahadis. But in this process, Hanbal gave liberal interpretation to the traditions of the Prophet.
As has been stated earlier, ijtihad was a historical necessity in the development of Muslim law. The Koran and the Sunna did not contain all the rules of law. With the expanding territories of Islam, situations arose to which neither the Koran nor the Sunna were comprehensive enough to give any guidance. During this period of expanding frontiers of Islam, the task of the development of law became the special province of the jurists. The Muslim world during this period had several grades of scholars well versed in law and theology. Highest on the ladder were the first four Imams of the Sunni school, whose position as Companions of the Prophet as well as in their own right was supreme. At the bottom of the ladder were Muquladoon, the learned ones who did not claim to be the exponents of law, but merely applied the law to the varying situations.
Between these two extremes, were the founders of the different schools of thought; the jurists who could formulate new rules whenever necessary, and who accepted some of the interpretations while rejected others. Coming thus from the various shades of scholars, the Ijma was obviously of different quality: at the top was the Ijma of the Companions. Then came the Ijma of the juris-consults, followed by the Ijma of the mujtahid. The Hanafls accept the opinions of the jurists of any age; while the Hanabalis abide by the Ijma of the Companions only. The Malikis repose their faith on the consensus of the scholars of Medina; the place thrice blessed being sanctified by the association of the Prophet and latter became the seat of the Companions and their successors. Imam Shafi, who was an intermediary between the independent legal investigation and the traditionalist, perfected the doctrine of the Ijma. Ibn Hanbal was a traditionalist and rejected all the Ijma, unless it came from the tradition to a strong analogy.
The Shias, particularly the Imamiyas and Zaidyas, accept the Ijma emanating from the household of the Prophet. Schacht observes: “The four schools, then are equally covered by the Ijma, they are all deemed to translate into individual legal rules the will of Allah as expressed in the Koran and in the Sunna of the Prophet; their alternative interpretations are all equally valid, their method and reasoning equally legitimate”. It is because the Prophet himself has said that the disagreement in the community of Muslims was a sign of divine indulgence. The law laid down by the Ijma is authoritative and binding. However, in its theological aspects, all the schools do not ac-cord the same importance to the Ijma.
The importance of the Ijma as a source of Muslim law is undoubtedly great. Many rules of Muslim law cannot but be explained by reference to the consensus of the jurists. In the words of Danial Latifi, “The principle of Ijma was given an overriding authority and was made the final and conclusive argument on everything, by the early schools of Muslim law. Ijma was regarded as authoritative not only for discerning the right at present and in the future but also for establishing the past. It was Ijma that determined what the Sunna of the Prophet had been and indeed what was the right interpretation of the Koran. In the final analysis, both the Koran and the sunna were authenticated by Ijma”.
The Kiyas is the fourth ancient source of Muslim law. Derived from the Hebraic term “hiqqish’ and from an Aramic root, meaning “to beat together”, the “Kiyas” signifies analogical deductions. In Arabic usage, Kiyas means “measurement”. Kiyas should be distinguished from ray, istihasan and istihbab. The term “ray” (opinion) signifies individual opinion or reasoning, i.
e., sound, considered opinion. When it is directed towards achieving systematic consistency and guided by the parallel of an existing institution or decision, it is called Kiyas, ‘analogy’, part of reasoning. When it reflects the personal choice and discretionary opinion of a lawyer, guided by his idea of appropriateness, it is called istihsan or istihad, ‘approval’ or ‘preference’ Ray and istihsan stem directly from the advisory, cantelary activity of the early specialists”. All the four schools of Sunnis agree that in cases, which are not covered by the Koran, the Sunna and the Ijma, the law may be deduced from what has already been laid down by these authorities by the process of analogy. (Kiyas).
However, all the schools do not agree as to the precise scope and importance of the Kiyas. According to the Hanafis, the Kiyas is “an extension of law from the original texts to which the process is applied to particular case by means of a common illat or effective cause, which cannot be ascertained merely by interpretation of the language of the text”. The Malikis, on the other hand, interpret it as “the accord of a known thing with a known thing by reason of the equality of the one with the other in respect of the effective cause of its law”.
Abdul Rahim says, “The Kiyas is a process of deduction by which the law of a text is applied to cases, which, though not covered by the language, are governed by the reason of the text. The reason of the text, which is technically called illat or effective cause, is the rukn, i.e.
, constituent of analogy and the extension of the law of the text to which the process is applied in its legal effect (hukm).” The Kiyas is utilized for extending the law of the text to matters not strictly falling within its scope, though the jurists do not admit that by that process they are establishing a new rule of law, the theory being that analogy merely helps to discover the law. An analogical deduction may be based on a text of the Koran or on a Sunna or on an Ijma. This view is accepted by all the schools which accept the Kiyas as a source of law. An analogical deduction has to be in the nature of a corollary to the existing rule of law.
Some hold the view that it may be based on another Kiyas. Ahmed ibn Hanbal, the great traditionalist, was, however, opposed to the Kiyas. The Shaffis also do not accept the Kiyas.
The Shias reject the Kiyas outright, since they subscribe to the dogma that a rule of law must be formulated by the Imam and none else. The Kiyas as a source of law is ascribed the lowest position: it is considered to be subsidiary and subordinate to the Koran, the Sunna, and the Ijma. According to Abdul Rahim, reason is that one cannot be certain about the Kiyas, that they are what the law-giver intended, based as they are on the application of human reason which is always liable to err.