10. REVEALED LAWS PRECEDING THE SHARI’AH OF ISLAM
In principle, all divinely revealed laws emanate from one and the same source, namely, Almighty God, and as such they convey a basic message which is common to them all. The essence of belief in the oneness of God and the need for divine authority and guidance to regulate human conduct and the values of morality and justice constitute the common purpose and substance of all divine religions. This essential unity is confirmed in more than one place in the Qur’an, which proclaims in an address to the Holy Prophet: `He has established for you the same religion as that which He enjoined upon Noah, and We revealed to you that which We enjoined on Abraham, Moses and Jesus, namely, that you should remain steadfast in religion and be not divided therein’ (al-Shura, 42:13). More specifically, in a reference to the Torah, the Qur’an confirms its authority as a source of inspiration and guidance: We revealed the Torah in which there is guidance (huda) and light; and prophets who submitted to God’s will have judged the Jews by the standards thereof’ (al-Ma’idah, 5:44). It is thus observed that Muhammad, being one of the Prophets, is bound by the guidance that is found in the Torah. Further confirmation for the basic harmony of the divinely revealed laws can be found in the Qur’anic ayah which, in a reference to the previous Prophets, directs the Prophet of Islam to follow their guidance: `Those are the ones to whom God has given guidance, so follow their guidance [hudahum]’ (al-Anam 6:90). Basing themselves on these and similar proclamations in the Qur’an, the ulema are unanimous to the effect that all the revealed religions are different manifestations of an essential unity. This is, of course, not to say that there are no differences between them. Since each one of the revealed religions was addressed to different nations at different points of time, they each have their distinctive features which set them apart from the rest. In the area of halal and haram, for example, the rules that are laid down by different religions are not identical. Similarly, in the sphere of devotional practices and the rituals of worship, they differ from one another even if the essence of worship is the same. The Shari’ah of Islam has retained many of the previous laws, while it has in the meantime abrogated or suspended others. For example, the law of retaliation (qisas) and some of the hadd penalties which were prescribed in the Torah have also been prescribed in the Qur’an.
The general rule to be stated here is, however, that notwithstanding their validity in principle, laws that were revealed before the advent of Islam are not applicable to the Muslims. This is especially so with regard to the practical rules of Shari’ah, that is, the ahkam, in which the Shari’ah of Islam is self- contained. The jurists are also in agreement to the effect that the laws of the previous religions are not to be sought in any source other than that of the Shari’ah of Islam itself. For the rules of other religions do not constitute a binding proof as far as the Muslims are concerned. The Shari’ah, in other words, is the exclusive source of all law for the Muslims.
In view of the ambivalent character of the evidence on this subject, however, the question has arisen as to the nature of the principle that is to be upheld: whether to regard the laws preceding the Shari’ah of Islam as valid unless they are specifically abrogated by the Shari’ah, or whether to regard them as basically nullified unless they are specifically upheld. In response to this, it is said that laws that were introduced in the previous scriptures but which are not upheld by the Shari’ah, and on which no ruling is found in the Qur’an or the Sunnah are not, according to general agreement, applicable to the Muslims. The correct rule regarding the enforcement of the laws of the previous revelations is that they are not to be applied to the followers of islam unless they are specifically upheld by the Shari’ah.
Once again the question arises as to whether the foregoing statement is in harmony with the Qur’anic proclamations that were quoted above. The general response given to this is that the Prophet of Islam was ordered to follow the previous revelations as a source of guidance only in regard to the essence of the faith, that is, belief in God and monotheism. It has thus been pointed out that the word huda `guidance’ in the second ayah, and hudahum ‘their guidance’ in the third ayah quoted above only mean tawhid, or belief in the oneness of God, which is undoubtedly the norm in the Shari’ah of Islam. Their guidance cannot be upheld in toto in the face of clear evidence that some of their laws have been abrogated. The reference is therefore to that aspect of guidance which is in common between Islam and the previous religions, namely tawhid. It has been further suggested that the reference to ‘Prophets’ in the second ayah above is confined, as the text itself suggests, to the Prophets of Bani Isra’il, and the holy Prophet Muhammad is not one of them. The Qur’an on many occasions refers to the rules of previous revelations on specific issues, but the manner in which these references occur is not uniform. The Qur’an alludes to such laws in the following three forms:
1. The Qur’an (or the Sunnah) may refer to a ruling of the previous revelation and simultaneously make it obligatory on the Muslims, in which case there remains no doubt that the ruling so upheld becomes an integral part of the Shari’ah of Islam. An example of this is the Qur’anic text on the duty of fasting which provides: ‘O believers, fasting is prescribed for you as it was prescribed for those who came before you’ (al-Baqarah, 2:183). To give a similar example in the Sunnah, which confirms the ruling of a previous religion, we may refer to the Hadith which makes sacrifice by slaughtering animals lawful for Muslims. The believers are thus instructed to `Give sacrifice, for it is the tradition of your ancestor,Abraham, peace be upon him’.
2. The Qur’an or the Sunnah may refer to a ruling of the previous revelation but at the same time abrogate and suspend it, in which case the ruling in question is to be abandoned and discontinued. An example of this can be found in the Qur’an where a reference is made to the prohibition of certain varieties of food to the Jews while at the same time the prohibitions are lifted from the Muslims. The text thus provides: ‘And to the Jews We forbade every animal having claws and of oxen and sheep, We forbade the fat [. . .] Say: nothing is forbidden to eat except the dead carcass, spilled blood, and pork’ (al-An’am, 16:146). The second portion of this text clearly removes the prohibitions that were imposed upon the Jews. For a similar example in the Sunnah, we may refer to the Hadith concerning the legality of spoils of war where the Prophet has proclaimed: ‘Taking booty has been made lawful to me, but it was not lawful to anyone before me.
Likewise, the expiation (kaffarah) for sins was not acceptable under the Torah; and when a garment became unclean, the unclean portion had to be cut out according to the rules of Judaism. But these restrictions were lifted with the effect that the Shari’ah of Islam validated expiation for sins, and clothes can be cleaned by merely washing them with clean water.
3. The Qur’an or the Sunnah may refer to a ruling of the previous revelation without clarifying the position as to whether it should be abandoned or upheld. Unlike the first two eventualities, in which there is little disagreement among jurists, the present situation has given rise to wider differences of opinion. To give an example, we read in the Qur’an, in a reference to the law of retaliation which was enacted in the Torah: ‘We ordained therein for them life for life, eye for eye, nose for nose, tooth for tooth and wounds equal for equal’ (al-Ma’idah, 5:48). Here there is no clarification as to whether the same law has to be observed by the Muslims. In yet another passage in the same sura the Qur’an stresses the enormity of murder in the following terms: ‘We ordained for the children of Israel that anyone who slew a person, unless it be for murder or mischief in the land, it would be as if he slew the whole of mankind’ (al-Ma’idah, 5:35). Once again, this ayah narrates a law of the previous revelation but does not specify whether this also constitutes a part of the Shari’ah of Islam.
The majority of Hanafi, Maliki, Hanbali and some Shafi’i jurists have held the view that the foregoing is a part of the Shari’ah of Islam and the mere fact that the Qur’an refers to it is sufficient to make the law of retaliation binding on the Muslims. For the Lawgiver spoke of the law of the Torah to the Muslims and there is nothing in the Shari’ah of Islam either to abrogate it or to warrant a departure from it. This is the law of God which He spoke of to us that He might be obeyed. It is on the basis of this conclusion that the Hanafis have validated the execution of a Muslim for murdering a non-Muslim (i.e. a dhimmi), and a man for murdering a woman, as they all fall within the meaning of the Qur’anic phrase ‘life for life’. There are some variant opinions on this, but even those who disagree with the Hanafi approach to this issue subscribe to the same principle which they find enunciated elsewhere in the Qur’an. In particular, two ayat have been quoted, one of which proclaims, ‘and the punishment of an evil is an evil like it’ (al-Shura, 42:40); and the other that, ‘Whoever acts aggressively against you, inflict injury on him according to the injury he has inflicted on you, and keep your duty to God […]’ (al-Baqarah, 2:194). It is thus concluded that these ayat provide sufficient evidence in support of the law of retaliation even without any reference to previous revelations.
The majority of the Shafi’is, the Ash’arites, and the Mu’tazilah have maintained the view that since Islam abrogated the previous laws, they are no longer applicable to the Muslims; and hence these laws do not constitute a part of the Shari’ah of Islam unless they are specifically validated and confirmed. They maintain that the Shari’ah norm regarding the laws of the previous religions is `particularity’ (khusus), which means that they are followed only when specifically upheld; whereas the norm with regard to the Shari’ah itself is generality (‘umum) in that it is generally applied as it has abrogated all the previous scriptures. The restriction is necessitated in view of the fact that the previous religion has not been correctly transmitted to us and has undergone considerable distortion. The proponents of this view have quoted in support the Qur’anic text which declares, in a reference to different nations and communities: ‘For every one of you We have ordained a divine law and an open road’ (al-Ma’idah, 5:48). Thus it is suggested that every nation has a Shari’ah of its own, and therefore the laws that were revealed before Islam are not binding on this ummah. Further evidence for this view has been sought in the Hadith of Mu`adh b. Jabal indicates only three sources for the Shari’ah, namely the Qur’an, the Sunnah and ijtihad. The fact that this Hadith has made no reference to previous revelations must mean that they are not a source of law for the followers of Islam. This last point has, however, been disputed in that when Mu`adh referred to the Qur’an, it was sufficient, as the Qur’an itself contains numerous references to other revealed scriptures. Furthermore it is well-known that the Prophet did not resort to the Torah and Injil in order to find the rulings of particular issues, especially at times when he postponed matters in anticipation of divine revelation. This would obviously imply that the Prophet did not regard the previous laws as binding on his own community.
The correct view is that of the majority, which maintains that the Shari`ah of Islam only abrogates rules which were disagreeable to its teachings. The Qur’an, on the whole, confirms the Torah and the Injil, and whenever a ruling of the previous scriptures is quoted without abrogation, it becomes an integral part of the Shari’ah of Islam. And finally, it may be added, as Abu Zahrah has pointed out, that disagreement among jurists on the authority or otherwise of the previous revelations its of little practical consequence, as the Shari’ah of Islam is generally self-contained and its laws are clearly identified. With regard to retaliation, for example, notwithstanding the differences of opinion among the jurists as to the precise import of the Qur’anic references to this subject, the issue is resolved, once and for all, by the Sunnah which contains clear instructions on retaliation and leaves no doubt that it is an integral part of the Shari’ah of Islam.
by M. H. Kamali.
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