2.2. BREVITY AND DETAIL (AL-IJMAL WA’L-TAFSIL)
By far the larger part of the Qur’anic legislation consists of an enunciation of general principles, although in certain areas, the Qur’an also provides specific details. Being the principal source of the Shari’ah, the Qur’an lays down general guidelines on almost every major topic of Islamic law. While commenting on this point, Abu Zahrah concurs with Ibn Hazm’s assessment that ‘every single chapter of fiqh finds its Origin in the Qur’an, which is then explained and elaborated by the Sunnah’. On a similar note, al-Shatibi makes the following observation: Experience shows that every ‘alim who has resorted to the Qur’an in search of the solution to a problem has found in the Qur’an a principle that has provided him with some guidance on the subject.
The often-quoted declaration that ‘We have neglected nothing in the Book’ (al-An’am, 6:38) is held to mean that the ru’us al-ahkam, that is, the general of law and religion, are exhaustively treated in the Qur’an. That the Qur’an is mainly concerned with general principles is borne out by the fact that its contents require a great deal of elaboration, which is often provided, although not exhaustively, by the Sunnah. To give an example, the following Quranic ayah provides the textual authority for all the material sources of the Shari’ah, namely the Qur’an, the Sunnah, consensus and analogy. The ayah reads: ‘O you who believe, obey God and obey the Messenger, and those of you who are in authority; and if you have a dispute concerning any matter refer it to God and to the Messenger . . .’ (al-Nisa’, 4:58). ‘Obey God’ in this ayah refers to the Qur’an as the first source, ‘and obey the Messenger’ refers to the Sunnah of the Prophet, ‘and those of you who are in authority’ authorises the consensus of the ulema. The last portion of the ayah (‘and if you have a dispute. . .’) validates qiyas. For a dispute can only be referred to God and to the Messenger by extending the rulings of the Qur’an and Sunnah through analogy to similar cases. In this sense one might say that the whole body of usul al-fiqh is a commentary on this single Quranic ayah. Al-Shatibi further observes that wherever the Qur’an provides specific details related to the exposition and better understanding of its general principles. Most of the legal contents of the Qur’an consist of general rules, although it contains specific injunctions on a number of topics. Broadly speaking, the Qur’an is specific on matters which are deemed to be unchangeable, but in matters which are liable to change, it merely lays down general guidelines.
The Qur’anic legislation on civil, economic, constitutional and international affairs is, on the whole, confined to an exposition of the general principles and objectives of the law. With regard to civil transactions, for example, the nusus of the Qur’an on the fulfillment of contracts, the legality of sale, the prohibition of usury, respect for the property of others, the documentation of loans and other forms of deferred payments are all concerned with general principles. Thus in the area of contracts, the Quranic legislation is confined to the bare minimum of detail, and in the area of civil transactions and property, the believers are enjoined to ‘devour not the properties of one another unlawfully, but let there be lawful trade by mutual consent’ (al-Nisa, 4:29). Elsewhere we read in surah al-Baqarah (2:275) that ‘God has permitted sale and prohibited usury’. The detailed varieties of lawful trade, the forms of unlawful interference with the property of others, and the varieties of usurious transactions, are matters which the Qur’an has not elaborated. Some of these have been explained and elaborated by the Sunnah. As for the rest, it is for the scholars and the mujtahidun of every age to specify them in the light of the general principles of the Shari’ah and the needs and interests of the people.
In the sphere of crimes and penalties, the Qur’anic legislation is specific with regard to only five offences, namely murder, theft, highway robbery, zina and slanderous accusation. As for the rest, the Qur’an authorises the community and those who are in charge of their affairs (i.e. the ulu al-amr) to determine them in the light of the general principles of Shari’ah and the prevailing conditions of society. Once again the Qur’an lays down the broad principles of penal law when it provides that ‘the punishment of an evil is an evil like it’ (al-Shura, 42:40), and ‘when you decide to punish then punish in proportion to the offence committed against you’ (al-Nahl, 16:126).
In the area of international relations, the Qur’an lays down rules which regulate war with the unbelievers and expound the circumstances in which their property may be possessed in the form of booty. But the general principle on which relations between Muslims and non-Muslims are to be regulated is stated in the following passage:
God does not forbid you to act considerately towards those who have never fought you over religion nor evicted you from your homes, nor [does he forbid you] to act fairly towards them. God loves the fair minded. He only forbids you to be friendly with the ones who have fought you over [your] religion and evicted you from your homes and have abetted others in your eviction. Those who befriend them are wrongdoers (al-Mumtahinah, 60:8-9).
Similarly, the Qur’anic commandments to do justice are confined to general guidelines and no details are provided regarding the duties of the judge or the manner in which testimony should be given. On the principles of government, such as consultation, equality and the rights of citizens, the Qur’an does not provide any details. The general principles are laid down, and it is for the community, the ulema and leaders to organise their government in the light of the changing conditions of society The Qur’an itself warns the believers against seeking the regulation or everything by the express terms of divine revelation, as this is likely to lead to rigidity and cumbersome restrictions: ‘O you believers, do not keep asking about things which, if they were expounded to you, would become troublesome for you. . .’ (5:104). In this way, the Qur’an discourages the development of an over-regulated society. Besides, what the Qur’an has left unregulated is meant to be devised, in accord with the general objectives of the Lawgiver, through mutual consultation and ijtihad. A careful reading of the Qur’an further reveals that on matters pertaining to belief, the basic principles of morality, man’s relationship with his Creator, and what are referred to as ghaybiyyat, that is transcendental matters which are characteristically unchangeable, the Qur’an is clear and detailed, as clarity and certainty are the necessary requirement of belief. In the area of ritual performances (ibadat) such as salah, fasting and hajj, on the other hand, although these too are meant to be unchangeable, the Qur’an is nevertheless brief, and most of the necessary details have been supplied by the Sunnah. An explanation for this is that ritual performances are all of a practical, or ‘amali, nature and require clear instructions which are best provided through practical methods and illustration. With regard to salah, legal alms (zakat) and hajj, for example, the Qur’an simply commands the believers to ‘perform the salah, and pay the zakat’ and states that ‘pilgrimage to the house is a duty, that God has imposed on mankind’ (al-Nahl, 116:44 and Al-‘Imran, 3:97, respectively). With regard to salah, the Prophet has ordered his followers to ‘perform salah the way you see me performing it’, and regarding the hajj he similarly instructed people to ‘take from me the rituals of the hajj.
The details of zakat such as the quorum, the amount to be given and its numerous other conditions have been supplied by the Sunnah. The Qur’an also contains detailed rules on family matters, the prohibited degrees of relationship in marriage, inheritance and specific punishments for certain crimes. These are, for the most part, associated with human nature and regulate the manner in which man’s natural needs may be fulfilled. The basic objectives of the law regarding these matters are permanent. They are, however, matters which lead to disputes. The purpose of regulating them in detail is to prevent conflict among people. The specific rulings of the Qur’an in these areas also took into consideration the prevalence of certain entrenched social customs of Arabia which were overruled and abolished. The Qur’anic reforms concerning the status of women, and its rules on the just distribution of property within the family could, in view of such customs, only be effective if couched in clear and specific detail.
The Qur’an frequently provides general guidelines on matters of law and religion, which are often specified by the Qur’an itself; otherwise the Sunnah specifies the general in the Qur’an and elaborates its brief and apparently ambiguous provisions. By far the larger part of Qur’anic legislation is conveyed in general terms which need to be specified in relation to particular issues. This is partly why we find that the study of the ‘Amm (general) and Khass (particular) acquires a special significance in the extraction of substantive legal rules from the general provisions of the Qur’an. Once again the fact that legislation in the Qur’an mainly occurs in brief and general terms has to a large extent determined the nature of the relationship between the Qur’an and Sunnah. Since the general, the ambiguous and the difficult portions of the Qur’an were in need of elaboration and takhsis (specification), the Prophet was expected to provide the necessary details and determine the particular focus of the general rulings of the Qur’an. It was due to these and other such factors that a unique relationship was forged between the Sunnah and the Qur’an in that the two are often integral to one another and inseparable. By specifying the general and by clarifying the mujmal in the Qur’an, the Sunnah has undoubtedly played a crucial role in the development of Shari’ah. It is the clear and the specific (Khass ) in the Qur’an and Sunnah which provides the core and kernel of the Shari’ah in the sense that no law can be said to have any reality if all or most of it were to consist of brief and general provisions. To that extent, the specifying role of the Sunnah in its relationship to the Qur’an is of central importance to Shari’ah. And yet the general in the Qur’an has a value of its own. In it lies the essence of comprehensive guidance and of the permanent validity of the Qur’an. It is also the ‘Amm of the Qur’an which has provided scope and substance for an ever-continuing series of commentaries and interpretations. The ulema and commentators throughout the centuries have attempted to derive a fresh message, a new lesson or a new principal from the Qur’an that was more suitable to the realities of their times and the different phases of development in the life of the community. This was to a large extent facilitated by the fact that the Qur’an consisted for the most part of broad principles which could be related to a variety of circumstances. To give one example, on the subject of consultation (shura) the Qur’an contains only two ayat, both of which are general. One of these commands the Prophet to ‘consult them [the community] in their affairs’ (Al-Imran, 3:159) and the other occurs in the form of praise to the Muslim community on account of the fact that ‘they conduct their affairs by consultation among them’ (Al-Shura, 42:38). The fact that both these are general proclamations has made it possible to relate them to almost any stage of development in the socio-political life of the community. The Qur’an has not specified the manner as to how the principle of shura should be interpreted; it has not specified any subject on which consultation must take place, nor even any person or authority who should be consulted. These are all left to the discretion of the community. In its capacity as the vicegerent of God and the locus of political authority, the community is at liberty to determine the manner in which the principle of shura should be interpreted and enforced.
by M. H. Kamali
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