3.1. PROOF-VALUE (HUJJIYYAH) OF SUNNAH
The ulema are unanimous to the effect that Sunnah is a source of Shari’ah and that in its rulings with regard to halal and haram it stands on the same footing as the Qur’an.’ The Sunnah of the Prophet is a proof (hujjah) for the Qur’an, testifies to its authority and enjoins the Muslim to comply with it. The words of the Prophet, as the Qur’an tells us, are divinely inspired (al-Najm, 53:3). His acts and teachings that are meant to establish a rule of Shari’ah constitute a binding proof.’ While commenting on the Qur’anic ayah which states of the Prophet that ‘he does not speak of his own desire, it is none other than wahy sent to him’, Al-Ghazali writes that some of the divine revelation which the Prophet received constitutes the Qur’an, whereas the remainder is Sunnah. The words of the Prophet are hujjah on anyone who heard the Prophet saying them. As for us and the generality of Muslims who have received them through the verbal and written reports of narrators, we need to ascertain their authenticity. The proof of authenticity may b e definitive (qat’i), or it may amount to a preferable conjecture (al-zann al-rajih); in either case, the Sunnah commands obedience of the mukallaf. All the rulings of the Prophet, especially those which correspond with the Qur’an and corroborate its contents, constitute binding law.
In more than one place, the Qur’an enjoins obedience to the Prophet and makes it a duty of the believers to submit to his judgment and his authority without question. The following ayat are all explicit on this theme, all of which are quoted by al-Shafi’i in his renowned work, Al-Risalah (P. 47ff):
And whatever the Messenger gives you, take it, and whatever he forbids you, abstain from it (al-Hashr, 59:7).
Obey God and obey the Messenger and those who are in charge of affairs among you. Should you happen to dispute over something, then refer it to God and to the Messenger (al-Nisa’, 4:58-59).
To refer the judgment of a dispute to God means recourse to the Qur’an, and referring it to the Messenger means recourse to the Sunnah. In another passage, the Quran emphasizes: ‘Whoever obeys the Messenger verily obeys God’ (al-Nisa 4:80). And finally, the Qur’an is categorical to the effect that the definitive rulings of the Qur’an and Sunnah are binding on the believers in that they are no longer at liberty to differ with the dictates of the divine will or to follow a course of their own choice: ‘Whenever God and His Messenger have decided a matter’ it is not for a faithful man or woman to follow another course of his or her own choice’ (al-Ahzab, 33:36). In yet another place the Qur’an stresses that submission to the authority of the Prophet is not a matter of mere formalistic legality but is an integral part of the Muslim faith: ‘By thy Lord, they will not believe till they make thee a judge regarding disagreements between them and find in themselves no resistance against accepting your verdict in full submission’ (al-Nisa’, 4:65). It is concluded from these and other similar passages in the Qur’an that the Sunnah is a proof next to the Qur’an in all shar’i matters and that conformity to the terms of Prophetic legislation is a Qur’anic obligation on all Muslims. ‘The Companions have reached a consensus on this point: Both during the lifetime of the Prophet and following his demise’ they eagerly obeyed the Prophet’s instructions and followed his examples regardless as to whether his commands or prohibitions originated in the Qur’an or otherwise. The first two Caliphs Abu Bakr and Umar resorted to the Sunnah of the Prophet whenever they knew of it. In cases when they did not know, they would ascertain if other Companions had any knowledge of the Prophetic Sunnah in connection with particular issues. The Caliph Umar is also on record as having issued written instructions to his judges in which he asked them to follow the Sunnah of the Prophet whenever they could not find the necessary guidance in the Qur’an.
Classification and Value: I
Sunnah has been classified in various ways, depending, of course, on the purpose of classification and the perspective of the investigator. However, two of the most commonly accepted criteria for such classifications are the subject matter (matn) of Sunnah and the manner of its transmission (isnad). This section is primarily concerned with the classification of Sunnah from the viewpoint of its subject matter.
To begin with, the Sunnah is divided into three types, namely verbal (qawli), actual (fi’li) and tacitly approved (taqriri). The other division of the Sunnah which will concern us here is its division into legal and non-legal Sunnah.
The verbal Sunnah consist of the sayings of the Prophet on any subject, such as the Hadith ‘fi al-sa’imah zakah’: livestock is liable to zakah . The Actual Sunnah of the Prophet consists of his deeds and actual instructions, such as the way he performed the salah, the fasting, the rituals of hajj, or the transactions he concluded such as sale and giving loans, etc. Similarly, the fact that the Prophet authorized mutilation of the hand of the thief from the wrist illustrated, in actual terms, how the Qur’anic ayah (al-Ma’idah’ 5:38) should be implemented. This ayah simply provides that the hand should be cut without specifying exactly from which part. The tacitly approved Sunnah consists of the acts and sayings of the Companions which came to the knowledge of the Prophet and of which he approved. The tacit approval of the Prophet may be inferred from his silence and lack of disapproval, or from his express approval and verbal confirmation. An example of such a Sunnah is the report that two of the Companions went on a journey, and when they failed to find water for ablution, they both performed the obligatory prayers with tayammum, that is, wiping the hands, face and feet with clean sand. Later, when they found water, one of them performed the prayers again whereas the other did not. Upon their return, they related their experience to the Prophet, who is reported to have approved both courses of action. Hence it became Sunnah taqririya. Another example of this is the report that one of the prominent companions, ‘Amr b. al-‘As, said that in the campaign of Dhat al-Salasil he had had a wet dream in the night , but owing to extreme cold he did not take a bath but instead performed the morning Salah with tayammum. He then related this to the Prophet, who laughed but said nothing, which would imply that the act in question is permissible in similar circumstances, that is, when extreme cold proves to be hazardous to health.
The sayings of Companions such as, ‘we used to do such and such during the lifetime of the Prophet’ constitute a part of Sunnah taqririya only if the subject is such that it could not have failed to attract the attention of the Prophet. An example of this is the saying of Abu Sa’id al-Khudri that ‘for the charity of ‘id al-Fitr, we used to give a sa’ of dates or of barley’. This is a matter that could not have remained hidden and therefore constitutes Sunnah taqriria. However, the statement of a companion which refers to matters of an obscure type, or when the statement itself is vague and does not specify whether the issue had arisen while the Prophet was alive – such statements do not constitute Sunnah taqriria.
The entire bulk of the Sunnah, that is, the sayings, acts and tacit enactments of the Prophet, may be once again divided into two types: non-legal and legal Sunnah. Non-legal Sunnah (Sunnah ghayr tashri’iyyah) mainly consists of the ritual activities of the Prophet (al- af’al al-jibilliyyah) such as the manner which he ate, slept, dressed, and such other activities as do not seek to constitute a part of the Shari’ah. Activities of this nature are not of primary importance to the Prophetic mission and therefore do not constitute legal norms. According to the majority of ulema, the Prophet’s preferences in these areas, such as his favorite colors, or the fact that he slept on his right side in the first place, etc., only indicate the permissibility (ibahah) of the acts in question. The reason given is that such acts could be either wajib or mandub or merely mubah. The first two can only be established by means of positive evidence: wajib and mandub are normally held to be absent unless they are proved to exist. Since there is no such evidence to establish that the natural activities of the Prophet fall into either of these two categories, there remains the category of mubah and they fall in this category for which no positive evidence is necessary.
On a similar note, Sunnah which partakes in specialized or technical knowledge such as medicine, commerce and agriculture, is once again held to be peripheral to the main function of the Prophetic mission and is therefore not a part of the Shari’ah. As for acts and sayings of the Prophet that related to particular circumstances such as the strategy of war , including such devices that misled the enemy forces, timing of attack, siege withdrawal these too are considered to be situational and not a part of the Shariah.
There are certain matters which are peculiar to the person of the Prophet so that his example concerning them does not constitute general law. For instance, polygamy above the limit of four, marriage without a dower, prohibition of remarriage for the widows of the Prophet, connected fasting (sawm al-wisal) and the fact that the Prophet admitted the testimony of Khuzaymah b. Thabit as legal proof. The rules of Shari’ah concerning these matters are as stated in the Qur’an, and remain the legal norm for the generality of Muslims. According to the majority opinion, the position in regard to such matters is partly determined by reference to the relevant text of the Qur’an and the manner in which the Prophet is addressed. When, for example, the Qur’an addresses the Prophet in such terms as ‘O you Messenger’, or ‘O you folded up in garments’ (al-Muzzammil, 73:1; al-Muddaththir, 74:1), it is implied that the address is to the Prophet alone unless there is conclusive evidence to suggest otherwise.
Certain activities of the Prophet may fall in between the two categories of legal and non-legal Sunnah as they combine the attributes of both. Thus it may be difficult to determine whether an act was strictly personal or was intended to set an example for others to follow. It is also known that at times the Prophet acted in a certain way which was in accord with the then prevailing custom of the community. For instance, the Prophet kept his beard at a certain length and trimmed his moustache. The majority of ulema have viewed this not as a mere observance of the familiar usage at the time but as an example for the believers to follow. Others have held the opposite view by saying that it was a part of the social practice of the Arabs which was designed to prevent resemblance to the Jews and some non-Arabs who used to shave the beard and grow the moustache. Such practices were, in other words, a part of the current usage and basically optional. Similarly, it is known that the Prophet used to go to the ‘id prayers (salat al-‘id) by one route and return from the mosque by a different route, and that the Prophet at times performed the hajj pilgrimage while riding a camel. The Shafi’i jurists are inclined to prefer the commendable (mandub) in such acts to mere permissibility whereas the Hanafis consider them as merely permissible, or mubah.
The legal Sunnah (Sunnah tashri’iyya) consists of the exemplary conduct of the Prophet, be it an act, saying, or a tacit approval, which incorporates the rules and principles of Shari’ah. This variety of Sunnah may be divided into three types, namely the Sunnah which the Prophet laid down in his capacities as Messenger of God, as the Head of State or imam, or in his capacity as a judge. We shall discuss each of these separately, as follows:
a. In his capacity as Messenger of God, the Prophet has laid down rules which are, on the whole, complementary to the Qur’an, but also established rules on which the Qur’an is silent. In this capacity, the Sunnah may consist of a clarification of the ambiguous (mujmal) parts of the Qur’an or specifying and qualifying the general and the absolute contents of the Qur’an. Whatever the Prophet has authorized pertaining the principles of religion, especially in the area of devotional matters (ibadat) and rules expounding the lawful and the unlawful, that is, the Halal and haram, constitutes general legislation (tashri’ ‘amm) whose validity is not restricted to the limitations of time and circumstance. All commands and prohibitions that are imposed by the Sunnah are binding in every Muslim regardless of individual circumstances, social status, or Political office. In acting upon these laws, the individual normally does not need any prior authorization by a religious leader or the government.
The question arises as to how it is determined that the Prophet acted in one or the other of his three capacities as mentioned above. It is not always easy to answer this question in categorical terms. The uncertainty which has arisen in answering this question in particular cases is, in fact, one of the main causes of juristic disagreement (ikhtilaf) among the fuqaha’. The ulema have on the whole attempted to ascertain the main trust, or the direction (jihah) of the particular acts and saying of the prophet. An inquiry of this nature helps to provide an indication as to the value of the Sunnah in question: whether it constitutes an obligation, commendation, or ibadah on the one hand, or a prohibition or abomination (karahah) on the other.
When the direction of an act is known from the evidence in the sources, there remains no doubt as to its value. If, for example, the prophet attempts to explain an ambiguous ruling of the Qur’an, the explanation so provided would fall in the same category of values as the original ruling itself. According to the majority of ulema, if the ambiguity of the Qur’an is known to be obligatory or commendable, the explanatory Sunnah would carry the same value. For example, all the practical instructions of the Prophet which explained and illustrated the obligatory Salah would be wajib and his acts pertaining to the superiority prayers such as Salah on the occasion of lunar and solar eclipse salat al-khusuf wa al-kusuf) would be mandub. Alternatively, the Sunnah may itself provide a clear indication as to whether a particular rule which it prescribes is wajib, mandub, or merely permissible. Another method of ascertaining the value of a particular act is to draw an analogy between an undefined act and an act or saying whose value is known. Additionally, the subject-matter of the Sunnah may provide a sign or an indication as to its value. With regard to prayers, for example, the call to prayers, or adhan, and the call which immediately precedes the standing to congregational prayer (i.e. the iqamah) are indications as to the obligatory nature of the prayer. For it is known from the rules of Shari’ah that adhan and iqamah precede the obligatory Salah only. A salah which is not obligatory such as the ‘id prayer, or Salat al-istisqa’ (‘prayers offered at the time of drought’), are not preceded by the preliminaries of adhan or iqamah. Another method of evaluating an act is by looking at its opposite, that is, its absence. If it is concluded that the act in question would have been in the nature of a prohibition had it not been authorized by the Prophet, then this would imply that it is obligatory. For example, circumcision is evaluated to be an obligation. Since it consists essentially of the infliction of injury for no obvious cause, had it not been made into an obligation, then it would presumably be unlawful. Its validation by the Shari’ah, in other words, is taken as an indication of its wujub. This explanation is basically applicable to all penalties that the Shari’ah has prescribed, although in most cases the value of the prescribed punishment is understood from the direct rulings of the relevant texts. And lastly, an act may require the belated performance (qada’) of a wajib or a mandub, and as such its value would correspond to that of its prompt performance (ada’)
The foregoing are the categories of acts whose direction and value can be ascertained. However, if no such verification is possible, then one must look at the intention behind its enactment. If a Prophetic act is intended as a means of seeking the pleasure of God, then it is classified as mandub; and according to a variant view, as wajib. However, if the intention behind a particular act could not be detected either, then it is classified as wajib, and according to a variant view as mandub; but the matter is subject to interpretation and ijtihad.
b. All the rulings of Sunnah which originate from the Prophet in his capacity as imam or the Head of State, such as allocations and expenditure of public funds, decisions pertaining to military strategy and war, appointment of state officials, distribution of booty, signing of treaties, etc., partake in the legal Sunnah which, however, does not constitute general legislation (tashri’ ‘amm). Sunnahs of this type may not be practiced by individuals without obtaining the permission of the competent government authorities first. The mere fact that the Prophet acted in a certain way, or said something relating to these matters, does not bind individuals directly, and does not entitle them to act on their own initiative without the express permission of the lawful authority. To give an example, according to a Hadith ‘whoever kills a warrior [in battle] may take his belongings’.
The ulema have differed as to the precise import of this Hadith. According to one view, the Prophet uttered this Hadith in his capacity as Imam, in which case no-one is entitled to the belongings of his victim in the battlefield without the express authorization of the Imam. Others have held the view that this Hadith lays down a general law which entitles the soldier to the belongings of the deceased even without the permission of the Imam.
It has been observed that the Prophet might have uttered this Hadith in order to encourage the Companions to do jihad in the light of the then prevailing circumstances. The circumstances may have been such that an incentive of this kind was required; or it may be that it was intended to lay down a general law without any regard for particular situations. According to Imam Shafi’i, the Hadith under consideration lays down a general rule of Shari’ah. For this is the general norm in regards to the Sunnah. The main purpose of the Prophet’s mission was to lay down the foundations of the Shari’ah, and unless there is an indication to the contrary, one must assume that the purpose of the Hadith in general is to lay down general law.
c. Sunnah which originates from the Prophet in his capacity as a judge in particular disputes usually consists of two parts: the part which relates to claims, evidence and factual proof and the judgment which is issued as a result. The first part is situational and does not constitute general law, whereas the second part lays down general law, with the proviso however, that it does not bind the individual directly, and no-one may act upon it without the prior authorization of a competent judge. Since the Prophet himself acted in a judicial capacity, the rules that he has enacted must therefore be implemented by the office of the qadi. Hence when a person has a claim over another which the latter denies, but the claimant knows of a similar dispute which the Prophet has adjudicated in a certain way, this would not entitle the claimant to take the law into his own hands. He must follow proper procedures to prove his claim and to obtain a judicial decision.
To distinguish the legal from non-legal Sunnah, it is necessary for the mujtahid to ascertain the original purpose and context in which a particular ruling of the Sunnah has been issued and whether it was designed to establish a general rule of law. The Hadith literature does not always provide clear information as to the different capacities in which the Prophet might have acted in particular situations, although the mujtahid may find indications that assist him to some extent. The absence of adequate information and criteria on which to determine the circumstantial and non-legal Sunnah from that which constitutes general law dates back to the time of the Companions. The difficulty has persisted ever since, and it is due mainly to the shortage of adequate information that disagreement has arisen among the ulema over the understanding and interpretation of the Sunnah.
To give another example, juristic disagreement has arisen concerning a Hadith on the reclamation of barren land which reads, ‘whoever reclaims barren land becomes its owner. The ulema have differed as to whether the Prophet uttered this Hadith in his prophetic capacity or in his capacity as head of state. If the former is established to be the case then the Hadith lays down a binding rule of law. Anyone who reclaims barren land becomes its owner and need not obtain any permission from the Imam or anyone else. For the Hadith would provide the necessary authority and there would be no need for official permission. If on the other hand it is established that the Prophet uttered this Hadith in his capacity as Imam, then it would imply that anyone who wishes to reclaim barren land must obtain the prior permission of the lmam. The Hadith in other words, only entitles the lmam to grant the citizen the right to reclaim barren land. The majority of jurists have adopted the first view whereas the Hanafis have held the second. The majority of jurists, including Abu Hanifa’s disciple, Abu Yusuf, have held that the consent of the State is not necessary for anyone to commence reclaiming barren land. But it appears that jurists and scholars of the later ages prefer the Hanafi view which stipulates that reclaiming barren land requires the consent of the State. The Hanafi view is based on the rationale of preventing disputes among people. The Malikis on the other hand only require government consent when the land is close to a human settlement, and the Hanbalis only when it has previously been alienated by another person.
Disagreement has also arisen with regard to the Hadith that adjudicated the case of Hind, the wife of Abu Sufyan. This woman complained to the Prophet that her husband was a tight-fisted man and that despite his affluence, he refused to give adequate maintenance to her and her child. The Prophet instructed her to ‘take [of her husband’s property] what is sufficient for yourself and your child according to custom.
The ulema have disagreed as to whether the Prophet uttered this Hadith so as to enact a general rule of law, or whether he was acting in the capacity of a judge. If it be admitted that the Hadith consists of a judgment addressing a particular case, then it would only authorize the judge to issue a corresponding order. Thus it would be unlawful for a creditor to take his entitlement from the property of his debtor without a judicial order. If it be established, on the other hand, that the Hadith lays down a general rule of law, then no adjudication would be required to entitle the wife or the creditor to the property of the defaulting debtor. For the Hadith itself would provide the necessary authority. If any official permission is to be required then it would have to be in the nature of a declaration or clearance only.
The Hanafis, Shafis and Hanbalis have held that when a man who is able to support his wife willfully refuses to do so, it is for the wife to take action and for the qadi to grant a judgment in her favor. If the husband still refuses to fulfill his duty, the qadi may order the sale of his property from whose proceeds the wife may obtain her maintenance. The court may even imprison a persistently neglectful husband. The wife is, however, not entitled to a divorce, the reason being that when the Prophet instructed Hind to take her maintenance from her husband’s property, she was not granted the right to ask for a divorce. The Malikis are basically in agreement with the majority view, with the only difference that in the event of the husband’s persistent refusal, the Malikis entitle the wife to ask for a divorce. Notwithstanding some disagreement as to whether the court should determine the quantity of maintenance on the basis of the financial status of the husband, the wife, or both, according to the majority view, the husband’s standards of living should be the basis of the court decision. Thus the ulema have generally considered the Hadith under consideration to consist of a judicial decision of the Prophet, and as such it only authorizes the judge to adjudicate the wife’s complaint and to specify the quantity of maintenance and the method of its payment.
Sunnah which consists of general legislation often has the quality of permanence and universal application to all Muslims. Sunnah of this type usually consists of commands and prohibitions which are related to the Qur’an in the sense of endorsing, elaborating or qualifying the general provisions of the Holy Book.
by M. H. Kamali
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