THE QURAN AS SOURCE OF ISLAMIC LAW
By Ahmad Muhammad al-Tayyib
The Quran descended (nazala) or was revealed over a period spanning almost twenty-three years, divided by the migration (hijrah) of the Prophet—peace and blessings be upon him—into two fundamental eras: the almost thirteen years of the Prophet’s residence in Makkah and the ten years of his residence in Madinah before the end of his earthly life. Among the most important topics covered by the traditional disciplines devoted to the study of the Quran (ʿulūm al-Qurʾān) is the determination of which revelations belong to the Makkan period and which to the Madinan with regard to the number of verses revealed, the themes covered, the different commandments, and their various possible meanings (dalālāt). The Makkan and Madinan parts of the Quran are distinguished from one another based on the principal objectives (maqāṣid) of each period as established by the scholars of Quranic exegesis (ʿulamāʾ al-tafsīr). The primary objectives of the Quran during the Makkan period were to establish the fundamentals (uṣūl) of the faith, argue for the truth of Divine Oneness (tawḥīd) while deepening knowledge of it, refute the errors of polytheism (shirk) and idolatry (wathaniyyah), and elucidate the connections between the central tenets of the faith and the fundamentals of morality. The principal objective during the Madinan period was to promulgate laws for the creation of an Islamic society and therefore the ordering of life in a wide range of areas covering family life, social interactions, and business transactions.
The verses of the Makkan period are therefore distinguished by extensive references to the Resurrection and the Judgment, Paradise and Hellfire and stories of the early communities of faith and their acceptance or rejection of revelation —those truths most necessary to bring about a change in the hearts and minds of people given to false beliefs, misconceptions about reality, and unworthy habits and customs. The Madinan parts of the Quran are distinguished by the promulgation of laws for personal affairs, society, and the state, including rules of marriage, child nursing (raḍāʿah), family maintenance (nafaqah), inheritance (mīrāth), usury (riban), commercial transactions (buyūʿ), retribution (qiṣāṣ), and struggle in society and in the path of God (jihād)—all of the different laws that came to be a matter of concern for Muslims as soon as they were constituted as a community, with a state of their own, social institutions, an army, and a leader.
Accordingly, Makkan groups of verses almost always begin with an address to humanity at large, such as O mankind or O Children of Adam, while Madinan sections usually open with an address to the community of the faithful, that is, Muslims in particular, almost always beginning with the phrase O you who believe. Similarly, verses of the Makkan period are characteristically short and redolent with endless shades of warning (tarhīb) against wrong action and incitement (targhīb) to right action; they abound in symbolic stories that convey moral and spiritual lessons and offer admonitions. By contrast, most of the verses of the Madinan period are relatively long, comprising accounts of fundamental changes in society and elaborations of rules pertaining to these changes. The majority of scholars also point out that all sūrahs mentioning hypocrites (munāfiqūn) are Madinan, whereas all sūrahs containing the retort kallā (“Nay!”) are Makkan. Additional distinguishing characteristics exist, but need not be mentioned here.
For the purposes of the present inquiry, the most important point to draw from this distinction is that it is in verses from the Madinan period that are found the roots of Islamic laws in their vast number and variety. Therefore, it is through special attention to verses of the Madinan period that the pivotal connection between Islamic Law and the Quran—that is, the fact that it issues directly from the revealed Book—will be most clearly seen.
The Quran carries within it many references indicating its status as a law giving book: it gives commands (awāmir) and prohibitions (nawāhin); it states what is licit (ḥalāl) and illicit (ḥarām); it contains formal obligations (takālīf) as well as doctrines and ethical directives. In this respect the Quran is more like the Torah of Moses than the Gospel of Jesus—may peace be upon them both. We read in Sūrah 7, al-Aʿrāf (“The Heights”):
Those who follow the Messenger, the unlettered Prophet, whom they find inscribed in the Torah and the Gospel that is with them, who enjoins upon them what is right, and forbids them what is wrong, and makes good things lawful for them, and forbids them bad things, and relieves them of their burden and the shackles that were upon them. Thus those who believe in him, honor him, help him, and follow the light that has been sent down with him; it is they who shall prosper. (v. 157)
In Sūrah 42, al-Shūrā (“Counsel”) it is said:
He has prescribed for you as religion that which He enjoined upon Noah, and that which We revealed unto thee (Muhammad), and that which We enjoined upon Abraham, Moses, and Jesus, that you uphold religion and not become divided therein. Grievous for the idolaters is that to which thou callest them. God chooses for Himself whomsoever He will and guides unto Himself whosoever turns in repentance. (v. 13)
In Sūrah 45, al-Jāthiyah (“Upon Their Knees”) we read:
Then We placed thee (Muhammad) upon a clear path from the Command, so follow it, and follow not the caprices of those who know not. (v. 18)
And, finally, in Sūrah 2, al-Baqarah (“The Cow”) it is written:
And whosoever transgresses against the limits set by God, those are the wrongdoers. . . . These are the limits set by God, which He makes clear to a people who know. (vv. 229–30)
The Quran thus contains explicit statements that it is the sacred source and primary authority for Muslim legislation in personal, social, economic, and political matters—and no change of time or place can affect this primacy. Nowhere does the Quran indicate—whether directly or indirectly—that its laws are of limited duration, that they belong to a particular period, age, or society, that Muslims may thereafter deem themselves no longer bound by its precepts, or that they may choose to organize their lives or societies by resorting to other than the revealed Book or the Prophetic authority in founding their common laws and establishing their familial, social, economic, and constitutional orders.
lexible and have the potential to accommodate future developments. Indeed, Muslims consider the capacity of Quranic laws to yield perennially appropriate rulings and applications one of the features of the Divine inimitability or miracle (iʿjāz) of the Noble Book. Other such features include eloquence (faṣāḥah), rhetorical power (balāghah), and the telling of unseen events, past, present, and future. Concerning this understanding of its supernatural nature, Muslims have remained unanimous for fourteen centuries. And, indeed, history has proven that Islamic civilization has prospered and flourished under the shining rays of the Quran, reaching, by virtue of its Divine Guidance, summits of excellence and unity, enduring over the long stretch of fourteen centuries, and procuring happiness and contentment for a vast sector of humanity by offering truth, goodness, and beauty—hardly the products offered by the civilizations of today.
Against this view maintained by Muslim scholars and a large sector of the community of believers over the ages, some people today object to the necessity of linking legislation to the Quran as the primary source of law and the insistence that it should remain the authoritative reference for the Islamic social order, arguing that it makes no sense to honor the authority of a text revealed some fourteen centuries ago in today’s world, which has little or no similarity to or continuity with the one that gave birth to it. This perception has led such people to resort to modern readings of the text that are totally unconnected to the traditional Quranic disciplines (ʿulūm al-Qurʾān), which developed around the Quran and became, over a long period, an integral corpus establishing the logical and linguistic criteria that alone guarantee the Quran’s accurate interpretation. The results of such ungrounded forays into the demanding territory of Quranic exegesis are readings foreign to both the form and content of the Quran and, in many cases, reach conclusions directly opposed to its true objectives (maqāṣid). The root of the problem here is a conflict between the nature of modern readings that believe in neither the sacredness nor the inimitability of the Quranic text and those who see the Quran as a Divine Text transcending time and place and not merely a work of human authorship. We shall thus try to refer as much as possible, in the context of the present inquiry, to some of the fallacies into which this or that modern reading has fallen. Some are either entirely Western or simply misguided from the start insofar as they do not see the Quran as a Sacred Text, but as a literary one upon which all the crises and deviations of the modern Western mind may be projected.
Principles of Islamic Law
EASE OF OBLIGATIONS (ʿADAM AL-ḤARAJ)
The first point to note concerning the laws promulgated in the Quran is that they do not burden believers with more than they can bear; nothing excessive is imposed. The Quran indicates the lightness and ease of its laws for the faithful in many verses, for example: God desires ease for you, and He does not desire hardship for you (2:185); God tasks no soul beyond its capacity (2:286); God desires to lighten [your burden] for you, for man was created weak (4:28); God desires not to place a burden upon you (5:6); and There is no fault against the blind, nor fault against the lame, nor fault against the sick (24:61). The Prophet —peace and blessings be upon him—confirmed this principle when he said, “I have been sent with the true and tolerant religion of primordial unity (al-ḥanīfah al-samḥāʾ),” which he would put into practice whenever he was presented with a choice between two things by always choosing the least burdensome obligation.
The universal rules of Islamic Law upon which are based all obligations of the religion, whether in matters of ritual (ʿibādāt) or pertaining to human transactions and social relations (muʿāmalāt), were developed in conformity with this principle of not imposing a heavy burden. Among these rules we find such legal maxims as: “Too much hardship calls for ease” (al-mashaqqah tajlibu’ltaysīr); “Necessity makes the unlawful lawful” (al-ḍarūrat tubīḥu’l-maḥẓūrāt); and “When a matter becomes too narrow, it calls for broadening” (idhā ḍāqa’lamr ittasaʿa). As an example of this principle jurists cite the rules for the canonical prayer, which Muslims must normally begin in an upright posture—an easy enough requirement; but they are permitted to perform it sitting or even lying down whenever sick, exhausted, or otherwise unable to maintain the upright position. The same qualification applies to the obligation to fast, which people are allowed to forgo in situations of great hardship, during travel, illness, pregnancy, or when nursing a baby. Carrion meat (al-mayyitah), normally forbidden, also becomes permitted when there is no other alternative. Similarly, the rite of ablution with water (wuḍūʾ) ordained in the Quran may be replaced by the easier rite of dry ablution (tayammum) in cases of illness, danger, or the unavailability of water.
Thus, whenever there may be a legitimate reason, Islamic Law either releases believers completely from the obligation to perform a certain act of worship, lightens it for them, exchanges it for a less taxing act of worship, combines two acts of worship, changes the form or order of some acts of worship, or allows the use of a forbidden thing in situations of dire necessity. Indeed, the rule even touches upon one of the major principles of Islam, the duty to “enjoin right and forbid wrong” (al-amr bi’l-maʿrūf wa’l-nahy ʿan al-munkar), a pivotal principle of the Quran confirmed by many verses. The principle of noncomplication permits a Muslim to remain silent before an evil, if a greater evil or a greater tribulation could result from speaking out. The jurists derived such rulings by means of rational inference from the practices of the Prophet during his thirteen years in Makkah prior to migrating to Madinah, during which time he witnessed many objectionable events, yet remained patient and silent because he could do nothing to change them. It is narrated that the ḥanbalite jurist Aḥmad ibn Taymiyyah (d. 728/1328), while in the company of some scholars, came across a group of Tartars who were drinking wine. One of the scholars wanted to object to their practice, but Ibn Taymiyyah forbade him, saying: “Wine was forbidden because it distracted from the remembrance of God and prayer, and these men are distracted from killing souls, enslaving offspring, and seizing money and property. So, let them be.”
FEWNESS OF OBLIGATIONS (QILLAT AL-TAKĀLĪF)
The second principle upon which Islamic Law is founded is fewness of obligations. Among the obligations imposed by the Quran, verses that issue rulings governing human or social relationships (muʿāmalāt) are by far fewer in number than those that prescribe ritual acts or ethical behavior. They are also fewer in number than verses that call for learning from the examples of earlier religious communities, warning against their ways or showing the perils that result, and they are likewise fewer than the verses exhorting to reward (targhīb) or warning against punishment (tarhīb) and similar topics. Even though jurists are not unanimous about the exact number of verses that pertain to formal obligations, because they differ with regard to their specific number or meaning, they are nonetheless unanimous about the small number of these verses as such, which accords with the Quranic precept forbidding excessive questioning about rules in order to prevent the proliferation of restrictions and obligations. Thus: O you who believe! Ask not about things that, if they were disclosed to you, would trouble you (5:101). And the Prophet used to forbid his followers to ask too many questions, saying: “The gravest wrong committed by a Muslim against other Muslims is to ask about something that is permissible, causing it to become impermissible because of his question.” He did not encourage inquiry into matters about which the Quran is silent, leaving them to the golden Islamic rule declaring, “The norm in all things is permissibility (al-aṣl fi’l-ashyāʾ alibāḥah).” Prohibition is only an exception (ṭāriʾ) and, as such, always stands in need of proof; if no proof is found, no prohibition is possible.
In other words, there are matters about which the Quran remains silent, and this silence on the part of the Lawgiver is deliberate; it is meant to offer people more leverage, more room for maneuver and choice. They are left to the jurists’ exercise of independent judgment (ijtihād), conducted in accordance with their changing perception of the welfare of society, relative to time and place. This is precisely what the following ḥadīth refers to: “God has enjoined certain obligatory duties: do not neglect them. He has imposed certain limits: do not transgress them. He has remained silent about certain matters, out of mercy to you, not out of forgetfulness: do not seek after them.” This ḥadīth is quite positive about the existence of a vast area of cases and issues in peoples’ lives about which the Sharīʿah offers no specific rulings. These belong to the sphere of Divine Pardon (al-ʿafw), described in another ḥadīth in which the Prophet said, “Whatever God has called licit in His Book is indeed licit; whatever He deemed illicit is indeed illicit; whatever He remained silent about is pardoned, for God does not forget a thing.”
FLEXIBILITY OF TEXTS
Despite their limited number, the Quranic texts dealing specifically with legislative matters are marked by broadness, flexibility, and variety of forms and are general or specific depending on the nature of the circumstances and obligations. In the verses that deal with legislative matters having little room for the exercise of independent reasoning, such as the spheres of ritual acts and of rules concerning the family, or what is now called personal law—that is, in matters not particularly affected by the logic of social customs and circumstances —the Quran is quite specific. Acts of worship such as prayer, fasting, almsgiving, and pilgrimage are obligations whose meanings, mysteries, and wisdom alongside the reasons for their taking one form rather than another are beyond the power of the human mind to know or determine. Such obligations are what the Sharīʿah calls “matters of worship” (al-umūr al-taʿabbudiyyah), that is, matters that the Lawgiver—God Himself—commands people to perform, matters they are incapable of determining on their own initiative. To take the canonical prayer (ṣalāh) as an example, prayer occurs in more than seventy places in the Quran and given, among others, are its correct performance, the necessary conditions for making it acceptable (such as ablution, wuḍūʾ, and facing the Kaʿbah, qiblah), the particular times it must be performed, and the general bodily position that must accompany it, although the details of the form of the ṣalāh are based on Prophetic example.
Then there are the rules for acts pertaining to “human transactions” (muʿāmalāt) and “matters of public welfare” (maṣāliḥ), which are generally unaffected by either the passage of time or a change of environment; they are causally determined (aḥkām muʿallalah), their meanings and objectives intelligible, and the verses revealed about them are accordingly fewer and less specific in nature. In these spheres the Quran offers mostly general principles, leaving vast room for the use of analogy, inference, and other forms of reasoning. With the exception of a few rulings concerning inheritance (mawārīth) and the punishment of certain crimes, “specific rules are generally lacking,” in the formulation of the Quran itself.
With regard to situations subject to change, the Quran offers a general framework of universal principles, ethical and humane in essence, to regulate and govern the particulars of changing conditions. 13 Among other places, this may be seen in the rules concerning the contract of sale. Though this is the contract with the most rules in civil law, only four are mentioned in the Quran: the rule that makes trade lawful: God has permitted buying and selling and forbidden usury (2:275); the stipulation that transactions between seller and buyer be governed by mutual consent: O you who believe! Consume not each other’s wealth falsely, but trade by mutual consent (4:29); the instruction that they be declared and witnessed: And take witnesses when you buy and sell between yourselves (2:282); and the prohibition against buying and selling after the call to prayer is made on Friday: O you who believe! When you are called to the congregational prayer, hasten to the remembrance of God and leave of trade. That is better for you, if you but knew (62:9).
Similarly, with regard to constitutional law, the Quran limits itself to specifying the principles of consultation (shūrā), justice (ʿadl), and equality (musāwāh); and with regard to criminal law, the Quran stipulates only five punishments, for the crimes of murder, theft, adultery and fornication, corruption upon earth (ḥadd al-ḥarābah), and calumny against women of virtue. The same may likewise be said of most other aspects of legislation relating to daily life or affected by changing circumstances in the general conditions of society, the foremost among these being matters pertaining to human transactions, punishments, crimes, and economic affairs.
In all of these changing matters, the philosophy of Quranic Law is to determine the general principle or universal rule, so that people will be able to integrate the diverse conditions of life with the guidance of Heaven. This purpose of Quranic legal texts, to combine the sphere of permanence with the sphere of change, is the main reason for Quranic Law’s continuing vitality, survival, and ability to keep pace with various developments; it has allowed Quranic Law to guide Muslims for more than thirteen centuries prior to European colonial powers’ replacement of it with laws imported from the West. It is, indeed, to this very flexibility that the credit for the preservation of Islamic civilization must be given, and this Law continues even today to possess and provide the power to resist the disintegrative elements of modern conditions.
GRADUALISM OF LEGISLATION
Many of the verses of the Quran pertaining to legislation were revealed gradually and intermittently. This is particularly true of the verses that legislate against the deep-rooted customs of the pre-Islamic Arabs. As the most effective way to bring about lasting social change, gradualism was the chosen method for drawing people away from slavish adherence to idolatrous customs to the freedom and dignity of sufficiency in God. It is almost certain that if the Quran had confronted the Arabs of the time of revelation with strict commands and prohibitions without offering them sufficient time to abandon their entrenched ways by degrees, many of them would have abandoned its teachings.
We thus find the gradual announcement of the prohibition against intoxicating substances rather than the issuance of a single law, because the habit of drinking was a deeply ingrained custom among Arabs at the time. First the Quran undertook to show that intoxicants possess both benefits and evils; then it prohibited the performance of prayer while in a state of intoxication; and finally it prohibited intoxicants altogether, along with gambling (2:219, 4:43, 5:59), once people were prepared to accept this final ruling. Similarly, the Quran’s prohibition of fornication and usury came gradually, as did its calling upon Muslims to remain patient vis-à-vis the aggressive acts of their enemies; only at a later stage were they commanded to defend themselves by fighting back.
This was likewise the case with the command to perform prayers and the qiblah, the direction of prayer. At the beginning prayers consisted of only two cycles performed by day and two cycles by night, but were increased when people were ready and able to do more, as decreed by the Wisdom of God. Muslims originally prayed in the direction of Jerusalem, until a special revelation descended commanding them to face the direction of the Sacred Sanctuary in Makkah. Quranic laws were, therefore, not arbitrarily imposed all at once, but were revealed gradually, which allowed the Arabs to reform within themselves deeply rooted patterns of behavior that may otherwise have been ineradicable.
Implicitness of Rulings in the Text of the Quran
Determining the rulings implicit in the text is one of the subtlest of all inquiries that deal with legislation in the Quran, since it is related to knowing the sense and meaning of the relevant verses and how one may extract rulings from them. This task is made more intricate by the fact that the Quranic text is revealed in Arabic, a language with unique linguistic, poetic, and metaphysical qualities requiring of its readers special linguistic and intellectual qualifications in order to access its treasures of knowledge and wisdom.
For Muslims, the Quran is unique among all texts, ancient and modern, in possessing three distinctive qualities:
1. It is an intact and direct sacred text. According to the Islamic faith, it is the record of the very Speech of God—may He be exalted—not the speech of some mortal, including Muhammad, who had no role in its wording, composition, or stylistic construction. This sacrality confers upon the Quran a degree of sublimity and transcendence that makes it unyielding, unless one comes to it with the necessary intellectual and psychological qualifications.
2. Its verses are supremely fertile and rich in meaning. They transcend the boundaries of time and space, acting as a witness and a corrective for whatever situations or contingencies human beings may face. According to Muslim belief, they store in their simple yet profound sentences an infinitude of Divine Knowledge, including ethical and legal directives potentially applicable to all times and places.
3. The authenticity of its verses is extraordinarily well documented, established permanently and indubitably. The Quran is perhaps the only Divinely revealed text that possesses an unbroken line of transmission to its earthly source. Its verses were conveyed by a mouthpiece of Heaven, written down in his presence, memorized, and recorded in manuscripts exactly as dictated by the Prophet, verse by verse and letter by letter. These words, moreover, never disappeared after the death of their transmitter; nor were they ever attributed to anyone other than him (as their communicator), by way of either inspiration or revelation.
Anyone who reads or contemplates this Sacred Text without seeing it in light of these three distinctive qualities can go no farther than the merely literal meaning, for the Text reveals or withholds its more profound meanings relative to the degree of one’s knowledge of the philosophy of its language, its learned disciplines, its literary heritage, and of one’s spiritual inspiration to understand its secrets. Muslim scholars are unanimous in maintaining that the Quranic Text is “unequivocally evident” (qāṭiʿ al-thubūt) as an authentic text; the proof of this unequivocality is precisely its broad and uninterrupted transmission (tawātur). Through it alone can we believe in such things as the events of the past that constitute sacred history, the historicity of great personages, the great religions, and the great messengers as well as eschatological events to come.
However, this “unequivocality” (qāṭiʿ) of the Text is not shared by the concepts and the meanings implicit within it. Among Quranic texts, there are those that are unequivocal, bearing no shade of meaning except what can be learned from the Text itself, as in the case of the verses indicating the obligation to pray (ṣalāh), give alms (zakāh), or determine the different allotments of the inheritors of a legacy. The same applies to the verses declaring the illicitness of such things as adultery and fornication, murder, and the dispossession of others’ lawful rights. However, there are other verses in which the evidence for the Sharīʿah ruling given by the Text is only probable (muḥtamal); in such cases, the implication of the verse is called “equivocal” (dalālah ẓanniyyah). The difference between an unequivocal implication and an equivocal one is that the first does not require any extra human effort to understand it, there can be no difference of opinion regarding it, nor is it amenable to modification or development, whereas the second permits different opinions as long as each is based on a process of reflection consistent with the principles of jurisprudence that usually comes under the rubric of “intellectual effort” (ijtihād) in this particular science.
Scholars of the principles of jurisprudence (al-uṣūliyyūn) have summarized this duality between the unequivocality of the Quranic text in itself and the equivocality of the meanings, judgments, or rulings derived from it in the maxim: “The Quran is of unequivocal immutability and equivocal meanings” (qaṭʿī althubūt ẓann al-dalālah). By this they mean that absolute certainty with regard to the Noble Quran is posited only with regard to the words and letters of the Sacred Text, but the rulings that may be understood from it can be of either an unequivocal nature, having no possible meaning but one, or an equivocal nature, bearing more than one meaning; all of this is ultimately governed by the nature of the words and grammatical constructions of the Arabic language.
In this context, one must bear in mind that the unequivocal texts are few in number, mostly concerning the sphere of dogma and ritual, whereas most of the equivocal texts concern the sphere of social relations (muʿāmalāt). This fact shows that the claims of certain Western orientalists who accuse Islamic Law of rigidity and stagnation are untrue—the Sharīʿah is replete with open-ended texts, and its overall philosophy relies on principles such as desisting from judgment (ʿafw) and maintaining silence (sukūt) about innumerable things, so as to give ample room for human thought and responsibility. Moreover, a deeply rooted principle of the Sharīʿah posits continuous revivification (tajdīd): “God causes to rise in this community, at the beginning of every century, someone who will revive for it its religion”; and rational inference (al-istinbāṭ al-ʿaqlī) is one of the sources of legislation and the formation of legal judgment. Such a legal system can never become fixed in a single understanding or a potentially unchanging school of legal thought (madhhab); nor can its relevance, applicability, or products be limited to a specific time or place.
Rules for Inferring Legal Judgments
Scholars of the principles of jurisprudence study the implications of the Quran for legal judgments on two unequal levels: the purely linguistic level, dealing with the relation of words to their implied meanings, and the level of legal judgments derivable from the Quranic Text.
LINGUISTICS OF THE QURANIC TEXT
All texts are relevant to the inquiry into the relation between words and meanings, whatever their provenance within the Arabic literary heritage—poetic, historical, literary, scientific, and so on—might be. This study is purely linguistic, based on general principles that are thereafter applied to the “Quranic composition,” 18 so as to enable one to learn the meaning implied by the texts. This level of inquiry is a necessary prologue to the inference of legal judgments from the Quran, for, even if it is Divine Speech, the Quran is manifest to the human mind in the form of language, that is, through words, meanings, and specific usages. The understanding of the implications of the Quranic composition for legal judgments depends first on understanding the universal rules concerning Arabic words and their meanings. On this level, one has to study several disciplines including logic, linguistics, and Sacred Law, which differ in the perspectives they adopt on the relation of words to their possible meanings.
Scholars of the principles of jurisprudence delineate four perspectives from which to approach the connection of words to their possible meanings:
1. The linguistic perspective of words, determining whether the word denotes one meaning or more, and, if it denotes more than one meaning, whether all of these meanings unite in a single general meaning or diverge in numerous ones.
2. The perspective of the usage of words, to determine the specific denotation and find out whether it is literal or metaphorical, whether the word is transposed from its original denotation or bears another connotation, and related issues.
3. The perspective of the “strength” of the word in denoting the meaning and the degree of clarity, categorized as apparent (ẓāhir), hidden (khafī), problematic (mushkil), general (mujmal), obscure (mutashābih), and so forth.
4. The qualitative perspective in the denotation of a text, that is, whether the phrasing yields the meaning directly, allusively, or definitively.
LEGAL JUDGMENTS DERIVABLE FROM THE QURANIC TEXT
In the terminology of the scholars of the principles of jurisprudence, legal judgments are of two kinds:
1. Judgments involving an obligation (ḥukm taklīfī), in which the Divine Address concerns the acts of the obligated person, by declaring an act to be obligatory (wājib), prohibited (ḥarām), or permitted (mubāḥ).
2. Positive judgments (ḥukm waḍʿī), in which the object of Divine Address is to posit one thing as either a cause, condition, or hindrance for another, such as kinship (qarābah) as a cause for inheritance (4:11), the sighting of the new moon of Ramadan as a cause for the obligation to fast (2:185), ability (istiṭāʿah) as a condition for the obligation to make the pilgrimage to Makkah (3:97), ablution (wuḍūʾ) as a condition for the performance of prayer (5:6), and so on. One may also mention murder as a hindrance keeping a murderer from inheriting from the victim because of the authentic ḥadīth: “A murderer does not inherit from [his victim].”
Thus the difference between a ruling involving an obligation (ḥukm taklīfī) and a positive judgment (ḥukm waḍʿī) is that the first involves an obligation one must either fulfill or fail to fulfill—or it involves a choice between acting and refraining from action—whereas the second involves no obligation, but is a legal declaration connecting two acts by means of a relationship that could be either causal, conditional, or of reciprocal hindrance concerning the obligated person’s acts in one way or another. However, both rules belong to the Sacred Law (Sharīʿah); or, they could be specifications of the different kinds of Sharīʿah rulings, which the scholars of the principles of jurisprudence define by the maxim: “God’s Address that concerns the actions of the obligated person involves a definite requirement (iqtiḍāʾ), a choice (takhyīr), or a positive law (waḍʿ).”
Types of Rulings About Obligations
Rulings containing obligations have the sense of a definitive requirement to act or desist or the sense of a choice. In both cases the requirement can be either binding or not binding. On this basis rulings containing obligations tend to take various forms.
OBLIGATORY RULINGS
The obligatory (al-wājib) is what the Lawgiver commands as absolutely binding, such as the rites ordained for Islam, for example, prayer, fasting, pilgrimage, and the recitation of the Quran, as well as the essential virtues and the rules of morality. The performance of such obligations is rewarded, and their omission is punished by God.
RECOMMENDED RULINGS
The recommended (al-mandūb) is what is prescribed, but not compulsory; whoever omits it may not be censured. An example is committing a debt to writing, for even though there is a specific command to write down a debt (2:282), it comes with an indication that no obligation is attached to it, since God says in the next verse: And if one of you trusts the other, let him who is trusted deliver his trust (according to the pact between them; 2:283). This means that a debtor may trust the recipient of the debt, the gist of the meaning being that writing down the debt is not required.
Scholars of the principles of jurisprudence divide recommended acts into three categories:
1. Acts that the Prophet practiced without fail, such as praying two cycles of prayer before the dawn prayer. These are called regular practices, or “wonts” (sunan, sing. sunnah), because it was the Prophet himself who established their practice. The ruling concerning such acts is that whoever practices them shall be rewarded, while those who omit them are not punished, even if they may be blamed or rebuked for neglect or for disregarding the wont of the Prophet.
2. Supererogatory acts (nawāfil) that the Prophet performed, but not regularly. Whoever performs such acts is rewarded, but to neglect them occasions neither blame nor censure.
3. Acts that the Prophet performed as matter of custom or convention, by virtue of his being, as an individual, a member of a particular society with its own customs and conventions. The Prophet never commanded anyone to perform such acts as part of obedience to the Sacred Law. Scholars give as examples of such recommended acts: dress, wearing white clothes, the conventions of food, drink, sleep, manner of sitting, growing a beard, shortening the mustache, and so on.
The majority of the scholars of the principles of jurisprudence are in agreement that the terms “recommended” (mandūb), “preferred” (mustaḥabb), “voluntary” (taṭawwuʿ), “Prophetic wont” (sunnah), and “supererogatory” (nafl) are essentially synonymous and revolve around the notion that a requirement is nonobligatory or nonbinding. The majority of scholars therefore consider recommended acts not legally required to begin with, so even if individuals begin performing them, they are still under no obligation to continue to do so without fail.
PROHIBITED RULINGS
A prohibited act (al-ḥarām) is one that the Lawgiver has imperatively required must not be committed. There are, on the one hand, terms of prohibition that may only be understood as such if there is no indication (dalīl) negating the meaning of prohibition, and there are, on the other, terms concerning which the requirement to desist is categorical. Quran and Sunnah indications providing for rulings involving prohibition are many. Consider, for example, the following: He has forbidden you only carrion, blood, the flesh of swine, and what has been offered to other than God. But whosoever is compelled by necessity—neither coveting nor transgressing—no sin shall be upon him (2:173); Hunted game being unlawful when you are in pilgrim sanctity (5:1); Forbidden unto you [as wives] are your mothers, your daughters, your sisters (4:23); Slay not your children for fear of poverty (17:31); O you who believe! Wine, and gambling, and idols, and divining arrows are but a means of defilement of Satan’s doing. So avoid it, that haply you may prosper (5:90); and, “Whatever belongs to a Muslim is not lawful to take, unless his soul is glad to give it away.” Obligated persons who fail to desist from a prohibited act shall incur punishment in the Afterlife, and those who deny a prohibition that the Sharīʿah establishes by means of an unequivocal indication become thereby apostate, as they will then be giving the lie to the Quran or to the Prophet.
ABHORRED RULINGS
Abhorred (al-makrūh) acts are those that the Lawgiver has prohibited in an ambiguous manner; they should not be done; yet there is no explicit command making noncommission obligatory. Scholars say that these are any acts the omission of which is better than their commission. Abhorred acts are usually related to the kinds of behavior that are below the level of virtue and dignity that Muslims should strive to embody.
PERMITTED RULINGS
The permitted (al-mubāḥ) act is the kind that may be equally committed or omitted; the Sharīʿah’s legal discourse about it is that it is one of choice, not of obligation, such as the saying of God: This day, all good things are made lawful unto you. The food of those who have been given the Book is lawful unto you, and your food is lawful unto them (5:5); or, There is no fault against the blind, nor fault against the lame, nor fault against the sick (24:61). Permission does not require a textual indication of obligation or prohibition.
Philosophy of Commands and Prohibitions in Islamic Law
Inquiry into the rulings that involve Sharīʿite obligations stands in need of another inquiry into the nature of commands and prohibitions as such. These two inquiries are as closely linked as terms are to their meanings or sentences to their import. If commands and prohibitions both express imperative requirements, it is logical that jurists should inquire into their nature. The vast treasury of accumulated juristic principles is replete with rich and subtle inquiries in this field, which are beyond the scope of this essay. We shall content ourselves here with reference to only the most important inquiries representative of the general direction of the juristic schools in the majority of cases.
The first matter to which attention is given in this study is the actual linguistic formulation obligations take in the Quran in order to be considered as constituting definite legal obligations. From extensive investigations into the command statements of the Quran, scholars of the principles of jurisprudence conclude that commands are communicated by more than one linguistic form. Foremost among these are imperative verbs, such as God’s saying: Complete the ḥajj and ʿumrah for God (2:196); Let him among you who is present, fast during that [month]. And whosoever is ill or on a journey, it is a number of other days (2:185); and Give the women their bridewealth as a free gift (4:4). Or an imperative may come in other linguistic forms; it will suffice here to mention predicative clauses that are not standard predicates, but go beyond predication to indicate a definite requirement, such as: And let mothers nurse their children two full years, for such as desire to complete the suckling (2:233). The verb nurse, even if it is in the present tense grammatically, is meant to indicate a predicative clause, yet the context shifts it from indicating a predication into indicating a command, as much as would the imperative verb itself. Quranic discourse in such sentences is therefore not meant to “predicate” about mothers who are nursing their infants, but to “obligate” categorically that mothers must suckle their infants, for a certain period—and other legal rulings become incumbent as a consequence of this, such as the prohibition of marriage between suckle-siblings. The same principle holds for God’s saying: Divorced women shall wait by themselves for three courses (2:228). The verb is indicative, not imperative, but what is intended is not to describe an event that will happen in the future (divorced women waiting for a time before they can remarry), but to command that the waiting period (ʿiddah) for all divorced women be for a duration of three months.
Another matter concerning scholars of the principles of jurisprudence on the subject of commands is the inquiry into what a command indicates and whether a given formula signifies a command or requirement to act whenever it appears in the Quran or the Sunnah. The meaning of a command statement is not limited to indicating obligation, but can also indicate other meanings far removed from this, even in cases where the scholars of the principles of jurisprudence affirm that the first meaning to occur to the mind is one of obligation. By means of inquiries and rational inference (istiqrāʾ) into the command statements of the Quran and the Sunnah, it has been well proven that they may indicate recommendation (nadb) as much as obligation (wujūb). They may even convey permission (ibāḥah): But when you have left pilgrim sanctity, then hunt for game (if you will; 5:2); or the teaching of etiquette, such as the saying of the Prophet to a young boy: “Pronounce the Name of God, eat with your right hand, and eat from the portion that is closest to you.” Command may also communicate the sense of human beings’ indebtedness to God: O mankind! Eat of what is lawful and good on the earth (2:168); it may have the sense of a threat: Do what you will; truly He sees whatsoever you do (41:40); or it may reflect the sense of the inimitability of the Word of God: Then bring a sūrah like it (2:23); and other meanings are possible as well.
Scholars of the principles of jurisprudence have enumerated some twenty-five different senses indicated by command statements apart from the sense of obligation. They thus concluded from the earliest period in the development of the discipline that the command statements in both the Quran and the Sunnah are not all categorical and inevitable requirements belonging to the category of command in the strict sense. This understanding was responsible for the differences among the scholars regarding the nature of the command statements that may indicate legal rulings. Do they indicate obligation in the first place and, as such, may not be taken in any other sense unless additional textual evidence (shawāhid) exists indicating otherwise? Or may they indicate a recommendation in the first place that may later be disregarded due to other supportive evidence (qarāʾin) in favor of obligation? A majority of scholars in fact espoused the first school of thought (madhhab), but a sizable number also followed the second.
In any case, what matters in this connection is to clarify that the philosophy of restriction (taqyīd) as it is used to determine the concept, phrasing, and meaning of “command” helps to narrow greatly the sphere of “obligations” in the practical and social life of Muslims, for it grants them the freedom to move in a much larger sphere of possibilities and permissible actions. This outlook in fact reveals the internal harmony between the Quran and the cosmos, showing them to be two faces of the same reality: the Quran is an audible cosmos (kawn masmūʿ) to be heard, and the cosmos is a visible Quran (Qurʾān marʾī) to be contemplated. The two complement and correspond to each other. This outlook also demonstrates that an excessive number of prescriptions and obligations actually detracts from the principle of intellectual contemplation, which the Quran advocates for the discovery of truth and the knowledge of beings as they truly are. This knowledge is the Divine Wisdom (ḥikmah) that is mentioned in the Quran and praised along with those who possess it in passages such as: He grants wisdom to whomsoever He will. And whosoever is granted wisdom has been granted much good (2:269).
In the Quran, many verses teach that God does not impose upon human beings a burden of commands greater than what they can fulfill, greater than what their souls, time, and abilities can accommodate. He does not burden them with anything too heavy to bear or something that they could not help but discontinue or abandon after a while. The Prophetic wisdom emphasizes that few works constantly observed are by far better than many works eventually abandoned. Indeed, there is an explicit prohibition against excessive zeal in religious works and pedantic focus on external observances as such. The Prophet invoked perdition upon such extreme pedants (al-mutanaṭṭiʿūn), saying: “Perdition shall befall extreme pedants,” and repeating the phrase three times.
It is reported that once when one of his Companions complained about the prayer leader’s inordinately prolonging the prayer session, the Prophet said: “O Muʿādh, do not drive people into a state of tribulation (fitnah), for in the congregation praying behind you there are the old, the weak, ones with pressing errands, and the travelers.” The Prophet himself used to shorten his prayer whenever he heard a child crying, saying: “Oftentimes I enter into prayer intending to prolong it, but when I hear a child crying, I relinquish my intention, knowing how his mother must be distressed for his crying.” The ease of the prescriptions in Islam is such that performing the bare minimum of obligatory ones is sufficient to achieve happiness in this world and the next. Concerning whoever keeps the fundamental obligatory prescriptions alone, without adding or omitting anything, the Prophet says, “He shall attain to salvation, if he is sincere.” Needless to say, the philosophy of commands in Islamic Law, as presented here, is in total contradiction to the attempts at “schematization” (tanmīṭ) propagated by some strident groups in the public arena today who besiege the lives of Muslims and represent a perversion of the proper understanding of Islam and an adulteration of its laws and rulings.
Most of what was said about commands, their formulations, and significance may also be said of prohibitions. The majority of the scholars of the principles of jurisprudence are of the opinion that the least interdiction should indicate prohibition on the basis of such Quranic passages as: Whatsoever the Messenger gives you, take it; and whatsoever he forbids to you, forgo (59:7). Yet others hold the view that mere interdiction does not imply prohibition, but only abhorrence or scrupulousness, which may correspond to prohibition, but may not indicate it unless an additional piece of evidence (ḍamīmah) indicates that intention. According to a third view, an interdiction remains “deferred” (mawqūf), without indicating either prohibition or abhorrence.
On the grounds of this pluralistic interpretation of the concept of prohibition, jurists state that an interdiction may occur in the sense of prohibition, such as in: And approach not adultery (17:32); And slay not the soul that God has made inviolable, save by right (17:33); And approach not the orphan’s property, save in the most virtuous manner, till he reaches maturity (17:34); and Walk not exultantly upon the earth; surely thou shalt not penetrate the earth, nor reach the mountains in height (17:37). Or it may occur in the sense of abhorrence: And seek not the bad, spending of it though you would not take it except shutting your eyes to it (2:267). It may also occur in the sense of guidance (irshād): O you who believe! Ask not about things that, if they were disclosed to you, would trouble you (5:101); or of indicating the fruits of action: Do not suppose that God is heedless of the deeds of the wrongdoers (14:42). The hallmark of the study of interdiction is to lessen the number of prohibitions in Islam, because the formulas of the Sharīʿah, despite their small number, do not spontaneously indicate prohibition. To return to the general rule of legislation: permission (ibāḥah) is the original state of things, and no prohibition may be pronounced without explicit evidence. Prohibited matters in Islam are therefore necessarily restricted to a small number of things.
This is the position supported by the text of the Quran. For instance, we find verses limiting the number of prohibited foods to just three categories: Say, “I do not find in that which is revealed unto me anything forbidden to one who would eat thereof, save carrion or blood poured forth, or the flesh of swine—for that is surely defilement—or a sinful of erring made to other than God. But whosoever is compelled by necessity, without willfully disobeying or transgressing, truly thy Lord is Forgiving, Merciful (6:145). This text explicitly confirms that in Islam prohibited foods are limited to just three types and that this prohibition itself is lifted in cases of necessity and extreme need—that is, that even the prohibited can become permitted—and not to avail oneself of such permissions in cases of necessity, but choose instead self-destruction, is to sin. Similarly, the Prophetic traditions (aḥādīth) indicate that grave sins (kabāʾir) are limited to only seven in number: “Avoid the seven mortal sins (mubīqāt) . . .”; and that the absolute requirements for salvation may be summarized in just a few conditions: “There is no servant who performs the five canonical prayers, who fasts the month of Ramadan, who gives alms when they are due, who avoids the seven mortal sins, but who shall have the gates of Paradise open to him and it shall be said unto him: enter therein in peace.”
Just as a misunderstanding of the philosophy of “commands” in Islamic Law forms a pernicious ground for the bickering of extremist groups, whose portrayal of it is both deceitful and fraudulent, so an ignorance of the philosophy of “prohibitions” in Islam has played a grievous role for some in transforming Islam into a catalogue of interdictions and prohibitions, banning for people what God has permitted. Had the advocates of such maimed views availed themselves of the speculative legacy bequeathed by the scholars of the principles of jurisprudence on the topics of commands and prohibitions, they would have realized how alien in form and substance is the Islam such people preach to the Quran, the Sunnah, and the overwhelming consensus of Muslims.
The Quran and the Other Sources of Islamic Law In both Sunni and Shiite schools, the Quran occupies the most prominent position among the sources of law in Islam. The juristic tradition dealing with the principles of law describes it as the first source of law, because it is the Word of God and also because of its unequivocally evident nature. 32 Since the Quran includes numerous and varied rulings, one might imagine the Divine Book to be a self-sufficient source of legislation. However, in most cases the Quran tends to provide general rather than specific rules. In many instances, it limits itself to “allusion to the general objectives of legislation and its universal principles, not offering extensive detail in rules except in a few instances.” Moreover, despite its simplicity and clarity, a grasp of the objectives and ends of the Quran requires meditation and insight as well as training in Arabic stylistics and the subtle ways of indicating meaning in that language. It must also be borne in mind that the Quran itself makes a distinction between unequivocal (muḥkam) and equivocal (mutashābih) verses, saying that the interpretation of the latter can only be carried out by the exceptionally erudite among the learned: And none know its interpretation save God and those firmly rooted in knowledge (3:7).
There therefore had to be another source to function as an explanatory, illustrative, interpretive, and exegetical complement to the Divine Discourse, particularly insofar as human actions and conduct are concerned. If the explicated and interpreted text is purely Divine, it makes sense that the explanatory and interpreting text should be worthy of it, that is, of equally Divine Provenance; this is what is guaranteed by the Sunnah, which, again according to both Sunni and Shiite schools, constitutes a second source of legislation after the Noble Quran. Sunnah (“wont”) designates the sayings and actions of the Messenger of God, whereas Ḥadīth (“tradition”) specifically designates his sayings.
Understanding the Quran needs the Sunnah to provide clarifications and specific illustrations of the former’s general declarations. As an example of this principle, consider the canonical prayer. The command making it obligatory comes as a general declaration in the Quran, but if we restrict ourselves to knowledge of the prayer derived from the Quran alone, we would be unable to know the details of its substance, forms, times, the number of its cycles (rakaʿāt), and so on. All of these matters can be known only from the Sunnah. The same holds true for many other obligations, such as almsgiving (zakāh), fasting (ṣawm), and pilgrimage (ḥajj). Indeed, there are certain commands and prohibitions in the Quran that can be neither understood nor acted upon in the absence of the Sunnah.
The jurist and authority on the principles of the Law Ibn ḥazm al-ẓāhirī (d. 456/1064) summarized this point by asking:
In which Quran shall I find that the noon prayer is four cycles or that the sunset prayer is three cycles; the clarification of what counts as true fasting; the clarification of the manner of giving alms from gold, silver, sheep, camels, or cattle; . . . the categories of prohibited marriages, of prohibited child nursing (al-raḍāʿ al-muḥarram), and which foods are prohibited; the rulings regarding punishments; in what way a divorce becomes final; rulings concerning valid business transactions and the clarification of the ways of usury? Indeed, there are passages concerning these matters in the Quran, but if they were left to us without the commentaries from the Sunnah, we would never know how to apply them. Thus one has to refer these matters back to the traditions of the Prophet.
The Quran itself mentions in many places the importance of the Sunnah and its necessity for elaborating the meaning of the Quran: Whatsoever the Messenger gives you, take it; and whatsoever he forbids to you, forgo (59:7); We have sent down the Reminder unto thee that thou mightest clarify for mankind that which has been sent down unto them, that haply they may reflect (16:44); He it is Who sent among the unlettered a Messenger from among themselves, reciting unto them His signs, purifying them, and teaching them the Book and Wisdom, though before they were in manifest error (62:2). And the Prophet himself emphasizes this truth when he says:
I was given the Quran and with it its similitude; soon a day will come when a man of full stomach reclining on his couch shall say: “Go to the Quran; whatever you find permitted therein, consider it as permitted, whatever you find prohibited therein, then prohibit it”; yet that which the Messenger of God has prohibited is equal to that which God has prohibited; indeed, the meat of the domestic ass as meat is prohibited unto you; and so is the meat of every wild beast with molars.
The Sunnah’s relation to the Quran is one of seconding and confirming the rulings in it, explaining and clarifying texts of general meaning in specific terms, clarifying problematic texts that bear more than one meaning, or giving a particular emphasis for a ruling that occurs only generally. All of these aspects serve to demonstrate the necessity of the Sunnah for reaching a proper understanding of the rulings of the Sacred Law. The Sunnah is indeed as binding as the Quran and is thus second only to it as a source of legislation.
Although Sunni and Shiite scholars alike unanimously maintain that the Quran and the Sunnah are the two fundamental sources of legislation, there is no agreement with regard to the remaining sources, though these are most commonly recognized as including analogy (qiyās), consensus (ijmāʿ), juristic preference (istiḥsān), benefits in the public interest (maṣāliḥ mursalah), and injunctions presuming continuity with a status quo ante (istisḥāb).
Conclusion
In summary, Islamic Law is rooted directly in the Quran as its foundational source, and the definitive authoritativeness of the Quranic text for Islamic Law is permanently binding and effective for all times and places. The Law established in the Quran and elaborated by the Islamic legal tradition therefore possesses an inherent immutability and timeless quality, but it is nonetheless simultaneously characterized by a unique flexibility, an ability to take into account and adapt to diverse contingencies or changing conditions. As a sacred text of the highest order with a long and profound interpretive tradition, it can only be properly understood by reading it as the revealed Word of God and making use of the invaluable tools, methods, and insights bequeathed by the tradition.
Islamic Law is founded on four fundamental principles: a lack of constriction or difficulty in its implications for believers; a relatively small number of formal obligations, all restrictions being in fact exceptions to the rule, as “the norm in all things is permissibility”; a multiplicity and variety of form on the part of Quranic legal passages according to the nature of the matter at hand; and a wise and effective gradualism in the implementation of its laws. In the words of Muslim scholars, the Quran is of “unequivocal immutability” and “equivocal meanings,” meaning that its literal text is indubitably authentic and permanently established, possessing an unbroken line of transmission, whereas the meanings comprised by the text are bountifully multiple, and rational inference, the suspension of judgment, and recourse to regular, Divinely guided “revivifications” of the meanings of the Sacred Book are key elements in Islamic legal philosophy.
Islamic Law possesses a rich tradition of systematic studies on the ways in which legal judgments are contained in the Quranic text and may be derived from it as well as studies on the nature, meanings, and formulations of commands and prohibitions as such. On the basis of such studies, all actions subject to legislation are seen to fall into one of five categories—obligatory, recommended, permitted, abhorred, or prohibited. Given the general and often polyvalent nature of Quranic legal passages, Islamic Law requires a second source to explain, clarify, and embody the rulings found in principal form in the Divine Text. On the testament of the Quran itself as well as the Ḥadīth, and as agreed upon fully by all schools of Islamic Law, this is providentially and superlatively provided by the Sunnah, or wont, of the Prophet Muhammad.
Translated by Maryam Ishaq al-Khalifa Sharief
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