Sayyid Abut Ala Mawdudi
For an adequate appreciation ofthe subject under discussion two basic facts have to be clearly borne in mind.
Sovereignty of Allah
Firstly, Islam admits of no sovereignty except that of Allah (S.W.T) and, consequently, does not recognise any law-giver other than Him. The concept of the unity of God as advocated by the Qur’an is not limited to Him being the sole object of worship in the religious sense alone. Along with it He is invested with a complete legal sovereignty as the term is understood in law and political science. This aspect of the legal sovereignty of Allah (S.W.T) is as much and as clearly emphasised by the Qur’an as the one pertaining to Him being the only Deity to be worshipped. According to the Qur’an these twin facts of the divinity ofAllah (S.W.T) are the sine qua
non of the Divine Entity so interlinked that a negation of
either, ipsofacto infringes the very concept of His Divinity. And then the Qur’an leaves no room for the impression that by divine law the law of nature may have been intended. On the contrary, it bases its entire ideology on the foundation that mankind should order the affairs ofits ethical and social life in accordance with the law (Shari’ah) that Allah (S.W.T) has communicated through His Prophets (may His blessings be upon them). It is this submission to the revealed law and surrender of one’s freedom to it that has been assigned the name of Islam (Submission) by the Qur’an. It denies in the
clearest terms the right of human beings to exercise any discretion in such matters as have been decided by Allah (S.W.T) and His Prophet.
Says the Qur’an:
“It is not fitting for a Believer, man or woman, when a matter has been decided by Allah (S.W.T) and His Mes- senger, tohave anyoption about their decision: ifanyone disobeys Allah (S.W.T) and His Messenger, he is indeed on a clearly wrong path.”
(al-Ahzãb 33:36)
The second point which is fundamentally as important in Islam as the Unity of God is the finality of the Prophet- hood of Muhammad (may Allah’s blessings be upon him). It is really due to this factor that the concept of the Unity of God transforms itself from an abstract idea into a practical system and the whole edifice ofthe Islamic way of life is raised upon this foundation. According to this creed the teachings of all the earlier messengers of Allah (S.W.T) have been incorporated with numerous important additions, in the teachings of Muhammad (may Allah’s blessings be upon him). Hence these teachings constitute the only source of
Divine guidance and law, as no further revealed guidance is anticipated to which it may become necessary for mankind to turn. It is this dispensation by Muhammad (may Allah’s blessings be upon Him) that constitutes the Supreme Law which represents the Will ofAllah (S.W.T), the real Sovereign. This Law has been bequeathed to us by the Holy Prophet in two forms:
First, the Qur’an which embodies, word by word, the instructions and commandments of Allah (S.W.T); and
Second, the ideal conduct of Muhammad (may Allah’s blessings be upon him), that is to say, Sunnah, which
clarified and explains the meaning of the Qur’an.
In fact, the Holy Prophet was not merely the bearer of a message, having nothing more to do than transmitting the Word of God to mankind. He was also the Divinely appointed leader, the ruler and the teacher. The duty laid on him was to explain and illustrate the law of God by his words and deeds; to make people understand its real import; to train
individuals into a disciplined body; with their aid to initiate a struggle for the reformation of society; and finally, to mould the society into a reformed and reforming state, and thus to demonstrate how a system of perfect civilization founded on the principles of Islam can be established. This entire work of the Holy Prophet which was completed in 23 years of his life as a Prophet, is the Sunnah which, in conjunction with the Qur’an, formulates and completes the Supreme Law of the real Sovereign, and this Law constitutes what is called “Syari’ah” in Islamic terminology.
Scope of Legislation
Prima facie one is apt to think that these fundamental facts
leave no room for human legislation in an Islamic state because herein all legislative functions vest in God and the only function left for Muslims lies in their observance of God- made laws vouchsafed to them through the agency of the Prophet. The fact of the matter, however, is that Islam does not rule out human legislation; rather it only limits its scope by the supremacy of Divine law. What the scope and sphere of human legislation are, subject of course to the Supreme Law and within the limits prescribed by it, I will now proceed to mention in a few words.
Interpretation
There are certain types of matters in human life about which the Qur’an and the Sunnah have laid down clear and cate- gorical injunctions and prescribed specific rules. In such
matters no jurist, judge, legislative body, not even the
Ummah as a whole, can alter the Syari’ah injunctions or
the rules framed by it. This does not mean, however, that there is no scope left for legislation in this sphere. The function of human legislation in this respect lies in first finding out what exactly is the injunction, then determining its meaning and purport and defining the occasion and circumstance to which it is relevant. Then, the methods of its application to the problems of life and the details and implications of the concise injunction have to be worked out.
And simultaneously it is necessary to determine to what extent any departure from this injunction is permissible under exception circumstances.
Analogy
The second category of human affairs is that about which no injunctions have been laid down in Syari’ah, but provision’ exists about analogous situations. In this sphere the legisla- tive function would consist in a precise appreciation of the grounds underlying these injunctions, and enforcing them in respect to all those matters wherein these connections are
not found from the application of these rules.
Inference
There is yet another category of affairs about which the Syari’ah has prescribed no fixed orders but has laid down certain broad principles or has indicated in general terms the intention ofthe Law-givers as towhat is desirable and should be encouraged and what is undesirable and should be discouraged. In regard to such affairs, the function of legis- lation is to understand the broad principles laid down by the Syari’ah and the intention of the Law-giver, and evolve for particular situations such laws as are based on these prin- ciples and fulfil the intention of Law-giver.
Scope in Independent Legislation
Apart from these, there is yet another vast sphere of human affairs about which the Syari’ah istotally silent. It has neither made any direct provision in respect thereof nor any guid- ance for identical or kindred situations, so as to enable us to draw an analogical inference therefrom. This silence is by itself indicative ofthe factthat the Supreme Law-giver has left it to human beings to decide such matters according to their own discretion and judgement. Hence independent legisla- tion can be resorted to in such cases but it must be in consonance with the spirit of Islam and its general princi- ples, and what is more, it should in no waybe at variance with
the over-all spirit of Islam and must properly fit into the general pattern.
Ijtihãd
The whole of this legislative process which lends dynamic force to the legal system of Islam and makes it development and growth possible in the changing circumstances of life, can be achieved only through a particular type of academic research and intellectual effort, which is called Ijtihãd in Islamic terminology. Literally, the word Ijtihad means to put in the maximum of effort in performing a job, but technically it signifies “maximum effort to ascertain the Islamic injunc- tion or its purport with regard to a given problem or issue”. Some people seem to be labouring under the misconception that Ijtih&d signifies an independent and free use of one’s judgement. But no one conversant with the nature of the Islamic Law can imagine that there can be any place for this kind of independence in a legal system of this type. The real law of Islam is the Qur’an and the Sunnah. The legislation that human beings may undertake must essentially be derived from this fundamental law or it should be within the limits prescribed by it for the use of one’s opinion. Any Ijtihâd that purports to be independent of it can neither be an Islamic Ijtihâd nor is there any room for it in the legal system
of Islam.
Essential Qualifications
It is clear from what has been said above, that the purpose and object of Ijtihãd is not to replace the Divine Law with man-made law, its real object is to understand the Divine Law and in conformity with its fundamental directions, to enable the legal system of Islam to keep abreast of the times. In view of this basic fact, no healthy Ijtihàd is possible unless our law-makers are equipped with the following qualifications:-
1. Faith in the Syari’ah and the conviction of its truthful- ness; a sincere intention to follow it; absence of any desire to
act independently of it; and the will to derive all principles and values from it and not from any other source.
2. A soundknowledge ofthe Arabic language, its grammar
and literature; for the Qur’an has been revealed in this language and the means ofascertaining the Sunnah also rest upon this medium.
3. Such knowledge and insight into the teachings of the Qur’an and the Sunnah as would enable one not only to be conversant with the details of Islamic injunctions and their application in actual practice, but to appreciate the basic principles of the Syari’ah and its objectives. He should know on the one hand, the overall reform scheme ofthe Syari’ah for human life and on the other the exact place of each depart- ment of life within the framework of this comprehensive
scheme, and the lines on which the Syari’ah desires to mould it and the objectives underlying such moulding. In other words, such an insight into the Qur’an and the Sunnah is indispensable for Ijtehad which would enable one to grasp the essential core of the Syari’ah.
4. Acquaintance with the contributions of the earlier ju- rists and thinkers (Mujtahidin) of Islam. This is necessary not merely for training in the technique of Ijtihàd but also for the sake of ensuring continuity in the evolution of law. Of course it is not, and should not be, the purpose of Ijtihad to destroy or discard what previous generations have pains- takingly built up and try to build ever a new.
5. Acquaintance with the problems and conditions of life, for to these are to be applied the injunctions, principles and the rules of the Syari’ah.
6. Commendable character and conduct according to the Islamic ethical standards. Absence of this virtue is bound to affect adversely the measure ofpublic trust in the legislators. A law made by the Ijtihãd of individuals failing to conform to the high standards is not likely to inspire respect and confidence in the Muslim public.
In listing these qualifications it is not our intention that any one undertaking Ijtihãdshould first produce a certificate of merit with regard to them. The idea is merely to show that a sound development of Islamic law on proper lines through
Ijtihad is possible only if the system of legal education and
training tends to produce scholars of the above-mentioned calibre and qualifications. Any legislation undertaken with-
out these requisites would neither fit into the legal system of Islam nor would it ever be palatable to the Muslim society.
Technique ofIjtihãcl
Just as Ijtihãcl and any legislation based thereon depends for its popular acceptance on the ability of those responsible for it, similarly its success would, to a large degree, depend upon the employment of a correct method and proper technique. A Mujtahid whether he is engaged in the interpretation of
injunctions or is busy in analogical reasoning or in drawing inferences, has in any event to base his reasoning, on the Qur’an and the Sunnah. Even while indulging in “independ- ent” legislation in the sphere of permissibles (Mubah) he must clearly establish that the Qur’an and the Sunnah, have not laid down any rule or order nor even furnished a basis for any analogy so far as that particular issue is concerned. And then the methods adopted for interpreting the Qur’an and the Sunnah should be authentic and generally acceptable. While arguing from the Qur’an it is imperative to interpret the meaning of a verse in the light of the rules of the language, grammar, and established usage and with an eye on the observations made elsewhere in the Qur’an on the same topic. The interpretation must be authenticated by word or deed of the Prophet or at least the Sunnah must not be antagonistic to such meaning. While drawing upon the Sunnah in consonance with the considerations of language, its rules and the context, it is also essential that the traditions which are relied upon on a particular issue are authentic in accordance with the principles concerning this branch of knowledge. It is also necessary, that other relevant traditions should not be ignored and no single citation is allowed to hold its own against a Sunnah that has been well-established on
the strength of authentic sources. Any Ijtihad based on wishful interpretation and in disregard of these precau- tions, even if raised to the status of law by dints of political power, will neither be accepted by the social conscience of the Muslim community nor can it, truly speaking, form part of an Islamic system of law. As soon as the political power enforcing such a law is removed, the law would be thrown into the dustbin.
How Ijtihdd Attains the Status of Law
A number of methods have been recognised in the legal
system of Islam whereby anIjtehad acquires the force of law. Firstly, consensus of opinion (Ijmã’) by the learned men ofthe community. Secondly, the Ijtihãd of an individual or a group of individuals may gain wide popularity and people may, suo
moto, adopt their verdict; for instance the Ijtihãd of the
Hanafite, the Syafi’ite, the Malikite, and the Hambalite schools of law which is accepted by large groups of Muslim masses. Thirdly, a Muslim government may adopt a partic- ular piece of Ijtihãd as its law, as for example the Ottoman Government had adopted the Hanafi Law as the law of the land. Fourthly, an institution may be constitutionally em- powered, in a state, to legislate, and it may pass a particular piece of Ijtihãd, into law. Apart from these four methods, any piece of Ijtihàd attempted by Muslim scholars can be no more than an edict (fatwã). As regards the judicial pronounce- ments of the judges (Qãdi), they are enforceable as law only in respect of the particular cases in which a court may have made them and they may also serve the status of a precedent but they cannot be classified as law in the true sense of the term, so much so that even the judicial pro- nouncements of the Caliphs —give by them in their judicial
capacity as Qadhees- did not acquire in Islam the force ofthe
law. The concept of “judge-made law” is foreign to the legal system of Islam.
Clarifications
has been offered about my paper on “The Role of Ijtihad and Its Scope in Islam”.
The first criticism relates to the status that has been assigned to Sunnah along with the Qur’an. In dealing with this I should like to mention a fewpoints in a systematic order so as to clarify the issue.
1. It is an irrefutable historical fact that after receiving the prophetic assignment Muhammad (Peace be upon him) did not stop at the mere transmission ofthe Qur’an to the people, but led an all-comprehensive movement which resulted in the evolution of a Muslim society, a new order of civilization and culture, and the establishment of a state. The question arises in what capacity did the Prophet perform those func- tions which were in addition to the mere transmission ofthe Qur’an? Were these tasks performed in his capacity as a Prophet in which he represented the will of God as much as the Holy Book? Or whether his prophetic status ended with the transmission of the Qur’an and thereafter he merely acted like an ordinary Muslim individual whose words and deeds do not possess in themselves any legal authority. If the former is true then there is no alternative but to accept the Sunnah as possessing legal authority along with the Qur’an, but if the latter is the case there can be no ground for treating it as law.
2. The Qur’an gives a very clear verdict in this matter by stating that Muhammad (Peace be on him) was not merely a messenger but a divinely appointed guide and teacher also, obedience towhom was obligatory on the Muslims and whose life has been referred by God as an ideal to be followed by the faithful. Even rationally it is unacceptable that the Prophet might be treated as a Prophet only to the extent of transmit- ting the word of God and thereafter reduced to the level of a common man. In so far as the Muslims are concerned they have, from the advent of Islam to this day, agreed unani- mously in every age and country that the Holy Prophet was an ideal to be followed, and his injunctions and prohibitions are obligatory on all. Even a non-Muslim student of Islam cannot deny the fact that the Muslims have always assigned
this position to the Holy Prophet and on this very basis his Sunnah has been treated as a source of law in the legal system of Islam simultaneously with the Qur’an. I cannot