The Evolution of Fiqh(1.5 Sources of Islamic Law)

Islamic law during the stage of foundation was derived from

revelation, either in the form of the Qur’aan or the Sunnah. The term

Sunnah refers to the statements and actions of Prophet Muhammad

(s.w.), as well as the statements and actions of others done in his

presence which did not meet his disapproval. The Sunnah is

considered the second source of revelation based on Allaah’s

statement in the Qur’aan,

“He does not speak from his desires. Verily it is

inspiration which has been revealed.”Soorah an-Najm (53): 3 & 4.

The Prophet (s.w.) was given the job of conveying the final

message of God to mankind.

“Oh messenger, convey what has been revealed to

you from your Lord.”Soorah And he was also given the responsibility of clarifying for mankind

God’s intent in the message.

“We have revealed the Reminder (Qur’aan) to

you, in order that you explain to mankind what

was revealed to them, that perhaps they may

reflect.”Soorah an-Nahl (16): 44.
 

Sometimes the Prophet (s.w.) would explain the intent of the

Qur’anic texts by making a statement, at other times he would do so

the Qur’aan commanded the believers to establish regular Salaah

(formal prayer) without describing how Salaah should be performed,

so the Prophet (s.w.) prayed among his followers then told them,

‘Pray as you have seen me pray.”

(Sahih Al-Bukhari (Arabic-English), vol. 1, p.

345, no. 604).

 On another occasion, while he

was praying a man came and greeted him, so he raised his right hand

in response.(Sunan Abu Dawud (English Trans.), vol. 1.

 His wife ‘Aa’eshah reported that when he made

Sujood (prostration) in Salaah, he would keep his heels together.al-Bayhaqee, al-Haakim and Ibn khuzaymah

On yet another occasion, he passed by Ibn Mas’oud praying with his

left hand on his right, so he removed it and placed his right hand on

his left.

Sunan Abu Dawud (English Trans.), vol. 1.

P. 194, no. 754)

 He was also reported to have said, “if any of you makes

Sujood, he should not kneel as the camel does. Let him place his

hands (on the ground) before his knees.”

Sunan Abu Dawud (English Trans.), vol. 1.

P. 215, no. 839)
 

Thus, the Sunnah was an exposition of the Qur’aan by which

its generalities were clarified and its intended meanings specified.

Consequently, everything in the Sunnah is addressed in the Qur’aan,

either by inference or by direct reference. The address may be so

general as to include the whole Sunnah as in the case of the verse:

“Whatever the messenger gives you, take it; and

whatever he forbids you, leave it.”Soorah al-Hashr (59): 7.

Or the address may indicate generally defined laws, the

details of which are left to the Sunnah. Hence, the Sunnah may

explain may explain the methodology, reasons, requirements and

location, or it may explain the inclusions, which could not be

logically deduced. An example of such inclusions may be found in

the case of forbidden foods beyond those mentioned in the Qur’aan.

Allaah does state in reference to the Prophet (s.w.):

“He made lawful for them the good (and pure)

things and forbade them the bad (and impure).”Soorah al-A’raaf (7): 157.

Anas ibn Maalik said, “on the day of the Battle of khaybar, a

visitor came and said, ‘Oh messenger of Allaah, the donkeys have

been eaten’ Then another came and said, ‘Oh messenger of Allaah,

the donkeys are being destroyed.’ Allaah’s messenger (s.w.) then

sent Abu Talhah to Make an announcement: Allaah and His

Messenger have prohibited you from eating the flesh of domesticated

donkeys, for it is bad (and impure).”

 (Sahih Muslim (English Trans.), vol. 3, p.1072, no.

4778).

Or the address may indicate general principles from which

the Prophet (s.w.) may deduce rulings. Such rulings may be

confirmed by Allaah if correct, or corrected by Allaah if incorrect.

Among what appears to be confirmed deduced rulings is the case of

marriage to a woman and her maternal or paternal aunt. The Qur’aan

forbids marrying a woman and her daughter or the simultaneous

marriage of two sisters, then says,

“Except for these, all others are lawful…” Soorah an-Nisaa (4): 24.

However, Abu Hurayrah reported that Allaah’s Messenger (s.w.)

said, “One should not combine a woman and her father’s sister in

marriage, or a woman and her mother’s sister.”

(Sunan Abu Dawud (English Trans.), vol. 2.

P. 598, no. 2208)

This ruling may have been deduced because the reason for prohibiting the

combination of a woman and her daughter or two sisters, is present

in the combination of a woman and her aunt. For, among the

narration’s of this statement of the Prophet (s.w.) is the explanatory

addition, “If you do that, you will break family ties.” That is, in the

same way that the sanctity of the relationship between sisters, or a

mother and her daughter, would be destroyed by the spirit of rivalry

found between co-wives, it would also be destroyed between a

woman and her aunt.

Among the examples of deduced rulings which were not

confirmed is that of the Dhihaar divorce. Khawlah bint Tha’labah

said, “My husband, Aws ibn as-Saamit, pronounced the words: You

are to me like my mother’s back. So I came to Allaah’s messenger to

complain against my husband. However, the messenger of Allaah

disagreed with me and said, ‘Fear Allaah. He is your cousin.’ I

continued complaining until the verse was revealed:

“Allaah has indeed heard the statement of the

woman who disputed with you concerning her

husband and carried her complaint to Allaah,

and Allaah hears your discussion. Surely Allaah

hears and sees all things. If any men among you

declare their wives like their mothers (Dhihaar),

they cannot be their mothers. None can be their

mothers except those who gave birth to them.

They use bad words and falsehood…”

(Sunan Abu Dawud (English Trans.), vol. 2.

P. 598, no. 2208)
 

Prophet (s.w.) had accepted Dhihaar as being a valid form of

divorce and had told khawlah to accept it, however Allaah declared it

invalid.

There also exists another category of unconfirmed deduced

rulings which demonstrate that the Sunnah is limited to confirmed

religious rulings and exclude personal habits and customs of the

Prophet (s.w.) which he did not instruct his followers to follow.

Raafi’ ibn Khadeej reported that Allaah’s Messenger (s.w.) came to

Madeenah and found the people grafting their date-palm trees. He

asked them what they were doing and they informed him that they

were artificially pollinating the trees. He then said, “Perhaps it would

be better if you did not do that.” When they abandoned the practice,

the yield of the date palms becomes less. So they informed him and

he said, “I am a human being. So when I tell you to do something

pertaining to the religion accept it, but when I tell you something

from my personal opinion, keep in mind that I an a human being.”

Anas reported that he added, “you have better knowledge (of

technical skills) in the affairs of this world.”

(Sahih Muslim (English Trans.), vol. 4, p. 1259, no. 5831 &5832).

The Prophet (s.w.) further informed his followers that even

in the case of legal judgements with regard to disputes brought

before him, he could unintentionally rule incorrectly, as some of

such decisions were based on his own opinion. Umm Salamah

reported that Allaah’s Messenger (s.w.) said, “I am only a human

being, and you bring your disputes to me. Perhaps some of you are

more eloquent in their plea than others, and I judge in their favor

according to what I hear from them. So, whatever I rule in anyone’s

favor which belongs to his brother, he should not take any of it,

because I have only granted him a piece of Hell.”

(Sunan Abu Dawud (English Trans.), vol. 3.P. 1016, no. 3576)

Such decisions based on personal reasoning represented
 training for the companions of the Prophet (s.w.) in the methodology of application of the Sharee’ah. It taught them that a judge is 
not held responsible if he

 makes a mistake in judgement due to factors beyond his control.

And, in order to further emplasize this important point, the Prophet

(s.w.) also said, “whoever makes a reasoned decision (Ijtihaad) and

is correct will receive two rewards, while he who does so and is

incorrect will receive one reward.”

 (Sahih Al-Bukhari  (Sunan Abu Dawud).

 However, such decisions have to be based on knowledge, 
for the messenger of Allaah (s.w.) also

said, “There are three types of judges; one who will go to paradise

and two who will go to Hell. The one in paradise is the man who

knows the truth and judges according to it. The man who knows the

truth and is unjust in his judgement will be in Hell. And the man

without knowledge who makes judgement for people will also go to

Hell.(Sunan Abu Dawud (English Trans.), vol.3, p. 1013, no. 3566)

 The Prophet (s.w.) also encouraged his companions to make

legal rulings in order to prepare them to carry on the application of

the Sharee’ah after he left them.

‘Alee ibn Abee Taalib said, “Allaah’s messenger (s.w.) sent me to

Yemen as a judge, so I asked, ‘Oh messenger of Allaah! You are

sending me and I am young, and I have no knowledge of giving

judgement?’ He replied, ‘Allaah will guide your heart and keep your

tongue firmly (attached to the truth). When two litigants sit before

you, do not decide until you have heard what the other has to say the

way you heard the first, for it is more suitable for the correct

judgement to become clear to you.’ ”

(Sunan Abu Dawud (English Trans.), vol. 3. P. 1016, no. 3576)

Abu Sa’eed al-Khudree was reported to have said, “The

QuraydHah tribe surrendered on the condition that it would be Sa’d

ibn Mu’aadh who would pass judgement on them, so the Messenger

of Allaah (s.w.) sent for him. When Sa’d approached the Masjid

riding on a donkey, Allaah’s messenger (s.w.) said to the Ansaar

(Muslims of Madeenah), ‘Stand up to receive you chief.’ And he said

to Sa’d, ‘These people have surrendered accepting your decision.’

Sa’d said, ‘Execute their warriors and take their women and children

as prisoners.’ On hearing that the Prophet (s.w.) said, ‘You have

judged according to Allaah’s judgement.’ ”

(Sahih Muslim (English Trans.), vol. 3, p. 966, no.4368.

The process of arriving at reasoned decisions to suit new

circumstances and the decisions themselves are referred to as

Ijtihaad. As has been seen, both the Prophet (s.w.) and his

companions practiced Ijtihaad during this stage in the development

of Islamic law. However, it should be noted that the Ijtihaads of the

Prophet (s.w.) which occurred during this period are not considered

an independent source of law, because their validity depended on

divine revelation for confirmation. Thus, the Ijtihaads of the Prophet

(s.w.) were essentially a means of giving the companions lessons in

the methods of Ijtihaad, and the Ijtihaads of the Sahaabah, at its early

stage, were basically for practice.