when we study the four accepted sources of Muhammadan Law and the controversies which they invoked, the supposed rigidity of our recognized schools evaporates and the possibility of a further evolution becomes perfectly clear. Let us briefly discuss these sources.
a) The Qur’an.The primary source of the Law of Islam is the Qur’an. The Qur’an, however, is not a legal code. Its main purpose, as I have said before, is to awaken in man the higher consciousness of his relation with God and the universe.No doubt, the Qur’an does lay down a few general principles and rules of a legal nature, especially relating to the family– the ultimate basis of social life. But why are these rules made part of a revelation the ultimate aim of which is man’s higher life? The answer to this question is furnished by the history of Christianity which appeared as a powerful reaction against the spirit of legality manifested in Judaism. By setting up an ideal of other-worldliness it no doubt did succeed in spiritualizing life, but its individualism could see no spiritual value in the complexity of human social relations. “Primitive Christianity”, says Naumann in hisBriefe über Religion, “attached no value to the preservation of the State, law, organization, production. It simply does not reflect on the conditions of human society.” And Naumann concludes: “Hence we either dare to aim at being without a state, and thus throwing ourselves deliberately into the arms of anarchy, or we decide to possess, alongside of our religious creed, a political creed as well.” Thus the Qur’an considers it necessary to unite religion and state, ethics and politics in a single revelation much in the same way as Plato does in hisRepublic.
[…]
b) The Hadīth. The second great source of Muhammadan Law is the traditions of the Holy Prophet.
[…]
we must distinguish traditions of a purely legal import from those which are of a non-legal character. With regard to the former, there arises a very important question as to how far they embody the pre-Islamic usages of Arabia which were in some cases left intact, and in others modified by the Prophet. It is difficult to make this discovery, for our early writers do not always refer to pre-Islamic usages. Nor is it possible to discover that usages, left intact by express or tacit approval of the Prophet, were intended to be universal in their application. Shāh Wall Allāh has a very illuminating discussion on the point. I reproduce here the substance of his view. The prophetic method of teaching, according to Shāh Wall Allāh, is that, generally speaking, the law revealed by a prophet takes especial notice of the habits, ways, and peculiarities of the people to whom he is specifically sent. The prophet who aims at all-embracing principles, however, can neither reveal different principles for different peoples, nor leaves them to work out their own rules of conduct. His method is to train one particular people, and to use them as a nucleus for the building up of a universal Sharī‘ah. In doing so he accentuates the principles underlying the social life of all mankind, and applies them to concrete cases in the light of the specific habits of the people immediately before him. The Sharī‘ah values (Ahkām) resulting from this application (e.g. rules relating to penalties for crimes) are in a sense specific to that people; and since their observance is not an end in itself they cannot be strictly enforced in the case of future generations.It was perhaps in view of this that Abū Hanīfah, who had a keen insight into the universal character of Islam, made practically no use of these traditions. The fact that he introduced the principle ofIstihsān, i.e. juristic preference, which necessitates a careful study of actual conditions in legal thinking, throws further light on the motives which determined his attitude towards this source of Muhammadan Law.
[…]
the attitude of Abū Hanīfah towards the traditions of a purely legal import is to my mind perfectly sound; and if modern Liberalism considers it safer not to make any indiscriminate use of them as a source of law, it will be only following one of the greatest exponents of Muhammadan Law in Sunnī Islam. It is, however, impossible to deny the fact that the traditionists, by insisting on the value of the concrete case as against the tendency to abstract thinking in law, have done the greatest service to the Law of Islam. And a further intelligent study of the literature of traditions, if used as indicative of the spirit in which the Prophet himself interpreted his Revelation, may still be of great help in understanding the life-value of the legal principles enunciated in the Qur’an. A complete grasp of their life-value alone can equip us in our endeavour to reinterpret the foundational principles.
c) The Ijmā‘.The third source of Muhammadan Law isIjmā‘ which is, in my opinion, perhaps the most important legal notion in Islam.
[…]
The growth of republican spirit and the gradual formation of legislative assemblies in Muslim lands constitute a great step in advance. The transfer of the power ofIjtihād from individual representatives of schools to a Muslim legislative assembly which, in view of the growth of opposing sects, is the only possible formIjmā‘ can take in modern times …
[…]
One more question may be asked as to the legislative activity of a modern Muslim assembly which must consist, at least for the present, mostly of men possessing no knowledge of the subtleties of Muhammadan Law. Such an assembly may make grave mistakes in their interpretation of law. How can we exclude or at least reduce the possibilities of erroneous interpretation? The Persian constitution of 1906 provided a separate ecclesiastical committee of Ulema– “conversant with the affairs of the world”– having power to supervise the legislative activity of the Mejliss. … But whatever may be the Persian constitutional theory, the arrangement is not free from danger, and may be tried, if at all, only as a temporary measure in Sunnī countries. The Ulema should form a vital part of a Muslim legislative assembly helping and guiding free discussion on questions relating to law. The only effective remedy for the possibilities of erroneous interpretations is to reform the present system of legal education in Muhammadan countries, to extend its sphere, and to combine it with an intelligent study of modern jurisprudence.
d) The Qiyās. The fourth basis of Fiqh isQiyās, i.e. the use of analogical reasoning in legislation. In view of different social and agricultural conditions prevailing in the countries conquered by Islam, the school of Abū Hanīfah seem to have found, on the whole, little or no guidance from the precedents recorded in the literature of traditions. The only alternative open to them was to resort to speculative reason in their interpretations.
[…]
Thus the school of Abū Hanīfah which fully assimilated the results of this controversy is absolutely free in its essential principle and possesses much greater power of creative adaptation than any other school of Muhammadan Law. But, contrary to the spirit of his own school, the modern Hanafī legist has eternalized the interpretations of the founder or his immediate followers much in the same way as the early critics of Abū Hanīfah eternalized the decisions given on concrete cases. Properly understood and applied, the essential principle of this school, i.e.Qiyās, as Shāfi‘ī rightly says, is only another name for Ijtihād which, within the limits of the revealed texts, is absolutely free.
lol who do you like?
