Alhassanain(p) Network for Heritage and Islamic Thought

Legislation and Legal Formulation

We now know that the rule or the legal principle is comprised of a subject matter and form, and we know the meanings of these terms. We also know that to legislate is to 'assign' (ja'al) or enact rules. The jurists define legislation as a declaration, by a specific authority, of legal principles, through the means of specific expressions.

It is also an established fact of Islamic ideology that legislation belongs exclusively to Allah, the Glorious. And to Him belong the creation, the command, the kingdom, power and authority.

We also understand that the government, in whose hands are the affairs of the community, Ummah, enjoys a degree of legislative competence derived from the divine law which takes knowledge, justice, the doing of good and wisdom as its fundamental principles. Indeed, the All-Knowing, All-Wise Legislat-or has taken into consideration the nature and conditions of mankind as regards to his creation, psychological, intellectual, material and social life in designing a code of living for him.

It is pertinent, here, to explain that the method of formulating the legislative content of rules and the Islamic legal principle has passed through two main stages. They are: The Qur'anic formulation, which the divine expression of rules via Qur'anic verses and the Prophetic formulation is encountered in the traditions (hadith) and sayings. The Imams of the Prophet's household followed the latter method in ellucidating the rules. The acts and confirmations (taqrir) of the Messenger (s.a.w.) and the Imams of the Prophet's household, just like their sayings, represent another way of expressing the rules and legal principles in Islam.

Thus, the early methods of expressing the Islamic rules and legal principles are as follows:

1- Verbal expression emanating from Allah, the Most High, or from the Messenger (s.a.w.) and the Imams (a.s.) via the two known methods of formulation used in the Qur'an and the pure Sunna (tradition of the Prophet or Imams).

2- Acts and confirmations by the Prophet (s.a.w.) and the Imams (a.s.).

Thereafter, studies on legislation evolved producing the science of jurisprudence and its technical terms, the result of which is the emergence of a new method of formulating Islamic laws and rules by Islamic jurists and theoreticians. This method of formulation is the one usually encountered in books of fiqh, and epistles of Islamic rules, written by the jurists. This method, because it carries jurisprudential jargon, differs from that used by the Qur'an and the sunna. It is beneficial to point out that the Islamic jurists have divided the shari'a rules, according to the language of fiqh, into four categories:

a- The rules of worship (ibadah): These are rules for acts that require the one who practices the acts of worship to have the intention of attaining nearness to Allah, the Most High. Such acts include prayer, fasting, pilgrimage, vows.

b- The laws of contracts: These are rules governing acts, the existence and validity of which depends on the consent of the two parties. Here, there is no need to intend attaining nearness to Allah. Such laws govern marriage, business transactions, companies, etc. However, concluding a contract for the sake of Allah is recommended.

c- The laws of Iqa'at (one party transactions): These are rules for acts requiring neither the intention to attain proximity to Allah nor a second party, for they can be discharged by a single party. Example of such acts include divorce (the husband can divorce his wife with or without her consent) and a testament containing a responsibility to be discharged by the survivors.

d- Rules: These laws are termed simply as rules without any qualification. They include the laws of inheritance, suckling, punishments, etc.

From the foregoing, it will be clear that the issue of categorzing fiqh and the formulation of rules is not a determined and finalized one. The fact is that the jurists were responsible for originating ways and methods for formulating arrangement and categorization, suitable for the needs and requirements of the various stages in the history of Islamic jurisprudence.

Studies in jurisprudence revolved around those four central points. From another angle, investigations and studies, from the point of view of the individual, had their stamp on the method, treatment, issues covered and categorization of fiqh, in spite of the fact, concerning government and power, there existed special jurisprudential studies; such as, books on the rules of government and guardianship and those partaining to collective activity.

This individualistic approach was subscribed to because the methodology of fiqh was not based on a societal view of Muslim life within an Islamic state with a government running an Islamic society, in which case, jurisprudential studies would have revolved around the individual, the society and the state. It could be said that the individualistic method was imposed by the realities of the Muslim's situation throughout history.

While the scholars of Islamic legislation divide its studies into four, the jurists of the conventional law studied law through its division into:

1- General Law

2- Individual Law.

The jurist define public law as "the law that regulates legal relationships in which the state, in its capacity as the sovereign, is a party." They define Individual law as: "The law that regulates relationships between individuals or between them and the state not in its capacity as the sovereign."

The factor responsible for the difference between these two legal precepts and these two categories of rules is for the state, in its capacity as the sovereign, to act as a party in a contract. However, in a case whereby the state, not in its state as the sovereign, enters into a contract, say, renting a house or the sale of an estate, it will act as an individual devoid of any prerogatives, as is the case of a company, society or party. Therefore, the individual law is the one to regulate such contracts between the two parties.

It is pertinent, at this junction, to suggest that Islamic jurisprudence stands in need of new studies and categorization in which the laws would be classif-ied into general and individual laws, even in cases related to worship, if they carry a legal colouring. The issue of zakat, for instance, is a financial legislation and the state receives zakat in its capacity as the sovereign. Islamic legislation makes it obligatory to submit zakat to the legal ruler (Hakim al-Shar'i) and anyone who fails to do so is considered a rebel and is compelled to submit it.

The present conditions as well as the nature of Islamic law, call for a review of the classification of laws. It should be noted that Islamic law is comprehensive and covers all issues big and small, individual and collective, which affect the individual, society or state. This need for a new study of Islamic jurisprudence, its classification and rearrangement, on the basis of categorizing laws as general and individual, is even rendered more urgent by the emergence of an Islamic state and the call for the Islamic enterprises as an alternative to the laws and systems of secularism; such as, capitalism and the likes of it. We are in a situation whereby the Islamists are requested to present the Islamic alternative as a project capable of theorizing and law making.

For the benefit of the reader, we will mention the division of general and individual laws, indicating whether the state, in the relations regulated by these legal sub-divisions, acts as a sovereign or not, while dealing with individuals and other states.

Division of General Law:

General law can be divided into many sections, some of which are mentioned below:

1- International General Law: "is a set of legal principles governing the relationships between nations, both in the condition of peace and war."

2- Constitutional Law: "is a set of legal principles that govern the foundations of a nation and defines how it is constituted."

3- Administrative Law: "is the principles that governs the activities of the executive power and the method of discharging its administrative responsibilit-ies."

4- Fiscal Law: "Is the law that guides state finances, its income expenditure".

5- Criminal Law: "This law defines the different crimes and stipulates their punishments."

6- Criminal Procedures Law: "Is the law that regulates the procedures for investigating crimes and what might be required of detention, releasing or prosecuting a suspect. These laws determine the court of competent jurisdiction, explain prosecution proced-ures, how to deliver judgement, how to appeal against it and the execution of the judgement and how it is done."

Division of Individual Law:

From among the main divisions of individual law we will mention the following:

1- Civil Law: This law regulates matters pertaining to the family (personal status) such as marriage, divorce, inheritance and expenditure on the family. It also regulates a person's property rights, the way through which he acquires these rights, their terminations, etc.

2- Commercial Law: This is a set of principles governing commercial activities.

3- Maritime Law: This is a set of principles that regulate navigation. It deals with the purchase of ships, their hiring, insuring ship and cargo and maritime loans.

4- Aviation Law: This is a set of principles governing aviation activities. These consist of the ownership, type and registration of aircrafts and contracts on air transportation and responsibility, in case of any harm that might befall passengers or other persons on land.

5- Labour Law: This regulates the relationship between employers and employees.

6- Civil Procedures Law: This is a set of principles that govern the setting-up of courts and their jurisdiction, method of litigation, and giving evidence, delivering judgement and ways of appeal and imple-menting the judgement on the issue in contention, the properties of a debtor…etc.

7- Private International Law: This is a set of rules that chart out the mandatory solution in issues where conflicts between parties, each of which is affiliated to a different state, is subject to a given set of laws.

Legislative Heirarchy:

One of the important aspects of legislation, its formulation and contemporary categorization that pertains to regulating state and society, of which the Islamic Republic of Iran has applied and in fact which any Islamic state is in need of, is the legislative structure which should consist of the following three levels, viz:

1- Constitution: "This is the document that presents the system of government of a given state."

2- The Law: "It is a set of general principles for the regulation of individual behaviour in the society and whose respect is guaranteed by the government through the use of force, where necessary, by meting out punishment for disobedience."

3- Bills of Law: "These are rules enacted by the executive powers to enable the execution of normal laws or for regulating general good and organization or for the maintenance of security, health, managing affairs, etc."

As previously stated, the formulations of laws is a technical affair, flexible in nature; not in the garb of fixed terms. Let us look at the way Islamic jurisprudence acts to phrase the legislative constituent according to the above mentioned hierarchy.

We are going to give a brief account of how the Islamic constitution consists of two types of constit-uents:

1- Rules and legislations derived from shari'a rules that denote responsibility `taklif' and those that affect conditions `wad'i'. Such legislations include constitutional laws, like competence and attributes of the president, and relationships between the nation and the government; others are rules regulating individual economic, social and behavioural life…etc.

This part of the constitution can be divided into two groups, also:

a. A clear stipulation about which there is no room for the exercising of independent judgement (ijtihad). For example, acknowledging private ownership and considering justice as a condition for a competent judge, etc. These rules are fixed and not liable to change.

b. The second group is that of rules deduced by way of ijtihad practiced by the Islamic jurists, fuqaha. Such laws are liable to changes and other ijtihad enactments, that are more appropriate in regard to new conditions or occasioned by higher juristic competence, can replace the earlier rules.

2- Rules pertaining to the form and structural frame of the state involving organizational and technical matters. Such laws include legislations for electing the president or parliament or city councils. These laws can be changed and improved continuously as the situations change, with the condition that these sections of the constitution should never be inconsistent with the Islamic rules and values. It is worthwhile to note that those laws which are clear stipulations are binding on all sections of the society, because they represent unequivocal divine legislation. They carry this weight irrespective of whether they are codified within the constitution or not.

But as for the Ijtihad laws, such rules derive their legal force from the necessity of uniting the community in general matters by conforming to a uniting opinion capable of safeguarding the good of the community, warding off corruption and safeguarding general order. A second justification for furnishing such rules, with legal force, is the theory of permissibility of the division of imitation (taqlid). This view allows the Mukallaf (a person deemed by the Shari`a as responsible and answerable before the law) to imitate one mujtahid, in part, and another in other matters. Thirdly, such rules can obtain legal force by way of a supreme authority governing the ummah.

In the case of legal constituents regulating the organization and structure of the nation, legal force is derived from the necessity of safeguarding the common good and ensuring the best conditions for the community. It is also derived from the fact that the supreme authority, to which the citizens have invested with legitimacy, sanctions those legal constituents and makes them legally binding.

The Fixed and the Variable

The rules of Islamic legislation at our disposal, as a result of the evolution in jurisprudence and ijtihad, can be classified into two:

1. Nass (Stipulation): This is a clear rule about which no ijtihad is exercised. For example, the obligation of prayers, fasting, zakat, catering for the wife, forbidding of alcoholic drinks, adultery and interest and permissibility of business transactions, marriage, acquiring property, partaking of the flesh of some livestocks…etc.

2. Ijtihad Rules: This class can be further divided into two sections:

a. Ijtihad rules deduced by the jurists, from the Qur'an and the pure sunna, because of the existence of proofs covering such rules in a general sense or proofs indicating such rules, directly, in a way that makes deduction possible while they are not direct stipula-tions.

b. Vacant zones or where the rules are allowed legislative competence: These are areas left for the rules to fill by specifying the appropriate rules in the light of the Book or the Pure Sunna. Some of these areas include disallowing the hoarding of goods, services and utilities about which neither a clear stipulation or a general rule is available. Others include the imposition of additional taxes for the purpose of redeeming bad economic situations of the Muslims and controlling the prices of goods, considered by the rules as experiencing imbalance, in which the consumer, seller or producer is cheated.

While discussing on fixed and changing aspects of Islamic rules it is desirable to differentiate between change in the understanding of the jurist deriving the rules i.e., the legal ruler (Hakim al-Shar`i), from whom the change in the rules emanates, on the one hand, and the conditions in which a clear stipulation (nass) or ijtihad ruling would accept change or remain constant, on the other.

Scope of the Fixed and the Variable Rules:

While treating the issue of fixed and changing rules, it is pertinent to define the elements of the Islamic message, susceptible to change, and those that do not admit any variation:

1- Belief: Precepts like the belief in Allah, the Glorious, and the belief in His Messengers. These fundamentals are immune to changes and abrogation throughout the period of divine messages, not only in the Islamic message. However, we can find differences among the Muslims as regards the details of ideological principles, like the issue of explaining the nature of man's actions and his relationship with His Lord, understanding of the attributes of Allah, etc. This difference in understanding does not mean that these ideological issues are variable, but it exposes the fact that there exists two conflicting opinions in understand-ing the precepts, or the obstinacy and overstepping the bounds by some groups who refuse to accept the fact.

2- Ethics: This is among the fixed fundamentals in Islam and all other divine legislations. Ethical issues include truthfulness, justice, mercy, etc. These principles are not liable to change or substitution, being of similar nature to the precepts of belief.

3- Declarations and expositions of many questions of thought, knowledge, life, et.c: A lot of statements, in the Holy Qur'an and sunna, discuss and explain the norms and laws governing history, society, bodily and spiritual nature of man, etc. These are but fixed scientific laws neither changing nor admitting substitutes, since they portray established facts that govern the formation of man and nature.

4. Legislation: This comprises of rules and laws enacted to regulate man's relationship with Allah, with himself and with others. The portion which guarantees the regulation of man's relationship with Allah, the Glorious, i.e., rules on worship, such as prayer, fasting and pilgrimage are fixed and do not accept any substitute. As for the section on social organization, it can be seen that it consists of two parts; one fixed and unchangeable while the other is variable. We shall take up each part and discuss it later.

Sources of Islamic Legislation

It is unanimously accepted that the Holy Qur'an and the pure sunna are the sources of legislation and the custodians of Islamic thought and knowledge.

Imam Muhammad Baqir (a.s.), the master and authority of the jurists and one of the Imams of the Prophet's household from whom Allah removed all filth and purified with the utmost purification, summarized this belief in the following words:

"Surely Allah, Blessed and Exalted, is He Who did not leave out any matter of which the community stands in need, but He revealed it in His Book and explained it to His Apostle (s.a.w.). And He assigned a limit to everything and a proof indicating it. And He specified a punishment for whoever transgresses the limit."

The Imams of Ahl-lul-Bait (a.s.) have, indeed, enriched Islamic legislation with their expositions and elaborations of the Book and the Prophetic tradition. This exposition was a real continuation of Shari`a laws, so it is part of the sunna. The great jurist Shahid Sayyid Muhammad Baqir Sadr described this fact in these words: "Thus it becomes clear that changing the rules of the Shari`a, through abrogation, is also one of the factors that bring about conflict originating from this factor, and only affects the stipulation emanating from the Prophet (s.a.w.) not those from the Imams (a.s.).

This is so because the period of legislation ended with the close of the Prophetic era and the narrations that emanated from the Infallible Imams (a.s.) were only an elaboration on the Prophet's legislations."

Since the Book and the sunna together are the sources of Islamic legislation, the two other sources i.e., intellect and consensus (ijma') are secondary sources serving as ways to discover the legislation and not, themselves, legislators. The intellect, as a source of legislation, is defined as "an issue perceptible to the intellect while it is able to deduce a Shari`a rule from it. An example of these issues is the intellectual proposition that enjoining a thing entails enjoining its prerequisities (muqaddimat).

Consensus (ijma) has been defined by the Shi'a Imamiyya School as: "The consensus of scholars with legal opinions from among the preceding jurists of the period of occultation, on a certain ruling, while the verbal source specifying the ruling remains unknown. These jurists have met a situation that evokes a state of conviction and a settled belief which detects the existence of a legislative proof possessed by the jurists and those who preceded them."

In addition to these secondary sources mentioned above, some Islamic schools recognized sources, such as, analogy `qiyas', discretion `istihsan', public good `masalih mursalah', teaching of the companions `madhhab al-Sahbi'….etc. A lot of debate has taken place on the weight of evidence `hujjiya' and the nature of these sources.

Both the Imamiyya school and the other Islamic schools, which subscribe to the idea that all forms of analogy are evidence, regarded the analogy in which the basis or cause `illa' is expressed in the clear law `Mansu al-Illa' and analogy in which the deduced law holds a prior position to that of the clear stipulation on which the analogy is based `Qiyas al-Awlawiyya' as evidence. The only point of conflict between the two views is analogy of comparison `qiyas al-Tamsili'; that is, to compare a part of a question to a part of another and the analogy in which the basis or cause is deduced rather than expressed in the clear stipulation.

The Holy Qur'an and the Pure Sunna contain rich and adequate legislative material. In the Qur'an alone there are hundreds of verses directly enacting laws and rules or conveying thoughts, and legislative concepts from which laws can be formulated. Thousands of Prophetic traditions serve as illucidation to those verses and legislative roles. Hundreds of these texts form the general legislative fundamentals that contribute in enriching legislation and expanding its horizons.

To illustrate, we shall review some of these verses, traditions and narrations to observe the special feature of the constituent of Islamic legislation. Allah, the Most High says:

"Surely Allah enjoins justice and the doing good (to others) and the giving to the kindred, and He forbids indecency and evil and rebellion…" Holy Qur'an (Nahl 16: 90)

"…and has not laid upon you any hardship in religion…" Holy Qur'an (Hajj (22: 788)

"…Allah desires ease for you, and He desires not hardship for you,…" Holy Qur'an (Baqara 2: 77)

"Take alms out of their property - you would clean them and purify them thereby…" Holy Qur'an (Tawba 9: 103)

"…(all) good things are made lawful for you…" Holy Qur'an (Ma'ida 5:5)

"Say: My Lord forbids only indecencies, such of them as are apparent and such as are concealed,…" Holy Qur'an (A'raf 7: 33)

"O David, surely We have made you a ruler in the land; so judge between men justly and follow not desire,…" Holy Qur'an (Sad 38: 26)

"O you who believe, fulful the obligations…" Holy Qur'an (Ma'ida 5: 1)

"...and Allah has allowed trading and forbidden usury…" Holy Qur'an (Baqara 2: 275)

"…and women have rights similar to those against them in a just manner,…" Holy Qur'an (Baqara 2: 228)

"And surely We have honoured the children of Adam, and We carry them in the land and the sea, and We provide them with good things, and We have made them to excel highly most of those whom We have created." Holy Qur'an (Isra' 17: 70)

These verses of the Qur'an carrying ample legislative principles have their counterparts in the pure sunna. A large number of legislative traditions present the bases for legislative principles from which many laws can be formulated. Other traditions and Prophetic statements provide us with legislations and rules that govern individual relations, situations and positions while carrying a general sense suitable for application in identical cases.

Here, we shall mention some traditions that take the form of legislative principles:

The Holy Prophet (s.a.w.) says:

"No one shall harm nor be harmed."

"Obligation has been suspended in my ummah in respect to nine cases:Mistake, forgetfulness, what they do under duress, what they do not know, what they cannot do, what they are forced to do by circumstances, envy, evil omen, and thought over a devilish insinuation concerning creation, as long as nothing isgiven as evidence." It has been reported from him (s.a.w.) that:

"A Muslim is a brother to a Muslim, he shall not cheat him nor act treacherously towards him nor backbite him. His blood is prohibited, so is his property except by his permission…"

"In Islam, men are equal…"

"Men from their origin in Adam are alike and equal."

"Men are equal like the teeth of a comb."

"Allah has enjoined on the rich (to spend) what will suffice the poor, so if the poor suffer starvation Allah reserves the right to hold the rich responsible…" "Every loan to which a profit accrues is interest (riba)."

"I was not sent to amass wealth, but to spend it."

"Believers shall conduct their affairs according to their terms."

"Everything is lawful to you until you know that it is unlawful."

"There is no obedience to a creature where disobedience to Allah is involved." "The ruler is a shepherd and he is responsible for his flock." "Religion is nothing but love."

"Desire for your brother what you desire for yourself. Dislike for him what you dislike for yourself."

"Surely, your body has a right over you."

Just as the Qur'an and the Prophet's sayings constitute a source for legislation and regulating social life, his confirmation of actions he regards to be in conformity with Qur'anic legislation and his practical life and behaviour provide a wide horizon for legislative material.

These sources deal with such matters as the fitness of the legal rules, his relationship with the governors, army commanders and the community at large, his legal responsibilities, etc. This field of legislation forms the constitutional subject matter in modern legal jargon.

The narrations reaching us from the Imams of the Prophet's household, like the Qur'an and the Prophet's sayings, present copious materials for legislation. These narrations elucidate and serve as a commentary on the Qur'an and Prophetic tradition, sunna. This source material serves as foundations for legislation, addressing social problems and regulating human life with its various spheres. Islamic jurists rely on these fundamentals to deduce rules for novel conditions.

A careful study of the samples of these verses and traditions that run into hundreds of ideological and legislative texts with a fundamental and general nature, not limited by time or space, will reveal the secret behind the eternal aspect of Islamic legislation, its universality and ability to cover social evolution and development and play a leadership role in overall human existence. The law in its capacity as the source of order in human life contributes immensely in man's progress or backwardness according to the nature of the law and its world view.

Law, Ijtihad and Human Evolution

Among the most widespread terms in human existence is "The Law". All people understand the meaning of law and perceive its impact in daily life as a result of their encounter with the laws governing relationships and functions of human activity. The machinery of government and its various activities, the market, societies, parties, trade unions, courts of law, commerce, banks and financial institutions, companies, land tenure, traffic regulations in the cities, etc.; all of these issues are subject to the law which regulates them.

Thus, the law is defined as: "A set of rules which regulates individual behaviour in the society and the respect of which is guaranteed by the supreme authority even by force where necessary. This is the general meaning of the word law."

According to some scholars, the word Qanun (law) is an arabicized word borrowed from Latin. The use of the word spread in Arabic language and Islamic culture after the period of translation, when many works were translated into Arabic from Latin, Greek, Hindu, and other languages. The word "Qanun" is applied to any rule that orders the relationship between two or more things in a permanent, decisive or general way, whether it pertains to nature, thought or the society. Thus, "Qanun" is used in the fields of medicine, physics, logic and chemistry; in regulating social relationships such as international relations where we have international law, commercial enterprises where it is called commercial law and in family relations, the term law of personal status is used.

While the law guarantees an ordered society in civil matters, it also contributes, in no small measure, to development and the evolution of human life if it is based on scientific foundations, and takes into consideration the reality of human existence. On the other hand, if a law is not built on a scientific basis and disregards the social reality it leads mankind to backwardness and retardation.

The Holy Qur'an has employed the terms `shir'ah', `shar'', `shari'ah', `minhaj' and `hadd'; all of these mean way or path which regulates different social relationships. It states:

"He has made plain to you the religion which He enjoined upon Nouh and which We have revealed to you…" Holy Qur'an (Shura 42: 13)

"…For every one of you We appointed a law and a law…" Holy Qur'an (Ma'da 5: 48)

"Then We made you follow a course in the Affair, so follow it…" Holy Qur'an (Jathiya 45: 18)

"…These are the limits of Allah, so go not near them…" Holy Qur'an (Baqara 2: 188)

"…and whoever goes beyond the limits of Allah, he indeed wrongs his own soul…" Holy Qur'an (Talaq 65: 1)

The investigation of the sources and rules of Islamic legislation and legislative thought reveals a comprehensive programme and an encompassing organization for human life, covering all the incidents and situations, at the time of revelation, the new developments that result from changes and improve-ments in ways of living and the evolution of science and knowledge. The sources of this all-encompassing feature is the Legislator, Himself. The Omniscient, All-Powerful Lord invested Islamic legislation, via its texts and concepts, with a miraculous power of grasping the needs of mankind. The texts and concepts of the Shari`a covers the changes in ways of living through two main principles: The general, `amm' and the absolute, `mutlaq'.

To be able to appreciate the scientific nature, the precision and the ability of Islamic legislation to cover both the fixed and changing aspects of life, we shall introduce two legislative fundamentals:

1- Cases where a rule exists in the Book and the Sunna.

2- Permissibility of exercising independent judgement, `ijtihad', and the method of deducting rules, `istinbat'.

1- Cases where a rule exists in the Book and the Sunna:

By exploring the primary legislative sources, i.e., the Book and the Sunna, we learn that numerous forms of expression are used for the laws in these sources. This calls for a scientific method by which the laws can be comprehended and the ground for istinbat is prepared.

The most prominent forms of expressing the laws are the following:

a- A clear and unambiguous stipulation `nass' which carries no generalization and for which no conflicting counterpart exists. Examples of this rule include the forbidding of wine and the obligation of prayer and fasting.

b- A generalized rule which needs explanation.

c- A rule liable to conflict or contradiction with another, like a situation of permissiveness and the forbidding of a single matter or enjoining a thing and forbidding it. These type of conflicts are, in reality, only outward in nature for contradiction does not exist in Islamic legislation.

For this reason, scholars of Islamic jurisprudence have prepared scientific bases for combining the import of those seemingly contradictory narrations. For instance, they explained that enjoining a thing as well as proscribing it at the same time means disliking it `Karahah', considering the prohibition in such case as disliking not forbidding `Hurma', being that another statement carries permissibility in its import.

d- General and absolute rules that act as general legislative principles applicable to limitless areas coming under their domain.

e- The existence of statements specifying the general rule or limiting the absolute. For example, the permissibility of selling, expressed in the words of Allah, the Glorious: "...and Allah has allowed trading and forbidden usury…"Holy Qur'an (Baqara 2: 275), is limited by a number of conditions among which is the permissibility of items for sale. The general rule forbidding interest is specified by narrations, such as the saying of the noble Prophet (s.a.w.): "There is no (prohibition) of interest between us and those with whom we are at war; we can collect interest from them but we will not give it to them."

f- The justified legislation and a unity of criteria for some rules and enactments making their rules to affect other similar issues in human life, like the prohibition of wine, affects all substances producing the same effect as wine i.e., intoxication.

g- Laws which prohibit things that are less abominable, atrocious or harmful than those things that these laws control, which are more harmful and abominable, for instance, the saying of the Almighty Lord: "Say not `Fie' to them (parents)…"Holy Qur'an (Isra` 17: 23). This prohibition includes that which is worse than saying a word of contempt, as well as, enjoins the practicing of good and kindness to parents.

h- The existence of texts confirming exemption from obligation in cases in which we are in doubt concerning the existence of any obligation. The scholars of principles of jurisprudence term these statements as the principle of innocence (asl-ul-bara'a).

From the foregoing, we have seen all the cases in which the rule exists or probably exists in the Book or Sunna, expressing that it is not possible to apply the Shari`a law except in the first case, but in all the other cases we cannot know the law except by way of ijtihad and exerting scientific efforts.

2. Permissibility of Ijtihad and Istinbat:

We shall start by defining the term `Ijtihad' as a concept and a technical term so that its meaning and value in enriching jurisprudence and Islamic law and treating new issues and problems accompanying the realities of life can be understood.

Definition of Ijtihad:

Literal Meaning: Al-Jawhari states in Qamus al-Sihah that: "Jahd and Juhd mean ability. Aljahd: Difficulty. The verb jahada is used to describe an utmost effort in something. And Ijtihad and Taj?hud means to exert one's efforts and take pains."

And Ragib al-Isfahani said: "Jahd and Juhd mean ability and difficulty. And Ijtihad means: Exerting one's ability and bearing troubles and difficulties…" Technical Meaning: The term Ijtihad is a technical expression common among jurists and scholars of principles of jurisprudence, `usul al-fiqh'. It has a definition, limits of its permissibility, its method and proofs of its legal acceptability. The specialists define Ijtihad as: "The exertion of effort in deriving Shari`a rules. In this sense, to deduce or derive rules from the Shari`a sources is called Ijtihad."

Al-Akhund reported a scientific definition of Ijtihad from other scholars that Ijtihad is: "An aptitude that enables (its possessor) to deduce a secondary legal rule from the source, wether that ability to deduce is actually exerted or a practicable potentiality."

The permissibility of ijtihad and the extent of its legality has been a subject of academic debate for many centuries. The view held by the proponents of ijtihad held sway and the Muslims depend on it in deriving legal rules (Islamic laws) for various cases for which no clear rule occurs in the Shari`a. We can understand from the definition of Ijtihad that it is the ability, occasioned by knowledge, to deduce or derive the law, the derivation of which needs learned effort. It also alludes to the act of actual deduction of a rule from its Shari`a (legal) proofs.

Therefore, Ijtihad is:

1- A scientific practice.

2- Derivation of a rule from the legal sources.

3- The scope of ijtihad is limited to the issues about which no clear and defined rule occurs. As a corollary, it is not permissible to attempt ijtihad in the case of a clear rule `nass'.

In view of this, a principle regulating and controlling the process of ijtihad and delimiting its scope is established by the following stipulation: "There is no ijtihad where there is a stipulation `nass'.

Thus, nass is defined as: "A legal proof whose import is specific to a defined matter and no other import is probable in respect to this proof."

4- From the definition we can realize that the rule issuing from independent judgement is the one susceptible to change. Another ijtihad, based on a different understanding of the same proof or dropping this proof for a more appropriate one, can change the first. The new ijtihad reaches a different conclusion and rule on the same issue.

Ijtihad plays its greatest role in deducing Islamic law with regard to new issues that daily arise in the human society, by deducing new rules from the principles and proofs, which renders the Islamic legislation capable of embracing human evolution in various fields. This capacity to cover new areas is occasioned by the existence of a number of elements constituting the backbone of Islamic legislation. Some of this elements are:

1- The Principle of Innocence `asl-ul-bara'a': The absolution from obligation as long as no categorical proof is established to confirm it.

2- Bestowing on the legal ruler `hakim al-Shar'i the competence to enact laws, in the light of the Book and the Sunna, suitable for existing situations and conditions in areas where no obligatory rules (enjoining or prohibiting) are found.

3- The generality of the text and its embracing of the new occurrences, as the law comprises what governs.

4- The absoluteness of the text and its embracing of the new occurences, which broaden the scope of the absolute aspect of legislation thereby including limitless items.

In this way, the process of ijtihad becomes active, within the boundaries of these wider principles, deducing laws and rules for new situations in the areas of worship, politics, economics, social relations, health, food and drinks, etc. These new issues are thus declared as lawful or forbidden or obligatory, and / or make it valid or invalid, etc., as the case may be.

When a mujtahid encounters a new subject or issue, he starts the process of ijtihad by studying the substance of the individual laws to ascertain whether a clear ruling can be obtained for the matter at hand. Where such a rule is easily obtained, like the prohibition of wine or the obligation of prayers, he confirms the ruling for the new question. But if the rule is not obtained, then he turns to the general and absolute rulings which comprise the limitless matters of the laws, like:

"Anything which its effect is similar to the effect of wine, is unlawful" or "any act without which an obligatory act cannot be fulfilled is, itself, obligatory" or "no one shall harm nor be harmed" or "and never Allah will make for the infidels a way (to triumph) against the believers."Holy Qur'an (Nisa' 4: 141) and "fulful the contracts"Holy Qur'an (Ma'ida 5: 1) and "and those who fulfil their promise when they make a promise" Holy Qur'an (Baqara 2:177) and "everything is (allowed) absolute except where a prohibition is declared" , and "what leads to an unlawful act is itself unlawful", or "every loan that attracts a benefit is usury".

If the question at hand does not come under individual rulings or the general and the absolute, then, the mujtahid resorts to the principle of innocence and deduces that we are free from any obligation. In this way, all the new areas are grasped by the Islamic legislation. It is worthy to mention that the said principle also is confirmed by proofs from the Book and the Prophet's Sunna.

With this explanation, the process of ijtihad and the steps necessary for deducing laws become clear. Islamic scholars have founded the field of principles of jurisprudence and laid down its general laws in a scientific method that caters to the work of deduction `istinbat'. They defined this field as "the study of the common constituents encountered in deducing legal rulings."

Similarly, these scholars developed rules in Islamic jurisprudence `Qawa'id al-Fiqhiyya' such as the rule of obligation `Qa'idatul Ilzam', the rule of "no harm" `Qa'idatu al-Dharar', the rule of actual control over or possession of a thing `Qa'idat al-Yad', the rule of validity of a Muslim's deeds `Qa'idat Sihat Amal al-Muslim', and the rule of liability `Qa'idat al-Dhaman', etc.

The two rules `Qawa'id al-Usuliyya wal Fiqhihiyya' represent the legal principles that prepare the ground for deducing legal rulings. These principles serve the purpose of enriching Islamic legislation in a permanent way by supplying the prerequisites of istinbat.

The aspect of ijtihad, that is relayed to the issue of the fixed and variable among the laws of ijtihad is that of understanding; i.e., to understand the content of the texts, its import and aim. This is true both in the cases of specified individual situations or comprehen-sive general or absolute formulations. It should be noted that the scientific methodology in natural and social sciences is based on two fundamental issues:

1- Identifying the individual happening.

2- Identifying the general law applicable to individual issues, irrespective of time and space.

In fact, a science studying any aspect of human life is nothing other than a set of general principles and laws that are applicable to individual cases sharing similar conditions and situations, although not specified by time or space.

This definition of science is not only applicable to fields like medicine, physics, chemistry, psychology, and sociology, but, also to Islamic jurisprudence and legislation. The fact that some questions in Islamic jurisprudence are not covered by individual proofs and not by proofs of general or absolute meaning, signifies that concerning such questions, Islamic legislation does not prescribe hard and fast obligations and man shall be free to act as he wishes. The ruling will, therefore, be innocence and exemption from any responsibility.

Primarily, innocence `bara'a' is upheld as long as no proof of obligation is established, just as permissibility of all things is held sway until proof of prohibition is confirmed. By considering what Islamic legislation declared lawful through individual and general enactments, what is permissible according to the principle of lawfulness, and that about which man is exempted and his possible slip overlooked through the principle of innocence, we would conclude that large fields of man's existence are left for him to act according to his discretion.

Here, he can specify his course of action whether in collective organization and legislating for the good of the state, or issues affecting individual life. These areas are susceptible to variation and change subject to the bases of the rules and benefits in regard. We shall discuss these bases and acquiring benefits later on in, among other topics, the section on secondary laws.

It is important to note that unlawful matters are a limited few in Islamic legislation, and the purpose of prohibiting them is to protect humanity. They include prohibition of adultery, sodomy, wine, murder, theft, interest, hoarding, injustice, environmental pollution, backbiting, fraud, deceit, carrion, blood, etc. Thus, Allah, the Glorious states:

"Say: (O Our Apsotle Muhammad) Come you! I will recite (unto) you what your Lord has forbidden to you…" Holy Qur'an (An'am 6: 151)