Science of Sources

Lesson 27

Legislative Evidence

The science of sources deals with deducing the legal rulings based on

evidence derived from Shari`ah sources.

First: Evidence

Shari`ah sources are utilized in the following order:

Qur’an, Sunnah,

consensus (Ijma`), and reasoning based on analogy (Qiyas).

Qur’an

The Qur’anic rulings are unquestionable, as each word was revealed by Allah to the Prophet (SAWS), and is preserved from corruption, until the end of time.

The Qur’anic texts concerning meaning are either conclusive or presumptive

(Refer to lesson 21)

Sunnah

Sunnah is defined as all that was said, done, or tacitly approved by the Prophet

(SAWS).

Sunnah:

a) Confirms a ruling in the Qur’an in broad terms,

b) Explains in detailed form all that was mentioned in the Qur’an in broad terms,

c) Restricts what is mentioned in categorical terms,

and d) Specifies what is mentioned generally,

or e) Establishes a ruling that was not outlined in the Qur’an.

Concerning the number of transmitters, the Sunnah is either Mutawatir (well-

known) or Ahad (singular).

(Refer to lesson 22)

The Sunnah which is Mutawatir is a narration from the Prophet (SAWS) that can be traced back to the Prophet

himself without any doubt.

The well-known Sunnah is where the transmission can be traced back to the Prophet with great probability of its

being authentic, along with great conclusiveness of its attribution to the

Companions .

The singular (Ahad) Sunnah is not confirmed in its authenticity .

All the above types should be accepted, either as a certain or predominant

evidence.

The Prophet's (SAWS) personal thoughts, inclinations, personal habits, and the way

in which he dealt with his everyday affairs, are not considered abiding

legislation, unless they contain some element of guidance to be followed.

Consensus

Consensus is the agreement of the majority of Muslim scholars who exercise Ijtihad

(independent reasoning based on religious sources), after the Prophet's death, pertaining

to a legal ruling.

There is some disagreement on the validity of this method of deriving Islamic

rulings.

Analogy

Analogy means to draw a similitude between two similar incidents. One can

be judged directly according to the authentic text while the other can not,

and both have common attributes relevant to the same ruling.

The use of analogy is considered an authentic means of deducing Islamic rulings according to the majority of

scholars.

The pillars on which analogy is built are:

i- the source (on which the analogy is based)

ii- the branch (what is to be equated to the source) ,

iii- the ruling of the source (based on an authentic text),

iv- the “effective case” (an attribute of the source which was the cause of the ruling,

and which is shared by the branch)

The effective case should be a characteristic which is:

a) Obviousb) accurately defined

c) conducive to the wisdom behind the ruling

d) not restricted to the source alone.

The scholars of jurisprudence differ regarding the validity of the following evidence:

* application of discretion

* public interest

* prevalent customs

* presumption of continuity

* the laws of (pre-Islamic) predecessors

* and the particular school of thought of a Companion.

The Application of Discretion

The application of discretion means to prioritize:

- an exceptional ruling over a common one - due to a more substantiated proof,

- a special ruling over a general one,

- or a latent analogy over an evident one.

Public Interests

Public interests are those interests for which no explicit ruling exists

to allow or forbid.

Prevalent Customs

Prevalent customs are practices that are known and followed by people, but which

do not contradict a piece of evidence, do not permit what is prohibited, do not prohibit what is permitted, and do not annul a religious duty.

Presumption of Continuity

Presumption of continuity means to maintain a ruling that was valid

in the past until a real need to change it emerges.

The (sacred) law of (pre-Islamic) predecessors

Is what is proven to be in confirmity with our law.

The School of Thought of a Companion

The school of thought of a Companion is what is pertinent to him

other than his narrations of the Hadith

Proofs from Qur’an and Sunnah

Legislative Evidence

When the Prophet of Allah (SAWS) intended to send Mu`adh Ibn-Jabal to Yemen, he

asked: How will you judge when you are asked to rule on something? He replied: I shall judge in accordance with Allah’s

Book.

He asked: (What will you do) if you do not find any guidance in Allah’s Book?

He replied: (I shall act) in accordance with the Sunnah of the Prophet of Allah

(SAWS).

He asked: (What will you do) if you do not find any guidance in the Sunnah of the Prophet of Allah (SAWS) and in Allah’s Book? He replied: I shall do my best to

reach a ruling and I shall spare no effort.

The Prophet (SAWS) then patted him on the breast and said: Praise be to Allah Who

has helped the messenger of the Messenger of Allah to find something

which pleases the Messenger of Allah.” (Reported by At-Tirmidhi)

The Validity of Sunnah

Allah says:

الله� ﴿ طيع�واأ� ن�وا آم� ال�ذين� ا ي�ه�

� أ ي�انك�م� م ر م�

األ� لي و�أ� و� ول� س� الر� طيع�وا

أ� و� الله إل�ى د�وه� ر� ف� ء% ي� ش� في ع�ت�م� ت�ن�از� إن ف�

ول س� الر�   ﴾و� : [59النساء]

This means: “O you who believe! Obey Allah and obey

the Messenger (Muhammad SAWS), and those of you (Muslims) who are in

authority. (And) if you differ in anything amongst yourselves, refer it to Allah and

His Messenger (SAWS).” (Surah An-Nisa’: 59)

And:

ك0م�وك� ﴿ ي�ح� ت�ى ح� ن�ون� الي�ؤ�م ب0ك5 ر� و� ال� ف�ث�م�  م� ب�ي�ن�ه� ر� ج� ش� يم�ا ف

ا م� م0 جا> ر� ح� م� ه س نف�أ� في د�وا ي�ج ال�

< ا ليم� ت�س� ل0م�وا ي�س� و� ي�ت� : ﴾ق�ض� [65النساء]

This means: “But no, by your Lord, they can have no Faith, until they make you (O Muhammad SAWS) judge in all disputes between them,

and find in themselves no resistance against your decisions, and accept (them)

with full submission.” (Surah An-Nisa’: 65)

Also:

اك�م� ﴿ ن�ه� ا و�م� ذ�وه� خ� ف� ول� س� الر� آت�اك�م� ا و�م�وا انت�ه� ف� : ﴾ع�ن�ه� [7الحشر]

This means:

“And whatsoever the Messenger (Muhammad SAWS) gives you, take it, and

whatsoever he forbids you, abstain (from it).”

(Surah Al-Hashr: 7)

And the verse:

ول� ﴿ س� الر� و� الله� طيع�واأ� ل� ﴾ق�

: عمران] [32آل

This means:

“Say (O Muhammad SAWS): Obey Allah and the Messenger (Muhammad SAWS).”

(Surah Al-`Imran: 32)

Allah says also:

الله� ﴿ ط�اع�أ� د� ق� ف� ول� س� الر� ي�طع ﴾م�ن

: [80النساء]

This means:

“He who obeys the Messenger (Muhammad SAWS), has indeed obeyed

Allah.”

(Surah An-Nisa’: 80)

And says:

ق�ض�ى ﴿ إذ�ا ن�ة% ؤ�م م� و�ال� ؤ�من% لم� ك�ان� ا و�م� < را م�أ� ول�ه� س� و�ر� الله�

م� ره م�أ� من� ة� ي�ر� ال�خ م� ل�ه� ي�ك�ون� ن

﴾أ� : [36األحزاب]

This means:

“It is not for a believer, man or woman, when Allah and His Messenger have

decreed a matter that they should have any option in their decision.”

(Surah Al-Ahzab: 36)

The Validity of Consensus

Allah says:

أ�طيع�وا ﴿ و� الله� طيع�واأ� ن�وا آم� ال�ذين� ا ي�ه�

� أ ي�انك�م� م ر م�

األ� لي و�أ� و� ول� س� ﴾الر�

: [59النساء]

This means:

“O you who believe! Obey Allah and obey the Messenger (Muhammad SAWS), and

those of you (Muslims) who are in authority.”

(Surah An-Nisa’: 59)

And says:

و�لي ﴿أ� ل�ى إ و� ول س� الر� إل�ى د�وه� ر� ل�و� و�

ت�نبط�ون�ه� ي�س� ال�ذين� ه� ل�ع�لم� م� ن�ه� م ر م�األ�

م� ن�ه� ﴾ م : [83النساء]

This means:

“If only they had referred it to the Messenger or to those charged with authority among them, the proper

investigators would have understood it from them (directly).”

(Surah An-Nisa’: 83)

Allah says:

ت�ب�ي�ن� ﴿ ا م� ب�ع�د من� ول� س� الر� اقق ي�ش� و�م�ننين� ؤ�م ال�م� بيل س� غ�ي�ر� ي�ت�بع� و� د�ى ال�ه� ل�ه�اء�ت� و�س� ن�م� ه� ج� له ن�ص� و� ت�و�ل�ى ا م� ل0ه ن�و�

< يرا ﴾م�ص : [115النساء]

This means:

“And whoever contradicts and opposes the Messenger (Muhammad SAWS) after the right path has been shown clearly to him, and follows other than the believers' way.

We shall keep him in the path he has chosen, and burn him in Hell - what an

evil destination.”

(Surah An-Nisa’: 115)

Consensus

The Prophet (SAWS) said:

“And that you could not all agree on an error.”

(Reported by Abu Dawud)