Lesson Two: The Sources of Jurisprudence

In the previous lesson we learned how the study of the principles of jurisprudence teaches us the correct and valid instructions and methods of deducing the laws of the Shari’ah, the divine law of Islam, from the original sources. Now we must learn what those sources are, and how many they are, and whether all the sects and schools of Islam have the same views about each detail of the sources or whether they hold opposing views. If there are differences, what are those differences? First we will discuss the views of the Shi’ite jurisprudents on the sources of jurisprudence and, while explaining each of the various sources, we will also discuss the views of the ‘ulema of the other Islamic sects. In the view of Shi’ites (with the exception of a small group who are called akhbariyin, the views of whom will later be discussed), there are four sources for jurisprudence:

1. The Book of God, the Quran, which will from here on be referred to in the concise term of the jurisprudents as “The Book”.
2. “Sunnah”, meaning the words, actions and silent assertions (taqrir) of the Prophet and the Imams.
3. Consensus or ijma’.
4. Reasoning or ‘aql.

These four sources in the terms of the jurisprudents are called the “four proofs” or the adillat ul-arba’ah. Generally they say that the study of jurisprudence is cen-tered around these four proofs. Now, it is necessary for us to give an explanation of each of these four sources and at the same time explain the views of the other Islamic sects and likewise those of the akhbariyyin. We will begin our discussion with the Quran.

The Quran

There is no doubt that the Holy Quran is the first source for the laws and regulations of Islam. Of course the ayah or verses of the Quran are not limited to laws and regulations. In the Quran, hundreds of different types of issues have been introduced, but a part of the Quran, said to consist of about five hundred ayah, from a total of six thousand, six hundred and sixty, i.e. roughly a thirteenth of the Quran, pertains especially to the laws.

From the early days of Islam, Muslims have always used the Quran as the primal point of reference in order to deduce Islamic laws. However, about the same time as the rule of the Safavid dynasty there appeared in Iran a sect manifesting the view that the right of ordinary people to refer to the Quran is forbidden, and they claimed that only the Prophet and the Imams have this right.

In the same way, this group also considered the refer-ral to consensus and reason as being unpermissable, holding that consensus had been introduced by the Sunnis, and that the use of reason is open to error and thus unreliable. In this way they maintained the Sunnah to be the sole source of reference. It was for this reason that they were called the akhbariyyinakhbar means tradition.

This group, by denying the right of referral to the Quran, consensus and reasoning, were essentially denying ijtihad, for ijtihad, as has been stated, means precise understanding and profound deducing, and it is evident that profound understanding is not possible without making use of reason. This group came to believe that ordinary people, without the medium of a group known as mujtahids, must refer to the traditions for guidance in their daily affairs and actions, just as today they refer to the treatises of the mujtahids.[1]

The appearance of the akhbariyyin and the large numbers that were attracted to them in some cities in the south of Iran and islands of the Gulf and in some of the holy cities of Iraq, was the cause of severe decline. Fortunately, however, with the noteworthy and laudable resistance of the mujtahids of the period, their penetration was firmly checked. Today, apart from a few scattered places, their theories are largely non-existent.

The Sunnah

The Sunnah means the words, actions and assertions of the holy Prophet and the Imams. Clearly it is evident that if by the Holy Prophet a certain law has been verbally explained, or if it is determined how the Prophet performed certain religious obligation, or if it is realised that others used to perform certain religious duties in his presence in a certain way which would earn his blessing and approval, meaning that by his silence he actually gave his endorsement, this is sufficient proof (dalil) for a jurisprudent to consider the action in question to be the actual law of Islam.

About this definition of Sunnah, and it being binding (hujjat) there is no question of argument and no scholar opposes it. The differences that exist on the subject of the Sunnah concern two points. One is the question as to whether only the Sunnah of the Prophet is binding or whether the Sunnah related by the pure Imams is also binding. Our Sunni-Muslim brothers only consider the Sunnah of the Prophet as binding, but the Shi’ites also refer to the words, actions and silent approvals of the holy Imams, in accordance to the traditions of the Prophet which even Sunni Muslims have related and recorded. One of these traditions is this one wherein the Prophet has undoubtedly told us: “I leave behind me two valuable things to which you are to refer, and God forbid that you not refer to them: the Book of God and the people of my House.”

The second point is that the related Sunnah of the Prophet of God and the pure Imams is sometimes clear and multi-related, i.e. there are different chains of narrators of the same Tradition, and sometimes suspicious, or, to coin a phrase, a Single Report (khabar al-wahid).

Here the different views vary to an extent that is an excessive exaggeration. Some, like Abu Hanifa, a jurisprudent of one of the four Sunni schools, paid scant attention to the related Traditions; it seems that from all the thousands of Traditions narrated from the Holy Prophet, he considered only seventeen to be reliable.

Others have found confidence even in “weak”, unreliable Traditions. But the Shi’ite ‘ulema are of the opinion that only reliable traditions are to be given credence. That is, if the people who make up the chain of narrators, called the musnad, are Shi’ite and just, or at least truthful and reliable, then the Tradition itself can be relied upon. So we must know the narrators of the Traditions and must research into their conditions, and, if it becomes determined that all the narrators of a Tradition were truthful and reliable, we rely upon that Tradition.

Many of the ‘ulema of the Sunnis have this same idea, and it is for this reason that the study of the Transmitters exists among them. The akhbari Shi’ites, however, who we have mentioned, considered the division of Traditions into the divisions of valid and weak as being uncalled for, and said that all Traditions are reliable, especially those contained in the reliable books. This extreme [2] view is also held by some of the ‘ulema of our Sunni brothers.

Consensus

Consensus means the unanimous view of the Muslim ‘ulema on a particular issue. In the opinion of the Shi’ite ‘ulema, consensus is binding because if all the Muslims have one view, this is proof that the view has been received from the Holy Prophet.

It is impossible for all Muslims to share the same view on a matter if it came from themselves, and thus their consensus is proof of the origin of that view being the Sunnah of the Prophet or an Imam.

For example, if it is clear that on one subject all the Muslims of the Prophet’s era, with no exceptions, had a certain view and have performed a certain type of action, this is proof that they were taught it by the Holy Prophet. Likewise, if all the companions of one of the pure Imams who took instructions from none but the Imams all had an identical view about something, this is proof that they acquired that view from the schooling of their Imam. Therefore, in the Shi’ite view, consensus goes back to the Sunnah of the Prophet.

From what has been stated we learn two things:

First, in the Shi’ite view, only the consensus of the ‘ulema of the same period as the Prophet or Imams is binding. So, if in these times of ours a consensus occurs about something between all the ‘ulema with no exception, this is in no way binding for subsequent ‘ulema. Second, in the Shi’ite view, consensus is not genuinely binding in its own right, rather it is binding in as much as it is a means of discovering the Sunnah.

In the view of the ‘ulema of our Sunni brothers, however, consensus is a proof in its own right. That is, if the ‘ulema of Islam, in their view the management of Islam, are all in agreement upon a certain point of view about a subject in one period (even this period of ours), their view is definitely correct. They claim that it is possible for some of the nation to err, and some not to, but it is not possible for all of them to be in agreement and err.

In the view of our Sunni brothers, complete agreement of all the Muslims in one period is ruled as divine revelation, and thus all the Muslims, at the moment of consensus, are ruled as Prophets, and that which is revealed to them is the law of God and cannot be wrong. [3]

Reason

The binding testimony of reason in the Shi’ite view means that if in a set of circumstances reason has a clear rule, then that rule, because it is definite and absolute, is binding.

Here the question arises as to whether the laws of the Shari’ah are in the domain of reason or not, and to this question we will give an answer when we discuss the generalities of the Principles.

As for the akhbariyyin, whom we have discussed and whose ideas we have shown, they in no way count reason as binding.

Amongst the ‘ulema of our Sunni brothers, Abu Hanifa considered analogy (qiyas) to be the fourth proof, and thus in the view of the Hanifa sect, the sources of jurisprudence are four: the Book, the Sunnah, consensus and analogy.

The Maliki and Hanbali Sunnis, especially the Hanbalis, pay no heed whatever to analogy. The Shaf’i Muslims, following their leader, Muhammad ibn Idris Shaf’i, pay more attention to Traditions than the Hanafis and also more attention to analogy than the Maliki and Hanbali Muslims.

The view of the Shi’ite ‘ulema, however, is that because analogy is pure conjecture and surmissal, and because the total of what has been received from the Holy Prophet and the Imams is sufficient for our responsibility, the referral to analogy is strictly forbidden.