JUSTLY BALANCED (WASATIYYAH): A CURE FOR LAXITY OR EXTREMISM IN APPRECIATION OF LEGAL RULES IN ISLAM

Transcription

1 JUSTLY BALANCED (WASATIYYAH): A CURE FOR LAXITY OR EXTREMISM IN APPRECIATION OF LEGAL RULES IN ISLAM Nor razinah BINtI Mohd zain Introduction Justly balanced or wasatiyyah is not a new concept in Islam, but already exists alongside Islam itself. this is proven from the jurisprudential aspect of Islamic legal system itself where Islamic jurisprudence or Usul al-fiqh is the backbone. Justly balanced is an important consideration in formulating the legal rules and laws. Such formulation of legal rules and laws can be done through the application of methods as developed under Islamic jurisprudence. In relation to such aspect, the notion of justice should be monitored where without fail; concept of justly balanced has to be present. the presence of co-related concepts of justly balanced and justice are essential in the correct application and appreciation of the legal rules or laws. Simultaneously, without fail, the sanctity of Shariah can be preserved and it is also important as to avoid legal rules or laws from leading towards injustices. Shariah is a divinely revealed legal system from Allah Almighty which comprehensive in its coverage to the spheres of life for Muslims. In order to preserve its divinity, the sanctity of the Shariah is essential to be protected and its application must be essentially secured from laxity or extremism in attitudes or exercises. the existences of laxity or extremism in attitudes or exercises are able to lead to emergences of disturbances to the sacredness of Shariah. And, at the same time, such attitudes will bring the failure of application of justice, especially to fulfil the objectives of the Lawgiver through the application of Shariah. Laxity and extremism in attitudes or exercises are never existed within Shariah. due to such, the existences of laxity or extremism in attitudes should and must be eliminated from practical aspects of Shariah, especially in referring to the formulation of the legal rules or laws. In appreciation of Shariah as a legal system, the subject of Islamic jurisprudence must be closely monitored as this subject is specially dealing with the derivation and formulation of legal rules or laws which is essential in applications to the Muslims daily conducts and life. In order to become the best and balanced community as proclaimed by Allah Almighty himself, 1 it is necessary for Muslims to 1 Qur an (Ali Imran), 3: 110 and (Al-Baqarah), 2:

2 76 Nor razinah BINtI Mohd zain view the concept and the application of justly balanced exercise in developing the legal rules and laws. Not only limited to such position, the close relationship between the concepts of justly balanced and justice must be appreciated in maintaining the sanctity of Shariah. the concept of justly balanced exercise in developing the legal rules or laws is important towards eliminating any laxity or extremism in attitudes or exercises in application of Shariah. Laxity in application of Shariah will make the laws weak. Such laxity in attitude will open the flow gate of new interventions which are never in existence in Shariah and able to lead to existence of innovations within the principles of Shariah. oppositely, the extremism in attitudes or exercises is able to create rigidity in application of the laws or legal rules. Additionally, it is also able to cause hardship, not only for those who are extreme in practices but also for those people who live around them and able to create disharmony in family, society and even country. therefore, the concept of justly balanced is essential to be explored in order to protect and preserve the sanctity of Shariah as to be in line with the objectives of its revelation. Ultimately, a proper appreciation and application of legal rules or laws as according to Shariah can be achieved. By having such points in mind, this discussion tries to view the justly balanced concept in formulation of laws through the study of Islamic jurisprudence. A close relationship between the concepts of justly balanced and justice is to be evaluated in the formulation of the legal rules or laws through the methods as applied and discussed under Islamic jurisprudence. Such evaluation is rendered necessary as to view the application of Shariah as it is in its true form and essences. this article is divided into six (6) parts. the first part is the introductory part of the discussion, which gives a general overview about the discussion. the second part concerns the Islamic Jurisprudence and the brief explanation pertaining to it as a subject under the discussion of Muslim jurists. the third part discusses the concept of justly balanced in relation to its definition and meaning. the fourth part is provided to explore the relationship between concepts of justice and justly balanced in the formulation and application of legal rules or laws through the methods of Islamic Jurisprudence, where references are made to: (i) the primary and secondary sources of Shariah, (ii) the secondary sources of Shariah and (iii) the process of ijtihad. the latest legal issues, which closely relates to Muslim community are also presented throughout the discussion. the fifth part is devoted for proposed solutions in promoting justly balanced as a concept, which needs to be considered in the formulation of the legal rules or laws. the sixth part is left for the conclusion of this discussion.

3 JUSTLY BALANCED (WASAtyyAh) 77 Laxity in attitude exercise Extremism in attitude or exercise Figure 1.0: Laxity and extremism in attitudes or exercises are not within the application of Shariah. Islamic Jurisprudence Generally, Usul al-fiqh is best to be translated in English as the Islamic jurisprudence. 2 It is a specific body of knowledge, which embodies, clarifies and explains the Islamic principles and Islamic jurisprudential methods that are used by the Islamic legal theologians 3 in deriving legal rules from the accepted primary sources of Shariah. the primary sources of Shariah are: (i) the divinely revealed revelation which is known as the holy Qur an and (ii) the collection of divinely inspired conducts, actions and sayings of Prophet Muhammad (bless and peace upon him), which is known as Sunnah. Both of these sources are considered as the primary 4 references in formulation of legal rules or laws of Shariah. Contrary to the western jurisprudence which depends on the philosophical dimension of jurisprudential scholars, the whole foundation of Islamic jurisprudence is built upon divine inspiration through the holy Qur an and the practices of the Sunnah. Not only limited to those primary sources, Islam allows the practice and use of rational intellectual faculty of minds in derivation of the legal rules or laws. however, such exercises must be done in most caution and careful manners and must not be in contrary to the primary sources of Shariah. therefore, under Shariah, the legal rules or laws can be either: (i) revealed through the primary sources; or (ii) derived by the exercise of rational intellectual faculty of minds through the established methods of Islamic jurisprudence. Based on the rank of the sources of Shariah, those derived legal rules or laws by using the intellectual and rational thinking are considered as secondary sources of Shariah. Secondary sources are those sources of law which are not unani- 2 Mohammad hashim Kamali, Shariah Law: An Introduction, (England: oneworld Publications, 2008), p. 2; throughout this discussion onwards Usul Fiqh will be used simultaneous in meaning with Islamic jurisprudence. 3 or Mujtahid, as they are called in Arabic language. 4 Primary sources are those that are unanimously agreed upon by the four Sunni legal schools of thoughts.

4 78 Nor razinah BINtI Mohd zain mously accepted by the four Islamic schools of legal thought, 5 due to the existence of different opinions from those said Islamic legal schools of thoughts. the most frequently used secondary sources of Shariah are (i) Ijma : it is the collective consensus of Mujtahid from the Ummah of Muhammad (bless and peace upon him) after his death, which is done in a specific and determined period on a rule of Shariah. (ii) Qiyas which also known as analogy, (iii) Istihsan which is the juristic preference of legal rules on the basis of stronger principle, and (iv) Istishab or presumption of continuity. the list goes to cover (v) Maslahah Mursalah or extended analogy, (vi) Sad al-dhari ah which is the action of blocking the lawful means to an unlawful end, (vii) Qawl al-sahabi or the companion s opinion, (viii) Shar man Qablana which is the practices of earlier scriptures, and (viiii) Urf or custom, which must not in contrary with primary sources of Shariah. All of the derived legal rules or laws are subjected to superior concept of Maqasid al-shariah (the objectives of the Law giver) and Maslahah (which literally means: seeking of benefit and the repelling of harm). In the application of derived legal rules or laws through the exercise of intellectual and rational thinking of minds, a caution is important here, which is to ensure that the derivation of rules or laws will not deviate or depart from the principles of Shariah as prescribed under the holy Qur an and Sunnah. Such caution or careful manners in deriving the legal rules from the primary sources are essential to be considered; since humans intellects are tended to be influenced by many internal and external factors such as: (i) inner desire, (ii) identity background, (iii) understanding, (iv) culture, (v) custom, (vi) geographical place and (vii) social surroundings. therefore, in exercising the rational intellectual faculty of minds, very careful approaches are developed through the discussions of prominent and established Muslim scholars or jurists pertaining to the Islamic jurisprudential methods which are used to deduce or to derive the legal rules or laws of Shariah. Additionally, the Islamic jurisprudential methods 6 of derivation of legal rules are carefully developed by Muslim jurists and such methods are justified from the basis of the holy Qur an and Sunnah. From Islamic worldview, the derivations of legal rules are important since they are related to the conduct of qualified adults 7 whereby those adults have to comply with the laws of Allah (God) throughout their life. Such derivations of legal rules must be in line and in accordance with the divine sources, which are the Islamic primary sources and not against them. It can be said that as a significant test whether such 5 Maliki, hanafi, Syafi i and hambali. 6 For examples: qiyas, steps in process of ijtihad, and other relevant methods. 7 or known as mukallaf in Arabic language.

5 JUSTLY BALANCED (WASAtyyAh) 79 derived legal rules or laws are valid or not in the eyes of Shariah, they must not be in contrary to the Shariah itself. Justly Balanced (Wasatiyyah) Concept In order to appreciate the concept of justly balanced or wasatiyyah within this discussion, it is proper to understand and appreciate the definition of the said term itself. Such appreciation is deemed important since the said term is originally from Arabic language. Unfortunately, there is no equivalent term in English which precisely able to indicate the meaning of wasatiyyah. Lexically, the term al- wasatiyyah 8 is a verbal noun which derived from an Arabic root word wasat which can be easily understood as middle or balance or moderate. 9 In connection to wasat, awsat (another derived word of wasat ), is used to indicate the mid of everything. According to Imam Ahmed Saad, 10 wasat is a synonym for virtue as the word virtue in Arabic language is also referring to the mid between two bad characters or two bad extremes. 11 It is also can be considered as the best choice between two extremes. 12 the word 8 It is also synonyms in Arabic language with other words of tawassut or I tidal or tawazun or iqtisad. the opposite of wasatiyyah is tatarruf, which denotes (i) inclination toward the peripheries, (ii) extremism, (iii) radicalism and (iv) excess (or excessive emphasize added) as per cited by Mohammad hashim Kamali, the Middle Grounds of Islamic Civilization: the Qurannic Principle of Wasatiyyah, Journal of Civilisational Studies, vol. 1, no.1 (october 2008): other available indications for wasatiyyah are (i) average, (ii) core, (iii) standard, (iv) heart and (v) non-aligned, which considered by Mohammad hashim Kamali to be interchangeably relevant to be used for its meaning; Mazlan Ibrahim and et al, Wasatiyyah discourse according to Muslim Scholars in Malaysia, Advances in Natural and Applied Sciences, vol. 7, no.1 (2013): Al-Wasatiyyah: the Lost Middle Path by Imam Ahmed Saad, Islamic Forum Europe < articleitem&itemid=324> (accessed 10 th october 2013). 11 For explanation, Imam Ahmed Saad gave two examples: (i) attitude of generosity is the middle attitude between niggardliness and extravagance, and (ii) the attitude of bravery is the middle attitude between cowardice and rashness. since, both of the attitudes i.e. bravery and generosity are the middle attitudes, they can also be considered as the middle path between two extremes or bad characters or in arabic language, it is called as at-tariq alwasat. 12 this is acceptable based on the holy Qur an, 68: 28, where the word awsatuhum is used to indicate the best. Based on Pickthall s transliteration, the said verse reads the best among them said: said I not unto you: why glorify ye not (Allah)? as cited in Surah Al-Qalam, Qur an < Qur an.com/68/28> (accessed 10 th october 2013). Additionally, based on a

6 80 Nor razinah BINtI Mohd zain wasat can be referred to (i) fairness, (ii) moderation, (iii) sticking to virtue and (iv) striking balance. therefore, in the plain term of wasatiyyah, its meanings can cover (i) moderation, 13 (ii) justly balanced 14 (iii) justice and (iv) fairness. As for this article, the term justly balanced is used to represent the meaning of wasatiyyah. the concept of justly balanced is very general and comprehensive in its nature. Based on the discussion of Muslim jurists, there is no specific definition for it. 15 Ibnu taymiyyah considers the concept of justly balanced is an important way for believers or Muslims in understanding their religion. Justly balanced is considered as the opener or key to the straight path. 16 Without considering the concept of justly balanced, Muslims will not be able to achieve the exact objectives of the religion and ultimately fail in upholding the principles of Shariah. Muslims are required to do and be balance between their worldly affairs and their affairs of hereafter. Based on this fact, we can appreciate the saying of Allah Almighty when he said: thus We have made of you a community justly balanced that you might be witnesses over the nations and the Messenger a witness over yourselves 17 As such, matters which are considered fall under the scope of justly balanced must not and never transgress the Shariah, as properly prescribed by the holy Qur an; and it must also not violate the Sunnah of Prophet Muhammad (pbuh). And, at the very same moment, those matters which cover under the concept of justly balanced must not be a hadith: the Prophet ( ) was the best of the qurayshite descent kāna rasūl allāhi awsaṭu quraysh nasaban 13 the most popular translation used for wasatiyyah. 14 this is according to intellectual discourse sessions presented by Prof. dr. M. Kamal hassan at International Islamic University Malaysia. By referring to his opinion, the original meaning of wasatiyyah cannot be covered properly by the word moderation. Justly balanced is much proper to be used as it is in accordance to the holy Qur an, 2:143 where the concept of wasatiyyah is divinely rooted from. In connection to building of nation, the said Scholar prefers a nation which is justly balanced nature or possesses justly balanced quality. 15 this leads to on-going intellectual discussions among Muslim scholars, among others: (i) Abdul hayei Abdul Sukor defines it as place that is located in the middle of equal length around it, (ii) zainal Kling defined it as fair, the best, selected (in quality), most refined (as art) and honour. his definition is supported by al-jawhari dan Mustafa, et.al., as cited and referred from Mazlan Ibrahim and et al, Wasatiyyah discourse according to Muslim Scholars in Malaysia, Advances in Natural and Applied Sciences, vol. 7, no.1 (2013): the term straight path is used in the holy Qur an, 1:6. here, the straight path means Islam, as per cited in Abdul Salam Bin Muhammad, Wasatiyyah Lil Imam Ibnu Taymiyyah, (Kaherah: darul Futuh, 1998), Qur an (Al-Baqarah), 2: 143

7 JUSTLY BALANCED (WASAtyyAh) 81 something foolish or silly; and not violating intellectual rational thinking and confirm with Islamic worldview. this is necessary since Shariah, as rightly put in the wise words of Imam Ibn Qayyim al- Jawziyyah (d.748 Ah/1347 CE) as: Shariah is based on wisdom and achieving people s welfare in this life and the afterlife. Shariah is all about justice, mercy, wisdom, and good. thus, any ruling that replaces justice with injustice, mercy with opposite, common good with mischief, or wisdom with nonsense, is a ruling that does not belong to the Shariah, even if it is claimed to be according to some interpretation. 18 Similar to the above position, in the opinion of Muhammad Abd al-latif al-farfur, wasatiyyah is a recommended posture that occurs to the people of sound nature and intellect, distinguished by its aversion to both extremism and manifest neglect. 19 the contemporary Muslim scholars such as Wahbah al-zuhayli connects the concept of wasatiyyah with the modern existing system, where he considers that in the common parlance of the people of our time, wasatiyyah means moderation and balance (i tidal) in belief, morality and character, in the manner of treating others and in the applied systems of socio-political order and governance. 20 Based on the above interpretations and views of Muslim scholars, wasatiyyah is concerned about balancing between two ends or extremes (the middle between laxity and extremism). When comes to the application of legal rules or laws, the concept of wasatiyyah is valued as to exercise the legal rules or laws in a justly balanced manners, which as to apply the laws or legal rules as they are. And, not to depart from the real essence of legal rules or laws and also in similar position, not to overdo the laws or legal rules from what they are legislated. In connection to legal rules or laws, it is considered relevant to interpret wasatiyyah as similar to justly balanced exercise or application. Justly Balanced and Justice in sanctity of Shariah Shariah as divinely revealed and inspired legal system must not be departed from the notion of justice. In its implementation throughout the society, Shariah must be practiced appropriately with consideration 18 Jasser Auda, Maqasid As-Shariah as Philosophy of Islamic Laws: A Systems Approach, (United Kingdom: the International Institute of Islamic thought, 2008), Mohammad hashim Kamali, the Middle Grounds of Islamic Civilization: the Qur ānic Principle of Wasaṭiyyah, Journal of Civilisational Studies, vol. 1, no.1 (october 2008): Ibid.

8 82 Nor razinah BINtI Mohd zain of justice. Such exercise of justice must be done in a justly balanced manner in application. Without a proper appreciation of justice and justly balanced exercise, the flow gate of laxity and extremism will be opened widely and have the abilities to taint the true application and practice of Shariah. As such, it is crucial to preserve the sanctity and sacredness of Shariah as abide with the intention of the Lawgiver, Allah Almighty himself and based on the practices of Prophet Muhammad (bless and peace upon him). As such, through the implementation of Shariah or legal rules or laws, the notion of justice and justly balanced exercise must be operated simultaneously as to arrive to correct legal rules or laws or to attain a proper solution for any legal problem. Justice is desired by every person. If the notion of justice is left to be determined by people through their thinking, justice will be interpreted in many ways. oppositely, in Islam, justice is rooted from religious and divine foundation. 21 Justice is treated as a compulsory trust from Allah Almighty and it is a duty for every Muslim to fulfil this trust with full responsibility. Since, the fulfilment of justice is a duty on Muslims, there should not be any existence of fear or favour in exercising justice. Justice in Islam is not only imposition of moral alone, but also religious 22 and it will be become an essential objective to be achieved when comes to solutions for legal issues. Justice is defined as to place something in its rightful place where it belongs or the placement of the thing in its place. Justice is treated as a supreme virtue and injustice is the worst vices. From Islamic worldview, justice is divinely rooted from the holy Qur an and the Sunnah. Justice is considered as the supreme goal and ultimate objective of Islam. the holy Scriptures and even the messen- 21 this is proven from the holy Qur an, 16:90 which reads Lo! Allah enjoineth justice and kindness, and giving to kinsfolk, and forbiddeth lewdness and abomination and wickedness. he exhorteth you in order that ye may take heed as per cited in Surah Al-Nahl, Qur an < an.com/16/90> (accessed 10 th october 2013); the holy Qur an, 42:15 reads Unto this, then, summon (o Muhammad). And be thou upright as thou art commanded, and follow not their lusts, but say: I believe in whatever scripture Allah hath sent down, and I am commanded to be just among you. Allah is our Lord and your Lord. Unto us our works and unto you your works; no argument between us and you. Allah will bring us together, and unto him is the journeying as per cited in Surah Ash-Shuraa, Qur an < an.com/ 42/15> (accessed 10 th october 2013); and as in the holy Qur an, 5:8 which reads o ye who believe! Be steadfast witnesses for Allah in equity, and let not hatred of any people seduce you that ye deal not justly. deal justly, that is nearer to your duty. observe your duty to Allah. Lo! Allah is Informed of what ye do as per cited in Surah Al-Maidah, Qur an < an.com /5/8> (accessed 10 th october 2013). 22 Abdul haseeb Ansari, Law and Justice: A Comparative Appraisal, Journal of Islamic Law Review, vol. 2, (2006):

9 JUSTLY BALANCED (WASAtyyAh) 83 gers were sent to establish justice among people in accordance with the direction of Allah Almighty as the Lawgiver. Consequently, any path that leads to justice can be considered as an integral part of religion and can never be against it. relatively, justice itself is divinely inspired through Shariah, and in application of justice, a person must not depart from the tenets of Shariah. 23 It is completely astray for a person to claim something is justice but at the same time, the said claim itself is made in contrary to Shariah. By doing so, it is already injustice by its own merit since such person who makes the claim does not place Shariah at its rightful place. In imparting justice, one must follow the tenets of Shariah and in implementation of the legal rules and laws; the person who claims to exercise justice must follow the primary sources as they are. he must try at his utmost best to find the settled law as prescribed by the holy Qur an or based on the established practices of Sunnah. In occasion where such settled laws are absent and the derived legal rules are essential to be found, the process in deriving the law must be left to its experts or Islamic theologians (also known as mujtahid those who exercise ijtihad) 24. It is a matter of justice to left the formulation of the law to its experts. In modern term, it can be considered as justice to leave the legislation of the law to the Parliament. the Islamic theologians or mujtahid are not simply laymen, but they are qualified persons who fulfil the highest requirements in knowledge and Islamic understanding concerning to the texts of the holy Qur an and the Sunnah; and experts in the processes and methodologies in deriving the legal rules. Mujtahid are also those experts in Islamic jurisprudence. therefore, when an unqualified person claims to deduce legal rules from the primary sources of Shariah, such legal rules are not legal rules at all, since the process of deriving the legal rules or laws can be questioned or disputable. When such action is done only to make confusion and astray within society, it can be considered as falsehood, vices and injustice. It cannot be associated with Shariah at all. In connection to concept of justly balanced, justice cannot be delivered without a proper balance in application. Moreover, justice must be practiced with a justly balanced exercise. this is essential in order to put justice in its correct and proper place. Such justly balanced exercise of justice is covered comprehensively under Shariah where it touches every spheres of life. In the formulation of legal rules or laws, laxity or extremism must be eliminated so as to appreciate the Shariah as it is. 23 Majid Khadduri, The Islamic Conception of Justice, (USA: the Johns hopkins University Press, 1984), Literally, Ijtihad is the expanding of maximum effort in the performance of an act. technically, it is the effort which is made by the Mujtahid in seeking knowledge of the rules (ahkam) of the shariah through interpretation.

10 84 Nor razinah BINtI Mohd zain therefore, the knowledge of Islamic jurisprudence is necessary to be appreciated, especially by Muslims themselves. The Primary and Secondary Sources the primary sources of Shariah are the holy Qur an and the Sunnah of Prophet Muhammad (bless and peace upon him) which provides the settled laws or legal rules of Shariah. the holy Qur an gives the general laws through its approximately 500 verses pertaining to legal rules or law and the Sunnah gives details and specifications in a variety of legal issues or problems which occurred during the lifetime of Prophet Muhammad (bless and peace upon him). Any legal rules or laws, which are taken directly from these sources are considered as revealed laws. At the early stage of Muslims society, there was no serious legal problem in the application and appreciation of the Shariah as prescribed by the holy Qur an and the Sunnah, since the society was small in number and there were not many legal issues or problems that need to be settled. Moreover, in the occurrence of new legal issues or problems, such problems will be referred directly to Prophet Muhammad (pbuh). After the demise of Prophet Muhammad (pbuh), Muslims at that time were secured with the present of the companions of Prophet Muhammad (pbuh) who are well versed with the holy Qur an and Sunnah. Moreover, they themselves are qualified Islamic theologians and they have high skills and knowledge in the formulation of the legal rules or laws. the emergence of new legal problems or issues started to crop, especially when the expansion of the Islamic empire and civilization began as early as the 7 th century when Islam starts to be accepted by other than native Arabs, and Muslims society is growing in number. 25 during this era, the Islamic jurisprudence began to flourish rapidly through the discussions of Muslim jurists until it received a systematic touch by Imam As-Syafi i through his famous book titled Al-Risalah. 26 In the formulation of legal rules or laws, reference firstly must be made to the primary sources of Shariah (the holy Qur an and the Sunnah). In the absence of clear legal rules or laws as to the legal problems or issues at hand, then secondary sources of Shariah can be used where the methodological steps of deduction of the legal rules must be followed strictly. As the primary sources of Shariah come from Allah (the holy Qur an) and the Sunnah (divinely inspired by Allah to Prophet Muhammad (bless and peace upon him)), it is a matter of jus- 25 Shahid M. Shahidullah, Comparative Criminal Justice Systems: Global and Local Perspective, (USA: Jones & Bartlett Learning, 2012), Majid Khadduri, al-shafi i s Risala Treatise on the Foundations of Islamic Jurisprudence, (Islamic texts Society, 1987),

11 JUSTLY BALANCED (WASAtyyAh) 85 tice to uphold them higher in the ranking of the sources of the Shariah. As for the secondary sources, they should be used as secondary basis in deriving the legal rules or laws. these positions are not invented by Muslim jurists, but they are as followed by the saying 27 of Allah Almighty in the holy Qur an and the saying 28 of Prophet Muhammad (bless and peace upon him) himself. the emergence of new legal problems or issues due to the changing in the society, based on time and place are admittedly cannot be avoided, where such similar situation already occurred throughout the Islamic history. Based on such realization, in the absent of the settled laws of the holy Qur an and the Sunnah, the secondary sources can be used as matters of references. however, such references can only be carried out after the holy Qur an and the Sunnah are ultimately explored for solutions. By using the secondary sources of Shariah, Muslim jurists are able to identify the correct legal rules or laws, which based on the derivation from the primary sources of Shariah. In doing so, not only the new legal problems or issues can be settled, furthermore the legal rules or laws, which are divinely revealed can be extended to new legal problems or issues through the methodological steps of Islamic jurisprudence. these processes of derivations of legal rules or laws through the Islamic jurisprudence s methodological steps contribute to make Shariah as a living legal system, which can be existed throughout the time and space. As such, even across any countries in this world where the Islamic law is implemented, the general rules or laws are maintained as the same due to the references are made to the same primary sources of Shariah. 27 Based on the holy Qur an, 4:59 which reads o ye who believe! obey Allah, and obey the messenger and those of you who are in authority; and if ye have a dispute concerning any matter, refer it to Allah and the messenger if ye are (in truth) believers in Allah and the Last day. that is better and more seemly in the end, as per cited in Surah Al-Nisa, Qur an < Qur an.com/4/59> (accessed 10 th october 2013). 28 Based on hadith No.3585, Sunan Abu daud: It is narrated concerning to Mu adh Ibn Jabal: some companions of Mu adh Ibn Jabal said: when the (ﷺ) intended to send Mu adh Ibn Jabal to yemen, he (ﷺ) Apostle of Allah asked: how will you judge when the occasion of deciding a case arises? he (Mu adh Ibn Jabal) replied: I shall judge in accordance with Allah s book. he (ﷺ) asked: (what will you do) if you do not find any guidance in Allah s book? he (Mu adh Ibn Jabal) replied: (I shall act) in accordance with the Sunnah of the Apostle of Allah ( ).he ( ) asked: (what will you do) if you do not find any guidance in the Sunnah of the Apostle of Allah ( ) and in Allah s book? he (Mu adh Ibn Jabal) replied: I shall do my best to form an opinion and I shall spare no effort. the Apostle of Allah ( ) then patted him on the breast and said: Praise be to Allah who has helped the messenger of the Apostle of Allah to find something which pleases the Apostle of Allah..

12 86 Nor razinah BINtI Mohd zain In referring to the sources of Shariah, extremism or fanaticism must be avoided. At the same time, laxity or looseness must also be avoided. By doing so, justice can be achieved and at the same time, it will be justly balanced in application. For an example, there is no specific value of Mahr (bridal gift) for the bride in Islam. In majority Muslim countries, the bridal gift is determined by looking into the practice of custom of the society. Custom is one of the accepted secondary sources of Shariah. Such practice of custom is accepted as long as it is not contrary to the injunctions of the primary sources of Shariah. Unfortunately, the bridal gifts for the brides are taken too excessive by the families of the brides; in some extend, it is also based on the clans from where the brides belonged to. the bridal gift becomes so high in value, which leads to situation where marriages become difficult to be solemnized in the society. the adherence to such practice of custom blindly and extremely, leads to difficulty in solemnization of marriage and devalue it, opposite to the recommendation of Shariah which encourages it. In worst situation, such excessive practices of custom are tried to be justified by false allegations where such practices are backed up by the Shariah, which unfortunately contrary to the truth. Even though the holy Qur an is silent as to the value, based on the reported Hadith, 29 the usual value of bridal gift as practiced by the Prophet (pbuh) is only about 400 dirhams, which again, unfortunately, it is not majorly practiced by Muslims nowadays. As such, in upholding justice in the application of legal rules, justly balanced exercise should be constantly remembered in mind. By holding a secondary source superior to the primary sources, it is able to cause deviation and injustice. therefore, a justly balanced consideration should be carried out here, where the primary sources must be referred first and then in existence of absent of legal rules or laws, the referral to secondary sources can be taken placed. this is important as to assure that the legal rules or laws which are applied to Muslims are in accordance to Shariah and not contrary to it. As for the bridal gift, it is suggested here that a justly balanced exercise of consideration should be given here, where the bridal gift must be within the capacity of the bride s future husband and at the same time, must not be too low as to jeopardize her status in society. however, applying and following the Sunnah of the Prophet (pbuh) is always a good example. 29 Such as reported in hadith no.2107 of Sunan Abu daud, as narrated by Umm habibah: Urwah reported on the authority of Umm habibah that she was married to Abdullah ibn Jahsh who died in Abyssinia, so the Negus married her to the Prophet ( ) giving her on his behalf a dower of four thousand (dirhams). he sent her to the Apostle of Allah ( ) with Shurah bil Ibn hasanah. Abu dawud said: hasanah is his mother, as per cited in Marriage (Kitab Al-Nikah), Sunan Abu daud <

13 JUSTLY BALANCED (WASAtyyAh) 87 The Secondary Sources of Shariah In applying justice, it must be done without fear or favour. It must be carried out for sake of Allah Almighty and not for personal interest. Similar position is upheld in derivation of legal rules or laws of Shariah. Islam allows the application of rational intellectual thinking of human s mind to be used in the interpretation and derivation of the legal rules or laws from the primary sources of Shariah. however, such exercise of rational intellectual thinking must be applied with utmost care as not to depart from the injunctions of the primary sources of Shariah. By doing so, not only the notion of justice in deriving legal rules or laws is upheld, furthermore, justly balanced exercises can be maintained. Ultimately, the sanctity of Shariah can be preserved. Beside the primary sources of Shariah, there are several secondary sources for legal rules or laws. they are regarded as secondary sources of Shariah because: (i) there is existence of different views among the Muslim jurists concerning to their position as the secondary sources of Shariah in deriving the legal rules. Among those secondary sources, only qiyas (analogy) and ijma (consensus) are unanimously accepted by the four Islamic legal schools of thought. (ii) Secondary sources of Shariah can be considered as rational sources, whereas the primary sources of Shariah are transmitted and revealed either through divinely revelation or divinely inspired. (iii) Secondary sources are probable in nature as they come from the exercise of rational thinking, oppositely to the primary sources which are considered as definitive sources as they come from Almighty Allah and his last messenger (bless and peace upon him). (iv) Secondary sources can be used to solve legal problems or issues at hand and such legal rules or laws cannot be extended further to other legal problems or issues. According to Nyazee, Laws discovered through the primary sources may be extended through the rational sources or the secondary sources, while laws discovered through secondary sources cannot be further extended. this, perhaps, is the most important distinction between the primary and secondary sources. 30 In referring to the secondary sources of Shariah, again here, extremism or fanaticism must be avoided and similar attitude should be maintained towards laxity or looseness. this is important as to ensure such legal rules or laws, which are derived through secondary sources are in line with the Shariah and not move oppositely. the extremism or fanaticism in deriving the legal rules or laws will only resulted to the existence of rigidity of laws which only lead to cause hardship or difficulty in applying the laws. the laxity or looseness in deriving legal 30 Imran Ahsan Khan Nyazee, Islamic Jurisprudence: Usul al-fiqh, (International Institute of Islamic thought, 2000), 150.

14 88 Nor razinah BINtI Mohd zain rules or laws through the secondary sources will only lead to devaluation of the legal rules or laws which at the end, it will only cause lack of appreciation of Shariah. For example, recently, there are movements made by some groups of Muslims who believe that Shariah is traditional and conservative. In their opinions, Shariah should be liberated or Shariah needs to be loose a bit to suit with their modern life style. Such opinions are made based on their free rational thinking without any basis on religiosity. If such opinions are to be followed, it will not only destroy the divine aspects of Shariah as a living legal system, as this divine legal system is not man-made, instead it is made by Allah Almighty himself. Even by referring to the secondary sources of Shariah, they are used to extend the legal rules or laws from the primary sources and not to create different laws. If Shariah is liberated as based on those laxity opinions, Shariah will not be placed at its right place. the legal rules or laws themselves will be misplaced and contrary to the intention of Lawgiver, which is Allah Almighty himself. Such position is a grave injustice and vices by itself. how a person could claims to be devoted believer of Allah Almighty but refuses to satisfy with the laws that he himself ordained? Moreover, could we consider injustices as justices? of course, the answer will be in negative. Injustices cannot be considered as justices; furthermore, it is far from appreciating the value of justly balanced exercises in formulation of legal rules or laws. the secondary sources of Shariah are developed through long and lengthy Islamic discourses and discussions of Muslim jurists from the main Islamic legal schools of thought or mazhab, which are famously named based on their founders which are Maliki, hanafi, Syafie and hambali. In referring to the secondary sources and in order to reach the appropriate legal rules or laws, fanaticism or obsession towards one Islamic legal school of thought must be avoided, as the secondary sources of Shariah are developed by those different Islamic legal schools of thought. the differences of the legal opinions between the Muslim jurists must be taken in a matter of neutral position by their followers. their legal opinions can be different from one another due to the methodological steps of Islamic jurisprudence that they used in deriving the legal rules or laws. their differences in legal opinions should be accepted with respect as they are highly qualified jurists in deriving the legal rules or laws. 31 By having such different legal opinions, Muslims are blessed with diversity of legal opinions pertaining to legal problems or issues. An observation made by doi should be appreciated here: 31 A. Qodri Azizy, Juristic differences (Ikhtilaf) in Islamic Law: Its meaning, early discussions, and reasons (A Lesson for Contemporary Characteristics), Jurnal Al-Jamiah, vol.39, no.2 (2008),

15 JUSTLY BALANCED (WASAtyyAh) 89 Imams, Abu hanifah, Malik, Shafi i and Ahmad bin hanbal, the leaders of four Sunni schools of law, have rendered a great service to the cause of Islamic jurisprudence. Neither did they want to alter the spirit of Qur an, nor the Sunnah of the Prophet If one closely examines the fiqh of the four schools, one will never come across any difference of opinions as far as the principles of Islam are concerned. the differences mainly centre around the furuat (tiny branches) of theology rather than the Usul (the fundamental principles) of belief. It is about such differences that the Messenger of Allah has said: difference of opinion (Ikhtilaf) in my Ummah is (a form of) blessing. It is through this blessing, that Muslims of today have inherited such comprehensive corpus juris which provides guidance in every walk of life. 32 In the usual practice, the followers of the Islamic legal schools of thought will follow the legal practices of their Islamic legal schools of thought, however, in situation where the opinion of other Islamic legal schools of thought is much closer to appreciation of justice to the legal problems at hand, then departure from their own Islamic legal school of thought can be rendered as possible. As for the followers, they must not blindly follow the opinions of their favourite Muslim jurists, at least they should know as to why such opinions are derived. By rendering to the wisdom behind the difference of legal opinions as made by the qualified Muslim jurists, Muslims will be devoid from attitude of extremism or laxity in application of the legal rules. For example, according to the legal opinion of Muslim jurists from Shafi i and Maliki schools, the approval of guardian (wali) of the bride is essential requirement for validity of a marriage. oppositely, Muslim jurists from hanafi and hanbali schools regard the approval of the guardian as a mere condition. 33 the latter schools give more emphasize on the validity of offer and acceptance between the bride and her future husband as marriage is considered as a sacred covenant in Islam. As such, to have such validity of offer and acceptance of marriage, the consents of both parties are essential. From these two views, wisdom can be traced. Both of the legal opinions are concerned with the protection of women and their well-beings. By referring to the legal opinions of Shafi i and Maliki schools, as the guardian of the bride, the guardian (such as the father of the bride) has the responsibility over the bride to protect her and to ensure that the man that she will be married to is a good person in character who is able to support her, instead of causing hardship on her in the future. therefore, rationally, his approval is deemed essential. It is prohibited on the guardian to marry the bride with someone who is less in character or has the possibility to harm her. Based on the legal opinions of hanafi and hanbali schools, 32 Abdul rahman I. doi, Shariah: The Islamic Law, (A.S.Nordeen, 2007), Abdul rahman I. doi, Shariah: The Islamic Law, (A.S.Nordeen, 2007), 140.

16 90 Nor razinah BINtI Mohd zain the priority consideration should be given to the validity of offer and acceptance between the parties of marriage. therefore, the consent of the bride is essential to be determined, whereas the guardian s approval is treated as a condition to a valid marriage. As such, the bride must not be forced to marry someone who she does not prefer to be with. From this example, it can be seen that those legal opinions are different due to the different perspectives, which are taken to be considered by the Muslim jurists. As an observation, hanafi and hanbali schools never neglect the status of approval of guardian for the marriage of a bride, and at the same juncture, Shafi i and Maliki schools never underestimate the consent of the bride to her own marriage. A justly balanced exercise should be given a consideration here in applying both of the legal opinions by the respected Islamic legal schools of thought, whereby, the guardians must fulfil their responsibilities towards the brides especially to protect their well-beings and at the same time, the consents of the brides must be taken seriously. Without justly balanced exercised of the legal opinions of Muslim jurists, extreme situation will happen in society such as invalid practices of forced marriages of the brides by their guardians due to failure in understanding the wisdom behind the legal opinions. or, a laxity situation can happen in the society, where the brides can marry themselves off through a simple offer and acceptance without proper protection from their guardians for their best interests. The Process of Ijtihad Process of ijtihad is an effort or an exercise to arrive at one s own judgement. 34 In relation to Islamic jurisprudence, ijtihad refers to the efforts made by the Islamic legal theologian (Mujtahid) in seeking knowledge of rules (ahkam) of the Shariah through interpretation. 35 According to hallaq, ijtihad is the exertion of mental energy in the search for a legal opinion to the extent that the faculties of the jurist become incapable of further effort. In other words, ijtihad is the maximum effort expended by the jurist to master and apply the principles and rules of usul al-fiqh (legal theory) for the purpose of discovering God s law. 36 the process of ijtihad is essential to derive or to extend 34 Abdul rahman I. doi, Shariah: The Islamic Law, (A.S.Nordeen, 2007), Imran Ahsan Khan Nyazee, Islamic Jurisprudence: Usul al-fiqh, (International Institute of Islamic thought, 2000), Wael B. hallaq, Was the Gate of Ijtihad closed? International Journal of Middle East Studies, vol. 16, no. 1 (March, 1984), Further discussions can be found in Aznan hassan, An Introduction to Collective Ijtihad (Ijtihad Jama i): Concept and Applications? The American Journal of Islamic Social Sciences, vol. 20, no. 2 (March, 1984),

17 JUSTLY BALANCED (WASAtyyAh) 91 the legal rules from the holy Qur an and the Sunnah to new problems or issues. With such process of ijtihad, the legal rules are able to be reached and able to be applied to any current legal problems or issues, which rise in the community and society. this contributes to the expansion of Shariah into our modern way of life and maintains the Shariah as a living legal system which suit to be applied against time and space. the process of ijtihad must be done by qualified persons 37 who are equipped with Shariah knowledge and not other than them. this is to ensure that the findings of the ijtihad will not deviate from the real tenets of Shariah as codified under the holy Qur an and Sunnah. Such efforts in seeking knowledge of rules through the process of ijtihad must be done by the qualified Islamic legal theologian or Mujtahid in the maximum expenditure of his ability, up and until he realizes his inability to go further beyond such maximum efforts. those maximum efforts must be directed towards the discovery of the rules of Shariah in relation to conduct. According to Nyazee, he observes that: the task of the jurist (mujtahid), after a study of the primary sources is to: (i) discover the law that is either stated explicitly in the primary 37 Qualified person here means Mujtahid (the Islamic legal theologian). the qualifications of Mujtahid are: (i) must possesses the knowledge of Arabic language, (ii) must be very well versed in the study of the holy Qur an; (iii) must be very well versed in the study of Sunnah; (iv) must be well versed in the principles of Ijma,(v) must possesses the knowledge of Maqasid al- Shariah. the Mujtahid must also a practicing muslim who has good character. According to Wael hallaq, al-ghazali maintained that in order to become a Mujtahid, a person must: 1. know the 500 verses needed in law; committing them to memory is not a prerequisite. 2. know the way to relevant hadith literature; he needs only to maintain a reliable copy of Abu dawud s or Bayhaqi s collections rather than memorize their contents. 3. know the substance of furu works and the points subject to Ijma, so that he does not deviate from the established laws. If he cannot meet this requirement he must ensure that the legal opinion he has arrived at does not contradict any opinion of a renowned jurist. 4. he must know the methods by which legal evidence is derived from the texts. 5. he must know the Arabic language; however, complete mastery of its principles is not a prerequisite. 6. he must know the rules governing the doctrine of abrogation. however, the jurist need not be thoroughly familiar with the details of this doctrine; it suffices to show that the verse or the hadith in question had not been repealed. 7. he must investigate the authenticity of hadith. If the hadith has been accepted by Muslims as reliable, it may not be questioned. If a transmitter was known for probity, all hadiths related through him are to be accepted. Full knowledge of the science of al-ta dil wal- tarjih (hadith criticism) is not required, as per cited in Wael B. hallaq, Was the Gate of Ijtihad closed? International Journal of Middle East Studies, vol. 16, no. 1 (March, 1984), 3-41.

18 92 Nor razinah BINtI Mohd zain sources or is implied by the texts, that is, discover it through literal interpretation; (ii) extend the law to new cases that may be similar to cases mentioned in the textual sources, but cannot be covered through literal methods; and (iii) extend the law to new cases that are not covered by the previous two methods, that is, they neither found explicitly or impliedly in the texts nor are they exactly similar to cases found in the texts. 38 In applying the ijtihad, the mujtahid must not start his effort in finding the legal rules by referring to the secondary sources first, in fact as a matter of justice; the mujtahid must begin his ijtihad through the primary sources of Shariah and if there is absence of legal rules relating to the issue or legal issue at hand, he can invoke to seek such legal rules from secondary sources of Shariah. the main focus of the ijtihad process is to discover the legal rules (ahkam) from the primary sources and extend such legal rules to the legal problems or issues at hand. In doing the process of ijtihad, the qualified Islamic legal theologian or Mujtahid must avoid himself from any laxity and extremism attitude, where his efforts in finding the legal rules or laws supposed to be motivated on God-consciousness (taqwa) and piety. As such, the qualified Islamic legal theologian or Mujtahid must exercise the process of ijtihad in deriving the legal rules in a justly balanced manner and at the same time, the Mujtahid must value the intention of the Lawgiver, which is better and in accordance to justice. this is important to devoid the process of ijtihad from being misused for any social, political or personal gains which can be generated and initiated by the qualified Islamic legal theologian or Mujtahid himself or any institution that he belongs to or from any external influences which not related in whatsoever manner towards the legal problem which requires the legal rule or law. In formulation of legal rules through ijtihad process, the qualified Islamic legal theologian or Mujtahid must put aside all other beneficial interests, which he might gain by performing such ijtihad process. the qualified Islamic legal theologian or Mujtahid must focus on finding the legal rules or laws for the legal issues or problems at hand. there is also a situation where legal rules or legal opinions are formulated far away from referring to the primary sources of Islam and not even evaluated based on secondary sources of Islam. Moreover, the justification, which is given by those Islamic legal theologians is far from rational intellectual evaluation and wisdom. 39 the increasing of 38 Imran Ahsan Khan Nyazee, Islamic Jurisprudence: Usul al-fiqh, (International Institute of Islamic thought, 2000), this can be seen from the latest legal opinion made on the prohibition for women to drive. one of the reason given for such prohibition is driving would affect their (women) ovaries and bring clinical disorders upon their