By: Sonny Zulhuda
CONTENT:
4. CONCLUSION
5. ENDNOTES
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Khilafah al-'Alam al-Islami |
"CONSTITUTIONAL READING OF THE QUR’AN"
By: Sonny Zulhuda
CONTENT:
5. ENDNOTES
In Islamic legal system where hierarchy and order of priority of sources are carefully maintained, Qur’an has enjoyed, and remains to enjoy the highest position from which the laws of shari’ah are extracted, and construed in the light of the purposes of the shari’ah itself. Being the words of God, Qur’an is assigned with divine functions as to serve as a God-imparted knowledge(1) and fundamental guidance for men who are righteous for all time to come.(2)
Following consequence of this special and sacred position with which Qur’an is entitled, it has long been the focal point of debates and contention between two extreme ignorant viewpoints. One is propounding that Qur’an is a complete book that covers everything so as to become the comprehensive guidance for Muslims. The other is, on the other hand, undermining Qur’an, contending that it is just a book on religious concerns, does not really provide matters of comprehensive life. While the first ignorance has led to, among other things, the emergence of an Anti-Hadith movement within Muslim society itself,(3) the other ignorance has motivated the Western orientalists to criticize Qur’an so as to undermine Islam as their utmost aim.(4)
It is of religious duty for Muslims with knowledge in this area, to respond to these attacks without being overwhelmed by emotional hatred so as to neglect a rational and academic encounter. By first placing the Qur’an proportionally in the realm of Islamic Shari’ah, discussions will have to proceed to describe and show how Qur’an has served as the guidance of Muslim’s life, and as the source of law for Muslim’s acts.
This background makes the present paper important for again reviewing the nature and position of Qur’an in Islamic Shari’ah, with its specific objective is to analyze the constitutional aspect of the Qur’an. By this it is pre-submitted that the Qur’an, viewed as the utmost source of guidance, provides a constitution in its wide scope(5) for Muslim’s life. Hence, there are certain constitutional principles to keep in mind when we are to employ Qur’an as our source of life, and eventually these principles are the gist of this paper before hand.
Some aspects of concerns will be given here for the sake of concentration, while some other related and important issues might have to be omitted and be discussed somewhere else in some other time. Among the aspects of concerns in this paper is that of legislative and constitutional nature of Qur’an. For these are focal issues surrounding the discourse on the position of Qur’an as the source of Islamic law. The discussion on the view that Qur’an is a complete book and its consequence such as the emergence of Anti-Hadith movement are not covered by this paper. That is because this issue involves a wide scope and thus requires other deep research. After all, we are so much grateful that many Muslim scholars(6) has addressed this latter issue and rebutted the contentions, for which we are not dealing with it.
The constitutional perspective, it is presupposed, when used to understand the constitutional notion of Qur’an, will necessarily lead us to a better and clearer understanding. The Qur’an as the most primary source in Islam may remain the same, but the correct perspective in understanding it will make difference as to give effect to its meaning, in accordance with the purpose of shari’ah. With these discussions going on and on, it is submitted, one would be more enlightened that the Qur’an stands firmly as the comprehensive source of Shari’ah so as to guarantee the worthy life for Muslims in this world and hereafter.(7)
THE POSITION OF QUR’AN IN THE SHARI’AH
Shari’ah is an Arabic word meaning the Path to be followed. Literally it means the way to a watering place. It is the path not only leading to Allah, but also the path believed by all Muslims to be the path shown by Allah, the Creator Himself through His Messenger, Prophet Muhammad (P.B.U.H.).(8) A prominent Muslim scholar, Dr. Abdul Karim Zaidan defined shari’ah as the path of religion and the various aspects of laws (al-ahkam) which Allah provides for His servants, i.e. human.(9)
From the above definitions, it is clear that the word shari’ah has very wide meaning. In fact, it includes all aspects of human life in this world, for it is the happy life in this world that this shari’ah is aiming at. And, furthermore, it also has the post-life orientation, i.e. the happiness of life in hereafter. The shari’ah at once meant for these two different worlds. And along its corridor, Muslims are shown –and hence are to adopt- the path of Allah through the introduction and imposition of divine values.
In the light of this, a clear difference invites attention as between the meaning of Shari’ah and Fiqh in Islamic jurisprudence. While many people think they are similar and exchangeable, the demarcation line is clear. Shari’ah is the whole divine law and values as given by Allah, and fiqh is the laws, or rather opinion on laws, extracted by Muslim jurists from the sources of Islamic law. Thus fiqh contains human involvement which is required as juristic interpretation comes in. The term “Islamic law” as used by many scholars often refers to this meaning of fiqh.
Esposito highlighted that because of failure to appreciate this important distinction between shari’ah and fiqh, the modern Muslim legislators during the first half of this century had been led to depend upon taqlid. He thus proceeded to distinguish that “Shari’ah is the Divine Law while Fiqh is the product of human understanding that has sought to interpret and apply the Divine Law in space time”.(10)
The shari’ah is mainly there to enable human to live happy life on the path of Allah both in this world an hereafter. But more elaborately, shari’ah has more comprehensive meaning of such happiness and success. These purposes are achieved through the values, norms, and laws to be adopted by Muslims.
According to Sheikh Muhammad Tahir bin ‘Ashur, the general and main purpose of shari’ah is protect and maintain good all aspects of the ummah (communal) life. That is by the ensuring the individuals’ life themselves continuing, happy and undisturbed. To achieve this, the shari’ah in turn also aims to protect the life and well-being of human, including his intellect, his deeds, his earnings and his properties as well.(11)
These aims as noted above are best summarized in the celebrated notion of “five necessities” (Al-Darurat al-Khamsu) as propounded by many Muslim jurists, and was started by Al-Shatibi in his Muwafaqat. These five necessities that are highly protected in Islam are in sequence of priority; the religion (al-din), the human life (al-nafs), human intellect (al-‘aql), human kinship/ancestry (al-nasl), and human property (al-mal).
All norms and laws in Islam can be traced to be aiming at protecting those five things. The imposition of jihad (holy war) and the punishment for apostasy are both reflecting the notion of religion protection in Islam. The Qisas for murderer is protecting human’s life. Further, for example, the prohibition of liquor drinking (tahrim al-khamr) and the amputation of thief’s arm protect human intellect and property respectively. And the human’s kinship is best governed by the institution of marriage and the prohibition of adultery.
3. Qur’an as the Source of Islamic Law
Islamic laws as we have now are actually the result (thamara) of the jurists’ interpretation from the source of law (Asl). This is where the distinctive fiqh is taking place. As Bernard Weiss puts it, the Holy Law is not given to man ready-made, to be passively received and applied; rather, it is to be actively constructed on the basis of the sacred texts, which are its acknowledged sources.(12) These texts are Qur’an and Sunnah (Prophetic tradition), with the Qur’an as the first and most primary source in Islam.
As the final divine revelation from Allah, Qur’an is the embodiment of the fairest statements and Divine words of wisdom. It provides a code of conduct for every believer and is the commandment and warrant for him.(13) With all the uniqueness and comprehensiveness contained, Qur’an is revealed as the guide for the Muslims. In Chapter Al-Baqarah (II): 2, Allah says: “This is the Book (Qur’an), in it is guidance sure, without doubt, to those who fear Allah”.(14)
The word “guidance” denotes that Qur’an is revealed with comprehensive contents as to enable Muslim to achieve the ideal life in this world and hereafter. Thus, Qur’an does also serve as the code of conduct in all aspects of human life, be it spiritual, social, political, economic and beyond. By this virtue, legal aspects of Muslim’s life are not an exception. In fact, these Qur’anic legal injunctions are of primary importance as they form the sources of shari’ah.
As Doi mentioned(15), those legal injunctions (ayat al-ahkam) form the conduct for every Muslim from birth to death. They provide touchstone to distinguish true from false, good from bad, and halal (lawful) and haram (unlawful) in every sphere of life. This is why Qur’an is also called al-Furqan.
4. The Characteristics of Qur’anic Legislation
Qur’anic legal injunctions, i.e. those verses which deal with the legal matters are not many. Imam Al-Suyuti in his famous book on sciences of Qur’an writes there are only five hundred verses of the Qur’an which have legal connotation.(16) This is less than ten percents of the whole number of Qur’anic verses.(17) Dr. Mutawalli mentioned a lesser number of two hundred verses.(18) Regardless this minor content, legal matter neither becomes alien nor minor issue in the Qur’an. However, this fact of small content of legal matter had invited criticism from non-Muslim orientalists to undermine legal and legislative nature of the Qur’an.
At this stage it would seem pertinent to pose the question which has frequently come under discussion among scholars during the last few decades: Is the Qur’an genuinely concerned with law, or are its concerns merely religious and moral?(19)
The main dispute seems to center around the question whether the Qur’anic legislation is primarily of an ad hoc nature, a legislation that was occasioned merely by specific incidents during the life of the Prophet, or do the legal injunctions of the Qur’an form a coherent and consistent body, geared to achieving a body of objectives envisioned by the Qur’an?(20) According to Coulson, the Qur’an does not present a systematic treatment of law, but offers only “ad hoc solutions for particular problems.” The Qur’an, which “catered for the exigencies of the moment,” does not deal” with any general topic comprehensively.(21)
Coulson’s contention, which has been echoed by many non-Muslim writers, certainly oversimplifies the issue. He also fails to understand the unique approach used by Qur’an in presenting and treating legal matters. Suspicion can be raised here that people like Coulson started his criticism by perceiving the Qur’an as the book of law in Islam, which is not the case. This point on whether Qur’an is a book of law will be further elaborated in the subsequent part of this paper.
Back to the first question posed above, there can be no doubt that the basic concerns of the Qur’an are primarily of a religious and moral character. It seems, however, that rather than preventing, these concerns motivated the consideration and judgment of “legal” matters and thus made a large number of legal questions vitally relevant to the religious and moral concerns of the Qur’an.(22) This is evident in the legal verses of Qur’an, where they usually ends with what is known as the “verse tags” –short statements with which the verses is closed (like “God is All-powerful,” “God is Forgiving, Merciful”).(23)
In the light of these reasons, the Qur’an therefore approaches legal matters not solely on legal perspective, but more and wider than that, the approach is comprehensive and integrated one. It puts the legal injunctions in the building of human well-being with the socio-ethical values. Thus, if one is of the view that Qur’an is not genuinely concerned with legal matters because of its “unsystematic” treatment, he actually fails to see the fashion in which Qur’an is supposed to be perceived. Thus as countered by Mustansir(24), we can in turn question the critics whether it is fair to criticize the Qur’an for failing to do something it never intended to do?
As for the contention that Qur’anic legal injunction is of an ad hoc nature, we believe that such contention is both misled and misleading. The gist of it is that it reflects the failure to perceive Qur’anic approach the way it does represent itself. Indeed, Qur’an does not treat legal matters in one systematic arrangement. The legal verses rather come discretely and in separate occasions. But this in no way provides grounds to conclude that such legal verses are of ad hoc nature.
As we said earlier, Qur’anic legal approach is integrated with the imposition of socio-ethical values. While a specific legal verse deals with specific occasion on which the rule was ordained (sabab al-nuzul), the ethical values remaining in it would render the verse applicable forever.(25) In another while Qur’an also gives the rationale of the legal injunction. Such rationale provision does lift the injunction from the particular circumstances in which it was revealed, transforming it into a statement of policy.(26)
It is quite obvious that the verse is not concerned simply with offering an ad hoc solution to a particular problem that had arisen, but aims to fit the solution into a theoretical framework.(27) Reflecting this idea, thus there is a principle in Qur’anic interpretation which is commonly accepted and applied by majority of mufassir, which says that: “The rule is to be interpreted from the generality of the expression, and not from the specific occasion” (Al-‘ibratu bi ‘umumi al-lafzi la bikhususi al-sabab).(28)
Having considered the important position of Qur’an as the most primary source of Islamic law, and the unique Qur’anic approach in providing the legal injunctions, one may further wonder on what kind of facilities does Qur’an actually provide as the source of law. Given the fact that Qur’an is the sacred divine text, some would argue that Qur’an is the complete guidance in providing the law for Muslims, totally “from birth to death”, that is because Allah as The Creator knows all things good for Muslim’s life. The reason is, of course, true that Allah knows everything. But the conclusion is not necessary the case.
To subscribe to the view that Qur’an is a legal code will lead one to strictly and solely follow whatever Qur’anic injunction is saying without trying further to elaborate and interpret it. This is not the demand of Islam. Islam demands Muslims to follow Qur’anic guidance as to apply them in different times and places. And this can only be achieved by perceiving Islam as open to juristic interpretation and ijtihad.
In responding this issue, a contemporary Muslim writer suggests that even though the Qur’an contains legal injunctions, it is neither a book of jurisprudence, nor a legal code.(29) Perhaps from this understanding one can conveniently accept the way Qur’an treats its legal verses in such “unsystematic” and discrete approach as deeply discussed earlier.
It is submitted here that instead of perceiving it as a code of law, Qur’an may more accurately be regarded as the constitution in Islam. That is due to the generality of Qur’anic guidance and its ever-lasting applicability, as well as its capacity to generate more laws and teachings. This proposition is to be discussed in the coming sub-title.
QUR’AN AS THE CONSTITUTION IN ISLAM
1. The Meaning of Constitution
Constitution is legally defined as the manner in which a state or other body is organized.(30) In narrower term it is the body of fundamental doctrines and rules of a nation from which stem the duties and powers of the government and the duties and rights of the people.(31) In this sense, it applies to the existing constitution in the vast majority of modern state or political societies(32), such as the present Malaysian Federal Constitution promulgated in 1957.
O. Hood Phillips and Paul Jackson, two English constitutional writers, classified and examined the two different meanings of the constitution as follows:
The word “Constitution” is used in two different senses, the abstract and the concrete. The constitution of a state in the abstract sense is the system of laws, customs and conventions which define the composition and powers of organs of the state, and regulate the relations of the various state organs to one another and to the private citizen. A “constitution” in the concrete sense is the document in which the most important laws of the constitution are authoritatively ordained.(33)
This meaning of the constitution as quoted above will help us enlightened on examining the constitutional aspects and nature of the Qur’an which follows the discussion.
2. Constitutional Aspect of the Qur’an
The first question to be posed here is, if the Qur’an is not a book of legal doctrine, can it be regarded as a constitution? Qur’an with its special arrangement and discrete treatment of its legal matters does also treat, yet is so much concerned with, the constitutional matters. Qur’anic injunctions in turn give the basic ideas of constitutional principles in Islam. Hence it is argued that such principles are to be derived from the teachings of the Qur’an and the Sunnah and the practices of guided Caliphs. As for the Qur’an, there are a number of Qur’anic verses which contain constitutional references, ranging from the principles of governance, judiciary to the rights of citizens.(34)
This existence of Qur’anic constitutional injunctions does not, however, lead us to conclude that Qur’an is a book of documents which purely and comprehensively embodies rules and laws as to the governance of state, or on rights of citizens. It does not lay down set pattern of a constitution as understood in modern political science.(35) Again, the constitutional aspects of Qur’an are to be viewed as a general guidelines to be extracted and thus, when combined together with the guidance from Prophet’s tradition and juristic interpretation, can form set of rules to be called constitution.(36) In this regard, Farooq Ahmad, a Pakistani writer, wrote convincingly the following:
For what is a constitution? As already pointed out, normally it means a document having a specific legal sanctity, setting out the framework and principal functions of the organs of state together with the principles governing the operation of those organs. Even a cursory reading of the Qur’an would convince one that rules pertaining to the constitutional structure of a state are not to be found in it. At the same time, certain fundamental principles that ought to govern collective conduct in the interests of integrating Islamic ideology into a definite way of life are specified in the Qur’an, such as could provide an essential basis for an Islamic polity.(37)
Given the above argument, and in the light of the definition by O. Hood Phillips and Paul Jackson, it is submitted here that the Qur’an is not a constitution in its concrete sense. For it is short of the criteria of a tangible constitution. Instead, Qur’an at the same time provides guidelines for constitutional polity. Among its functions, Qur’an serves this constitutional ideas which are evident from its various injunctions on the rights and duties of people towards the government (Amir), and the functions of the government and judiciary in Islam, for examples. It is submitted here as the conclusion in this issue, that Qur’an therefore provides a constitution in its abstract meaning.
3. Constitutional Perspective in Interpreting the Qur’an
Given the above discussion on the very important nature and feature of Qur’an, that the Qur’an is to serve as the constitution in Islam, thus there necessarily comes the need of interpreting Qur’anic constitutional verses within its constitutional perspective. By this it is meant that those verses need to be put in their constitutional framework so as to give effect to the constitutionality of the injunction. As a matter of example, Qur’anic injunction which deals with the protection of life and the prohibition of killing, needs to be comprehensively understood by using the constitutional realm. Thus a prohibition of killing shall also be extended to the protection of the quality of the life. This is going to be elaborated soon.
In understanding the Qur’anic constitutional perspectives, one can get help by appreciating subsequent principles:
1. Qur’an guides to a successful life in the world and hereafter
This is the fundamental purpose that governs the human’s acts in their life. As a constitution, Qur’an provides this ideal life in order for human to achieve through one way or another. This is the basic notion to which all human deeds must aim at. Thus this aim is like a yardstick to frame, understand and put the Qur’anic injunctions in reality.
2. Qur’an shall be the mother of all legislation in Islam
As always propounded in the constitutional law classes, the constitution is a source and mother of all legislation. It often delegates some rules or laws to be regulated more thoroughly by any subsidiary legislation. Like wise, Qur’an is there to be the mother of all legislation in Islam. This is somehow realized enough when one finds that Qur’an is still, and forever, regarded as the primary source in Islamic legal system. Nothing can prevail over it.
3. Qur’anic injunction shall prevail over all other law (supremacy of Qur’an)
This is the logical consequence brought about by the previous notion. Being the utmost primary source and the mother of all legislation in the Islamic legal system, Qur’anic injunctions shall prevail over other sources of law as well as the delegated legislation. This is important to keep in mind when one is to understanding the Prophet’s tradition, i.e. to understand it in the light of Qur’anic injunction as well.(38) Thus in any case there is found to be inconsistency between Qur’an and other law or source of law, the former shall prevail, and the latter laws shall be left, and held void to the extent of the inconsistency.
4. Qur’an protects human fundamental rights in the light of Allah’s divine rights
The protection of human fundamental rights is an inherent principle of Islamic teaching since Allah has created human in the best of moulds.(39) This noble position is required for the human’s vicegerency of Allah in this world. And this in effect leads to the necessity of the protection of human’s fundamental rights. Being ‘fundamental’ is significant here, that such rights are to be referred to in dealing with those Qur’anic constitutional injunctions. Thus, by using the constitutional perspective, the right to freedom of speech, for example, needs to be digested and extracted comprehensively from the guidance of Qur’anic injunction.
Qur’an enjoys the highest position as the most primary source in the Islamic shari’ah from which Islamic laws are to be derived, and through which the purposes of shari’ah are to be achieved
It is submitted that Qur’an is neither a code of law nor a concrete constitution in strict arrangement, rather it is a book of general guidance which treat legal matters integrally with the values and ethics. This makes Qur’an ever lasting guidance applicable to all mankind beyond the time and space.
As a rather abstract constitution, Qur’an shall be interpreted in the light of its constitutional perspectives, such as the principle of mother of legislation, Qur’anic supremacy and the maintenance of fundamental rights. These perspectives will give effect to the comprehensive guidance and understanding of the constitutional aspect of Qur’an.
- Qur’an, 2:145
- Qur’an, 2:1
- In Malaysia, for example, there is an Anti-Hadith movement led by a historian Kassim Ahmad, who argued, among other things, that the Qur’anic verse itself indicates there is nothing neglected in the Qur’an, see Qur’an, 6:38. See, Ahmad, Kassim, Hadis: Satu Penilaian Semula (Petaling Jaya, Media Intelek: 1986)
- See, for example Goldziher, Ignaz, Muslim Studies II (London: 1971)
- The "Constitution" (or Dustur) is technically defined onto two meanings, please refer to Part III of this paper
- To name a few, for examples, Al-Baghdadi, Abdurrahman, Pandangan Islam Tenting Ingkar Sunnah (Bandung: 1987), or Abdul Ra’uf, Muhammad, Irrationality of the Anti-Hadith Heretics (Petaling Jaya: 1988)
- Qur’an, 2:201
- Doi, ‘Abdur Rahman I., Shari’ah: The Islamic Law (Kuala Lumpur, Malaysia: 1989), p. 2
- Zaidan, ‘Abdul Karim, Al-madkhal li dirasah al-shari’ah al-Islamiyyah (Baghdad, Iraq: 1985), p. 38
- Esposito, John L., "Muslim Family Law Reform: towards an Islamic Methodology", Islamic Studies (vol. 15, no.1: 1976), pp. 19-51, at p. 23
- Al-Maisawy, Muhammad al-Tahir, Al-Sheikh Muhammad al-Tahir ibn ‘Ashur wa Kitabuhu Maqasid al-Shari’ah al-Islamiyah (PJ, Malaysia, 1998), p. 188
- Weiss, Bernard, "Interpretation in Islamic Law: The Theory of Ijtihad", The American Journal of Comparative Law (vol. 26: 1978), pp. 199-212, at p. 199
- Doi, op. cit., p. 21
- ‘Ali, ‘Abdullah Yusuf, The Meaning of The Holy Qur’an (Maryland, U.S.A.:1994), p. 17
- Doi, op. cit., pp. 36-37
- Al-Suyuti, Itqan fi ‘Ulum al-Qur’an, as cited by Doi, Ibid., p. 36
- The majority of Muslim scholars are of the view that the total number of Qur’anic verses are 6236. See, for example, Hamka, Tafsir Al-Azhar, vol. 1, p. 7. However, others say it is 6666 verses, see, for example, Doi, Shari’ah, p. 21, or approximately 6000 verses, see Mutawalli, infra, n. 18, p. 35
- Mutawalli, ‘Abdul Hamid, Mabadi’ Nizam al-Hukm fi al-Islam (Alexandria, Mansha’at al_Ma’arif: 1978), p. 35
- This question was raised by Zafar Ishaq Ansari, in his article, "Some Reflections on The Qur’anic Legal Verses", Hamdard Islamicus (vol. IV, no. 2), pp. 13-29, at p. 15
- Ibid., p. 16
- Coulson, N.J., A History of Islamic Law, pp. 13-14, as cited by Mustansir Mir, "The Nature of Qur’anic Legislation", International Journal of Islamic and Arabic Studies (vol.2: 1985),pp. 13-20, at p. 13
- Ansari, Zafar Ishaq, op. cit., p. 16
- Mir, Mustansir, supra, n. 21, p. 14
- Ibid., p.14
- See, for example, Qur’an, 59: 6-10 on distribution of seized property (fay’), Qur’an, 24: 4-5 on qadhaf, or 33: 36-40 on adoption.
- Mir, op. cit., p. 16
- Ibid., p. 16
- Shihab, M. Quraish, Membumikan Al-Qur’an (Bandung, Mizan: 1993), p. 89. It is argued here, even though the principle only talks about the literal connotation (bi ‘umumi al-lafz), such extensive interpretation is relevant in this discussion, because the words ‘umum al-lafz might well include all the circumstances and consequent meaning.
- Ansari, op. cit., p. 17
- Curzon, L.B., Dictionary of Law, 4th Edition (Kuala Lumpur: ILBS, 1995) p. 80
- Ibid., p. 80
- Smith, SA de, Constitutional and Administrative Law, as cited in Kevin YL Tan, et. al., Constitutional Law in Malaysia and Singapore, 2nd Edition (Kuala Lumpur: Butterworths Asia, 1997) p. 12
- Phillips, O. Hood & Jackson, Paul, Constitutional and Administrative Law, 6th Edition (London: ELBS, 1978) p. 5
- Tahir-ul-Qadri, Muhammad, Qur’anic Basis of Constitutional Theory (Lahore: Ittefaq Islamic Academy), p. 7-31. In his book he observed and extracted some constitutional doctrines from two verses of An-Nisa’, Chapter 4: 58-59, which deals with executive and judiciary matters. For the practices of the Prophet and his Companions, see also Mutawalli, supra, n. 18, pp. 194-235
- Hassan, Farooq, The Concept of State and Law in Islam, pp. 61-62
- Mutawalli, op. cit., pp. 33-36
- Ibid., p. 62
- Al-Qaradawi, Yusuf, Kaifa Nata’amal ma’a al-Sunnah al-Nabawiyyah, (Virginia: IIIT, 1990) p. 93
- Qur’an, 95:4
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