Origins Before the Legal System

Long before the legal system came into being, there was an absence

Long before the legal system came into being, there was an absence of a legal discipline to determine which rule is right to abide by and which rule is not. In the absence of an organised legal system, religion was developed as a source or guideline for maintaining social unity and progress. Obedience of religious dictum was believed to lead to divine justice. In due course of events, in some societies religion became the source of law. In Islamic societies, Quran and Sunnah became the sources of Islamic Law.

Both of these sources claim to cover all aspects of human behavior. Quran provides for practical guidelines on personal, social, economic, business, and political aspects of a society. Sunnah completes Quran in that it describes the practical implementation of rules in Quran and further supplements and completes it in areas which are not covered by Quran.

This essay will show analysis of how Sunnah became a source of Islamic Law, the areas of practice that it covers, and its functionality in the current legal system. It will also go through several opinions and principles that will either be in favour of Sunnah as a reliable source or in criticism citing its drawbacks. A series of opinions of jurists and public as well as case study will be provided to determine its level of relevance to judicial and legal principles.

Sunnah as source of law and its scope

According to Ramadan,

“the invariable basic rules of Islamic law are only those found in the Shari’a (Quran and Sunnah), which are few and limited. Whereas all juridical works during more than thirteen centuries are very rich and indispensable, they must always be subordinated to the Shari’a and open to reconsideration.”

Before discussing the importance of Sunnah as a source of Islamic Law, it needs to be shown how it is a source of Islamic Law and how it is relevant to current legislative process. Islamic jurisprudence uses multiple sources to provide clarity to Islamic law. It talks about four basic roots of Islam standing in the definite order of precedence – Quran, Sunnah, ijma or consensus of jurists, and guidance resorted to when the previous three sources cannot provide an answer to an issue.

Out of the four sources, the Qur'an and Sunnah are the two primary sources. The Qur'an is the holy scripture of Islam, considered to be the direct and unaltered word of God. Sunnah comprises religious actions and quotations of the Prophet Muhammad, and is narrated through his Companions and the Imams.[3] It consists of the Prophet’s “sayings, deeds and tacit approvals on different issues, both spiritual and temporal.”[4] The Qur’ān and Sunnah are collectively known as the Shari’a,[5] meaning ‘the right way’, which is defined as “the corpus of general principles of Islamic law extracted from its two fundamental sources, the Qur’an and the Sunnah and other sources”.

Sunnah elaborates on the principles of the Quran,[7] which covers a range of topics from history, morality, and religion to legal issues such as crime and punishment, marriage, and commercial transactions.[8] Sunnah denotes collection of deeds and practices that guides people to follow a certain set of rules.

The scope of Sunnah is not rigid, but flexible enough to expand interpretation to cover mostly all human conduct and any area of law.[10] Sunnah has an expansive coverage on areas, being stated that it can be seen from two aspects - non legal aspect and legal aspect. Non legal aspect covers areas such as fasting, hajj, or duties of offspring towards their parents; and legal aspect covers areas such as inheritance and punishment for the thief.[11] Sunnah provides details for laws written in Quran and also gives instances of legal application. It supplements and clarifies the laws written in the Quran.

Connection can be drawn between legislation and the Sunnah as can be seen in the Shariah. Certain areas of laws that are enacted could be drawn to connect to the rules under the Shariah. For instance, preservation of religion; preservation of human life that enunciates the various components of right to life; preservation of progeny that talks about succession; and preservation of wealth indicating property laws.

CRITICAL ANALYSIS OF SUNNAH AS SOURCE OF LAW

Sunnah was an ever evolving concept and there is certainly an ambiguity which prevents the identification of the definite scope around it. Quran does not even succinctly define Sunnah, though it mentions “uswah hasanh”, meaning excellent conduct of the Prophet. Sunnah is a set of tribal practices not implying positive or negative behavior.[13] Firm believers may emphasise on the completeness of Sunnah and state that Islamic laws are laid down as based on Sunnah. For instance, Islamic banking concepts are based on Fiqh-Al-Muamalat (Islamic commercial jurisprudence), originated from the Qur’ān and the Sunnah, and other secondary sources of Shariah.[14] However, based on uncertainty surrounding the narrations and traditions collected, there is a set of criticisms that do not take Sunnah as the source of Islamic Law. Existence of Qur'anists" who proclaim Qur'an as the only source of Islamic Law[15] and creation of sects such as Ahl al Qur’an and Munkir-i-Hadith[16] because of the doubt surrounding Sunnah as the source of law and not being a genuine source because of it late documentation, is an indication that there is disagreement on whether Sunnah can be an authentic source of law.

While individual narrations are in play, the value and role of reasoning may be undermined in relation to development of Islamic law. Basing only on such narrations and principles of Sunnah, Islamic Law could not have developed to the stage where it is currently today. Propositions of reformists may denounce reliance on Sunnah as a source of law because of its uncertain authenticity in order that such gap in development of the law is tackled; other doctrines supported by reformists were also laid down. These doctrines supplement the teaching and rules as laid down in Sunnah or the Quran.

One such doctrine as laid out by the Hanafi School is the doctrine of istihsan, which means “juristic preference” or in modern description means “equity.” It focuses on justice and fairness over rules existing under Sunnah. Similar doctrines are maslahah and istislah that focus on public interests and given priorities as well. Even though these doctrines claim to supplement Sunnah, it is to be noted that Sunnah is flexible enough to empower jurists to reconcile Islamic rules with modern interpretation of Islamic Law. For instance, interpretation of Islamic law is reconciled with rules related to charging of loan interest.

There is another instance that shows Sunnah as both a genuine and at the same time non reliable source of Islamic Law. In its support, Sunnah when cited or followed to create a new legislation goes through a thorough verification of the traditions and narrations to ensure genuineness. Such verification goes to the root of it by listing biographical analysis of references. Examples of biographical dictionaries include Ibn Hajar al-Asqalani's "Tahdhīb al-Tahdhīb" or al-Dhahabi's "Tadhkirat al-huffāz.[22] Whereas on the other hand, critics may question the authenticity of the narration or traditions by questioning the way they were recorded and verification seeing that there are innumerous count of narrations and traditions.

SUNNAH IN COURTS OF LAW

From the perspective of legal implication, questions may be raised against of use of Sunna or use of both Sunnah and Quran (Shariah) as legal basis in court cases. Though there may be cases that do not treat Sunnah as the applicable law in a matter of dispute because of lack of proper legal regime and framework, there has been no instance where reference or legal consideration to Sunnah were clearly denied. Sunnah and its rules are frequently cited as a basis of commercial agreement and is cited as a legal defence or basis of dispute. A number of Islamic finance cases have been filed in different jurisdictions. Conclusion of such cases decides fate of business investors. Such is the hold that Sunnah as a source and influence of law has in this present society.

A study of court judgments and cases related to financial industry across the globe, in countries such as Malaysia, the UK and the USA, will show the current trend that Sunnah has to be interpreted and applied to conform to the current norms of the society to be regarded as a reliable source of law based on which new legislation could be created.

In the Malaysian case, Tinta Press Sdn Berhad v BIMB[23], courts gave preference and authority to classic common law approach and did not consider actual SharÊÑah issues. However, moving on towards pro-active consideration of Islamic banking practices, in the case of Arab Malaysian Finance Bhd v Taman Ihsan Jaya Sdn Bhd & Ors, the court examined issues related to Islamic banking practices. High Court judge referred to the SharÊÑah Advisory Council (SAC) to verify SharÊÑah status of the agreement in dispute and regulative initiatives were taken to adopt appropriate legal framework that could guide in determining resolutions to Islamic finance disputes.

In the first Islamic finance case in the English courts, Investment Company Of The Gulf (Bahamas) Limited v Symphony Gems N.V. and Ors ,[24] English courts dismissed the legal defence of SharÊÑah issue, and held that Islamic financial transactions were governed by English law. Another landmark case was of Shamil Bank of Bahrain v Beximco Pharmaceuticals Limited and Others[25] where the court held that English law was the governing law and it could not be substituted by SharÊÑah. SharÊÑah was referred to merely provide the basis for the nature of business. Also, the English court in certain other cases did not strictly recognised SharÊÑah as the governing law.

In the United States legal system, there are certain cases that show uncertainty of legal position around Islamic finance law. In the first Islamic finance case, Kevin J. Murray v Henry M. Paulson Jr.,[26] the United States federal court held that a commercial business activity is not an act of indoctrination, and further held that the Islamic finance law should integrate itself to state and federal legislation and regulations.

To sum up evidencing the judicial standing related to Sharia rules, legal principles in the case of Beximco Pharmaceuticals Ltd, Bangladesh Export Import Co Ltd, Rahman ,and others v Shamil Bank of Bahrain EC,[27] Sharia, being a non-state law, cannot be given the status of law governing commercial contracts. Even if it is included in the contract by a consensus, it is subject to another governing law. For instance, in a loan agreement, reference to Sharia attracts high amount of judicial efforts for European courts as it carries along significant legal uncertainties. Its reference in a commercial contract only intends to indicate party’s nature of business.

CONCLUSION

Existence of drawbacks and areas of improvement associated with legal and religious rules does not entail complete ignorance of such rules. Such rules originated to guide and sustain human existence and civilisation. They have a certain level of discipline associated with it that enable the society to progress and prosper. Every legal system was built on the basis of social and religious norms. They are all intertwined and have to be treated with utmost importance. As mentioned in this essay, Sunnah serves not only as a source of law, but also as a basis for creation or implementation of legislation. One way or the other, it serves the purpose of implementing and enforcing just and fair legislation when it is either referred or classified as qualified or not qualified to adherence. Historical practices of a particular community or religion that are preserved and followed since time immemorial should be efficiently incorporated into current legislations subject to its wise classification enabling conformity to current norms and practices.

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