Each religious tradition has its own authentic sources of authority, which are referred to for authentication of religious practices and traditions. Islam too has its own sources of authority both oral as well as written. These sources were the mainspring of Islamic law. In fact law in the form of Shari'ah is most central to Islam. Shari'ah law holds the centre stage in Islamic tradition except some Islamic sects and Sufi traditions. Shari'ah law being so fundamental to Islam the sources which the Shari'ah law is based on, assumes even greater importance.
What are these sources of authority in Islam? Needless to say some of these sources are common to all sects of Islam and some vary from sect to sect. The one which is common to all the sect of course is Holy Qur'an which is most authentic source for all sects of Islam. There is no sect which can ignore, let alone reject Qur'an as the source of authority. Even Batini sects like Qaramita and Isma'ilis and Duruzis, contrary to popular belief, consider the Qur'an as the most authentic source of authority. However, it does not mean that the Qur'an is understood in the same way by all these sects.
There are serious differences in interpretations of various verses of the Qur'an. The Qur'anic verses, according to the Qur'anic verse 3:7 are divided into two categories i.e. those belonging to 1) mutashabihat (allegorical) and those belonging to 2) muhkamat (decisive). Also, according to the Qur'an those who use allegoric verses create disorder and confusion. Thus Muslims should follow the verses which belong to the category of muhkamat i.e. decisive and clear. Despite this many Islamic sects are based on verses which belong to the other category i.e. mutashabihat i.e. allegorical verse.
This same verse above also lays down that ta'wil (original or hidden meaning) is known to Allah and those firmly rooted in knowledge (al-Rasikhun fi' al-'ilm ) believe in them and say it is all from our Lord. But the Shi'ah sects believe that ta'wil is also known to al-rasikhun fi' al'ilm i.e. those firmly rooted in knowledge and they are nothing but imams from the progeny of 'Ali, son-in-law of the Holy Prophet (PBUH) and his daughter Fatima. Many batini sects like the Qaramita, the Isma'ilis and Duruzis give central position to ta'wil as far as their beliefs are concerned. They believe that it is absolutely necessary to know ta'wil of the Qur'anic verses. It is central to their religion. More of it later.
Islam was divided into several sects within a few decades of the death of the Holy Prophet (PBUH). There is a hadith (Prophet's saying) that my ummah (community) will be divided into seventy- two sects. Now seventy-two should not be taken literally. What he says is that my ummah will be divided into numerous sects. In the well known work of Baghdadi Al-farq bayn al-Firaq we find that there were more than hundred sects in the first century of Islam itself. The Kharijites (Khawarij), a small extremist sect itself had sub-divided into more than a dozen sects.
The Shi'as themselves were sub-divided into numerous sects - the Zaidis, the Ithna 'Asharis, the Alavids, the Qaramitas, the Isma'ilis, the Duruzis and so on. The Alavids were themselves sub-divided into various sub-sects. The Isma'ilis split into two major sub-sects the Nizaris and Must'alians. All these Shi'a sects, as pointed out before, believed into hidden or original meaning of the Qur'anic verses but no two Shi'ah sects agreed on common original meaning. All these sects had their own version of the meanings of the Qur'anic verse. The Sunni Muslims, of course maintained that the real meaning (ta'wil) is known only to Allah and those firmly rooted in knowledge only believe in ta'wil but have no knowledge of ta'wil themselves.
Thus though the Qur'an is most authentic source of authority yet it is interpreted so differently by different sects that one wonders whether the Qur'an could unify all believers in matters of beliefs. Also, like no two Shi'ah sects agree on the real meaning of the verses of the Holy Qur'an, no two Sunni sects agree on meaning of all verses of the Qur'an. It should be borne in mind that Sunnis and Shi'as are actually umbrella terms. There are several schools of thought or sects under these two umbrellas.
Among the Sunnis the Asha'irah and the Mu'tazilah differ radically from each other in understanding the Qur'anic verses. The Mu'tazilah believe who are popularly known as the party of al-'Adl wa al-Tawhid (i.e. party of justice and unity of Godhood) consider 'aql (i.e. reason) as very central to their beliefs. According to them 'aql enables us to understand the Qur'an and not naql (i.e. oral or written traditions). They differ from Asha'ira who believe in naql as the main source of understanding the Qur'an. Thus among the Sunnis while the Mu'tazilah (who no more exist as a sect now) stress 'aql the Asha'irah stress naql The Asha'irah take the Qur'an literally the Mu'tazilah do not.
Besides these two sects the Sunnis are divided into four major Madhahib (schools of law - Hanafi, Shafi'I, Hanbali and Maliki. All these four schools of Shari'ah differ in understanding some crucial Qur'anic verses, apart from authority of some ahadith. For Sunni Islam the second most important source of authority is Prophet's sunnah. Sunnah means sayings and doings of the Prophet. Both what the Prophet said and did was reported by chain of reporters or narrators. These reports were collected together in six authentic collections known as Sihah Sitta i.e. six authentic collections of Prophet's sayings and doing.
The different schools of law lay stress on different ahadith for deriving the laws of Shari'ah and formulating 'aqidah (plural 'aqa'id) i.e. dogmas. Though all books of ahadith i.e. Sihah Sittah are acceptable to Sunnis each school of Shari'ah (madhhab) has its own preferences for the books of ahadith. Thus Malikis would prefer Imam Malik's Muwatta' as the most authentic source after the Holy Qur'an. Hanafis, on the other hand, would prefer Sahih Bukhari and Sahih Muslim.
Among the Sunnis again there are two other sources of authority i.e. ijma' and qiyas (i.e. consensus and analogical reasoning). Where the Qur'an does not contain the required answer, the Ulama' would look into ahadith and if ahadith are also silent on some problem, they will resort to qiyas and then try to develop a consensus (ijma'). Thus among the Sunnis these are four recognised sources of authority i.e. the Qur'an, hadith, qiyas (analogical reasoning) and consensus (iijma'). However, here too this neat division is more theoretical. The four schools of law in Sunni Islam plays more vital role for the adherents of those respective schools than these four sources. In fact these four sources were of real importance to those who were formulating laws than the lay adherents.
The lay adherents will simply go to the Ulama of their respective schools and ask fatwa (i.e. authentic opinion of the 'alim of his/her school. Among the Sunnis ahl al-hadith or those who adhere to the schools of hadith do not accept the two other sources of law i.e. qiyas and ijma' i.e. analogy and consensus. For them only two sources are sufficient i.e. the Qur'an and hadith. It is for this reason that Ahl al-Hadith do not accept validity of triple divorce in one sitting because the validity of triple divorce is not authenticated by hadith. It is based more on two other sources i.e. qiyas and ijma'.
For Shi'ah Muslims too qiyas and ijma' are not acceptable. Though hadith is acceptable as source of law but they do not accept ahadith as compiled in The Sihah Sitta i.e. the Six authentic collections recognised by the Sunnis. The Shi'ahs have their own collections of ahadith like the Kulaynis and others. Again what is recognised as authentic collections of ahadith by Ithna Ashari Shi'ahs is not recognised by the non-Ithna 'Asharis i.e. Zaidis, Isma'ilis, 'Alavids and others. The most authentic source of ahadith or Prophet's sunnah for these Shi'ah sub-sects is their respective Imams. For Zaidis it is Zaidi Imams, for Ithna 'Asharis it is twelve Imams or for Isma'ilis, it is their Imams.
Some Imams are of course common for Shi'ah sects i.e. common up to Imam Zain al-'Abidin as far as the Zaidis are concerned; up to Imam Ja'far al-Sadiq as far as Ithna 'Asharis are concerned and up to Imam Hakim as far as Druzis are concerned and up to Imam Mustasir bi' Allah as far as Nizaris are concerned. For the Isma'ilis in general the most authentic source of law is Da'aim al-Islam. All Isma'ili Shi'ahs up to Musta'lians accept it as the most authentic source of Islamic law. Needless to say the Shi'ahs too do not accept qiyas and ijma' as valid sources of law.
For the Shi'ahs the valid sources of law are Qur'an and the Prophetic sunna as reported by the Imams. In Sunni Islam there is no concept of Imamah, it is Khilafah. But there were only four rightly guided Caliphs who too are authentic sources of Islamic law. After the four Caliphs it is authentic 'Ulama' who are looked up to as sources of authentic religious opinion. Among the Twelvers the twelve Imams and among Nizaris the existing Imam (known as Hazir Imam) and among the Musta'lians the twenty one imams and after them their deputies known as Du'at al-Mutlaq.
As far as the Nizaris or popularly known as the Agakhanis are concerned they believe that one of their Imams i.e. Hasan 'Ala dhikrihi al-salam suspended application of Islamic Shari'ah and now the Hazir Imam is the sole source of law which is more traditional than Islamic. Perhaps this is the only Islamic sect which believes that application of Islamic Shari'ah has been suspended. All other sects of Islam believe in continuing validity of Islamic Shari'ah.
Among twelver Shi'ahs belief is that the 12th Imam has gone into seclusion and that he will reappear one day. But during his concealment the authority to interpret the law and to find Islamic solution to problems arising rests with what is called mujtahids. A mujtahid is a properly qualified Shai'ah 'alim (learned man). Whenever any problem arises the Shi'ahs consult their mujtahid. He is considered most authentic source of authority for the twelver Shi'as.
As for the Must'alian Isma'ilis the most authentic source of authority is Da'i al-Mutlaq. But, it is important to note that a da'i al-mutlaq is not the final authority. In all shi'ah traditions whether twelver or Isma'ili, Imam is considered as infallible and hence he is supposed to be the final authority in all religious matters after the Prophet. But except Zaidis and Nizaris imam in all other Shi'ah traditions is in seclusion. While in twelver shi'ah tradition it is 12th Imam who went into concealment and will himself reappear oneday to set all wrongs right, in the Musta'lian Shi'ah tradition it is 21st Imam who went into seclusion and the institution of Imamat continues in his progeny and when conditions are congenial the Imam from his progeny will come out of concealment one day and will provide guidance to entire humanity.
Thus in the Must'alian tradition the da'i al-mutlaq is not the final authority but deputises for the Imam in concealment and hence the da'i is not infallible. Thus the da'I is not vested with the final authority to solve the problems arising. The Final authority will be the books like D'a'im al-Islam as far as matter pertaining to jurisprudence are concerned and books of ta'wil written by earlier da'is in consultation with Imam. In those days the da'is were in contact with the Fatimi Imams. However, now the da'is have no contacts with Imams in concealment.
Now we come to the Sunni Islam. In Sunni Islam too there is no unified religious authority. Sunnis are divided not only along the lines of schools of law (madhahib) but also along sectarian lines. As referred to above there are several sects among the Sunni Muslims. And each sect, apart from each school of law (madhhab) has its own authority. It has to be noted that, contrary to popular belief, there is no concept of church in Islam and certainly not in the Sunni Islam.
In fact there is no concept of church in Islam as such. Some sects like the Isma'ilis did develop such concept but for reasons of its own. This is not the place to throw light on it here. The Isma'ili movement being underground movement for long it developed hierarchy of authority of its own which acquired church like structure. Thus both the Nizaris and Musta'lians retained this church like structure of religious authority.
In Islam there is no concept of priesthood, let alone that of church. Each and every Muslim is responsible for all religious rites in the light of the Qur'an and sunnah. Qur'an and sunnah are the only authority. In the light of these any Muslim can perform all religious functions. However, in Sunni Islam too the institution of 'ulama developed and they acquired the authority and became pivotal in developing the law. The 'Ulama acquired a unique status of their own among the Muslims. It is these 'ulama who issue fatwas (religious edicts) on different issues.
Since new issues arose from time to time an institution called ijtihad (which means exerting oneself utmost) came into being. In fact it is the holy Prophet himself who is reported to have encouraged ijtihad. When he appointed one of his companions Ma'adh bin Jabal to the Yemen as governor the Prophet encouraged him to resort to ijtihad if he did not find answer to his problems in the Qur'an and sunnah. He could exert himself utmost to find solution to his problems. Thus ijtihad is a very important institution new legislation within frame-work of Islam.
Technically even qiyas and ijma' we have talked about above is part of the process of ijtihad. The early period of Islamic legislation clearly shows that many problems could not find direct answers in the Qur'an and sunnah and it was through the process of ijtihad that legislation became possible. The first two centuries of Islam witnessed the full fledged functioning of the institution of ijtihad.
The Maliki and Hanbali schools of law were evolved within the confines of Mecca and Madina and hence are much closer to the Prophetic sunnah. Sunnah was naturally influenced by the local customs, traditions, institutions and what is known as the Arab 'adat. Thus these two schools are much closer to the Meccan and Madinese society. However, the two other schools i.e. the Shafi'i and Hanafi originated in other parts of Islamic world i.e. in Egypt and Bhaghdad and hence had to encounter many new problems which were not part of the Prophetic sunnah.
Thus Imam Abu Hanifa and Imam Shafi'i had to frequently resort to qiyas and ijma' to evolve new legislation. Thus the history of Islamic legislation is full of instances of ijtihad. Once the corpus of Islamic legislation came into existence the effort was to protect that corpus within the framework of those schools. The 'ulama belonging to these respective schools almost closed the gates of ijtihad i.e. the process of legislation thinking that all time comprehensive corpus of legislation has been evolved.
And during the medieval ages since socio-economic developments on one hand, and, technological developments, on the other, remained almost stagnant hardly any new problems arose. Thus they were quite content with the laws evolved by the founders of their schools. There is no doubt that the four Imams were not only great scholars of Qur'an and sunnah but had great insights into human affairs and legislative needs of Muslims. They did, what they could, to fulfil the legal needs of the people of their times and in the light of the problems they were confronted with. Thus the four Imams became the great source of authority in Sunni Islam.
The modern and post-modern period have witnessed breath- taking changes in social, economic and technological fields and new problems have arisen along with new consciousness among different sections of people. And, in the light of these developments new answers are needed to some of the old problems too. The concepts of criminal law have undergone drastic changes. The question of women and their rights have acquired new dimensions and new questions are arising by the day in view of swift technological developments. These questions can no more be answered in old ways nor the laws evolved centuries ago can withstand new social and moral pressures.
Thus ijtihad has acquired new urgency. The holy Prophet himself permitted ijtihad in order to confront new situations in Yemen. Thus ijtihad is, in a way, a part of the Prophet's sunnah and it was for this reason that all great imams of the time resorted to it for developing the whole corpus of Islamic legislation. Without ijtihad by these learned Imams this corpus of law would not have come into existence at all. In their own way they were facing new social pressures and they exerted themselves to find answers to those questions. The institution of ijma' was highly useful for that purpose as they could evolve the consensus among the 'ulama and through them of the community.
There is, as pointed out, an urgent need for ijtihad. It cannot be avoided for long on the grounds that there is no one qualified to do ijtihad. There may not be any single authority to do so but the new problems being faced are common to Muslims of all sects and schools and hence the prominent 'ulama of all sects and schools of law along with modern social and natural scientists must come together to evolve new corpus of Islamic legislations in these new areas. It is not being proposed that every thing has to change. Certainly not. The various Sunni and Shi'ah sects and schools can certainly retain much that is valuable in their existing traditions but certainly to re-examine that part which has bearing on new problems and subject to new pressures.
It is also not proper as some orthodox Muslims do that the only law giver is Allah and that no human being can legislate. This is not correct. In fact much that we have in Shari'ah is, as explained above, as a result of human endeavour to understand and seek guidance from the Qur'an and Prophetic sunnah and to use human faculty of reason gifted by Allah to solve problems arising from time to time. Thus ijtihad has been an integral part of Islamic legislation in early period of Islam. Today many new problems have arisen and new human endeavour is needed to frame legislation in the light of the Qur'an and Sunnah. What was in the context of these times can be rethought in the light of modern and post-modern developments.
It is also not proper to maintain that it is Allah who is sovereign and people have no rights to act. Who can question the doctrine that Allah is sovereign. But people have sovereignty as Allah's khalifah on earth. Allah has designated them to be his 'sovereign deputies' on earth and have also been equipped with the faculty of reason to solve their own problems. In any Islamic countries the source of authority could be parliament for legislation. It comes quite close to the medieval doctrine of ijma`. The parliament can, if necessary, consult the `ulama in the matter.
Iran has come out with the new doctrine of Wilayat-i-Faqih who has the status of guardian of Islamic law and no legislation by the Parliament can become law without his approval. It can be called as council of the guardian. But such council can obstruct legislation if it is vested with final authority. It should have consultative status only. Iran is facing the problem of dual authority because of this doctrine of Wilayat-I-Faqih. Dual authority can cause serious problems. Thus the 'ulama should have consultative rather than approving authority.
In view of fast developments all sects of Islam will have to re-think issues in matters of jurisprudence. New laws in keeping with the value system of Islam are highly necessary. One way is to constitute the joint council of the representatives of all sects of Islam to evolve new body of laws and this will certainly be very helpful for the Muslim ummah as a whole despite sectarian differences. The differences can be ironed out in the joint council. But such a body can help only if there are 'ulama and experts with liberal and progressive disposition. It has been experienced that the 'ulama have compulsions of their own, and often, politics of their own. They oppose new legislation, even if it is perfectly in keeping with Islamic values and traditions to retain their own authority. Thus opposition from the 'ulama is not always 'Islamic'; it is often due to other considerations also.
Thus seen from whichever angle it is difficult, if not impossible, to push new legislation and to work out new consensus. It has become all the more difficult in view of the rise of conservative Islam. The irony of the situation is that the rise of conservative Islam is also more political than religious. This situation will continue to create strong impediments in the way of development of new sources of authority in Islam.