Throughout the eighth century, Islamic philosophers were split into two schools of thinking regarding their legal approaches. Social conservatives (ahl al-hadith) regarded the Qur’an and the Prophet’s Sunnah (traditions) as the only legitimate sources of jurists originating from Medina. Whereas, in the absence of credible ahadith, the non-traditional method (ahl al-ra’y) focused on the free use of logic and thought. Muslim jurists have used the Islamic law sources in descending order to determine the legality of issues throughout history. Jurists would look at the explicit orders in the hadith if the legality was not based on an explicit order in the Quran.
Sources of Islam and their relationship
Almost all Muslims agree that the holy Quran is the cornerstone for how they can live their lives. The Quran says:
“Those who do not judge by the law which Allah has sent down,
Are indeed the disbelievers.”
No jurisdiction should contest what the Quran considers to be unlawful, because no other body of law can contradict it. Gambling, for example, is prohibited by the Quran, so any kind of gambling is prohibited in Muslim Law. This principle will be agreed upon by the other three sources, and there will be no disagreement amongst them.
The Sunnah is the Muslim law’s second most important source. In terms of legitimacy, it is second only to the Quran. It is noteworthy that Allah granted Prophet Muhammad (Islamic Prophet) the power to make laws which later came to be known as the Sunnah. The Quran says:
“So take what the messenger gives you, and refrain from what
He prohibits you.”
It is also worth noting that without Sunnah, no one will be able to comprehend the Quran. The Quran, for example, doesn’t always advise us on how to do Salat. The Prophet reveals the process for the same. The Quran and the Sunnah are never at odds with one another. The Sunnah is nothing more than continuity and clarification of the Quran. Where even the Quran is quiet, the Sunnah is a symbol of knowledge. The Quran says:
“He makes pure things lawful for them and impure things unlawful.”
Ijma, or Islamic community consensus, refers to the Muslim community’s acceptance of a question of faith or motion. Whenever the Quran and the Sunnah are silent, they can be used. The Quran says –
“My nation will not agree unanimously on error.”
Muslims are required to observe the Ijma of the Prophet’s companions. Taraweeh prayers, two Azaans on Friday prayers, and Muslim consensus on the Quran gathered by Abu Bakr are illustrations of such Ijma. The Ijma of esteemed Muslim scholars such as Imam Abu Hanifa, Imam Malik, Imam Hanbal, and Imam Shafai is also important to observe since these Imams establish Islamic laws. It’s also significant to mention that Ijma concentrates on the Quran and Sunnah’s teachings and never contradicts them.
Qiyas, or analogy, is a judgment made by an authority in Islamic law that involves the comparison of known law from the Quran and Sunnah with an issue that did not arise during the Prophet’s period. It says that the foundations of all Qiyas can be found in the Quran and the Sunnah. The Quran and Sunnah allow this because the Quran advises Muslims to use basic logic in certain places. The legal specialist compares the reasoning of a current situation for which the Quran, Sunnah, and Ijma have no clear solution. He forms a view and draws an inference based on a connection between the two issues. (you can relate it with what judges do today – interpret the law!)
Female Genital Mutilation
The partial or complete removal of the external female genitalia or any other form of damage to the female sexual tract for non-medical reasons is what female genital mutilation (hereinafter referred to as “FGM”) is known as. FGM infringes on a range of well-established human rights values, guidelines, and criteria, including dignity and non-discrimination on the grounds of gender. It violates the right to physical dignity, and the right to life (in situations where it is threatened death as a consequence of the procedure), and the right to the highest level of achievement in physical and emotional well-being.
FGM is a breach of the rights, wellbeing, and reputation of women and girls that have been identified worldwide. FGM is both- a product and a perpetuation, of gender injustice and sexism against women and children, causing significant harm to their life in a variety of ways. The global consensus on the need to end all types of FGM is expressed in United Nations Sustainable development No. 5 as well as many UN Resolutions (Fund, 2018).
Because infants are constantly dying, the United Nations Convention on the Rights of the Child makes a clear connection to the dangerous orthodox methods, as well as calls on all countries to take actions that are both effective and efficient. Most Islamic groups around the world perform female genital mutilation. Many writers have been stating that FGM is practiced by other faiths as well. Islam, Protestants, Catholics, Seventh-day Adventists, and animists are among the religious institutions that follow this practice. FGM is more popular in Islamism than in other religious institutions, according to Mustafa and other scholars.
Homosexuality And LGBT Rights in the Islamic World
In Islamic practices, homosexual relationships are culturally and historically ingrained. Despite this, the Muslim communities not only oppose LGBT rights but also fail to acknowledge the presence of homosexuals in certain cases, using religion as an ideological justification. Brutal sentences, bigotry, and the alienation of LGBT people from society have been sanctioned by history, custom, and, essentially, religious standards. Government leaders and politicians from Muslim-majority and Muslim nations freely use the Muslim faith to justify human rights violations against gay people, such as treating them as ‘second-class citizens’ or claiming homosexuality to be worse than homicide. Even awareness by the media and/or legislation cannot help in changing the mindsets amongst the Islamic diaspora.
However, this emphasis on legitimizing and regularizing heterosexual conduct through the institution of marriage does not impact the Quran’s positive view upon the celebration of sexual diversity, and the recognition of homosexuality and lesbianism as a legitimate practice for those on whom Allah Almighty has endowed with homosexual and lesbian tendencies.
The word ‘mukhannathun’ is used in Islam to identify individuals who are gender-variant, commonly male-to-female transgender. This word, like the equivalent for ‘eunuch,’ does not exist in the Quran, but it does appear in the Hadith, Muhammad’s sayings that have a secondary position to the core text. Muslim scholars overwhelmingly teach that the same-gender sex is a sin. The Muslim holy book, the Quran, tells the story of Lot, and therefore, the destruction of Sodom – and sodomy in Arabic is understood as ‘liwat,’ supported Lot’s name.
Ijma and qiyas with regards to homosexuality
All folks have their biases as a product of their self-interests. But also the social, historical, and political context we grew up in and are in the neighborhood of. There is no denying the fact that there’s a deep-rooted dislike for the LGBT community in our societies. This could even be a reason as to why there’s a scarcity of diversity of opinions on the issue- because exploration and discussion have been stalled from the very beginning. Even today, if someone was able to stand up and suggest an alternate opinion to the mainstream, this can result in an end to their social life or career- and can even be branded as an apostate/kaafir.
Ijma’a may be a tertiary source of fiqh within the school of thought, which begs the question, how can it’s kufr in Allah to reject a consensus made by humans who understood the verses of the Quran in light of their context? As though accepting homosexuality is placed on an equivalent level as associating partners with Allah, notice how you’ll have Muslims who would commit major crimes that are against Islam, and yet nobody is looking at that person as a kaafir. This seems to be reserved for those that support LGBT+ rights.
These four sources namely Quran, Sunnah, Ijma, and Qiyas are the first sources of law. Muslim law mainly supports verses of the Quran and practices of hadith. Sects of Shias don’t accept the Qiyas as a source of Muslim law. Thanks to the contribution of an orderly and systematic theory of private laws of Islam that came into existence that governs the Muslim community. Thus, by now, you must have realized that the archaic Muslim laws need some change. Before we do that, we need to change the mentality of the people regarding FGM and homosexuality. As it has been already argued, however, any change should take into account not only the prospects of implementation of international human rights standards but also, equally, the local realities, including both domestic law and practice.
About the Author: Isha Bharti is a first-year student from ILS law College, Pune. She is one of the winners of our Fortnightly Blog Competition.