(b) All the rulings of Sunnah which originate from the Prophet in his capacity as imam or the Head of State, such as allocations and expenditure of public funds, decisions pertaining to military strategy and war, appointment of state officials, distribution of booty, signing of treaties, etc., partake in the legal Sunnah which, however, does not constitute general legislation (tashri’ ‘amm). Sunnahs of this type may not be practiced by individuals without obtaining the permission of the authorities first.
The mere fact that the Prophet acted in a certain way, does not bind individuals directly. [39. Shaltut, Al-Islam, p. 513.] To give an example, according to a Hadeeth ‘whoever kills a warrior [in battle] may take his belongings’. [40. Abu Dawud, Sunan, II, 758, Hadeeth no. 2715]
The ulama have differed as to the precise import of this Hadeeth. According to one view, the Prophet uttered this Hadeeth in his capacity as Imam, so no-one is entitled to the belongings of his slain enemy without the authorization of the Imam. Others held that this is a general law entitling the soldier to the belongings of the deceased even without permission. [41. Shaltut, Al-Islam, p. 515.]
The Prophet might have uttered this Hadeeth in order to encourage the Companions to do jihad in the light of the circumstances, which may have been such that an incentive of this kind was required; or it may be that it was intended to lay down a general law. According to Imam Shafi’i, the Hadeeth under consideration lays down a general rule. For this is the general norm in regards to the Sunnah. The main purpose of the Prophet’s mission was to lay down the foundations of the Shari’ah, and unless there is an indication to the contrary, one must assume that the purpose of the Hadeeth is to lay down general law. [42. Shaltut, Al-Islam, p. 516.]
(c) Sunnah which originates from the Prophet in his capacity as a judge in particular disputes usually consists of two parts: the part which relates to claims, evidence and factual proof and the judgment which is issued as a result. The first part is situational and does not constitute general law, whereas the second part lays down general law, with the proviso however, that it does not bind the individual directly, and no-one may act upon it without the prior authorization of a competent judge. Since the Prophet himself acted in a judicial capacity, the rules that he has enacted must therefore be implemented by the office of the qadi. [43. Shawkani, Irshad, p. 36; Khallaf, ‘Ilm, p. 44.]
Hence when a person has a claim over another which the latter denies, but the claimant knows of a similar dispute which the Prophet has adjudicated in a certain way, this would not entitle the claimant to take the law into his own hands. He must follow proper procedures to prove his claim and to obtain a judicial decision. [44 Shaltut, AlIslam, p. 514.]
To give another example, juristic disagreement has arisen concerning a Hadeeth on the reclamation of barren land which reads, ‘whoever reclaims barren land becomes its owner. [46. Abu Dawud, Sunan (Hasan’s trans.), II, 873, Hadeeth no. 3067; Tabrizi, Mishkat, II, 889, Hadeeth no. 2945.]
The ulama have differed as to whether the Prophet uttered this Hadeeth in his prophetic capacity or in his capacity as head of state. If the former is established to be the case then the Hadeeth lays down a binding rule of law. Anyone who reclaims barren land becomes its owner and need not obtain any permission from the Imam or anyone else. If on the other hand it is established that the Prophet uttered this Hadeeth in his capacity as Imam, then it would imply that anyone who wishes to reclaim barren land must obtain the prior permission of the lmam. The Hadeeth in other words, only entitles the lmam to grant the citizen the right to reclaim barren land. The majority of jurists have adopted the first view whereas the Hanafis have held the second. The majority of jurists, including Abu Hanifa’s disciple, Abu Yusuf, have held that the consent of the State is not necessary. But it appears that jurists and scholars of the latter ages prefer the Hanafi view. The Malikis on the other hand only require government consent when the land is close to a human settlement, and the Hanbalis only when it has previously been alienated by another person. [47. Al-Marghinani, Hedaya (Hamilton’s trans.)’ p. 610.]
The case of Hind, the wife of Abu Sufyan. This woman complained to the Prophet that her husband was a tight-fisted man despite his affluence. The Prophet instructed her to ‘take [of her husband’s property] what is sufficient for yourself and your child according to custom. The ulama have disagreed as to whether the Prophet uttered this so as to enact a general rule, or whether he was acting in the capacity of a judge. If it be admitted that it is a judgment addressing a particular case, then it would only authorize the judge to issue a corresponding order. Thus it would be unlawful for a creditor to take his entitlement from the property of his debtor without a judicial order. [49. Shaltut, Al-Islam, p. 515.]
The Hanafis, Shafis and Hanbalis have held that when a capable man refuses to support his wife, it is for her to take action and for the qadi to grant her a judgment. If he still refuses, the qadi may order the sale of his property. He may even imprison a persistently neglectful husband. The wife is, however, not entitled to a divorce, the reason being that when the Prophet instructed Hind, she was not granted the right to divorce. The Malikis are in agreement with the majority view, with the only difference that in the event of persistent refusal, they entitle the wife to divorce. Thus the ulama have generally considered the Hadeeth under consideration to consist of a judicial decision of the Prophet, and as such it only authorizes the judge to adjudicate the wife’s complaint and to specify the quantity of maintenance. [50. Al-Khatib, Mughni alMuhtaj, III, 442]
Sunnah which consists of general legislation often has the quality of permanence and universal application to all Muslims. Sunnah of this type usually consists of commands and prohibitions which are related to the Qur’an in the sense of endorsing, elaborating or qualifying the general provisions of the Holy Book. [51. Shaltut, AlIslam, p. 516.]
