The Subject of Shura in Islam

Allamah Muhammad Taqi Ja'fari
From our foregoing discussion it became clear that shura means assembly of a group of persons who are capable, reliable and well ­informed about a subject, for the purpose of reaching a truth related with that subject through consultation.
The subject (maudu`) of shura in Islam, that is the affairs which are subject to counsel and consultation, consists of all the spheres of human life as well as the background for determination of the secon­dary laws (al‑ahkam al‑thanawiyyah). To explain this further, it may be said that all matters of opinion surrounding the individual and collec­tive life of Muslims are divided into two categories: hukm and maudu'
1. Hukm. Hukm or command applies to the primary (awwali) and the secondary (thanawi) laws.
The Primary Laws: The al‑ahkam al‑awwaliyyah (the primary laws) constitute all Islamic duties and obligations deduced and inferred by jurists (fuqaha' or Mujtahidin) from the four sources consisting of the Book, sunnah, ijma` (consensus) and `aql (reason), and are communi­cated to all Muslims. The al‑ahkam al‑awwaliyyah, or the primary laws, constitute the duties of all responsible (mukallaf) Muslim men and women. These laws, since they are by no means subject to change or variation, are never set forth for consultation or shura, such as the five categories of acts, which are, wajib (obligatory), muharram (forbidden), mustahabb (enjoined but not obligatory), makruh (distasteful and un­desirable) and mubah (permissible). None of the acts of a mukallaf are outside these five categories, such as, salat, saum, hajj, zakat, khums, jihad, and defence. Other primary laws relate to the commerical deal­ings, punishments (hudud), compensation (diyyah, blood money or indemnity for bodily injury), and yet others relate to the process of trial, testimony and litigation et al. The general definition for this category is that these laws are those which, being based on the Quran, sunnah, ijma` and `aql, with due consideration of the physical and spiritual nature of man and its proneness to various deviations and defects, and with view to various things which are to its benefit and advantage, are not subject to any form of change whatsoever; although they are subject to modulation, depending on the varying states and conditions of a mukallaf (a responsible Muslim). These varying conditions of a muhallaf may be such as travelling, presence in home‑town, compul­sion, exigency, or any other ordinary or extraordinary condition.
There‑ is a very important point related to these laws, and which must be duly observed, is that, in view of the close social relations of Muslims with one another and also their relations with non Muslim communi­ties, the variance of opinion among jurists‑a natural consequence of the controversial nature of the jurist's material and sources‑‑should not be the cause of disturbance and confusion in the social life of Muslims. For this reason, it is necessary that the fatawa (legal opinions) and laws related with social affairs should be issued through a council of leading jurists; if not, variance of legal opinion can cause consider­able confusion and disturbance in the Islamic society.
The Secondary Laws: The secondary laws, or al‑ahkam al‑thanawiyyah, are those issued by someone who is a faqih jami` al‑shara'it (a faqih well‑versed in all spheres of the Islamic Shari`ah, an all‑rounder jurisprudent) with due consideration of the circumstances and condi­tions of an individual or society. An example of this category of laws is the famous fatwa issued by the late Ayatullah Aqa Mirza Muhammad Husayn Shirazi‑may God's mercy be upon him forbidding the use of tobacco.
The difference between the primary and secondary laws can be put as follows:
1. The former are directly based on the four sources, namely, the Book, the sunnah, ijma` and `aql, and which being the class of unchang­ing Islamic laws, together with the fundamental doctrines of the faith, constitute the framework of Islam. The secondary laws, on the other hand, do not directly correlate with the four above‑mentioned sources, but are the product of juristic inference drawn in view of the provisional conditions of an individual or the community. This does not, however, mean that the secondary laws deduced by a faqih jami ` al ­shara'it have no connection with the four sources of law. It means that the faqih jami` al‑shara'it, in consultation with other jurisprudents, issues a fatwa or legal verdict for the benefit of the Muslim society or in order to thwart a danger threatening it through inspiration from general principles and laws that specify the duty to safeguard the existence of the Islamic society.
2. An important point to note in connection with the secondary laws is that they relate to the category of actions and affairs that are generally considered mubah or permissible, as in the case of tobacco, which is mubah, and was forbidden by the late Ayatullah Shirazi. The primary laws, on the other hand, are not changeable on any account.
3. The primary laws, which are suspended in case of idtirar (exi­gency), ijbar (coercion), or karahiyyah (reprehensibility), should not be confused with the secondary laws (al‑ahkam al‑thanawiyyah). For instance, in case of insecurity of roads and sea‑routes the faqih may sus­pend the obligation of the hajj pilgrimage. This is not a secondary law because the duty of hajj is suspended or prohibited since `ilm (know­ledge), ikhtiyar (freedom) and qudrah (power) are the fundamental requirements for the application of a wajib.
4. With the disappearance of the cause and motive behind the secondary laws, their validity expires and the domain (maudu`) of its application returns to the sphere of primary laws.