Sunday, 1 September 2013
The History & Sources of Islamic Law
بِسۡمِ ٱللهِ ٱلرَّحۡمَـٰنِ ٱلرَّحِيمِ
The following is taken from “The History & Sources of Islamic Law” by Shaykh ‘Ali Juma’ah.
As a religion which includes doctrine, law and ethics, Islam forms a complete and comprehensive worldview for human life. Islamic law, fiqh, for its part, is the means by which we are capable of producing appropriate rulings through derivation from the revelatory foundational texts. Such foundational texts come in two forms: ‘recited,’ the Holy Qur’an; and ‘not recited,’ the pure Prophetic sunnah. After its initial period of direct legislation in the time of the Prophet (s.a.w.), Islamic law has undergone many stages, each of which has its own distinctive features and impact on its current form. It is appropriate, then, that there be a study of these stages, which is not simply a description and explanation of the past, but which also serves the present by contributing to greater expertise and depth in understanding the shari’ah.
The purpose of studying the history of any science is to come to know its foundational principles, central concerns, and ultimate goals and benefits so that we may better learn from it. Islamic law is no exception to this, for it is not simply a collection of legal rulings in matters of ritual worship or transactions; rather, it is a complete methodology for all the various facets of human life: doctrine, ritual worship, society, economics, law-making, and politics. Indeed, in its later stages, Islamic law came to be an impressive edifice, organising human civilisation in all of its social interactions and human relationships with sophistication and nuance.
This, of course, gives the study of the history of Islamic law a great importance, because fiqh treats human life in all its details and forms, such that it might be said that the shari’ah is the basis upon which the entire ummah is built, and the logic that serves as the focal point for Islamic civilisation.
Linguistically speaking, the word shari’ah has two meanings. The first is ‘a source of flowing water meant for drinking.’ Secondly, it means a ‘straight and unwavering path,’ as Allah (s.w.t.) Says:
Then We Put thee on the (right) shari’ah: so follow thou that Way …― (Surah al-Jatsiyah:18)
Thereafter, shari’ah came to express, in the language of the jurists, the rulings Prescribed by Allah (s.w.t.) for His servants, so that they may become proper believers. These rulings are known as the shari’ah because they are decisive – there is no deviance from their program, nor divergence from their objectives.
Tashri’ is the enacting of the shari’ah, that is to say, the setting down of its principles and explication of the order and system that both individuals and groups are to comply with. Of course, in this manner of speaking, the Islamic legislation properly existed only in the lifetime of the Prophet (s.a.w.), because Allah (s.w.t.) has not given the power of legislation to other than His Prophet (s.a.w.). In this, the Prophet (s.a.w.) relied on two types of revelation: ‘the recited,’ the Qur’an itself; and the ‘unrecited,’ the sunnah.
Based on this, it might be said that the history of Islamic legislation refers only to that which took place during the Prophet’s (s.a.w.) life, and does not include the many discrete rulings which thereafter revealed themselves to the minds of the mujtahidun. However, the scholars have tended to expand the referent of this branch of knowledge. As Shaykh Muhammad ‘Ali as-Sa’ayis (r.a.) said, “The history of Islamic legislation is a discipline in which is treated the nature of Islamic law during the lifetime of the Prophet (s.a.w.), as well as in subsequent eras. It specifies the different time periods in which rulings came to be, and elucidates what occurred during them with respect to abrogation, specification, expansion, and so forth. It also discusses the jurists and mujtahidun and their relationship to these rulings.”
The Islamic shari’ah is a Divine Law, meaning that it comes from Allah (s.w.t.) Himself. There are differences between it and the positive law. The shari’ah is a sacred religious law, through which one is taught how to worship Allah (s.w.t.), compliance with which is considered obedience to Allah (s.w.t.) deserving of reward, and violation of which is sinful disobedience meriting punishment. Although it may also specify worldly punishments, it is connected to the afterlife in terms of reward and punishment, as opposed to positive legislation which does not deal with what is in people’s hearts.
Islamic law seeks to elevate man, purify his heart, and refine his soul. Positive legislation simply strives to regulate society without regard to individual’s character and ethics. Islamic law commands the good and forbids the evil, whereas positive legislation is concerned only with prohibitions. It does not compel good works except incidentally. Islamic legislation pronounces on both the internal and external actions of man, whereas positive law restricts itself to the external and observable.
The principles of shari’ah do not apply to one people to the exclusion of another, or to one time period to the exclusion of another. They are universal principles seeking to fulfill the needs of all people, and raise their standing in all eras. As for positive legislation, it is specific to a given group in a given time, and so is in need of change whenever that constituency evolves and their particular demands change.
The first source of shari’ah is the Qur’an. The Qur’an is ‘Revealed Speech which is inimitable, whose recitation is considered worship, and which has been mass-transmitted to us.’ It is definitively authentic, qath’iy ats-tsubut, though some of its verses may not be definitive in their meaning, qath’iy adh-dhalalah, but only probable. The word of Allah (s.w.t.), the Qur’an, is absolute; that is to say, it is independent of time and place; it addresses all, not just those at the time of the Prophet (s.a.w.), nor simply those in the Arabian Peninsula but the Qur’anic discourse is catered to all humanity and to all regions.
The Qur’an was Revealed to the Prophet (s.a.w.) in portions over twenty-three years, the majority of which he spent in Makkah. As Allah (s.w.t.) Says:
(It is) a Qur'an which We have Divided (into parts from time to time), in order that thou mightest recite it to men at intervals ... (Surah al-Isra’:106)
For this reason, scholars have partitioned the Qur’an into two phases, the Makkan and Madinan, though they have differed on the precise criteria for this categorisation.
The first and best-known opinion is that the Makkan is that portion of the Qur’an Revealed before the Prophet’s (s.a.w.) migration, hijrah, and the Madinan is that which is Revealed after it even if it was technically revealed in Makkah. The second opinion is that the Makkan is whatever was Revealed in Makkah even if it was after the hijrah, and the Madinan is that which was Revealed after the hijrah. The third opinion is the Makkan is that which is Addressed to the people of Makkah, and the Madinan is that which is Revealed to the people of Madina.
The benefits of understanding this categorisation is that we come to know which verses came later, and so may reliably consider some to abrogate, qualify or specify others; we come to know the history of legislation, and the wisdom of its gradual application; and we come to develop a confidence in the Qur’an, and its sound transmission to us without any forgeries or changes.
Anyone who has read the Qur’an will have noticed that the Makkan verses have their own specificities and characteristics not found in the Madinan, even though the latter are an extension of the former in terms of rulings and legislation. Because the pre-Islamic Arabs would worship idols, associate partners, shirk, with Allah (s.w.t.), deny the Day of Judgement, and because their eloquence was well-known, the Makkan Revelation was concerned with addressing them with that which was appropriate for their situation; providing proofs and clear-cut arguments in an effort to invite them to monotheism, to make clear their evil ways, to prove prophethood, to offer them parables, to admonish with lessons from previous nations, to establish proofs for Creation, and to engage in rational debate.
It is only upon the formation of a group of believers in Allah (s.w.t.), His angels, His scriptures, His messengers and the Day of Judgement, and their subsequent enduring of difficulties, and migration to Madina, that the Madinan Qur’an was Revealed, comprising the rulings of Islam, and its limits and penal codes; explaining the principles of legislation; setting out rules for society, relationships between family members, and the connection between individuals and groups.
Below are the most prominent features of the Makkan and Madinan verses. The Makkan verses have their own features. Through the signs of Allah (s.w.t.) in Creation, they call to monotheism, the exclusive worship of Allah (s.w.t.), the affirmation of prophethood, the prophetic mission, and rewards and punishments; through rational proofs, they respond and debate with the polytheists; they also mention the Day of Judgement and the Hellfire.
They establish the general principles of legislation and ethics upon which society is based; they expose the scandals of the polytheists in terms of bloodshed, unjustly usurping the wealth of orphans, burying their daughters alive, and other practices.
They recount stories of the prophets and past nations, so that unbelievers may come to know the fate of those who came before them; they also console the Prophet (s.a.w.) so that he may endure their abuses, and be assured of victory over them.
They appeal to the reader aesthetically by using powerful language, short verses, and choice words. The mode of address in the Makkan verses are general, often taking the form “O mankind,” or “O sons of Adam.” In contrast, the Madinan verses primarily address the believers, very often with the phrasing, “O you who believe.”
Oaths recur often in Makkan verses. There are approximately thirty examples of oath-taking in this period, whereas there is only one example in the Madinan verses, which is:
The unbelievers think that they will not be raised up (for Judgment). Say, “Yea, by my Lord, ye shall surely be raised up: then shall ye be told (the truth) of all that ye did ...” (Surah at-Taghabun:7)
The Madinan verses have their own characteristics. They have an explanation of laws governing rituals, daily transactions and relationships, penal codes, inheritance, the virtues of struggling in the path of Allah (s.w.t.), the family structure, and the relationship between state and society; as well as the principles and main concerns of lawmaking.
They are an address to the People of the Book - Jews and Christians, inviting them to Islam, making clear the manner in which they have handled previous scriptures, and indicting them for deviating from the truth, and for dissenting amongst themselves out of envy after knowledge had come to them. They reveal the behaviour of the hypocrites, munafiqun; unveiling that which they tried to hide, analysing their mentalities; and making clear their danger to true religious traditions. And they are lengthy passages setting down the shari’ah, and clarifying its objectives and goals.
The Qur’an has three principal objectives. It serves as guidance for mankind. The guidance of the Qur’an can be further categorised into two types. There is a general guidance for all people. As Allah (s.w.t.) Himself says:
Ramadhan is the (month) in which was Sent Down the Qur'an as a Guide to mankind also clear (Signs) for guidance and judgment (between right and wrong) ... (Surah al-Baqarah:185)
Verily this is no less than a Message to (all) the worlds: (Surah at-Takwir:27)
It is a specific guidance catered for believers. As Allah (s.w.t.) also Says, it is:
A Guide; and Glad Tidings for the believers ― (Surah an-Naml:2)
“And Allah doth Advance in guidance those who seek guidance ...” (Surah Maryam:76)
… Say: “It is a guide and a healing to those who believe …” (Surah Fuswswilat:44)
It is meant to be a manifest sign in support of the Prophet (s.a.w.). In other words, the Qur’an stands in the world as a sign attesting to the message of the Prophet Muhammad (s.a.w.), and endures throughout time as an everlasting miracle articulating guidance and the true religion, superior to all others. As Allah (s.w.t.) Says:
It is He Who has Sent His messenger with Guidance and the Religion of Truth, to proclaim it over all religion: and enough is Allah for a Witness. (Surah al-Fath:28)
The Qur’an States Creation is capable of worshipping Allah (s.w.t.) through its recitation, and that they may be Rewarded for simply repeating His Words.
Those who rehearse the Book of Allah, establish regular prayer, and spend (in charity) out of what We have Provided for them, secretly and openly, hope for a commerce that will never fail: for He will Pay them their meed, nay, He will Give them (even) more out of His Bounty; for He is Oft-Forgiving Most, Ready to appreciate (service). (Surah Fathir:29-30)
The second source of shari’ah is the Prophetic sunnah. The sunnah is defined as statements, actions, tacit approvals, or qualities related about the Prophet (s.a.w.). In terms of statements, we may take the example of that which is related from ‘Umar ibn al-Khaththab (r.a.), who said, “I heard the Prophet (s.a.w.) saying, ‘Actions are only by intentions. So, every person will have that which he intended.’”
In the category of actions are included all actions of the Prophet (s.a.w.) that have reached us, such as his manner of doing ablutions, wudhu’, and of performing the pilgrimage, hajj and so on and so forth. As an example, we have a hadits from the Prophet (s.a.w.) saying “Pray as you have seen me pray.” Similarly in his final pilgrimage, he said, “Take the hajj rituals from me.”
Tacit approvals consist of the Prophet’s (s.a.w.) affirmations of the statements or actions of the companions, either through his silence and, therefore, lack of repudiation, or through his express agreement and commendation. Examples of this include the narration of Abu Sa’id al-Khudri (r.a.) who said, “Two men set out on travel. When the time for prayer came, neither of them had any water with him. So they performed tayammum and prayed. Thereafter, they came across water while the time of prayer had not expired. One of them performed his regular ablutions and repeated his prayer, while the other did not. Then, they came to the Prophet (s.a.w.) and mentioned to him what had transpired. He said to the one who did not repeat the prayer, ‘You have achieved the sunnah, and your prayer was valid.’ And to the one who performed the ablutions and prayed again, he said, ‘You have two rewards.’”
As for qualities, many of the Prophet’s (s.a.w.) qualities and characteristic have been related. Some scholars have even taken to compiling these, such as Imam at-Tirmidzi (r.a.) in his work, ash-Shama’il.
There are different types of rulings found in the sunnah. There are rulings that echo and emphasise the rulings of the Qur’an. An example of this is a hadits related by Anas ibn Malik (r.a.) who said that the Prophet (s.a.w.) said, “The wealth of a Muslim is not permissible to another except with his agreement and permission.” This is in agreement with the verse:
O ye who believe! Eat not up your property among yourselves in vanities: but let there be amongst you traffic and trade by mutual goodwill ... (Surah an-Nisa’:29)
There are rulings that clarify and explain general commandments in the Qur’an. An example of this is that which clarifies the amounts for zakat.
There are rulings that restrict or specify general Commands of the Qur’an. An example is the general Qur’anic Command to amputate the hand of the thief, which the sunnah specified is to be done at the wrist. Another example is the general Qur’anic prohibition against eating carrion:
Forbidden to you (for food) are: dead meat, blood the flesh of swine, and that on which hath been invoked the name of other than Allah... (Surah al-Ma’idah:3)
However, the following hadits from ibn ‘Umar (r.a.) exempts seafood from this prohibition. According to ibn ‘Umar (r.a.), the Prophet (s.a.w.) said, “Two types of blood and two types of dead meat have been made permissible for us: of the dead meat, fish and locusts; and of the blood, liver and spleen.”
There are new rulings not mentioned in the Qur’an, because the sunnah is an independent source of legislation. In this regard, it is not unlike the Qur’an. It is reliably transmitted that the Prophet (s.a.w.) said, “I have been given the Book and something like it with it. I have been given the Qur’an and something like it with it.” And he continued, “So mandatory upon you is the Qur’an. What you find deemed permissible in it has been made permissible for you, and what you find deemed impermissible in it has been made impermissible for you. So, neither the domesticated donkey nor any predator with fangs is permissible for you.” This means the Prophet (s.a.w.) was given the Qur’an and something like it, the sunnah. The rulings of both must be followed, and from this we come to know of the prohibition against eating both domesticated donkeys and fanged predators, as well as the prohibition against eating birds with claws, and the rulings on the inheritance of the grandmother, and so forth.
We may categorise the rulings mentioned in the Qur’an and sunnah. The first is doctrine: belief in Allah (s.w.t.), and His angels, Scriptures, prophets; as well as the Day of Judgement, and Fate, the good and the bad; and all that follows from the above, such as belief in the unseen, eschatological matters, Allah’s (s.w.t.) Reckoning, Paradise and Hellfire.
The second is ritual worship; rulings about the relationship between Allah (s.w.t.) and His servant, in terms of his exclusive worship of Him. These include prayer, alms-giving, fasting, pilgrimage, and all the conditions, constituent parts, obligations, and encouragements associated with the above.
The third is personal status, rulings related to the regulation of family matters. These include marriage, dowries, divorce, the rights and obligations of married life, maintenance obligations, inheritance laws, and things related to these matters. There are rulings on rulings related to eating, drinking, and clothing: what is permissible and what is not. The general rule is that of permissibility.
And then there are rulings on transactions, rulings concerning people’s relationship with one another, and their financial transactions like sale, interest, loans, pawning, sureties, representationship and proxy, partnership, and agricultural contracts; as well as the economic principles of Islam in general.
There are rulings on public policies and governance. These are rulings related to the system of governance, and the principles of political leadership towards their constituents; as well as the rights and obligations of each. These include discussions on the status of the ruler, governors, and viziers and the judiciary.
There are rulings on punitive law, on punishing criminals, including lex talionis, blood-money, and mandatory and discretionary punishments. There are rulings on international law, related to the relationship between Islamic polities and others in terms of war, peace, security, and treaties.
And finally, there are rulings on ethics, virtue, and social protocol. These include the etiquette of social gatherings, visiting one another, greetings, seeking permission in some matters, and eating and drinking in gatherings; as well as encouragement to virtues such as humility, forbearance and patience.
The third source of shari’ah is consensus, ijma’. Linguistically, it means to be determined and tenacious. In the terminology of the jurists, it is the agreement of the ummah of Prophet Muhammad (s.a.w.) on a matter of religious significance.” Imam al-Ghazali (r.a.) maintains in his al-Mustaswfa min ‘Ilm al-Uswul that this agreement removes any doubts or alternative possibilities that might arise through an exclusive reliance on the proof itself. For this reason, an object of such a consensus must be acted upon; it is impermissible to oppose.
A consensus must be based on evidence, for it is wrong to adopt an opinion without evidence in matters of shari’ah. The Islamic nation cannot unanimously agree on an error, as is narrated in numerous ahadits. An example is that which is narrated by ‘Abdullah ibn Dinar (r.a.) on the authority of ibn ‘Umar (r.a.), who said that the Prophet (s.a.w.) said, “Allah will not unite my ummah on misguidance. The Hand of Allah is with the group, and whoever deviates from it, takes himself to Hell.” Shaykh Abu ‘Isa (r.a.) explained that, according to scholars, the ‘group’ refers to the people of fiqh and ahadits.
Another example is narrated by Anas ibn Malik (r.a.) who said, “I heard the Prophet (s.a.w.) saying, ‘My ummah will not unite on misguidance, so if you see them differing, follow the great majority.’” The basis of ijma’ may be a text from the Qur’an and sunnah, or it may equally be an analogical argument, custom, or other types of ijtihad.
There are two types of ijma’. There is express consensus, which is when all mujtahidun agree on a matter in an explicit and clear manner; each of them articulates his opinion, and they all coincide. And there is tacit consensus, which is when some mujtahidun offer their opinion on a matter, all the others come to know of it and they remain silent, offering neither objection nor corroboration.
There is still great importance for ijma’ in our times. Consensus is a valid legal source, from which we can come to known the legal rulings about new occurrences in our times. We believe this is only possible in the present circumstances through the formation of fiqh councils encompassing all mujtahidun from the different parts of the Muslim world. There should be a specific place set aside for these councils, and they must be given what they need to carry out their research. They must carefully study these new matters, arrive at the proper rulings, and disseminate them in regular periodicals or specialised works, so that people can refer to them and so that other scholars may further offer their opinions in them. If what is arrived at amounts to a consensus, and this consensus corresponds to that of the texts of the jurists, the ruling must be followed and acted upon.
The fourth source of shari’ah is analogy, qiyas. Imam al-Ghazali (r.a.) in his al-Mustaswfa defined qiyas as the application of one case to another because of a common element between them for the purposes of affirming a denying a judgement on both of them. The scholars proved the authoritativeness of qiyas through many evidences. These include the verse:
… Take warning then, O ye with eyes (to see)! (Surah al-Hashr:2)
Here, the ‘warning,’ or in other translations, the ‘lesson’ means to move from one thing to another like it if they share a common meaning, as ibn ‘Abbas (r.a.) maintained. Other proofs include the verses:
… If they had only referred it to the Messenger or to those charged with authority among them, the proper investigators would have tested it from them (direct) ... (Surah an-Nisa’:83)
… Nothing have We omitted from the Book... (Surah al-An’am:38)
We may add to these verses other evidences, such as the hadits about the Prophet (s.a.w.) sending Mu’adz (r.a.) to Yemen. When he did so, he asked him, “If a judicial matter comes before you, how will you judge.”
Mu’adz (r.a.) replied, “I will judge by the Book of Allah.”
The Prophet (s.a.w.) replied, “And if you don’t find it in the Book of Allah?”
He responded, “Then, by the sunnah of the Messenger of Allah.”
He said, “And if you find it neither in the sunnah of the Messenger of Allah nor His Book?”
He replied, “I will exercise my judgement, and will not refrain from doing so.”
The Prophet (s.a.w.) struck his chest, and said, “Praise be to Allah Who Endowed the messenger of the Messenger of Allah with that which pleases the Messenger of Allah.”
There are evidences other than these four, though they are disagreed upon. Some have reckoned them to number over forty. There are additional sources of the shari’ah, adopted by some and rejected by others. These include juristic discretion, istihsan; the presumption of continuity, istiswhab; cutting off means to the forbidden, swadd adz-dzara’i; public welfare, al-maswalih al-mursalah and many others.
It can be said that there ae five distinct periods of Islamic legislation. The first is obviously the lifetime of the Prophet (s.a.w.). The manner of legislation in the time of the Prophet (s.a.w.) did not depend on legal reasoning based on hypothetical circumstances and occurrences, nor was there a codification of rulings as was the case in subsequent periods. Rather, legislation in this period proceeded in step with the reality of the Prophet’s (s.a.w.) world. It was clear to the Muslims at the time that if they were confronted with a matter requiring a judgement, they were to refer it to the Prophet (s.a.w.), and it would be answered through a verse, or some verses, Revealed to him from Allah (s.w.t.), or through a hadits. On occasion, the ruling would be clarified to them through the Prophet’s (s.a.w.) own actions, or through his approval or rejection of the actions of another.
Regardless of what the Prophet’s (s.a.w.) response was, it would not emanate except from a Revelation from his Lord: either through the Qur’an or his sunnah. As Allah (s.w.t.) Says:
Nor does he say (aught) of (his own) desire. It is no less than inspiration Sent down to him: (Surah an-Najm:3-4)
We may draw three conclusions from this. The first is that legislative authority in this period rested exclusively with the Prophet (s.a.w.). And the reference for legislation at this time was Revelation in its two forms, the Qur’an and the sunnah. The second is that verses of the Qur’an were Revealed according to specific circumstances, or as a response to a question. Very few were not preceded by an event or query which motivated it. This is what the scholars mention in the science of asbab an-nuzul, the circumstances of Revelation. And finally, Islamic law was not all Revealed at once, but rather gradually in parts in the form of Qur’anic verses and ahadits.
The second period is the time of the Salaf; of the Companions, swahabah, and followers, tabi’un. With the death of the Prophet (s.a.w.) came an end to Revelatory legislation, the Qur’an and the sunnah. However, these were the two great resources left behind for subsequent generations from that period. And so, law began to develop and expand in the period of the companions and followers. This is because the jurists encountered new circumstances which were not present during the lifetime of the Prophet (s.a.w.), but they remained duty-bound to come to know Allah’s (s.w.t.) Ruling in these new matters. These new matters arose in part as a result of the wars of this period, and so, they had to address the nature of relations among Muslims, and between Muslims and others, especially during war. This, in turn, led to a number of legal matters, such as rules relating to the Islamic conquests, and the expansion of the Islamic empire and Muslims’ interactions with the people of those lands, for every land has its own customs and traditions.
As a result, the companions and followers embarked on the task of determining the rulings concerning these matters. So they performed ijtihad, made use of their opinions in light of the principles and objectives of the shari’ah. This is how the notion of ijtihad bi ar-ra’y or independent reasoning arose as an independent source for law; of course, it did not exist during the time of the Prophet (s.a.w.), when recourse could be made to revelation. Of course, any ijtihad based on ra’y will give rise to differences of opinion, and this is what happened in this period. In some cases, though, the jurists engaged in ijtihad and found themselves in agreement. This agreement is considered a consensus, ijma’; this is how ijma’ came to be a source of law, though it of course did not exist during the life of the Prophet (s.a.w.).
As well, challenges emerged to the sunnah as a result of the jurists’ being spread out in different locales and encountering different occurrences. So, the need was felt to investigate the principles of the sunnah, and ensure that there existed some who preserved it by discussing and relating it, and by extracting rulings from it. In this period, the jurists treated novel matters by searching for a ruling in the Book of Allah (s.w.t.). If they did not find it there, they turned to the sunnah. If they still did not find an appropriate ruling, they turned to ra’y and ruled according to their personal ijtihad. There is no doubt that this is a sound methodology, for the jurists did not resort to their own ra’y unless they could not find anything in the Qur’an and the sunnah. Although, they were not all equal in this matter, for some of them made extensive use of ra’y, and some used it sparingly. Imam ibn al-Qayyim (r.a.) said in ‘Ilam al-Muwaqqi’in, “The task of issuing fatawa then fell to the companions – the elite of Islam and faith, the army of the Qur’an and ar-Rahman. They were amongst the ummah, the most tender-hearted, the most profoundly knowledgeable, the least pretentious, the most eloquent, the truest in faith, the most general in giving advice, and the closest to Allah. They varied between those who issued numerous fatawa, those who gave only a few, and those who occupied an intermediate position between these.”
We may enumerate seven companions who used ra’y extensively: ‘Umar ibn al-Khaththab (r.a.), ‘Ali ibn Abi Thalib (k.w.), ‘Abdullah ibn Mas’ud (r.a.), ‘Aishah (r.a.) the wife of the Prophet (s.a.w.), Zayd ibn Tsabit (r.a.), ‘Abdullah ibn ‘Abbas (r.a.), and ‘Abdullah ibn ‘Umar (r.a.). Those who occupied an intermediary status in this regard included Abu Bakr asw-Swiddiq (r.a.), Umm Salamah (r.a.), Anas ibn Malik (r.a.), Abu Sa’id al-Khudri (r.a.), Abu Hurayrah (r.a.), ‘Utsman ibn ‘Affan (r.a.), ‘Abdullah ibn ‘Amr ibn al-‘Aasw (r.a.) and others. The rest gave fatawa only occasionally, including Abu ‘Ubaydah ibn al-Jarrah (r.a.), Abu Thalhah (r.a.), Abu Dzarr (r.a.), Umm ‘Athiyyah (r.a.), Swafiyyah (r.a.) the wife of the Prophet (s.a.w.) and many others.
After this came the emergence of the schools of the people of ahadits and the people of Ra’y. Ijtihad bi ar-ra’y in this period was based on an assessment of the underlying causes, ‘illas, of rulings and a consideration for public welfare. The jurists were in one of two camps in this regard: those who were cautious of ra’y and made only occasional recourse to it, and those who were not intimidated by the use of ra’y and resorted to it whenever they felt the need.
The majority of the first camp, known as the school of the people of ahadits, was in Madina and the Hijaz. Their major representative was Imam Sa’id ibn al-Musayyib (r.a.), one of the famed seven jurists who learned fiqh from the companions and spread it in Madina. Imam Sa’id (r.a.) was one of the most prominent followers in terms of learning, religiosity, piety and virtue, and so is often known as the jurists’ jurist. The seven jurists are Imam Sa’id ibn al-Musayyib (r.a.), Imam ‘Urwah ibn Zubayr (r.a.), Imam Qasim ibn Muhammad (r.a.), Imam Abu Bakr ibn Muhammad ibn al-Harits (r.a.), Imam ‘Abdullah ibn ‘Abdullah ibn ‘Utbah ibn Mas’ud (r.a.), Imam Sulayman ibn Yasar (r.a.), and Imam Kharijah ibn Zayd ibn Tsabit (r.a.).
The majority of the second group, the school of the people of ra’y, could be found in Kufa and Iraq. Their principal proponent was Imam Ibrahim ibn Yazid an-Nakha’i (r.a.), the shaykh of Imam Hammad ibn Abu Sulayman (r.a.).
This period came to an end without there being any codification of either of the sciences of fiqh and ahadits. There were, however, some preliminary attempts. Caliph ‘Umar ibn ‘Abd al-‘Aziz (r.a.), for example, wrote to his representative in Madina, Shaykh Abu Bakr Muhammad ibn ‘Umar ibn Hazm (r.a.), to look for what there was of the ahadits, or sunnah, of the Prophet (s.a.w.) and write it down. However, the caliph passed away before his agent could complete what he was ordered to do.
Then followed the period of the mujtahidun. This period began at the outset of the second hijri century and extended to the middle of the fourth. In this period, fiqh grew and flourished, and the questions it treated multiplied in an unprecedented manner. This phenomenon is due to a number of reasons, including the regard of the Abbasid caliphs for law and the jurists. This is evident in their closeness to the jurists, and their resorting to them for their opinions. There was an expansion of the Islamic empire which stretched from Spain to China. In these vast lands, it became necessary to take account of the various customs and traditions of the people, as long as they did not contravene the foundational texts. So, people’s ijtihad differed based on the variation of their customs and traditions.
This was also the time of the emergence of great mujtahidun with superior qualifications and talents, and their work in developing fiqh in order to respond to the needs of the state for organisation and laws. Further, they formed schools which were populated by distinguished jurists. And this was the time of the compilation of the sunnah, which enabled the jurists to distinguish the sound from the weak ahadits, and so make better use of them in a more convenient fashion. The sunnah of course, is the very subject matter of fiqh, and one of its most important sources.
After this was the period of taqlid. This period began midway through the fourth century and continued until the fall of Baghdad in 656 AH. This is the period of the stagnation of fiqh, for the jurists tended towards taqlid although the standard until then was that there be an independent mujtahid not bound to a specific madzhab, juristic school of thought, but rather restricted only by the texts of the Qur’an and sunnah and that which acceptable ijtihad leads him to – acceptable ijtihad being an extraction of legal rulings from the two great sources, the Qur’an and the sunnah, and from those indicated by these two.
In this period, the ambitions of the jurists were weak. They considered themselves deficient, and incapable of following in the footsteps of previous mujtahidun. This, despite their mastery in fiqh, and the ease with which they could now access the sunnah source material. Among the reasons for the prevalence of taqlid among all but a rare few of the jurists was the weakness of the political power wielded by the Abbasids. The Islamic empire was no longer what it had been – it had now been split up into portions with small states governing the many fractured areas. This has a serious impact on the lives of jurists, and the development of law.
The various schools of thought had now been codified in a comprehensive manner, after a refining of its major issues and concerns, and the organisation of its content. This led to a certain contentment with this juristic heritage, and a feeling of being able to dispense with further investigation and derivation of rulings. There was a lack of confidence by the scholars themselves, and a fear of ijtihad. The jurists accused themselves of weakness and deficiency, and considered themselves incapable of taking the rulings directly from the original sources. They thought it best and most suitable that they restrict themselves to a well-known madzhab, to stick and abide by to its rulings, and to learn its uswul without diverging from them.
In this period, the gate of ijtihad was closed. For when the jurists saw that the claims to ijtihad were being made only by those who were incapable of it, they feared that the religion of the people would be corrupted by inferior fatawa based on neither knowledge nor understanding. So, they pronounced on the closing of the gate of ijtihad, to safeguard from this corruption and to protect the people. But, the truth is that ijtihad persisted and did not disappear entirely. It was simply that ijtihad had to be preceded by the fulfillment of certain conditions – whoever possessed the requisite capacities was entitled to perform ijtihad; whoever did not, it was prohibited for him to issue fatawa without knowledge.
Despite this stagnation, the jurists undertook many beneficial tasks, including determining the operational legal causes for rulings transmitted from their a’immah, for not every position had been transmitted with its reasoning; extracting the principles of derivation from the rulings of the madzhab, so that the methods of ijtihad adopted by the imam may be known; and weighing the different opinions transmitted from the imam, and choosing some over others. For it could have been that the transmitted opinion was retracted without the transmitter knowing this fact; or alternatively that there was a subtle difference between two variant opinions which explained the difference between them; or again that one opinion was adopted according to a strict analogy, while another was adopted for other considerations out of a jurist’s discretion. So, the jurists of this period would grant preponderance to some of these opinions over others in light of the principles of their established madzhab.
They also organised the fiqh of their madzhab, by categorising, explaining and commenting on the rulings, and supporting them with evidences; and mentioning points of conflict with other madzahib, the reasons for these disagreements, and the evidences in support of their madzhab’s positions. There is no doubt that these contributions constituted a great service to the study of fiqh, by expanding and explaining the field.
After this, came the modern period. This period begins with the fall of Baghdad in the seventh century and extends to our times. Fiqh did not recover from this stifling environment and the jurists did not change their approach. So restrictiveness became widespread, though there were a few individuals here and there who were dissatisfied with taqlid and called for unrestricted ijtihad based on direct interaction with the Qur’an and sunnah, and not restricting oneself to a specific madzhab.
But these were few in number, and the majority of the muqallid jurists did not accept their criticisms. So, the jurists of this period oriented themselves towards writing, and especially towards statements of doctrine which came to be so terse that they began to impair and obscure the intended meanings, resembling instead aphoristic writing. These texts, called the muthun, were in need of commentaries, shuruh, to explain their meanings and clarify their ambiguities. Then, notes and comments appeared in the margins of these commentaries; these were called glosses, hawashi.
But, writing was not restricted to these genres. There were also books of fatawa, responses to questions posed by the people as to their daily practical lives. These individual responses were gathered either by their author or by others, and organised according to the chapter scheme of books of fiqh. Also, many of these fatawa were accompanied either by evidences from the texts of the school, madzhab, of the mufti, or by evidences from the Qur’an, the sunnah, and other primary sources without reference to a specific madzhab.
Now we are in the age of the modern revival. In our era, we are witnessing a revival of fiqh from a variety of perspectives: a greater regard for the discipline of fiqh in university teaching; the comparative study of fiqh; an exposure to its distinguishing characteristics and features; and an attempt to reconcile the culture of law with the culture of the shari’ah. We hope for an increase in the regard being accorded to the shari’ah and fiqh so that it reclaims its original standing as law proper, and that the state undertakes appropriate legislation as was the case in the past.
One of the phenomena of the contemporary revival of fiqh is the resurgence of writing in the discipline. Among the reasons for this is the storming of the field by extreme tendencies, who have sought to critique religious texts. And so many serious writings have emerged as a sort of response to this orientation, delineating the manner of interacting with the shari’ah texts, and presenting the principles of Islam. This genre has fulfilled its role of strengthening the confidence of Muslims in their religion and heritage.
Other phenomena include the formation of fiqh councils, scientific meetings, Islamic universities. In addition, there have been other institutions which have played the crucial role of bringing the different schools of thought together, and teaching fiqh according to the different madzahib, and so contributing greatly to minimizing and limiting partisanship between the schools.
Many contemporary scholars have distinguished themselves in this field in both the east and the west, contributing to this revival, and to the study of fiqh from a variety of directions. An example of this is Dr ‘Abd al-Hakim Jackson, professor at the University of Michigan in the United States. He has many studies of fiqh, including his book, Islamic Law and the State: The Constitutional Jurisprudence of Shihab ad-Din al-Qarafi. A genre that has emerged as part of this revival is the fiqh of minorities. The word ‘minorities’ is a political term indicating a constituency within a nation-state that belongs to a linguistic, ethnic, or religious group other than that of the majority. It is best to include this as a sub-genre of fiqh in the general sense – which includes both the doctrinal and practical aspects of the shari’ah. This is the meaning intended by the Prophet (s.a.w.) when he said, “He for whom Allah Wishes good, He Gives him understanding (fiqh) in religion.”
So, the fiqh of minorities is that portion of fiqh which evinces a regard for the connection of the legal ruling with the circumstances of such a group and the place in which they live. It is, in other words, a fiqh for a group that finds itself in special circumstances: some things may be appropriate for it that are not appropriate for others. The one who treats such matters is in need also of knowledge of the social sciences, especially sociology, economics, political science and international relations.
Today, we are in need of placing such a fiqh on a strong footing, which in reality is already well established in a number of legal principles. One principle is that legal obligation is based on one’s capacity to fulfill the obligation, as in the verse:
On no soul doth Allah Place a burden greater than it can bear... (Surah al-Baqarah:286)
The shari’ah is built on ease and facility. The Qur’an Says:
…Allah Intends every facility for you. He does not want to put you to difficulties... (Surah al-Baqarah:185)
Allah (s.w.t.) also Says:
… and has imposed no difficulties on you in religion … (Surah al-Hajj:78)
There are both supererogatory actions and dispensations in the religion. People of strength are entitled to perform the former, while people of weakness are entitled to take advantage of the latter. In both cases, what is sought is ease. As such, it is necessary to make things easy for those living outside Muslim lands.
The scholars have also settled on a famous principle, namely that fatawa change with time, place, custom and circumstances. This is what is meant when we differentiate between those who live within Muslim countries and those who live outside of them.