INTRODUCTION TO History of Islamic Law

The Second Stage Establishment Major Stages Of The Development Of Fiqh

 FOUNDATION The era of the Prophet s.a.w. (609-632CE)

 ESTABLISHMENT The era of the Khulafa’ al-Rashidin, from the death of the Prophet s.a.w. to the middle of the seventh century (632-661CE)’

 BUILDING The founding of the (661CE) until its decline in the middle of the 8th century CE

 FLOWERING The rise of the ‘Abbasid dynasty in the middle of the 8th century CE to the beginning of its decline around the middle of the 10th century CE

 CONSOLIDATION From the decline of the ‘Abbasid dynasty at about 960CE to the invasion of Baghdad by the Mongols in the middle of the 13th century CE

 STAGNATION AND DECLINE The sacking of Baghdad in 1258 CE to the present time.

MAJOR STAGES OF THE DEVELOPMENT OF FIQH

STAGE 1 STAGE 2 STAGE 3 STAGE 4 STAGE 5 STAGE 6 Foundation Establishment Building Flowering Consolidation Stagnation & Decline

The era of Prophet The era of the The Era of the The Abbasid Era The Abbasid Era II The Ottoman Era p.b.u.h Righteous Caliphs Umayyad Dynasty

 Legislation in  Problem-solving  Practices  Golden period  Taqlid  Characteristics Makkah procedures introduced by the of Fiqh  Legislation in Umayyad  Reasons for Taqlid  Fiqh Madinah  Ijtihad of the  Positive literatature Companions  Ijtihad developments  Contributions of  Focus of Legislation scholars  Present state  Difference of Views of Islamic Law  Characteristics of among the Companions Legislation

 Sources of Islamic Law

The beginning of 11AH – 40AH 41AH -132AH 132AH – 350AH 350AH – 656AH 656AH – Present Prophet hood – 11AH

Factors Effecting the Characteristics Characteristics Characteristics Factors of Taqlid Characteristics Development of Fiqh

Realistic Fiqh Issues Gov support Prevailing trend of Gradation in Legislation Increase in Issues The collapse of the Competence Mujtahid empire taqlid Removal of Difficulty Procedures in deducing Spreading and Expansion of the empire hukm Fabrication of The schools of Fiqh The codification of Abrogation [al-] Compilation of Islamic Law

Personal Opinion Emergence of schools Compilation of Fiqh False claim of Ijtihad of Fiqh Western colonization Non existence of Emergence of schools of Following a single and Islamic Law Mazhab Fiqh mazhab

THE ERA OF THE KHULAFA AL-RASHIDUN [11H-40H]

 Begins from the of [11H-13H] & ends with the death of ibn Abi Talib [40H].

 The expansion of the borders of has resulted the emergence of numerous new issues of Fiqh as the were in contact of new systems, cultures, customs and patterns of behavior.

 In solving these new issues the Righteous Caliphs relied heavily on: a. Decisions by consensus [al-Ijma’] b. Personal reasoning [ijtihad] PROBLEM-SOLVING PROCEDURES OF THE RIGHTEOUS CALIPH

 They would first search for the ruling in the Qur‘an and rule accordingly.

 If they did not find the answer there, they would then search in the Sunnah, the sayings and actions of Prophet s.a.w. and ask the other companions whether the Prophet s.a.w. has rule on similar incidents. They will rule accordingly upon finding any indications in the Sunnah.

 If they still did not find the answer, they would then call a meeting of the major Sahabah and try to get consensus of opinion among them to solve the problem. (This consensus is referred to as ijma' al- Sahabah.)

 If unanimity could not be arrived at, they would then take the position of the majority.

 If, the differences were so great that there is no majority opinion, the caliph would make his own ijtihad based on the different views that was discussed among the companions. Al-Qur’an

 al-Sunnah [sayings, actions] + ask for previous rules by the Prophet p.b.u.h

Call for consensus between the companions

Majority’s opinion

Personal Ijtihad [al-qiyas, masalih al-mursalah, istihsan, etc] PROBLEM-SOLVING PROCEDURES [Cont’d]

 But in specific situation, if they were asked question that needs immediate answer where the call for al-ijma’ is impossible or near impossible, the Caliphs used to exercise personal ijtihad.

If this happen, they strongly stressed out that this is their personal opinion and not the consensus.

 Abu Bakar use to say the following sayings whenever he exercise individual ijtihad: “This is my opinion, if it is correct it is from Allah and if there is any mistake, it is from me and I ask forgiveness from Allah”.

 ‘Umar will inform whoever is writing his opinion to quote, “This is the opinion of ‘Umar” in order to differentiate between his personal opinion and the collective opinion and also to differentiate between his opinion given on individual capacity and on the capacity as the Caliph. IJTIHAD OF THE COMPANIONS

 The companions were trained by the Prophet during his lifetime to exercise ijtihad in resolving the issues of Fiqh

 During this period some of the fuqaha’ among the companions did actually exercised ijtihad.

 It can be observed that, some companions are actively involved in giving their views in resolving the issues. Among them are: a. ‘Umar ibn Khattab, b. ‘Ali ibn Abi Talib and c. ‘Abdullah ibn Mas‘ud.

 Those who are less involve in giving their views including: a. ‘Abdullah ibn ‘Umar, b. ‘Abdullah ibn ‘Amr ibn al-‘As c. Al-Zubayr. IJTIHAD OF THE COMPANIONS [Cont’d]

 Different in approach in understanding the text in exercising ijtihad can be observed in this period:

a. Some of the companions will stick to the literal or direct meaning of the Qur’an and Sunnah whereas,

b. Some other will try to find the reasons and rationale of the injunctions in the text.

ATTITUDES OF COMPANIONS IN EXERCISING IJTIHAD

 Total acceptance and enforcement of an authentic Hadith

 When the companions exercised Ijtihad, if they gave their view on certain issues and were later informed of an authentic Hadith of the Prophet s.a.w. on the particular subject, they would immediately accept it

 Click for Example

 Respect the opinions of each other

 The companions also used to respect the opinions of each other and would not force anyone to follow their opinion EXAMPLES OF THE IJTIHAD OF THE COMPANIONS

1. Statement of divorce [talaq] In order to discourage abuse of divorce, Caliph ‘Umar altered an aspect of the law of divorce through his ijtihad

 In the time of the Prophet s.a.w. the pronouncement of three divorce statements at one time was considered to be merely one divorce statement and it was reversible

 Caliph ‘Umar declared such multiple pronouncements to be binding and therefore irreversible. [pronouncement of 3 divorce at one time will be considered as three not one as previously ruled by Rasulullah s.a.w]

 The tendency among the people to easily divorce their wives have prompted the Caliph (Umar r.a. to take this decision. The ruling is also imposed in order to discipline the society and to create awareness among them on the seriousness of such matter. EXAMPLES OF THE IJTIHAD OF THE COMPANIONS

2. Waging War against those who refuse Zakah

 During the reign of Abu Bakar, some Muslims refuse to pay zakah, claiming that it shall only be paid to the Prophet s.a.w.

 Abu Bakr decided to wage war upon them and said in his famous statement: “ I will wage war against those who differentiate between the obligation of prayer and zakah as it is the obligation in ones property…”

ِ ِ ِ ِ ِ )واهلل ألُقَاتلَ َّن َم ْن فّرق بني الصالة والزكاة، فإ َّن الزكاةَ َح ُّق املال، واهلل لَْو ِ ِِ َ َمنَ عُْو ِْن عناقا لََقاتَ ْلتُ ُه ْم على َمْنعه ْم ( DIFFERENCE OF VIEWS AMONG THE COMPANIONS

 There are instances where the companions debated and differed their opinions on various points of law in the process of resolving the issues of Fiqh.

 However, their differences are minor and rarely reached the level of disunity and factionalism as can be observed in the later periods.

 This was mainly due to:

a. The practice of shura in arriving to the consensus of opinion followed by the righteous Caliphs.

b. Also the attitude of individual companions who are generally refuse to make legal rulings but instead re-directing complicated questions to other companions who were better qualified to answer them. MAIN REASON FOR THE DIFFERENCES

 Difference in their knowledge of the existence of a particular Hadith of the Prophet s.a.w. in that particular issues of Fiqh.

 Difference in their acceptance of Hadith.

 Difference in the Interpretation and Understanding the Quranic Text.

 Different in the Method of Ijtihad on Issues Not Mentioned in the Text. EXAMPLE ONE

1. Marriage in Iddah

 ‘Umar ibn al-Khattab held the view that a women who enters into marriage contract while she is still in her waiting period [‘iddah] should be separated from the man and it is forbidden for the man to re-marry her even when her waiting period has come to an end.

 However, ‘Ali ibn Abi Talib differ with him in this issue as he does not see any reason to forbid the man from marrying the women once the waiting period is over EXAMPLE TWO

2. Distribution of Confiscated Land

 When was conquered by the Muslim army, the companions differ with regard to the distribution of the agriculture land confiscated from the enemy.

 Bilal bin Rabah, ‘Abdul Rahman ibn ‘Auf, Yasir ibn ‘Ammar and some other is of the view that the land should be distributed according to the formula stated in the verse al-Anfal 41

“And know that out of all the booty that you may acquire (in war), a fifth share is assigned to Allah,- and to the Messenger, and to near relatives, orphans, the needy, and the wayfarer,…” [Al-Anfal: 41]

 However, ‘Umar, ‘, ‘Ali, Mu’az ibn Jabal and some others view that the land shall remain with the owners and they shall be requested to pay tax for it and the tax money shall be used for the interest of the Muslims. EXAMPLE I

 After the Prophet s.a.w.’s death, the companions have different views as to the place to bury him.

However, when Abu Bakr narrated to them that he had heard Rasulullah s.a.w. saying that: “Prophets are buried in the spot where they die”

They immediately accepted what he said and bury Rasulullah s.a.w. in ‘Aishah's r.a. house. CHARACTERISTIC OF 2nd STAGE

PROCEDURS NON EXISTENCE REALISTIC ISSUES PERSONAL OPINION OF RULINGS OF MAZHAB

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Consequently, This open- mindeddeduced rulingsattitude made in by areasa caliph which were neverare openlynot clearly opposed definedby his successors by ‘AbdullahShari’ah ibn reflectsMas’ud (who the later companions settled in Iraq) representedrespect for this freedomschool of thought of opinion. in such duringNote :his lifetime. These Hypotheticalmatters two . different issues approaches are issueswere laterwhich developed assumed by theto scholarsbe happen and were but evident it hasn’t in the establishmentHowever,occurred when yet of the the succeeding School of caliphal-Hadith came (Madrasah to power, al -hisHadith opinion) in wouldal-Madinah then andbe givenSchool precedence of al-Ra’i (overMadrasah that alof-Ra’y his ) predecessorin al-Kufah. and the deduced rulings of his predecessor would be changed to conform to his opinion. 19 INTRODUCTION TO FIQH History of Islamic Law

The Third Stage Building

MAJOR STAGES OF THE DEVELOPMENT OF FIQH

STAGE 1 STAGE 2 STAGE 3 STAGE 4 STAGE 5 STAGE 6 Foundation Establishment Building Flowering Consolidation Stagnation & Decline

The era of Prophet The era of the The Era of the The Abbasid Era The Abbasid Era II The Ottoman Era Muhammad p.b.u.h Righteous Caliphs Umayyad Dynasty

 Legislation in  Problem-solving  Practices  Golden period  Taqlid  Characteristics Makkah procedures introduced by the of Fiqh  Legislation in Umayyad  Reasons for Taqlid  Fiqh Madinah  Ijtihad of the  Positive literatature Companions  Ijtihad developments  Contributions of  Focus of Legislation scholars  Present state  Difference of Views of Islamic Law  Characteristics of among the Companions Legislation

 Sources of Islamic Law

The beginning of 11AH – 40AH 41AH -132AH 132AH – 350AH 350AH – 656AH 656AH – Present Prophet hood – 11AH

Factors Effecting the Characteristics Characteristics Characteristics Factors of Taqlid Characteristics Development of Fiqh

Realistic Fiqh Issues Gov support Prevailing trend of Gradation in Legislation Increase in Issues The collapse of the Competence Mujtahid empire taqlid Removal of Difficulty Procedures in deducing Spreading and Expansion of the empire hukm Fabrication of Hadith The schools of Fiqh The codification of Abrogation [al-Naskh] Compilation of Sunnah Islamic Law

Personal Opinion Emergence of schools Compilation of Fiqh False claim of Ijtihad of Fiqh Western colonization Non existence of Emergence of schools of Following a single and Islamic Law Mazhab Fiqh mazhab

THE ERA OF THE UMAYYAD EMPIRE [41H-132H]

 Begins with the rise of the Umayyad Dynasty [41H] and ends with the fall of this dynasty [132H]

 The Umayyads were in power for approximately one century starting from the death of the last of the Righteous Caliph ‘Ali ibn Abi Talib in 41H and the dominance of the founder of the Umayyad dynasty, Mu’awiyah ibn Abi Sufyan, until the last of the Umayyad Caliphs in 132H. PRACTICES INTRODUCED BY UMAYYAD CALIPHS

 The central treasury, the Bait al-Mal, was turned into the personal property of the Caliphs and their families by some of the Caliphs.

 Music, dancing-girls, magicians and astrologers were officially introduced as forms of amusement in the court of the Caliph.

 In addition, the office of Caliph was converted into that of hereditary kingship [al-khilafah or the office of Caliph becomes something inheritable and were passed from one Caliph to his son or descendant] CHARACTERISTICS OF FIQH THE THIRD STAGE

Increase Of Issues

THE THIRD STAGE

Emergence Hadith: School of Spreading Fiqh Fabrication INCREASE OF ISSUES RELATED TO FIQH AND IJTIHAD

 The expansion of the Islamic Empire has resulted in the increase in the issues related to Fiqh and Ijtihad [diversity & differences in methodology in deducing the rulings of Fiqh]

 The differences between scholars in their ijtihad in this period can be attributed to the following factors:

a. Dispersion or the spread of the scholars among the companions and their successors [tabi’in] throughout the Islamic region.

b. Breakdown of the principle of ijma

c. The different scholars in the different parts of Islamic region follow different methodology in resolving the issues of Fiqh. INCREASE OF ISSUES [THE SPREAD OF SCHOLARS]

a. Dispersion or the spread of the scholars among the companions and their successors [tabi’in] throughout the Islamic region.

Whenever on outstanding scholar of Fiqh arose in an area, the students and scholars in that region would gather around him. Often, even students and scholars from other regions would join them and in that way a number of schools of Islamic law (Mazhabs) evolved.

Naturally, not all of them are equal in their knowledge about the interpretation of al-Qur’an and Sunnah and other sciences of . They will try to solve the arising issues according to the available sources and this resulted to the difference of opinion among them. INCREASE OF ISSUES [BREAKDOWN OF IJMA’]

b. The dispersion of the scholars resulted in a breakdown of the principle of ijma’

With the scholars scattered throughout the state, such unanimity or consensus became impossible to establish.

This led to a significant increase in the individual ijtihad of scholars and differences in their views as they attempted to deal with the multiplicity of new customs and problems in their own areas.

The emergence of different sect [al-Firaq] within the Islamic community such as the Shi‘ah and Khawarij and others has also contributed to the diversity of methods in deducing the rulings of Fiqh. INCREASE OF ISSUES [SCHOOLS OF FIQH]

c. The different scholars in the different parts of Islamic region follow different methodology in resolving the issues of Fiqh.

As a result, the people of different regions follow the method and views developed by their scholars.

Click

SPREADING AND FABRICATION OF HADITH

 The narrations of Sunnah spread rapidly during this period as the need for information grew.

 Since there is no systematic compilation of Sunnah, the scholars in their various capacities has to go in search of individual narrations of the Sunnah handed down by the Sahabah and their students, in order to make their legal judgments. SPREADING AND FABRICATION OF HADITH - POSITIVE IMPACT

 Positive impact

The extensive reference to the Sunnah of the Prophet s.a.w. in resolving the issues of Fiqh as this source became easily accessible to the scholars with the increase and spreading of the narrations of Sunnah

SPREADING AND FABRICATION OF HADITH - NEGATIVE IMPACT

a. Increasing tendency towards fabrication of Sunnah.

False sayings and actions began to be attributed to the Prophet s.a.w. for the first time. For a fabricator to be trusted he would have to relay some true Hadith along with his fabrications. Therefore, a mixture of true and false reports worked their way into the body of Islamic knowledge and was inadvertently used by some scholars in making decisions.

Fanaticism towards certain sects is one of the reasons for the fabrication of Sunnah.

Some would create Hadith about the virtues of certain good deeds in order to encourage people to practice them and similarly some Hadith is created about the punishment for certain evil deeds in order to discourage people from indulging themselves in such activities. SPREADING AND FABRICATION OF HADITH - NEGATIVE IMPACT [cont’d]

b. Hindering/delaying and extending the process in arriving to the legal rulings.

The scholars have to investigate the authenticity of all the narrations of Sunnah. In addition, some scholars who rejected certain true Hadith because they knew them through the Hadith fabricators of their areas made some inaccurate rulings.

However, this phenomenon prompted the scholars of Hadith to lay down certain conditions for the acceptance of Hadith. It also led to the compilation of Hadith and the development of the science of Hadith criticism, which assisted later scholars in arriving at accurate decisions in their Hadith (legal rulings). EMERGENCE OF THE SCHOOLS OF FIQH

 The two different approaches in deducing the rulings of Fiqh:

a. The inclination towards limiting the deductions based on the available text

b. The inclination towards deducing the rulings based on personal reasoning and logic.

The scholars and followers of these approaches increased significantly and the two approaches were transformed into two separate entity each one having different foundation and reasons in deducing the rulings of Fiqh.

 These two approaches were later well known as:

a. The School of Hadith [Madrasah ahl al-Hadith]

b. The School of Opinion [Madrasah ahl al-Ra’i] THE SCHOOL OF HADITH [MADRASAH AHL AL-HADITH]

 It was well known by this name for the fact that they relied extensively on the text of Hadith in deducing the rulings of Fiqh.

 The center for Madrasah ahl al-Hadith was in al-Madinah

 Scholars of Islamic legal history indicated that Madrasah ahl al-Hadith was a continuation of the approach of those companions of the Prophet whose fear of contradicting the texts (nass) made them to take the precaution of not going beyond what is available in the text.

 This approach was attributed to ‘Abdullah ibn ‘Umar, ‘Abdullah ibn ‘Amr ibn al ‘Ass, al-Zubayr, and ‘Abdullah ibn ‘Abbas. THE SCHOOL OF OPINION [MADRASAH AHL AL-RA’Y]

 They were called with such name as they were known for their extensive reliance on opinion and logic in deducing the rulings of Fiqh.

 Kufah in Iraq was the base for Madrasah ahl al-ra’i.

 Madrasah ahl al-Ra’i is said to be the extension of the school of ‘Umar ibn al-Khattab and ‘Abdullah ibn Mas‘ud who were known in their use of ra'y (opinion). In turn, ‘Alqamah al Nakha‘i , the uncle and teacher of Ibrahim al Nakhai, was influenced by this approach of the companions. Ibrahim then trained Hammad ibn Abi Sulayman who was one of the prominent teachers of Abu Hanifah. Click MAJOR DIFFERENCES BETWEEN THE TWO SCHOOL

 The two schools are in agreement in the utilization of most of the sources of Islamic law such as al-Qur’an, Sunnah, ijma’ and qiyas, however, they differ in two main areas:

1. The exercising of personal opinion

2. Finding solution for hypothetical Fiqh issues. THE EXERCISING OF PERSONAL OPINION

 Scholars of Madrasah ahl al-Hadith leaned towards limiting their deductions to available text of the Qur’an and Sunnah in deducing the rulings of Fiqh.

 They will avoid making personal legal rulings on an issue if there are no clearly defined texts from the Qur’an or the Sunnah related to the issue.

 Some even refuse to issue legal verdict on existing issues for fear on making mistake in their rulings. This is obvious in the case of a person who came to Salim ibn ‘Abdullah ibn ‘Umar and asked him about an issue. THE EXERCISING OF PERSONAL OPINION [CONT’D]

 As for the scholars of Madrasah ahl al-Ra’i, they favored the extensive use of deductive reasoning and personal ijtihad in deducing the rulings of Fiqh.

 This is based on their believe that all of the various laws revealed by Allah had identifiable reasons and objectives behind them, whether these reasons and objective where identified by Allah and His Prophet s.a.w. or not.

 In cases where reasons for a law were not specifically defined, these scholars used their powers of reasoning to arrive at possible reasons.

 They will then apply such law to other circumstances, which had similar causes (‘illah). Indeed, the scholars of this approach felt, it their duty to uncover the objectives and the wisdom as well as the causes behind the laws, and to make the connection between them; so that if the reasons for any law were to lose relevance with the passing of time and the changing of circumstances, the law would no longer be valid. HYPOTHETICAL FIQH

 The scholars of Madrasah ahl al-Hadith will always try to find the solution for the current issues and resolved them based on the text available. They will not try to act pro-actively by finding the solutions for hypothetical matters, which has not happened and for the most part, the Fiqh of this Madrasah (school) was practical and based on real problems.

 On the contrast, the Fiqh of Madrasah ahl al-Ra’y developed along hypothetical lines. Problems were invented and variations of existing situations guessed at, then imaginary solutions were worked out and recorded. In their discussions they often used the phrase, "What if it was like this?" and thus they were also nicknamed the (ara’itiyyin) or the one who always say: “Whaf if?” al-Syam al-Kufah - ‘Ubadah ibn al-Samit - Abdullah ibn Mas’ud - Muaz ibn Jabal [AlQamah, al-Aswad ibn Yazid, Ibrahim al- Nakh’ii] [Abi al-Khaulani, Umar ibn Abd al-Aziz, al-Auza’i]

Al-Basrah - Abu Musa al-Ash’ari [Muhammad ibn Sirin, Hasan al-Basri]]

al-Madinah - - Abdullah ibn Abbas [Mujahid, Ata’ ibn Abi Rabah, Tawus ibn Kisan] al-Misr - Abdullah ibn ‘Amr al-’As [al-’Iz ibn Abd al-Salam]

40 Madrasah ahl al-Ra’y Umar ibn al-Khattab + Abdullah ibn Mas’ud  [Alqamah + Ibrahim al-Nakh’i + Hammad Abu Sulayman]  Abu Hanifah [the founder of Mazhab al-Hanafiyyah]

Al-Kufah

Al-Madinah Madrasah ahl al-Hadith Abdullah ibn Umar + Abdullah ibn Abbas  [Mujahid, Ata’ ibn Abi Rabah, Tawus ibn Kisan]  Malik ibn Anas [the founder of Mazhab al-Malikiyyah] 41