The Second Stage

Establishment

INTRODUCTION TO FIQH History of Islamic Law

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 Umayyad dynasty (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

Establishment Building Flowering Consolidation Stagnation & Decline

The Era of the

Umayyad Dynasty

Practices

introduced by the

Umayyad

Ijtihad

11AH – 40AH 41AH -132AH

The era of the

Righteous Caliphs

Problem-solving

procedures

Ijtihad of the

Companions

Difference of Views

among the Companions

The Abbasid Era

Golden period

of Fiqh

Positive

developments

The Abbasid Era II

Taqlid

Reasons for Taqlid

Contributions of

scholars

The Ottoman Era

Characteristics

Fiqh

literatature

Present state

of Islamic Law

132AH – 350AH 350AH – 656AH 656AH – Present

Characteristics

Realistic Fiqh Issues

Procedures in deducing

hukm

Personal Opinion

Non existence of

Mazhab

Characteristics

Increase in Issues

Spreading and

Fabrication of Hadith

Emergence of schools

of Fiqh

Factors Effecting the

Development of Fiqh

Gov support

Competence Mujtahid

Expansion of the empire

Compilation of Sunnah

Compilation of Fiqh

Emergence of schools of

Fiqh

Characteristics

Prevailing trend of

taqlid

The codification of

Islamic Law

Western colonization

and Islamic Law

STAGE 3 STAGE 4 STAGE 5 STAGE 6 STAGE 2

The beginning of

Prophet hood –

11AH

STAGE 1

Foundation

The era of Prophet

Muhammad p.b.u.h

Legislation in

Makkah

Legislation in

Madinah

Focus of Legislation

Characteristics of

Legislation

Sources of Islamic

Law

Characteristics

Gradation in Legislation

Removal of Difficulty

Abrogation [al-Naskh]

Factors of Taqlid

The collapse of the

empire

The schools of Fiqh

False claim of Ijtihad

Following a single

mazhab

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

Begins from the Caliphate of Abu Bakr [11H-13H] & ends with the death of Ali ibn Abi Talib [40H].

The expansion of the borders of islamic state has resulted the emergence of numerous new issues of Fiqh as the Muslims 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]

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.

PROBLEM-SOLVING PROCEDURES [Cont’d]

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…”

اِل، واهلِل َلْو )َ

واهلل ألَُقاتَِلنَّ َمْن فّرق بني الصالِة والزكاة، فِإنَّ الزكاَة َحقُّ امل(َمنَ ُعْوِنْ عناقا َلَقاتَ ْلتُ ُهْم على َمْنِعِهمْ

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

2. Distribution of Confiscated Land

When Iraq 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, ‘Uthman, ‘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 TWO

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

REALISTIC ISSUES NON EXISTENCE

OF MAZHAB PERSONAL OPINION

PROCEDURS

OF RULINGS

Most of the Fiqh issues dealt with during this period are real issue that occur

in the society. The scholars do not deal with hypothetical or imaginary

issues.

This method (development of law with real issues) was later developed by

the scholars of al-Madinah, which resulted in the formation of the school of

Hadith [Madrasah ahl al-Hadith]

Note:

Hypothetical issues are issues which assumed to be happen but it hasn’t

occurred yet

The Righteous Caliphs) and some of the scholars among the companions

have developed certain procedures in deducing the rulings of Fiqh.

However, they did not prescribed that these procedures must be followed

by the Muslims in resolving the issues of Fiqh.

This open-minded attitude in areas which are not clearly defined by

Shari’ah reflects the companions respect for freedom of opinion in such

matters.

The using of personal opinion is one of the characteristics of Fiqh in this period

The majority of the companions preferred to stick closely to the literal meanings of texts of the Qur‘an

and the Sunnah. As a general practice, they avoided giving personal interpretations. Ibn ‘Umar, one of the

leading jurists among the companions who remained in Madinah all his life, followed this practice.

On the other hand, there were other companions, who favored the wide use of personal opinion in issues

not specified by either the Qur‘an or the Sunnah. However, they were careful to attribute any errors that

might result from their opinion entirely to themselves, so as not to bring discredit to Islamic law.

‘Abdullah ibn Mas’ud (who later settled in Iraq) represented this school of thought.

These two different approaches were later developed by the scholars and were evident in the

establishment of the School of al-Hadith (Madrasah al-Hadith) in al-Madinah and School of al-Ra’i

(Madrasah al-Ra’y) in al-Kufah.

There were no different mazhab (schools of jurisprudence) during the period of the Righteous

Caliphs. Even though there were individual ijtihad by the companions, it does not constitute a

mazhab as it were directly linked to the state as in was during the time of the Prophet s.a.w.

When problems occurs the decisions were made by the caliphs with shura among the companions

therefore it was the caliph himself who had the final saying in all legal decisions involving ijtihad

or ijma’.

Consequently, deduced rulings made by a caliph were never openly opposed by his successors

during his lifetime.

However, when the succeeding caliph came to power, his opinion would then be given precedence

over that of his predecessor and the deduced rulings of his predecessor would be changed to

conform to his opinion.

19

The Third Stage

Building

INTRODUCTION TO FIQH History of Islamic Law

MAJOR STAGES OF THE DEVELOPMENT OF FIQH

Establishment Building Flowering Consolidation Stagnation & Decline

The Era of the

Umayyad Dynasty

Practices

introduced by the

Umayyad

Ijtihad

11AH – 40AH 41AH -132AH

The era of the

Righteous Caliphs

Problem-solving

procedures

Ijtihad of the

Companions

Difference of Views

among the Companions

The Abbasid Era

Golden period

of Fiqh

Positive

developments

The Abbasid Era II

Taqlid

Reasons for Taqlid

Contributions of

scholars

The Ottoman Era

Characteristics

Fiqh

literatature

Present state

of Islamic Law

132AH – 350AH 350AH – 656AH 656AH – Present

Characteristics

Realistic Fiqh Issues

Procedures in deducing

hukm

Personal Opinion

Non existence of

Mazhab

Characteristics

Increase in Issues

Spreading and

Fabrication of Hadith

Emergence of schools

of Fiqh

Factors Effecting the

Development of Fiqh

Gov support

Competence Mujtahid

Expansion of the empire

Compilation of Sunnah

Compilation of Fiqh

Emergence of schools of

Fiqh

Characteristics

Prevailing trend of

taqlid

The codification of

Islamic Law

Western colonization

and Islamic Law

STAGE 3 STAGE 4 STAGE 5 STAGE 6 STAGE 2

The beginning of

Prophet hood –

11AH

STAGE 1

Foundation

The era of Prophet

Muhammad p.b.u.h

Legislation in

Makkah

Legislation in

Madinah

Focus of Legislation

Characteristics of

Legislation

Sources of Islamic

Law

Characteristics

Gradation in Legislation

Removal of Difficulty

Abrogation [al-Naskh]

Factors of Taqlid

The collapse of the

empire

The schools of Fiqh

False claim of Ijtihad

Following a single

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]

THE THIRD

STAGE

Hadith:

Spreading

Fabrication

Increase

Of

Issues

Emergence

School of

Fiqh

CHARACTERISTICS OF FIQH THE THIRD STAGE

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.

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 Islam. 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 [THE SPREAD OF SCHOLARS]

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 [BREAKDOWN OF IJMA’]

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

INCREASE OF ISSUES [SCHOOLS OF FIQH]

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.

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).

SPREADING AND FABRICATION OF HADITH - NEGATIVE IMPACT [cont’d]

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?”

40

al-Madinah

- Abdullah ibn Umar

- Abdullah ibn Abbas

[Mujahid, Ata’ ibn Abi Rabah, Tawus ibn

Kisan]

al-Misr

- Abdullah ibn ‘Amr al-’As

[al-’Iz ibn Abd al-Salam]

al-Syam

- ‘Ubadah ibn al-Samit

- Muaz ibn Jabal

[Abi Idris al-Khaulani, Umar ibn Abd

al-Aziz, al-Auza’i]

al-Kufah

- Abdullah ibn Mas’ud

[AlQamah, al-Aswad ibn Yazid, Ibrahim al-

Nakh’ii]

Al-Basrah

- Abu Musa al-Ash’ari

[Muhammad ibn Sirin, Hasan al-Basri]]

41

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]

Al-Madinah

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