23 نوفمبر, 2017 - 4 Rabi' al-Awwal 1439

The History and Sources of Islamic Law

The History and Sources of Islamic Law

 


Introduction

All praise is due to Allah, from Whom alone we seek help and guidance. We seek refuge in God from the evils of our own selves and from our evil deeds. He who Allah guides is guided, and he who He does not guide has no guide. Peace and blessings be upon our beloved Prophet Muhammad, a mercy and a blessing and a bright light to be followed.

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. These last come in two forms: “recited,” i.e. the Holy Qur’an; and “not recited,” i.e., the pure Prophetic sunna.

After its initial period of direct legislation in the time of the Prophet, 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’a. And God alone gives success.

-Significance

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, organizing human civilization 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’a is the basis upon which the entire umma is built, and the logic that serves as the focal point for Islamic civilization.

-The Meaning of Shari’a and Tashri’ (Legislation)

Linguistically speaking, the word shari’a has two meanings. The first is “a source of flowing water meant for drinking.” Secondly, it means a “straight and unwavering path,” as God Almighty says, “And now we have set thee on a shari’a, so follow it.” (Al-Jathiya: 18).

Thereafter, shari’a came to express, in the language of the jurists, the rulings prescribed by God for His servants, so that they may become proper believers. These rulings are known as the shari’a because they are decisive

– there is no deviance from their program, nor divergence from their objectives.

Tashri’ is the enacting of the shari’a, 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 (upon him be peace), because God has not given the power of legislation to other than his prophet. In this, the Prophet relied on two types of revelation: “the recited”, i.e., the Qur’an itself; and “the unrecited”, i.e., the sunna.

Based on this, it might be said that “the history of Islamic legislation” refers only to that which took place during the Prophet’s life, and does not include the many discrete rulings which thereafter revealed themselves to the minds of the mujtahids. However, the scholars have tended to expand the referent of this branch of knowledge. As Shaykh Muhammad Ali al-Sayis says, “The history of Islamic legislation is a discipline in which is treated the nature of Islamic law during the lifetime of the Prophet, 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, etc. It also discusses the jurists and mujtahids and their relationship to these rulings.”

The Difference Between Heavenly Legislation and Positive Legislation
The Islamic shari’a is a heavenly law, meaning that it comes from God Himself. The differences between it and the positive law created by humans are as follows:

1. The shari’a is a sacred religious law, through which one is taught how to worship God, compliance with which is considered obedience to God 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.

2. 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.

3. 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.

4. Islamic legislation pronounces on both the internal and external actions of man, whereas positive law restricts itself to the external and observable.

5. The principles of shari’a 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 Sources of Islamic Legislation

1. The First Source: The Qur’an
Definition: 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 (qat’i al-thubut), though some of its verses may not be definitive in their meaning (qat’i al-dalala), but only probable. The word of God, i.e, 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, nor simply those in the Arabian peninsula.

The Meccan and Medinese verses, and the features of each: The Qur’an was revealed to the Prophet in portions over twenty-three years, the majority of which he spent in Mecca. As Allah says, “(It is) a Qur'an that We have divided, that thou mayst recite it unto mankind at intervals.” (al-Isra’: 106).

For this reason, scholars have partitioned the Qur’an into two phases, the Meccan and Medinese, though they have differed on the precise criteria for this categorization.

The first and best-known opinion is that the Meccan is that portion of the Qur’an revealed before the Prophet’s migration (hijra), and the Medinese is that which is revealed after it even if it was technically revealed in Mecca. The second opinion is that the Meccan is whatever was revealed in Mecca even if it was after the hijra, and the Medinese is that which was revealed after the hijra. The third opinion is the Meccan is that which is addressed to the people of Mecca, and the Medinese is that which is revealed to the people of Medina.

-The benefits of understanding this categorization are the following:

1. We come to know which verses came later, and so may reliably consider some to abrogate or specify others.
2. We come to know the history of legislation, and the wisdom of its gradualness.
3. 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 Meccan verses have their own specificities and characteristics not found in the Medinese, 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, deny the Day of Judgement, and because their eloquence was well-known, the Meccan revelation was concerned with addressing them with that which was appropriate for their situation; i.e., 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, His angels, His scriptures, His messengers and the Day of Judgement, and their subsequent enduring of difficulties, and migration to Medina, that the Medinese Qur’an was revealed, comprising the rulings of Islam, and its limits and punishments; 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 Meccan and Medinese verses respectively:
Meccan verses:

1. Through the signs of God in creation, they call to monotheism, the exclusive worship of Allah, 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.

2. 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.

3. 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 so that he may endure their abuses, and be assured of victory over them.

4. They appeal to the reader aesthetically by using powerful language, short verses, and choice words.

5. The mode of address in the Meccan verses are general, often taking the form “O mankind,” or “O sons of Adam.” In contrast, the Medinese verses primarily address the believers,very often with the phrasing, “O you who believe.”

6. Oaths recur often in Meccan verses. There are approximately thirty examples of oath-taking in this period, whereas there is only one example in the Medinese 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.” (al-Taghabun: 7)

Medinese verses:

1. An explanation of laws governing rituals, daily transactions and relationships, punishments, inheritance, the virtues of struggling in the path of God, the family structure, and the relationship between state and society; as well as the principles and main concerns of lawmaking.

2. An address to the People of the Book (Jews and Christians), inviting them to Islam, making clear the manner in which they have corrupted previous scriptures, and indicting them for deviating from the truth, and for dissenting amongst themselves out of envy after knowledge had come to them.

3. Revealing the behavior of the hypocrites (munafiqun), unveiling that which they tried to hide, analyzing their mentalities, and making clear their danger to true religion.

4. Lengthy passages setting down the shari’a, and clarifying its objectives and goals.
The Objectives of the Qur’an: The Qur’an has three principal objectives:

1. That it serve as guidance for mankind. The guidance of the Qur’an can be further categorized into two types:

a. A general guidance for all people. As Allah Himself says, “The month of Ramadan in which was revealed the Qur'an, a guidance for mankind, and clear proofs of the guidance, and the Criterion (of right and wrong)” (al-Baqara: 185); and again, “Verily this is no less than a Message to (all) the Worlds” (al-Takwir: 27).

b. A specific guidance for believers. As Allah also says, it is “A guide: and glad tidings for the believers,” (al-Naml: 2); “And Allah doth advance in guidance those who seek guidance” (Maryam:76); “Say: ‘It is a Guide and a Healing to those who believe.’” (Fussilat: 44).

2. That it be a manifest sign in support of the Prophet. In other words, the Qur’an stands in the world as a sign attesting to the message of the Prophet Muhammad, and endures throughout time as an everlasting miracle articulating guidance and the true religion, superior to all others. As Allah 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” (al-Fath: 28).

3. That creation be able to worship God through its recitation, and that they may be rewarded for simply repeating His words. “Lo! those who read the Scripture of Allah, and establish worship, and spend of that which We have bestowed on them secretly and openly, they look forward to imperishable gain. That He will pay them their wages and increase them of His grace. Lo! He is Forgiving, Responsive.” (al-Fatir: 29-30)

2. The Second Source: The Prophetic Sunna

Definition: The sunna is defined as “statements, actions, tacit approvals, or qualities related about the Prophet (upon him be peace).”

In terms of statements, we may take the example of that which is related from Umar b. Al-Khattab, who said: “I heard the Prophet (peace be upon him) saying, ‘Actions are only by intentions. So, every man will have that which he intended.”

In the category of actions are included all actions of the Prophet that have reached us, such as his manner of doing ablutions (wudu’), and of performing the pilgrimage (hajj). And so, we have a hadith from the Prophet, 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 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 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 (peace be upon him) and mentioned to him what had transpired. He said to the one who did not repeat the prayer, ‘You have achieved the sunna, 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 qualities and characteristic have been related. Some scholars have even taken to compiling these, such as al-Tirmidhi in his work, al-Shama’il.

-The types of rulings found in the sunna:

1. Rulings according with and emphasizing the rulings of the Quran. An example of this is a hadith related by Anas b. Malik who said that the Prophet (peace be upon him) 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! Squander not your wealth among yourselves in vanity, except it be a trade by mutual consent,” (al-Nisa: 29).

2. Rulings that clarify and explain general commandments in the Qur’an.
An example of this is that which clarifies the amounts for zakat.

3. 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 sunna 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.” (al-Ma’ida: 3). However, the following hadith from Ibn ‘Umar exempts seafood from this prohibition. According to Ibn ‘Umar, the Prophet 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.”

4. New rulings not mentioned in the Qur’an, because the sunna is an independent source of legislation. In this regard, it is not unlike the Qur’an. It is reliably transmitted that the Prophet 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.... So mandatory upon you is the Qur’an. What you find deemed permissible in it has been made permissible for you, and what 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 was given the Qur’an and something like it, i.e. the sunna. 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, etc.

A summary of rulings found in both the Qur’an and sunna:
We may categorize the rulings mentioned in the Qur’an and sunna as follows:

1. Doctrine: Belief in God, 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, God’s reckoning, Paradise and Hellfire.

2. Ritual worship: Rulings about the relationship between God and His servant, in terms of his exclusive worship of Him. These include prayer, alms-tax, fasting, pilgrimage, and all the conditions, constituent parts, obligations, and encouragements associated with the above.

3. 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.

4. Transactions: Rulings concerning people’s relationship with one another, and their financial transactions like sale, interest, loans, pawning, sureties, representationship/proxy, partnership, and agricultural contracts; as well as the economic principles of Islam in general.

5. Politics: Rulings related to the system of governance, and the politics 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.

6. Punitive law: Rulings on punishing criminals, including lex talionis, blood-money, and mandatory and discretionary punishments.

7. International law: Rulings related to the relationship between Islamic polities and others in terms of war, peace, security, and treaties.

8. Rulings related to eating, drinking, and clothing: what is permissible and what is not. The general rule is that of permissibility.

9. 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.

3. The Third Source: Consensus (ijma’)

Definition: Linguistically, it means to be determined and tenacious. In the terminology of the jurists, it is “the agreement of the umma of the Prophet Muhammad on a matter of religious significance.”

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 it.

A consensus must be based on evidence, for it is wrong to adopt an opinion without evidence in matters of shari’a. The Islamic nation cannot unanimously agree on an error, as is narrated in numerous hadiths. An example is that which is narrated by Abdullah b. Dinar on the authority of Ibn ‘Umar, who said that the Prophet (peace be upon him) said, “God will not unite my umma (or, perhaps, he said the umma of Muhammad) on misguidance. The Hand of God is with the group, and whoever deviates from it takes himself to Hell.” Abu ‘Isa explained that, according to scholars, “the group” refers to the people of fiqh and hadith.” Another example is narrated by Anas b. Malik who said, “I heard the Prophet saying ‘My umma will not unite on misguidance, so if you see them differing, follow the great majority (al-sawad al-a’dham).’”

The basis of ijma may be a text from the Qur’an and sunna, or it may equally be an analogical argument, custom, or other types of ijtihad.

-There are two types of ijma’:

1. Express consensus, which is when all mujtahids agree on a matter in an explicit and clear manner; each of them articulates his opinion, and they all coincide.

2. Tacit consensus, which is when some mujtahids offer their opinion on a matter, all the others come to know of it and they remain silent, offering neither objection nor corroboration.

The importance of 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 mujtahids 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 specialized 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.

4. The Fourth Source: Analogy (qiyas)
Definition: Qiyas is “the application of one case to another because of a common element between them for the purposes of affirming or denying a judgement on both of them.”

The scholars proved the authoritativeness of qiyas through many evidences. These include the verse, “So learn a lesson, O ye who have eyes!” (al-Hashr: 2), where “learning a lesson” means to move from one thing to another like it if they share a common meaning. Other proofs include the verses, “If they had referred it to the messenger and to such of them as are in authority, those among them who are able to think out the matter would have known it” (al-Nisa’: 83), and “We have neglected nothing in the Book (of Our decrees).” (al-An’am: 36).

We may add to these verses other evidences, such as the hadith about the Prophet sending Mu’adh to Yemen. When he did so, he asked him, “If a judicial matter comes before you, how will you judge.” Mu’adh said, “I will judge by the Book of Allah.” The Prophet replied, “And if you don’t find it in the Book of Allah?” He responded, “Then, by the sunna of the Messenger of Allah.” He said, “And if you find it neither in the sunna of the Messenger of God nor His Book?” He replied, “I will exercise my judgement, and will not refrain from doing so.” The Prophet struck his chest, and said, “Praise be to God Who endowed the messenger of the Mesenger of God with that which pleases the Messenger of God.”

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’a, adopted by some and rejected by others. These include juristic discretion (istihsan), the presumption of continuity (istishab), cutting off means to the forbidden (sadd al-dhara’i), public welfare (al-masalih al-mursala), and others.

The Periods of Islamic Legislation

The Lifetime of the Prophet:

The manner of legislation in the time of the Prophet 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 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, and it would be answered through a verse, or some verses, revealed to him from Allah, or through a hadith. On occasion, the ruling would be clarified to them through the Prophet’s own actions, or through his approval or rejection of the actions of another.

Regardless of what the Prophet’s response was, it would not emanate except from a revelation from his Lord: either through the Qur’an or his sunna. As Allah says, “Nor doth he speak of (his own) desire. It is naught save revelation that is inspired” (al-Najm: 3-4).

We may draw three conclusions from this discussion:

1. Legislative authority in this period rested exclusively with the Prophet (peace be upon him). And the reference for legislation at this time was revelation in its two forms, the Qur’an and the sunna.

2. Some verses of the Qur’an were revealed according to specific circumstances, or as a response to a question. Other verses were not preceded by an event or query which motivated it. This is what the scholars mention in the science of asbab al-nuzul (“the circumstances of revelation”).

3. Islamic law was not all revealed at once, but rather gradually in parts in the form of Qur’anic verses and hadiths.

The period of the Companions (Sahaba) and Followers (Tabi’un)
With the death of the Prophet came an end to revelatory legislation, i.e., the Qur’an and the sunna. 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, but they remained duty-bound to come to know God’s 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’a. This is how the notion of ijtihad bi’l-ra’y arose as an independent source for law; of course, it did not exist during the time of the Prophet, 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.

As well, challenges emerged to the sunna 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 sunna, 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 God. If they did not find it there, they turned to the sunna. 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 sunna. Although, they were not all equal in this matter, for some of them made extensive use of ra’y, and some used it sparingly. Ibn al-Qayyim says in I’lam al-Muwaqqi’in: “The task of issuing fatwas then fell to the Companions – the elite of Islam and faith. They were amongst the umma 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 the closest to God. They varied between those who issued numerous fatwas, 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 b. Al-Khattab, ‘Ali b. Abi Talib, ‘Abdullah b. Mas’ud, ‘Aisha the wife of the Prophet, Zayd b. Thabit, ‘Abdullah b. ‘Abbas, and ‘Abdullah b. ‘Umar. Those who occupied an intermediary status in this regard included: Abu Bakr al-Siddiq, Umm Salama, Anas b. Malik, Abu Sa’id al-Khudri, Abu Hurayra, ‘Uthman b. ‘Affan, ‘Abdullah b. ‘Amr b. al-‘As and others. The rest gave fatwas only occasionally, including Abu ‘Ubayda b. al-Jarrah, Abu Talha, Abu Dharr, Umm ‘Atiyya, Safiyya the wife of the Prophet and many others.

The Emergence of the Schools of the People of Hadith and the people of Ra’y: Ijtihad bi’l-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 hadith,” was in Medina and the Hijaz. Their major representative was Sa’id b. al-Musayyib (d. 94 AH), one of the famed “seven jurists” who learned fiqh from the Companions and spread it in Medina. Sa’id 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 Sa’id b. al-Musayyib, ‘Urwa b. Zubayr (d. 94 AH), Qasim b. Muhammad (d. 94 AH), Abu Bakr b. Muhammad b. al-Harith (d. 94 AH), ‘Abdullah b. ‘Abdullah b. ‘Utba b. Mas’ud (d. 98 AH), Sulayman b. Yasar (d. 107 AH), and Kharija b. Zayd b. Thabit.

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 Ibrahim b. Yazid al-Nakha’i, the shaykh of Hammad b. Abu Sulayman (d. 96 AH).

This period came to an end without there being any codification of either of the sciences of fiqh and hadith. There were, however, some preliminary attempts. ‘Umar b. ‘Abd al-‘Aziz, for example, wrote to his representative in Medina, Abu Bakr Muhammad b. ‘Umar b. Hazm, to look for what there was of the hadith, or sunna, of the Prophet and write it down. However, the Caliph died before his agent could complete what he was ordered to do.

The period of the mujtahids:

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:

1. 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.

2. The 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 ijtihads differed based on the variation of their customs and traditions.

3. The emergence of great mujtahids with superior qualifications and talents, and their work in developing fiqh in order to respond to the needs of the state for organization and laws. Further, they formed schools which were populated by distinguished jurists.

4. The compilation of the sunna, which enabled the jurists to distinguish the sound from the weak hadiths, and so make better use of them in a more convenient fashion. The sunna of course, is the very subject matter of fiqh, and one of its most important sources.

The period of taqlid:

This period starts midway through the fourth century and continues 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 madhhab (juristic school of thought), but rather restricted only by the texts of the Qur’an and sunna 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 sunna, 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 mujtahids. This, despite their mastery in fiqh, and the ease with which they could now access the sunna source material.

Among the reasons for the prevalence of taqlid among all but a rare few of the jurists were:

1. 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.

2. The various schools of thought had now been codified in a comprehensive manner, after a refining of its major issues and concerns, and the organization 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.

3. A lack of confidence in oneself, 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 madhhab, to hew close to its rulings, and to learn its usul 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 fatwas 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 fatwas without knowledge.

Despite this stagnation, the jurists undertook many beneficial tasks, including:

1. Determining the operational legal causes for rulings transmitted from their Imams, for not every position had been transmitted with its reasoning.

2. Extracting the principles of derivation from the rulings of the madhhab, so that the methods of ijtihad adopted by the Imam may be known.

3. 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 or syllogism, 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 madhhab.

4. Organizing the fiqh of their madhhab, by categorizing, explaining and commenting on the rulings, and supporting them with evidences; and mentioning points of conflict with other madhhabs, the reasons for these disagreements, and the evidences in support of their madhhab’s positions.
There is no doubt that these contributions constituted a great service to the study of fiqh, by expanding and explaining the field.

-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 sunna, and not restricting oneself to a specific madhhab.

But these were few in number, and the majority of 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 mutun, 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 fatwas: 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 organized according to the chapter scheme of books of fiqh. Also, many of these fatwas were accompanied either by evidences from the texts of the school (madhhab) of the mufti, or by evidences from the Qur’an, the sunna, and other primary sources without reference to a specific madhhab.

-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’a. We hope for an increase in the regard being accorded to the shari’a 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’a 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 madhahib, 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 al-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’a. This is the meaning intended by the Prophet (peace be upon him) 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, such as:
1- Legal obligation is based on one’s capacity to fulfill the obligation, as in the verse, “Allah intends for you ease and does not intend for you hardship” 2 :185

 2- The shari’a is built on ease and facility. The Qur’an says, “Allah does not charge a soul except [with that within] its capacity.” 2:286

3- 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.

4- The scholars have also settled on a famous principle, namely that fatwas 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.