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A History of Islamic Law

” … So what is wrong with these people that they fail to understand any word?”[1]

The Arabic word Fiqh means to understand something, to know something[i] or to understand the intended meaning of the speaker. After the codification of many of the sciences of Islām, the meaning of Fiqh took a very specific turn in referring to the science of extracting practical religious regulations from their detailed sources.[ii] Thus, the later meaning of the term Fiqh refined its realm to rulings governing the practical actions of the limbs to the exclusion of actions of the heart. Thus, it is the practical manifestation of living by Allāh’s law. Also, since the definition accounted for where the rulings were taken; known Islamic sources, the paradigm for such rulings, were firmly entrenched within a framework that had been cemented by revelation and early Islamic scholarly activity. All early Islamic scholastic activity was very much centred on detailed and specific evidences from the Qur’ān and Sunnah. The development of over-arching principles and comprehensive proofs happened later. So how did this Islamic science form and then develop?

The Birth of Islamic Law

During the time of the Prophet (sall Allāhu ʿalayhi wa sallam), while the revelation was descending from the heavens, the Prophet (sall Allāhu ʿalayhi wa sallam) was planting the Islamic foundations with the laws that were being revealed to him. On various occasions these rulings came as comprehensive principles;

“O You who believe! Eat not up Your property among yourselves unjustly except it be a trade amongst you, by mutual consent. And do not kill yourselves (nor kill one another). Surely, Allāh is Most Merciful to you”.[2]

At other times specific rulings were underpinned by an effective cause (‘Illāh’);

Every intoxicant is haram’.[3]

The Prophet (sall Allāhu ʿalayhi wa sallam) did not explain the pillars, conditions and mannerisms with academic definitions as the later jurists did. Hypothetical situations were not entertained rather the companions were nurtured in refraining from asking too many questions so as not to make life more difficult;

“O You who believe! Ask not about things which, if made plain to you, may cause you trouble. But if You ask about them while the Qur’ān is being revealed, they will be made plain to you. Allāh has forgiven that, and Allāh is Oft­Forgiving, Most Forbearing.”[4]

The most prominent feature of this era was that of imitation of the Prophet (sall Allāhu ʿalayhi wa sallam) in all areas of religion. Urwa b. Masood al-Thaqafi, when he was a Mushrik (polytheist) and was sent by the Quraish to the Prophet (sall Allāhu ʿalayhi wa sallam) to sign the treaty of Hudaybiyah, had many important points to recount to Quraish. When he returned, he said:

‘O people, by Allāh, I have visited the kings and the leaders of nations. By Allāh, I have never seen a king who is more honoured and held in high esteem by his people than Muḥammad by his companions. By Allāh, he does not clear his throat of except that the saliva lands in the hand of one of them who then rubs it over his face and body. If he orders them they rush to fulfill his command. If he makes ablution they virtually fight over the remaining water. If he speaks they lower their voices around him and they never look straight at him due to their awe of him.’[5]

However, during the era of the Prophet (sall Allāhu ʿalayhi wa sallam) the companions were not devoid of exercising Islamic reasoning and ‘Ijtihād’ on their own.[iii] This had two main manifestations at that time; 1) understanding the ruling that had been conveyed to them by the Prophet (sall Allāhu ʿalayhi wa sallam) and 2) arriving at rulings in the absence of something specific from the Prophet (sall Allāhu ʿalayhi wa sallam).

A good example of the companions exercising Ijtihād in understanding the ruling is the famous example of ‘Banū Quraizah’. On the Prophet’s (sall Allāhu ʿalayhi wa sallam) return from the battle of Khandaq he ordered that ‘no one should pray ʿAsr except in Banī Quraizah’. ʿAsr time came upon the companions during their journey, some of them said we will not pray it until we reach Banī Quraizah and others prayed it and said that the Prophet intended by his command for them to make haste. The case was related to the Prophet and he did not censure any of the parties.[6]

The Prophet (sall Allāhu ʿalayhi wa sallam) was not always in the presence of all of the companions and, therefore, situations arose for which the companions would have to use their own Islamic judgement in deciding what to do. Thus, the companions at times had to exercise Ijtihād in deducing a ruling from what they knew of the Sharīʿah in the absence of a clear instruction.

Once two companions were traveling and the time of prayer came upon them while they had no water. They both prayed having performed Tayammum and then later they found water and the prayer time had not come to an end. One of them repeated his prayer whereas the other did not. The Prophet (sall Allāhu ʿalayhi wa sallam) said to the one who did not repeat his prayer:

‘You attained the Prophetic way and your prayer sufficed you’.

He said to the one who repeated: ‘You will be rewarded twice’.[7]

On a separate occasion, Ammār b. Yasir, while away on a journey, ended up in the state of major impurity without knowing the ruling of Tayammum, he rolled around in the dirt as an animal would do and then prayed. On returning to the Prophet (sall Allāhu ʿalayhi wa sallam),  Ammār (raḍiy Allāhu ʿanhu) informed him (sall Allāhu ʿalayhi wa sallam) of what had transpired. The Prophet (sall Allāhu ʿalayhi wa sallam) explained how ‘Tayammum’ (dry ablution of just the arms and face) would have sufficed him in such a scenario.[8]

After the Prophet (sall Allāhu ʿalayhi wa sallam)

The era of the companions is generally considered the time after the Prophet (sall Allāhu ʿalayhi wa sallam) passed away and during the reign of the righteous caliphs for approximately thirty years.[iv] The companions preserved the religion taught to them by the Prophet (sall Allāhu ʿalayhi wa sallam) but also conveyed it to the world. When Abū Bakr (raḍiy Allāhu ʿanhu) took the helm of the Ummah as the Khalīfah (successor) of the Prophet (sall Allāhu ʿalayhi wa sallam), in his inauguration speech he made clear that,

‘… the Qur’ān was revealed and the Prophet established Sunan which we learned and taught. Realise that the greatest of intelligence is Taqwa and the worst of stupidity is transgression, the strongest from amongst you in my view is the weak person until I deliver to him the right he is due, and the weakest from among you in my view is the strong person until I have taken what is due from him. O people, I am only a follower and not an innovator, if I am correct then aid me and if I go astray then set me aright.’[9]

As these statements from Abu Bakr show the Sharīʿah was supreme in authority over the Muslims at this stage. Not only this but the close council of Umar were, as Ibn Abbas describes in al-Bukhari, ‘The Quraa were the inner-circle and council of Umar, whether young or old’. ‘The word Quraa in their usage referred to the devout worshippers and the scholars’.[10] Thus, in the era of the companions the decision makers for the Muslim-governed areas were the scholars and those who held the Sharīʿah as the utmost authority.

Even though this was the case there still existed juristic differences. The features that characterised the differences in this era were generally due to a dynamic range of reasons. Following the passing of the Prophet (sall Allāhu ʿalayhi wa sallam) and those who had lived alongside him, new issues arose amongst the Muslims that were not present previously. Further to this, with the expansion of the Muslim Caliphate and people of different cultures and customs entering Islām there were new situations and scenarios which had to be dealt with. Moreover, there were varying levels of understanding the revelation even amongst the companions, with some knowing particular aḥādīth to the exception of others.

Further reasons for juristic differences include:

  • The spreading of the companions to different lands during the time of ʿUthmān and ʿAlī (raḍiy Allāhu ʿanhum). Thus, taking their knowledge with them and leaving behind those who had knowledge in Madīnah and elsewhere which they would no longer have access to if required.
  • The dispute and fitnah that began with the murder of ʿUthmān (raḍiy Allāhu ʿanhu) and continued through the Khilāfah of ʿAlī since it affected particular rulings.

Some examples of differences during this era included who would be the Khalīfah after the Prophet (sall Allāhu ʿalayhi wa sallam) since the Prophet (sall Allāhu ʿalayhi wa sallam) did not appoint someone explicitly.[11] The issue was decided by Ijtihād through discussion and consultation among those who attended the Saqifah Banī Sāidah.[12] Another example is in the difference that occurred about fighting those who refused to pay the Zakāh during the Khilāfah of Abū Bakr (raḍiy Allāhu ʿanhu). This was a new issue without an explicit revealed text dealing with it. Abā Bakr’s Qiyās (juristic analogy) was that they were similar to those who left the Salāh so they must be fought.[13] The Ijtihād about compiling the Qur’ān into a single complete book is another example. The dispute between Abū Bakr and ʿUmar (raḍiy Allāhu ʿanhumā) about writing the Muṣḥaf was based on the fact this was a new issue which had no explicit revealed text about it.[14]

Though differences in this era did exist, they were minimal and were rarely cause for friction amongst the jurists. This was so, primarily, because of the immense and deep Fiqh of the companions. They had been trained and nurtured by the teacher of Mankind and Jinn in how to face the difficulties of life with ease and simplicity, and the methodology they implemented was based upon the Book and the Sunnah and Ijtihād based on them which they called opinion. (Their Ijtihād can be seen to follow what later scholars called: Qiyās, Istihsān, Istislāh without neglecting Urf or social conventions/cultural norms).

The evident immensity of the fiqhi knowledge of the companions and their methodology in approaching events and arriving at rulings was commented on by Ibn al-Qayyim. After mentioning many examples of Ijtihād of the companions, he said:

‘The Companions (raḍiy Allāhu ʿanhum) recognised similarities for events with their examples and thus referred them to those examples in terms of rulings. They opened the door of Ijtihād for the scholars and set for them its methodology and clarified its path.’[15]

When trying to extract the methodology of the Companions in Fiqh one may notice their tendency to restrict themselves to the blessed Sharīʿah to the exception of all else. They would give precedence to revelation over opinion or Ijtihād. When they did rely on Ijtihād they gave it a fixed place, recognising that it could be right or wrong and not binding to other scholars of the companions.

In one instance, when he was the Khalīfah ʿUmar (raḍiy Allāhu ʿanhu) met a man and said: ‘What did you do?’ He replied: ‘Alī and Zaid judge with such and such. ʿUmar said: ‘If it were me I would have judged with such and such’. The man said: ‘What stops you since you are in command?’ ʿUmar said: ‘If I were to refer you to the Book and the Sunnah of the Prophet I would do so, but I would be referring you back to my opinion’. Opinions are similar and thus he did not invalidate what ʿAlī and Zaid had issued.[16]

We must also recognise and understand that the companions would never follow one who had gone against an agreed upon text of the revelation no matter his status, and similarly, no matter a person’s status their word could be contended with on the basis of correct understanding of the Qur’ān and aḥādīth. With regard to this Ibn ʿUmar relates that he was asked about the Tamattuʿ type of Ḥajj. The questioner said: Do you go against your father? He explained to the questioner that ʿUmar did not reject this. When they persisted, Ibn ʿUmar said: Is the Book of Allāh more entitled to be followed or ʿUmar? In another narration: Which is more fitting that you follow; the command of the Messenger of Allāh or ʿUmar? Verily ʿUmar did not say that.[17]

The companions would also abandon some opinions for sound textual evidence. For example, ʿUmar (raḍiy Allāhu ʿanhu) judged in the blood money for fingers then he was told about the letter with the ruling that the Prophet (sall Allāhu ʿalayhi wa sallam) sent to Ibn Hazm; ‘for every finger there is 10 camels’, so Umar abandoned his own opinion.[18]

In addition to disciplined practice with regard to implementing truth, they would also refrain from igniting differences and arguing amongst one another. Rather, they would make due investigation into a matter and refrain from haste in giving fatwas. They would engage in much consultation with the scholars, jurists and those of sound opinion in those situations which arose wherein there was no text; as we should do now.

It was also of the habit of the companions to avoid discussing and debating issues in a manner that the Sharīʿah censured such as:

  • Questioning out of obstinacy and trying to find fault;
  • Questioning to ridicule others;
  • Questioning for meticulous detail;
  • Questioning about the unseen;
  • Asking questions with which Shayṭān whispers;
  • Fastidiously proposing hypothetical issues.

In the next article on this series, inshā’Allāh we will discuss some of the juristic methodologies that crystallised during the end of the era of the Companions into the dynamic and rich era of their students—the Tābiʿūn.

Source: www.islam21c.com

Notes:

[1] Al-Qur’ān, 4:78

[2] Al-Qur’ān, 4:29

[3] al-Bukhārī and Muslim

[4] Al-Qur’ān, 5:101

[5] al-Bukhārī

[6] al-Bukhārī and Muslim

[7] Abū Dāwūd, al-Nasāi and al-Hakim

[8] al-Bukhārī and Muslim

[9] al-Tabaqāt al-Kubra of Ibn Sa’d: 3/183

[10] al-Istidhkaar #1686, 8/297

[11] Abul-Ḥasan al-Ashari, Maqālaat al-Islamiyīn 1/31

[12] al-Bukhārī #3668

[13] al-Bukhārī #7284 and 7285 and Muslim #133

[14] al-Bukhārī #4986

[15] I’laam al-Muwaqieen: 1/222-238

[16] I’lam al-Muwaqieen 1/68

[17] al-Bayhaqi authentically. Al-Majmu of an-Nawawi: 7/158, ʿUmar preferred al-Ifrad and thus disapproved of Tamatu

[18] I’lam al-Muwaqqieen 2/283

[i] Al-Fayrawzabaadi, Basair Dhawi al-Tamyeez 4/210

[ii] Sadr al-Shariah; Al-Tawdih ‘Ala al-Tanqih: 1/78, al-Aamidi; al-Ihkam Fi Usul al-Ahkam: 1/5

[iii] ‘The capacity for making deductions in matters of law in cases to which no express text or rule already determined by Ijma (consensus) is applicable’ [Abdul Rahim, The Principles of Muhammadan Jurispncdence According to the Hanafi, Maliki, Shafi’i and Hanbali Schools, Madras, (1911), p.168-9, 173]

[iv] The Prophet (saw) said: ‘The Khilafah in my Ummah is for thirty years then there will be kingdom after that’ [Ahmad 36/256]. From Hudhaifah (RA): The Prophet (saw) said: Prophethood will be amongst you for as long as Allah wills then He will lift it when He wishes to lift it. Then there will be Khilafah upon the methodology of Prophethood for as long as Allah wills then He will lift it when He wishes to lift it … [Ahmad 30/355]

About Sheikh Shaqur Rehman

Sheikh Shaqur Rehman has completed a PGCE along with an MA in Applied Linguistics. He preceded his secular studies with a traditional Islamic education beginning in Egypt in 1999-2001 which he further developed in Syria and Saudi Arabia whilst teaching English in various universities and institutions. During his Islamic studies, he managed to memorise the Holy Qur’an and attain authorisation (Ijaza) in recitation and various Islamic sciences including theology and jurisprudence. Shaqur is currently a Senior Advisor at the Islamic Council of Europe.

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