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A brief introduction to the development of Islamic Law

Bismillahir Rahmanir Raheem,

The field of sacred law has come about as an integral element of Islam. This is for the simple reason that Allah intends guidance for human beings toward nobility and perfection of character, and protection against ethical and physical destruction. The Qur’an defines itself as “The Criterion,” (Al-Furqan), as a book of law, amongst other things, by which “to judge between people,”[1] right and wrong, morality and immorality, “as a guide and a mercy.”[2] Law functions, says Professor Phillip Allot, to carry the structures and systems of society through time, to protect its common interests and to establish its future in accordance with society’s theories, values and purpose.[3] In Sunni Islam, legislative authority is vested in the Qur’an and Sunnah, but by the turn of the first century, as Abdul Hakim Murad reminds us, they sometimes posed serious problems of interpretation. “The apparent internal contradictions were too numerous, and the interpretations placed on them too complex, for the qadis to be able to give out judgements simply by opening the Qur’an and hadith collections to an appropriate page.”[4] This challenge led to a remarkably sustained effort of scholarship from the time of the Companions to recent centuries that produced various frameworks or sciences (‘ulum) for the codification of Islamic Law. This essay seeks to briefly discuss its major developments.

The study of Islamic Law (fiqh or Shari’ah), says Imam Abu Hanifah (699-767), is about understanding religion as a code of ethics: “to know that which is for and against oneself.” This effort usually leads to the classification of human actions into broad categories of: permitted (halal or mubah), prohibited (haram), mandatory (fard or wajib), recommended (Sunnah) or disliked (makrooh). The sources of Law, then, are primarily the Qur’an and the authentic ahadith, but also, secondary sources such as Qiyas (analogical reasoning), Ijma (consensus of the Sahabah, in the main), Istihsan (scholarly discretion) and Istishab (presumption of continuity) – each of which were developed and refined by different scholars as Islamic Law evolved over time, and have their own conditions and rules of interpretation and deduction (usul al-fiqh).[5]

In the days of the Prophet, Islamic Law was simply a matter of obeying Allah and the Messenger, as many verses of the Qur’an commanded the believers to obey and to follow (ittiba). “Obey Allah and obey the Messenger”[6] and “Whatever the Messenger gives you, accept it, and whatever he forbids you, abstain from it,”[7] because he is the “most beautiful example.”[8] However, as Islam stretched out of Madina, the Companions increasingly had to resort to their own repositories of knowledge. It is here that the Prophet established the important principle of ijtihad. Mu’adh ibn Jabal states that when the Prophet sent him to Yemen, he asked: “What will you do if a matter is referred to you for judgement?” Mu’adh said: “I will judge according to the Book of Allah.” The Prophet asked: “What if you find no solution in the Book of Allah?” Mu’adh said: “Then I will judge by the Sunnah of the Prophet.” The Prophet asked: “And what if you do not find it in the Sunnah of the Prophet?” Mu’adh said: “Then I will make Ijtihad to formulate my own judgement.” The Prophet patted Mu’adh’s chest and said: “Praise be to Allah who has guided the messenger of His Prophet to that which pleases Him and His Prophet.”[9]

When something was not explicitly clarified in sacred texts (qata’i), whether as new issues as they arose or old ones, it was up to, as the root word ja ha da for ijtihad draws out, “the exertion of mental and intellectual effort, all that he or she is capable of, on a matter that requires it”[10] to bring about a clear delineation of the Islamic Law, rooted ultimately in Qur’an and Sunnah. Unlike the unambiguous and absolute (qata’i) parts of the Qur’an and ahadith, the more ambiguous (thanni) parts, due to context and usage of the Arabic language, require thorough analysis to contextualise them properly.

Thus, in the absence of the Prophet, there were Companions with greater knowledge of the religion – such as Abu Bakr, Umar, ‘Uthman, ‘Ali, Ibn Mas’ud, Mu’adh Ibn Jabal, ibn Ka’ab, Zayd bin Thabit, who gave fatwa and were capable of ijtihad if something was not clear in the Qur’an or taught by Prophetic examples (Sunnah). Unless the Prophet specified or restricted the revelation some way, it was possible that the Companions held differing positions on a whole range of matters.[11] These differences did not come about to satisfy their own whims or desires, but directly from the teachings and nurturing by the Prophet. The Successors, in turn, learnt from the Companions, some of which was written down as part of hadith collections such as the Mu’atta of Malik, or sayings such as the Fiqh Al-Akbar of Al-Shaybani, or memorised, but also preserved through law courts and the actions of the common folk. And unless there was a need for ijtihad if existing contexts had changed or new issues (masla masa’il) arose, they acted upon the judgements (fatawaa) of the Companions. In this way the fiqh of the leading fatwa-giving Companions came to be preserved, expanded and taught in the different localities in which the Companions and Successors settled.

However, with further expansion of Islam by the end of the first century (700 CE), considerable confusion arose concerning the question of what constituted Islamic Law, from the rift that “had begun to emerge between the teachings and principles of Islam and Muslims’ daily reality and practices.” There was thus a need for consistent frameworks for codifying Islamic Law as a “formal discipline of argument and proof which could establish the proper sense of a scripture which turned out to be open to many different interpretations,”[12] and, in fact, open to distortions (tahrif) and reprehensible innovations (bid’ah). This marked the starting point of the first generation of mujathid imams, drawing large numbers of students, who spread throughout Islamic lands – the likes of Sufwan Al-Thawri (716-778), Abu Hanifah (699-767) in Kufah, Malik ibn Anas in Madina (711-795), Idris Al-Shafi’ (767-820) in Cairo, and Ahmad ibn Hanbal (780-855) in Baghdad, to name the ones that then went on to found Schools of fiqh. They were all well known for their incredibly sharp minds and memory power, uprightness (adalah), and were propelled by an unflinching certainty in God (iman, yaqeen) and sincerity (ikhlas). Coming from diverse parts of the world, scholars were direct or indirect students or teachers of one another, or had similar teachers, and some met each other while others were separated in time.

Their main contributions were in the documentation fiqh in all aspects of life, as well as outlining the frameworks of deducing law (usul al-fiqh). There were many differences in their methods and preferences to the sources, such as Abu Hanifah’s “inductive” approach giving emphasis to istihsan contrasts in some aspects that of Al-Shafi’s “deductive” method and Malik’s fiqh based on the customs and practices of the people of Madina contrasts that of Ahmad’s based on hadith from different places. They did not operate independently, but were part of a majlis of ‘ulema, such as in the case of the Abu Hanifah, there were at least a group of 40 jurists, who debated on issues with his students documenting the various opinions. Whilst there were great similarities in all areas of fiqh between the developing Schools, their disagreements were full of mutual respect and in awe of each other’s contribution to preserving sacred Law. Eventually, this period culminated in the formalisation of usul al-fiqh, most notably in the Risala of Al-Shafi’. This was the formalisation of the methods of deducing Law from the sacred sources. Detailing, for instance, “How analogy (qiyas) should be constructed, what are its limits, and what authority would it command in conjunction, or in conflict, with the other recognized proofs.”[13]

For much of the first 300 years of Islam, there was a sense of easiness by which qualified scholars would carry out ijtihad and freely departed from rulings well established in the School they favoured. There was no place in Sunni Islam of a universal authority that dictated doctrine. The Caliph ‘Umar Ibn ‘Abdul ‘Aziz (682-720), for instance, sent messages throughout territories under his control to the effect that the people of every area should act in accordance with the edicts of their own scholars.[14] When asked by the Abbasid Caliph Harun Al-Rashid’s (763-809) to hang the Muwatta from the Ka’ba, as a means by which Muslims from around the world could not only learn and be compelled to follow its specific teachings and laws, Imam Malik refused, saying: “the Companions of the Messenger of God disagreed about the branches of knowledge. They dispersed throughout the lands of Islam and each one did what they thought correct.”[15]

By the fourth century, these Schools, nevertheless, became standardised institutions across the Muslim world. To the extent that, by the eleventh century, scholars like Al-Juwayni (1028-1085) declared that following one of the four Schools was obligatory (wajib) for non-scholar masses. As Muslim populations expanded, there was a commensurate growth in the number of “emulators” (muqallidun), as non-scholars who simply followed the School to which they were born into or taught by their teachers (taqlid – following without proof) on the basis of the general commandment (‘amm) in the Qur’an: “Ask the people of knowledge if you do not know.”[16]

Alongside the development of Law, there were other allied subjects of study that were necessary in the process of deriving Law as societies became more complex. Prominent among them was the study of hadith which itself was profound in scope, depth and effort. Legal maxims (qawaid al-fiqh) were also studied, and as Kamali notes, Hanafi jurists were the first to formulate and make use of them. Al-Karkhi (d. 340 AH), for example, compiled 39 such governing principles.[17] By medieval times, the objectives and intents (Maqasid) of the Shari’ah became another field of study, most notably expounded by Al-Shatibi (d. 1388).

However, as centuries went by, the intellectual vigour to evolve fiqh through scholarship as the earlier mujtahids had done was progressively eroded. Increasingly, sacred texts came to be seen as rigid and “fixed” rather than as being open to human understanding through ijtihad and contingent on context. The tendency was increasingly to treat past legal precedents as “untouchable” rather than seeing them as Aftab Malik denotes, “as the intellectual outcomes of scholars who exerted themselves to make sense of the world they were living in.”[18] Al-Ghazali (1058-1111) pointed to another problem: the likes of Imams Abu Hanifah, Al-Malik, Al-Shafi’i and Ibn Hanbal, he said, “…everyone of them was as ascetic, devout, learned in the science of the Hereafter, law giver for the people, seeker of God’s pleasure through the help of fiqh. Every one of them possessed five qualities but the modern faqhis accepted only one of them, research into the minutest details of fiqh.”[19]

Among many teachers, mufti’s and centres of religious learning (madaaris), the tendency was increasingly to merely re-state earlier fiqhi positions and conclusions, overlooking the detailed chain of inquiry into the Qur’an and Sunnah and wider deliberation of earlier scholars. In fact, the institutionalisation of “School texts”—which came about, rightly, to protect against the dangers of arbitrary authority of scholarship—says the scholar Akram Nadwi, were, nevertheless, allowed to dominate thinking and confining the realisation of Islam, which the founders of these Schools did not advocate. Ibn Taymiyyah (1262-1238) was one of the earliest amongst the leading critics and called for the need ijtihad by qualified scholars.

The “blind following of madhabs” (taqlid), at its most detrimental, came to mean that adherents of different madhhabs refused to pray behind an imam of a different madhahb, or allow marriage between people of different madhhabs, and justifications for various innovations amongst some Sufi scholars for example,[20] as documented by Al-Khajnadee (d 1380 AH). In fact, taqlid by those who were learned attained such prominence and respectability, that as Al-Alwani remarks, in Islamic scholarship taqlid became “cancerous, constricting, and irrelevant fiqh,” which spread throughout Muslim life, became orthodox, and associated with the decline of Muslim thought. Given the availability of the six most authenticated volumes of hadith (the Sahih Sitta), it is argued by some that it necessitates abandoning School-based Islamic Law in favour of deriving Islamic Law through a direct reading of hadith. But thus far, the movement to do away with Schools using the somewhat disingenuously framed saying of Abu Hanifah, that, “If the hadith is authentic then it is my madhhab” has for the most part profoundly confused and fragmented Muslim discourses.

Today, the focus remains as ever “to know the practical propositions of the Sher’ [Shari’ah]”[21] but in the radically altered context of modernity. Scholars of Islamic Law face the challenge of making sense of how best to express the varied understandings and applications of Islamic Law for Muslims within the globalised, secular, multicultural and cosmopolitan conditions in which, as described by Shams Ad-Duha Muhammad, Muslim communities reside in “a melting pot of every idea and movement known in Islam.[22] The challenge is, additionally, in as much to do with authoritatively reviving ijtihad and ideas, removing misconceptions and unwarranted rigidity, as about effectively restoring the intimate connection between the daily lives of vast populations of Muslims with poor knowledge of Islam and the sources of Divine guidance in the Qur’an and the Sunnah.

– By Dr Mamnun Khan

Endnotes

[1] Al-Qur’an, chapter 2, Al-Baqarah (The Cow), verse 213.

[2] Al-Qur’an, chapter 16, An Nahl (The Bee), verse 64.

[3] Phillip Allott, The concept of international law, Journal of International Law, Volume 10, 1999, Issue 1, page 31-50.

[4] Abdul Hakim Murad, Understanding the Four Madhhabs, Ashraf Publications, 1997, p10.

[5] See Mohammad Hisham Kamali, Principles of Jurisprudence.

[6] Al-Qur’an, chapter 4, An-Nisa (The Women), verse 59.

[7] Al-Qur’an, chapter 59, Al-Hashr (The Gathering), verse 7.

[8] Al-Qur’an, chapter 33, Al-Ahzab (The Confederates), verse 21.

[9] Taha Jabir Al-Alwani, Source methodology in Islamic Jurisprudence, p9.

[10] Taha Jabir Al-Alwani’s Issues in Contemporary Islamic Thought, The International institute of Islamic Thought, 2005, p68.

[11] Muhammad Zakariyya Kandhlawi, The Differences of the Imams, White Thread Press, 2004.

[12] Tim Winter, The Cambridge Companion of Classical Islamic Theology, edited by Tim Winter, Cambridge University Press, 2008, p6.

[13] See Mohammad Hisham Kamali, Principles of Jurisprudence, p13.

[14] Muhammad Zakariyya Khandlawi, Al-Eti’daal fi Maraabitur Rijaal, p211.

[15] Muhammad Abu Zahra, The Four Imams, translated by Aisha Bewley, Dar Al-Taqwa, 2001, p73.

[16] Al-Qur’an, chapter 16, An-Nahl (The Bees), verse 43.

[17] Mohammad Hisham Kamali, Qawaid al-fiqh, The Association of Muslim Lawyers, p3.

[18] Aftab Malik, The challenge to stagnant tradition, 2011, http://www.musliminstitute.org.

[19] Abu Hamid Al-Ghazali, Ihya’ Ulum ud-Din, Kazi Publications, Lahore, Volume 1, p40.

[20] Muhammad al-Khajnadee, The Blind Following of Madhhabs.

[21] The Mejelle (Majallah al-Ahkam al-Adliyyah), The Other Press, 2001, p1.

[22] Shams Ad-Duha Muhammad, Let’s agree to disagree, Islamique Magazine, issue 4, February 2012.

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