The pre-Islamic Arabs had no systematic
law. Their conduct in individual life was controlled by the conventions
of the family or the clan to which they belonged. In the broader aspects
of their lives, a clan, sub-tribe and tribe would usually have recourse
to the arbitration of the oldest man (Shaykh) among them or the
Kahin (soothsayer) or anyone noted for ripe judgement and impartiality.
The arbitration of these arbiters would not, however, be absolutely binding
on those who sought it: they would break it without incurring any serious
harm except the displeasure of the community. Some settled tribes of Madinah
and Makkah had, besides the conventions, a body of laws which
they had derived from the neighbouring Jewish settlements and the civilised
people of Syria in their commercial travels.
Islam brought a systematic law and
its potential to the Arabs. The Qur’an and the Prophet (sws) were
the first sources of the Islamic law. The Qur’an provided basic
legislation, that is, the cardinal principles on which the structure of
the Muslim society was to be based and left minor and circumstantial issues
to be decided by the Prophet (sws) and, after him, by the Muslims themselves
in the light of its dicta.
The basic legislation had two sides
– the spiritual and the mundane. The spiritual side dealt with such vital
matters as the position of God, the Creator of the universe, His attributes,
His powers, the position of man in the universe viz-a-viz the Creator,
the purpose of His creation, His role in the universe, His ultimate end
and His moral ideal. Twenty-nine-thirtieth of the Qur’an revolved
round this side of the basic legislation and it was this side on which
the foundations of Islamic life were to rest. This was the most important
part of the Qur’an
and constituted the substance and spirit of Islam
and all the apostolic books before it aimed at the vindication and establishment
of this part. But, unfortunately, the first embracers of Islam generally
did not grasp and assimilate it owing to the mighty influence of their
tribal instincts and traditional ideals and, therefore, the order of life
which they built up lacked proper foundation and could not vindicate the
real spirit of Islam, set forth in the twenty-nine-thirtieth part of the
Divine Book.
The mundane side of the basic legislation,
comprising about one-thirtieth part of the whole book, dealt with the legislation
of quite a number of civil, matrimonial, criminal, religious and political
matters affecting the Muslim society at Madinah during the eleven
years of the Prophet’s residence there.
As long as the Prophet (sws) lived,
that is, during the twenty-three years of his apostolic career, he was
also a legislator, of course, in accordance with the spirit and the dictum
of the Qur’an
and in matters which were not directly considered
by the latter. The legislation, for example, determining the mode and the
time of prayers, and the amount of Zakah to be paid, came from him
and any matter which he decided or ordered in particular matters assumed
the authority of law in similar circumstances.
These two, i.e. The Qur’an and
the Prophetic practice (Sunnah), were the exclusive sources of law
during the life-time of the Prophet (sws). As new and quite unforeseen
conditions faced the Muslims in their political and territorial expansion
after him, the use of Ijtihad or Ra’ay (individual judgement),
in the light of the above-noted primary sources, became a third source
of legislation. Many Companions used it, including Abu Bakr (rta),
‘Umar (rta),
‘Uthman
(rta) and ‘Ali (rta), whenever
the Qur’an and the Sunnah
did not provide law. Abu Bakr’s
caliphate was short (about three years) and the range of Muslim sovereignty
was restricted to Arabia alone. The problems which arose during his caliphate
were, therefore, neither numerous, nor very diverse, being to a large extent
similar to those which had already arisen in the Prophet’s life-time and
for which he had made legislation.
The conquest of new lands – Iraq,
Syria, Persia and Egypt – in the caliphate of the second Caliph, ‘Umar
(rta), brought with it a big mass of quite new civil, military, social,
criminal, fiscal and revenue problems, provision for which had been made
neither in the Qur’an nor in the Prophetic usage. Further, the problems
of every land, even district, were very often different from those existing
in others and, as such, called for different legislation. In the legislative
history of Islam, ‘Umar’s caliphate figures out very prominent.
It provided legislation for a large number of political, military, revenue
and economic problems which assumed the status of legal precedents for
the future generations and commanded a legal authority second only to that
of Hadith and the Qur’an. He was the first caliph to appoint
legists, judges and teachers of Fiqh (law) in every great Muslims city.
He was the first caliph whose caliphate saw the spread of the Companions
– about 2,000 in number, we are informed – to far-off lands as military
generals, warriors, counsellors and religious guides. They formed a very
important nucleus of legislation in the chequered problems facing the Muslims
in their new and alien homes.
Legal activity flourished a great
deal at the capital itself and Ijtihad or Ra’ay played a
prominent role in it. This Ijtihad meant the application of deduction
to the principles of the Qur’an or Sunnah and the derivation
of new judgements therefrom to meet new situations.
But ‘Umar (rta) followed not
only the letter of the law while using his Ijtihad, but also its
spirit. There is enough evidence to prove that in the exercise of his Ijtihad,
he always tried, as far as he could, to vindicate the purpose lying at
the background of every legal provision, enunciated by the Qur’an or
the Prophet (sws). The following episode may serve as an illustrative instance.
The slaves of an Arab, Hatib Ibn Abi Balta‘ah by name, stole away
the she-camels of another Arab of the sub-tribe, Muzaynah. They
were brought to ‘Umar (rta) as the accused and they confessed their
guilt. The son of Hatib was called by the Caliph and told that his
father’s slaves had stolen the she-camels and owned their guilt. Thereafter,
he order the cutting of their hands in accordance with the canon of the
Qur’an
with
regard to thieves. But, presently, he perceived the unjustifiability of
the sentence and thus addressed the son of Hatib, revoking his order:
‘By Allah, had I not known that you employ them as labourers and keep them
hungry so much as to make it lawful for them to eat anything forbidden
by Allah, I would have cut off their hands.’
Further, in the appointment of judges
‘Umar (rta) was guided more by the consideration of a man’s ability
to understand the basic principles of the Qur’an and the Prophet’s
Sunnah and apply them properly to particular cases than by the mere
fact of his being a Companion. This attitude of the Caliph is demonstrated
by the appointment of Ka‘ab Ibn Sur al-Azdi and Shurayh al-Kindi
as judges and teachers of Fiqh in A.H. 18 at Basrah and Kufah
respectively. Neither of the two was a Companion but both gave such
striking proof of their command of deductive talent by deciding two cases
with the help of analogy from the Qur’an that the Caliph was prompted
to send them as legists to the greatest provincial towns of the Caliphate.
After the time of ‘Umar (rta)
onwards, centres of law sprang up everywhere in the Muslim world. The Caliph,
as noted before, appointed judges and teachers of law in every great city.
Further, he attached Companions of note to the judges of some provincial
towns for their help and guidance. The judges and teachers of Fiqh sometimes
sought the assistance of the Companions in dispensing justice and tendering
Fatawa. Very often people would refer the multifarious problems
of their day-to-day life to the Companions residing in their city for legal
advice.
The mosques of Basrah and Kufah
were the centres of law in Iraq, those of Fustat, Damascus,
Makkah, Madinah, and San‘a’ were centres in Egypt, Syria,
Hijaz and Yemen respectively. The following Companions played the
leading role: in
Basrah,
‘Imran Ibn Husayn (d: 52), Abu
Musa ‘Ash‘ari (d: 44); in
Kufah, ‘Abdullah Ibn Mas‘ud (d: 32)
and ‘Ali (d: 40); in Damascus,
Mu‘adh Ibn Jabal (d: 18) and
Abu Darda; in
Fustat ‘Abdullah Ibn al-‘As (d: 73) and ‘Abu
Dharr (d: 31); in Yemen;
Kaysan; in Madinah, ‘Umar (d:
23), ‘Uthman (d: 35),
Ibn ‘Umar
(d: 73), ‘A’ishah (d:
58), Ibn ‘Abbas (d: 69), and Zayd Ibn Thabit; and in Makkah,
Ibn ‘Abbas.
The Companion and non-Companion judges
and teachers of Fiqh in every land derived and practised law throughout
the Rashidah
Caliphate and the Umayyad rule in the light
of all the three sources of legislation, namely, the Qur’an, Hadith
and Ra’ay
or Ijtihad. At some places, and under particular
circumstances, the importance and use of Hadith or Ra’ay were
emphasised.
Hadith had generally greater appeal to the Arab mind
for several reasons: it satisfied their psychology of love for tradition,
it possessed a high sanctity for being associated with the Prophet and
it vested those who cultivated it with great respect in the eyes of the
public. The importance and use of
Ra’ay
were pronounced at such
places where Hadith
had not reached in abundance and where the problems
of life were far too complex and rapidly growing to be adequately met with
the Hadith, as it had been limited to the simple social, economic,
and political conditions of Madinah
and related more to the personal
life of the Prophet (sws) and his religious practices than to the practical
problems of life.
Makkah and Madinah were
the homes of Hadith and the Companions, who acted as judges, teachers
of Fiqh
and ministers of law there throughout the Rashidah Caliphate
(11-40) and the greater part of the Umayyad rule, became in the
latter half of the first century the nucleus of a school of Fiqh known
as the school of Hadith. A number of people who had absorbed the
legal ministrations of the Companions, and, in some cases, were attached
to them as pupils became, after their teachers’ death, the custodians of
the legal science which they had imbibed from them. They treated the legal
decisions and judgements of their teachers as equivalent to the traditions
of the Prophet (sws). They jealously preserved and guarded the legal knowledge
inherited from their predecessors, decried the use of Ra'ay as being
against the spirit of traditions, and resorted to it only and quite reluctantly
when the Qur’an, Hadith and the legal precedents of the Companions
totally failed to give guidance. Although most of the leading Companions
themselves freely employed Ra’ay whenever need arose, their successors
abhorred it and banned exercise except in extreme cases.
These people are known as the first
class of the jurists of Makkah and Madinah with Ibn Jurayj,
‘Urwah Ibn Zubayr (d: 94), Sa‘id Ibn Musayyab (d: 93), Salim
Ibn ‘Abdullah (d: 106), as the most prominent Tabi‘un. They
were followed by the second class of the Tabi‘un jurists who had
imbibed from them not only the legal heritage of the Companions but also
the additional fund of the Fatawa issued by their teachers on the
basis of that heritage or, as the last resort, on Ra’ay. Hadith
of the Prophet (sws), Fatawa of the Companions and those of
the Tabi‘un became the legacy of the second class of the Tabi‘un
jurists and they jealousy guarded and preserved it, according the same
status to it as to Hadith, and decided cases with its help and in
its light, unless the exercise of Ra’ay became an absolute necessity.
New layers of law precedents continued
to accumulate in this way as new generations of the Tabi‘un jurists
flourished one after the other.
On the same traditional lines, too,
proceeded Fiqh
in all other great cities, with Hadith or
Ra’ay dominating its culture in keeping with the mental attitude
of its cultivators and the particular circumstances of the place. The elements
of Hadith, of course, after the pattern of the one existing at Makkah
and Madinah, were in ascendance through the Umayyad period
in the law practices of Hijaz, Syria and Egypt, though the last
two lands could not be so seriously indifferent towards Ra’ay as
those of Hijaz because of the much more complex and numerous problem
prevailing there in contrast to the more or less static condition of the
Arabian peninsula.
The school of Hadith in Fiqh
found a true rival in the school of Ra’ay or Qiyas of
Iraq. Kufah, the most populous Arab city of Iraq after Basrah,
was its centre and cradle. The characteristics of this school was the use
of Qiyas
(analogy) in commenting on the Qur’an and tendering
legal judgements. The founder of the school was ‘Abdullah Ibn Mas‘ud
(rta), a Companion of talent. After him, it was maintained and advanced
by his pupils and also by ‘Ali (rta) who had stayed there as Caliph
for about four years prior to his murder. In about 20 AH, Ibn Mas‘ud
(rta) was commissioned to Kufah by ‘Umar (rta) to teach
the Qur’an
and
Fiqh
to the populace. A circle of devotees
surrounded him as pupils in Fiqh
and the Qur’an. He would
often be faced with problems (Iraq being socially and economically far
more advanced a land than either
Hijaz
or Egypt) for which he had
known no precedents at Madinah
and for which no
Hadith
was
available. He would, therefore, use his
Ra’ay, of course, subject
to the dicta of the Qur’an
on such occasions and such occasions
were very numerous.
His pupils preserved his verdicts
and judgements and made them the basis of their own legal decisions – Fatawa.
After
Ibn Mas‘ud (rta), the official judge of the city was Shurayh
and the decisions of this celebrated jurist, though not a pupil of Ibn
Mas‘ud
(rta), were based more on common sense and analogy (Qiyas)
than on Hadith. He catered for the legal needs of the city in an
official capacity for more than fifty years. He was not a Companion and
knew little of Hadith
and, in fact, Hadith was generally
little known in Iraq owing to the paucity of the Companions there and its
inadequacy to meet the complex situations of the highly chequered civilisation
of that land. Further,
‘Ali (rta) also liberally exercised his Ijtihad
in
dealing with the legal issues which faced him in the day-to-day administration.
With Ibn Mas‘ud
(rta) as its founder and Shurayh and ‘Ali
(rta)
as its first pioneers, the Iraqi School of Fiqh
pursued a legal
course in which Ra’ay or Qiyas was the dominating factor.
But like the rival School of Hadith, it also followed a traditional
path. The legal decisions of Ibn Mas‘ud (rta) became the law precedents
of his pupils and were jealously preserved by them and so was also the
case with the legal pronouncements of Shurayh,
and
‘Ali (rta).
The next generation of the Tabi‘un who had assimilated this store
of law and were mentally disciplined in the legal methods of the school
made it the basis of all legislation which they were called upon to formulate,
and preserved and guarded it with as much care and tenacity as their rivals
at Makkah and Madinah. They would use Ra’ay
only when
the store of their inherited law failed to give them any guidance, but
as long as the legal verdicts of their predecessors could analogously or
by any logical method inspire them with legal solutions, they would not
exercise Ijtihad. Yet they would make a liberal use of this means
or what they called Qiyas in deducting all possible legal corollaries
(called by them: Furu‘) of particular issues without their having
actually occurred in practical life. This practice of theirs thoroughly
antagonised them with the school of Hadith which highly detested
the deduction of a legal corollary unless need for it had actually arisen.
Further, the deductions which they made analogously from the Fatawa
of
their predecessors involved a logical insight into the points (often very
subtle and obscure) of similarities and differences of cases or their causes
and also logical reasoning which, most often, were absent in the jurists
of Hijaz. They were generally very adept in (acquainted as they
had been with logical methods in their long association with Logic and
Philosophy) discovering the points of similarities and differences of cases
and in deducing legal inferences from the legal verdicts of their predecessors.
Moreover, this school had a positive
attitude toward the Hadith of the Prophet (sws). They accepted such
Traditions only as were famous (Mashhur) or in common prevalence
or had been transmitted by sets of more than one transmitter, though such
Traditions were quite small in number. This attitude, coupled with their
practice of inferring provisions for all possible legal aspects of particular
cases in advance of their occurrence was the most distinctive feature of
this school and for which it was looked down upon by the school of Hijaz.
These were the two very well-defined
and widely prevalent law schools of the Umayyad period. The school
of Hadith
dominated the whole of Hijaz, parts of Syria and
Egypt, that of Ra’ay ruled the legal activity of Kufah, Basrah
and the rest of ‘Iraq.
But extremist tendencies in legal
matters also existed among the followers of the two schools in so far as
some jurists entirely banned Ra’ay and took Hadith (which
covered the Traditions of the Prophet (sws), the Companions and the Tabi‘un)
as the exclusive source of legislation after the Qur’an, while others
forsook Hadith
totally and declared Ra’ay as the only satisfactory
means of legislation after the Qur’an. The Fiqh of the Zahiris
(followers of Da’ud Zahiri, 200-270 AH) and that of the Khawarij,
represented the two extreme views.
The legal methods of individual judges
and ministers of law at many places in Iraq, Syria, Egypt and North Africa
worked on lines more moderate than those of the two major schools. They
did not restrict or ban either Ra’ay or Hadith, nor did they
prescribe strict conditions for either. They first looked up to the Qur’an
for getting a legal provision; in case of failure they looked for a
Hadith and if this source too failed them, they exercised their
Ijtihad or
Ra’ay
or
Qiyas. Further, they neither
attempted deduction of presupposed law corollaries (Furu‘), nor
limit the range of Hadith
by prescribing the condition of Shuhrat
to it like the school of Iraq, nor restrict the authoritative character
of Traditions to those current in Makkah
and Madinah alone
as was the attitude of the jurists of the two cities.
These three schools constituted the
main channels of legal activity throughout the Umayyad period. By
its end, the position of every one of them was as follows: Makkah and
Madinah
had three layers of Fiqh prepared by three generations,
the first comprising the Companions and the other two, the Tabi‘un.
These layers commanded great sacredness, were closely guarded and actively
pursued by those who inherited them. The jurists of the second and the
succeeding generations evinced a strong bias for the Fatawa of their
predecessors which made them shut their eyes to the Fatawa of the
jurists of other places, however sound and just they might be. They even
refused to accept the Traditions which were not known to them or were not
current in their cities. No legal judgement (or Hadith) was looked
upon as authentic and authoritative unless it was associated with some
member of their school or based on the legal heritage peculiar to them.
Ra’ay
was only used when this heritage failed to give direct legal guidance,
and, further, the scope, the nature and the method of its exercise were
not sufficiently wide, adequate or logical.
The school of Iraq, on the other hand,
had four layers of Fiqh when the Umayyad period ended. The
first layer began with the Companions, Ibn Mas‘ud (rta) and ‘Ali
(rta) and the fifth was completed and perfected by Abu Hanifah (d:
150). Every preceding layer of Fiqh was held almost in the same
regard by every succeeding generation of the jurists of this school as
was the case with the layers of Makkah and Madinah. Place
and person prejudice was here, too, displayed in the cultivation of law,
and outside legislation would not be accepted by the followers of this
school as law precedent. As an example of this prejudice we may note the
following remark of Abu Hanifah to al-Awza‘i, the great Mujtahid
of Syria: ‘Ibrahim (a Kufi Tabi‘i jurists of the School
of Ra’ay) had greater legal wisdom than Salim (a Tabi‘i
jurist of the School of Hadith at Madinah) and had not Ibn
‘Umar (rta) been a Companion of high calibre, I would have declared
‘Alqamah (a jurist of Kufah among the first Tabi‘un generations)
superior to the former’. They would accept only Mashhur Traditions
(including the verdicts of the great Companions) and all possible legal
corollaries of practical cases deduced on large scale by means of analogy.
The theory of Ra’ay was formulated, elaborated, systematised and
evolved in what came to be technically called Qiyas. The theory
of Istihsan (rejection of an analogous deduction from a canon) in
the interests of justice and that of Istislah for the vindication
of the spirit of law, or the realisation of the great interests of public
justice at the sacrifice of individual interests, were formulated and the
two came to play quite an important part in the development of Fiqh.
The third school did not undergo any
specific changes except that the person-and-place prejudice was also prevalent
among them in so far as they guarded and preserved and set as precedent
the legal judgement of the jurists of their lands. They did not generally
shut their doors to outside Hadith whether it belonged to the Prophet
(sws) or his Companions. Hadith and Ra’ay went hand in hand
in their legal practices.
The ‘Abbasid period heralded
a great career for the evolution of Fiqh. The first two centuries of the
‘Abbasid rule, particularly the first is distinguished for large-scale
and basic compilation of books, for the formulation and codification of
its Usul (fundamentals), the crystallisation of some of its schools,
and the rise of new ones. This evolution was due, partly to the extraordinary
demands for legislation of a very rapidly developing and complex civilisation,
partly to the peaceful atmosphere of the realm and partly to the keen interest
which the kings and great men displayed in the patronage of learning, specially
in religion and law. Unlike the Umayyad princes who simply, and
yet not always, appointed judges to cater for public justice in accordance
with their Ijtihad
and individual legal outlook, the ‘Abbasid
government appointed a chief justice at Baghdad who was to control
all the judicial appointments of an extensive empire. This naturally implied
that the official legal activity of the realm should conform to the particular
legal outlook of the chief justice and to a considerable degree in practice
it did follow this pattern although Ijtihad was still free and freedom
of maintaining individual outlook was still unchallenged.
Apart from the official judges, who
were appointed in every city and who, as noted above, had to follow, to
a considerable extent, the legal methods of their head, the chief justice,
there were numerous legists who privately cultivated law in every city,
town and village and were consulted by the public in their legal needs.
They (the legists) either followed the School of Hadith, or that
of Ra’ay or the moderate one or owned allegiance to none and acted
according to their own Ijtihad or legal insight. Similarly, the
common people were free in consulting the Muftis, and individual wishes
or bias counted more in such consultation than school or party prejudice.
Such conditions, however, did not last long. The compilation of the books
of different schools of
Fiqh
in the second half of the second century
A.H. (first ‘Abbasid
period) set the stage for the hardening of
the legal attitude of the public and their division into different jurisprudential
groups (Madhahib).
Broadly speaking, the development
of Fiqh in theory and practice, during the first two centuries,
proceeded along the lines of Madhahib (legal courses) of over a
dozen great Mujtahids who pursued their own legal methods and ideologies
in the cultivation of law. They are Hasan Basri (Basrah),
Awza‘i (Syria),
Abu Hanifah (Iraq), Layth Ibn Sa‘ad (Egypt),
Malik Ibn Ans (Madinah),
Sufyan Ibn ‘Uyaynah (Makkah),
Shafi‘i (Egypt), Ishaq Ibn. Rahwayh (‘Iraq), Abu Thawr
(Adharbaijan
and Armenia),
Ahmad Ibn Hanbal (Baghdad), Da’ud
Zahiri (Khurasan) and Ibn Jarir Tabari (Iraq). Some of these
Mujtahids
lived the greater part of their lives in the first century,
some lived in the second and some in the third. Most of their courses fell
out of use after the third century, owing partly to the paucity of influential
personages among their followers, partly to the lack of zealous supporters
who could propagate and espouse their cause by pen and speech, and partly
because of the inherent weakness of some of them, such as lay in the system
of Da’ud Zahiri who practically repudiated Ra’ay and stuck
unreservedly to the canons of the Qur’an
and
Hadith. The
courses which did not suffer from these disadvantages but which emerged
stronger and stronger with the flow of time are the four schools of Fiqh
known after the names of Abu Hanifah, (80-150 AH), Shafi‘i
(150-204 AH), Malik
(93-179 AH) and Ahmad Ibn Hanbal (164-241
AH). These schools crystallised into well-defined individualistic patterns
only after the third century when brakes were applied to Ijtihad.
Every one of these four Mujtahids was the representative of one
or other of the schools of Fiqh that had grown during the Umayyad
period.
Abu Hanifah was the greatest champion of the School
of Ra’ay of Iraq. He died seventeen years after the establishment
of the ‘Abbasid government. He was a great analogist and since he
perfected and systematised the theory of analogy (Qiyas or Ra’ay)
on which the school associated with his name rested, he is generally called
its founder. But he neither put down his views regarding Ra’ay in
black and white, nor deposited his hundreds and thousands of Fatawa
in a book form. It was left to his three pupils, Muhammad Hasan,
Zufar Hudhali and Abu Yusuf (chief justice of the realm)
and particularly the first two, to undertake the compilation of his Fatawa,
and those of his predecessors of the School of Ra’ay and tackle
new problems of law in conformity with his perfected theory of analogy.
Malik, Ahmad Ibn Hanbal and
Shafi‘i are all champions of the school of Hadith, but since
they differed from one another in very important respects in their attitude
towards Hadith, they came to have separate theories and courses
of Fiqh. Malik
was born at Madinah (AH 93), read Fiqh
with its jurists (the second class of the Tabi‘un, Nafi‘
and Zuhri being the most important of them) and inherited the
legal heritage of his predecessors. He was the champion of this legal heritage
and the most outstanding legists of Madinah in his day. Legal tradition
of Madinah was the guiding principle of this Fiqh and he
gave Hadith of the Prophet (sws) a prominent position in his system.
He argued that since the Prophet (sws) had lived the greater part of his
life as a legislator at Madinah, the Madinans should naturally
be the most well-acquainted persons with the Sunnah and its Nasikh
and Mansukh. On the basis of this proposition, he regarded their
practices in legal matters as authoritative as law and greater in authenticity
than a Sahih Hadith. He further regarded the practices of the majority
of the Madinans, even if their entire concord was not available,
as equal in authority to law and greater in legal force than a Hadith
transmitted by few transmitters (Khabr i Wahid), because their
practice in both cases implied that the contrary Traditions had been abrogated
by the Prophet (sws). Secondly, he bestowed on the legal opinions of the
Companions, and, sometimes, on those of the Tabi‘un, including himself,
the legal authority of Hadith, if a Sahih Hadith from the
Prophet (sws) was not available. Ra’ay or Qiyas, according
to him, could be exercised only when Ijma‘ of the Madinans,
Hadith of the Prophet, the legal judgement of the Companions and
the Tabi‘un failed as sources of legislation. But Malik,
unlike Abu Hanifah and his school did not prescribe the condition
of Shuhrat for the acceptance of a Hadith, and admitted as
authentic – and in this he concurred with Shafi’i – Traditions transmitted
by few transmitters (Khabr i Wahid), provided they came to the standard
of Sahih or Hasan.
Thus, acceptance of Sahih or
Hasan Hadith, recognition of Ijma‘ of the entire population
of Madinah or its majority as law and preference of this Ijma‘
over Sahih or
Hasan
Traditions, and award of the status
of a Hadith or law to the judgements of the Companions and the Tabu‘un
in preference to Qiyas, constituted the chief principles of
Malik’s Fiqh.
Shafi‘is attitude towards Hadith
may be summed up as follows: He recognised the legal authority of a
Sahih Hadih (of correct and uninterrupted Isnad) whether
it was Mashhur
or not and whether or not it was prevalent at Madinah
or Makkah
(the rigorous conditions of Malik) in preference
to Qiyas, or
Ijma‘ or the judgement of a Companion or Tabi‘i.
Ahmad Ibn Hanbal’s attitude
towards Hadith
was different from that of Malik or Shafi‘i
and his Fiqh
was almost entirely based on Tradition to the exclusion
of Ra’ay. He gave the legal judgements of the Companions the status
of apostolic
Hadith, preferred even Mursal or Da‘if Traditions
to Ra’ay (which neither Malik nor Shafi‘i allowed)
and abhorred legislation in matters which had not been traditionally legislated.
Ra’ay according to him could be resorted to only in cases of extreme
necessity when traditional law afforded no help.
To put the difference of their attitudes
in more clear and plain terms, let us notice the order of the relative
importance in which every one of them places his sources of legislation.
The Qur’an
is the first source according to all of them. The second
source according to Malik, is Ijma‘ of the residents of Madinah;
after it, Hadith of the Prophet (Mashhur, Sahih and Hasan);
next to it, the legal verdicts of the Companions and the Tabi‘un of
Madinah;
and, lastly, Ra’ay.
The second source with Shafi‘i
is a Sahih Hadith (whether Mashhur or not or whether singly
narrated or by sets of transmitters) and not Ijma‘. Again, while
to Malik, Ijma‘ means Ijma‘ of the residents of Madinah,
Shafi‘i extends its scope to the people of other places also. Further,
Malik sometimes gives preference to the opinions of a Companion
or Tabi‘i, including himself, over a Hadith, which Shafi‘i
would never concede.
Ra’ay
comes next to Ijma‘ according
to Shafi‘i unlike the order of Malik.
The second source of legislation,
according to Ahmad, was Hadith of the Prophet (sws) and the
opinions of the Companions. Even the weak and Mursal Traditions, unaccepted
by either Malik or
Shafi‘i, could serve, in his system, as
sources of law. Next to these ranked the legal verdicts of the Tabi’un
jurists and lastly,
Ra’ay.
These differences – and quite momentous
differences they are – arose mainly from the decision whether or not to
accept Hadith
of the Prophet (sws) and the judgements of the Companions
and the Tabi‘un
as bases of legal rules. Besides these, there were
other important differences too, which potentially influenced the segregation
of their legal courses.
Malik accepted and practised the principles
of Masalih-Mursalah
and
Istihsan in legislation while Shafi‘i
characterised them as arbitrary and unjustificable courses. Ra’ay,
as a source of law, was accorded but an insignificant position by Malik
without there being any serious effort on his part to define its nature
or scope.
Shafi‘i, on the other hand, gave serious consideration
to it, defined its nature and scope carefully, bestowed on it an influential
and honourable position in the domain of legislation. Ahmad Ibn Hanbal
almost entirely ignored
Ra’ay.
Although, Hadith formed the
main fountain of the Fiqh of each of the three Imams, the differences in
their outlooks and attitudes, referred to above, led inevitably to the
separation of their legal courses. Ahmad Ibn Hanbal compiled a Musnad
of 4,000 Traditions in which he set forth not only Sahih Traditions
but also
Da‘if
and Mursal ones. His refusal to accept the
dogma of the creation of the Qur’an originally imposed by the ‘Abbasid
Mu‘tazilite
ruler, Ma’mun (d. 218 AH), his unflinching attitude
in the matter when most of the leading jurists of the day had succumbed
to the official pressure and, above all, the severe punishment inflicted
on him for his refusal to fall in line with the royal policy, bestowed
on him the sanctity of a religious martyr and rallied round him a large
number of enthusiasts, supporters and devotees. After his death, his Musnad
and
the numerous legal judgements which he had issued in his lifetime were
held in great reverence by his followers and became an authoritative legal
system for them. Thus, he became the founder of a juristic system which
was predominantly based on Tradition and which had very little to do with
Ra’ay.
Malik was the inheritor of
the legal tradition of Madinah (the home of Hadith) and the
most prominent jurist of his day in the whole of Hijaz. A circle
of pupils, two very illustrious among them being Shafi‘i and Muhammad
Hasan of Iraq, gathered round him at the mosque of the city where he
regularly sat for legal ministration and compiled and edited his verdicts
and methods of law. He also compiled a book, known as Mu’atta’,
in which he collected all the Traditions and judgement of the Companions
and the Tabi‘un, including his own, in reference to particular legal
issues. The fact that he was the leading exponent of the legal heritage
of the Prophet (sws) and his Companions, coupled with his sober personality
and religious zeal, influenced some of his pupils very deeply. On returning
to their homes, they propagated the Fiqh which they had imbibed from their
teacher. Four of them happened to be the most illustrious jurists of Egypt
and through them Malik’s
legal system radiated throughout the whole
of the Maghrib (the West).
Yahya Ibn Yahya, a fifth pupil,
originally a native of South Africa, settled down in Spain. His long association
as a student of law with the birth-place of Islam invested his personality
with a sacred charm. He became an honorary legal adviser to the Caliph
of Spain. All appointments of jurists and judges would be made under his
advice and he recommended only those who followed his legal system which
was grounded in Malik’s. A powerful incentive to learn Malik’s
law was, thus, provided, and
Mu’atta’, together with the Imam’s
all other Fatawa, soon became the cornerstone of the legal practices
of Spain.
Particular circumstances played a
decisive part in the evolution of the legal system of Shafi‘i. Being
a pupil of
Malik
he, at first, followed him in letter and spirit.
But when he visited Iraq, observed the complex conditions of life prevailing
there and met with the representatives of the school of Ra’ay with
whom he had long debates over legal controversial matters, a change took
place in his outlook. He noticed that at Madinah, Hadith was
the most dominating factor in legislation, while in Iraq Ra’ay was
the main source of law. He was a talented man and this anomaly set him
thinking and roused his critical faculties to the utmost. He examined the
principles of legislation of the jurists of Madinah and of Iraq
and found them carried to immoderate limits. He examined the Ra’ay theory
prevalent in Iraq and the Ijma‘ theory upheld by Malik and
also the attitude of both the schools towards Hadith. He struck
a middle course between what seemed to him the excesses of the two. He
brought back
Ra’ay
from its forward position and defined and fixed
its scope, defined the extent and nature of Ijma‘ and very greatly
extended the range of the legal authority of Hadith by fixing Sahih
Hadith
as standard thereof. Having done this, he set forth the relative
priorities of the sources of law. He put the Qur’an at the top,
next to it, the Sahih Hadith, next, Ijma‘ and lastly, Ra’ay.
He expounded all his theories and arguments with regard to Hadith, Ra’ay
and
Ijma‘
in a well-argumented manner in a treatise, called
al-Risalah.
This was the first work in Islam about the Usul or the fundamentals
of law, and it immensely influenced and determined the trends and tendencies
of Fiqh in the years to come. His other monumental book, the famous
al-Umm,
dealing with applied law and its principles but mainly with the first,
was dictated by him to his pupils in Egypt where he had settled after his
sojourn in Iraq. His style in both these books is highly vigorous and his
arguments in support of his viewpoints often very reasonable and convincing
– and hence the great mental response which they evoked. His pupils, al-Buwayh
and al-Muzani, being the most famous among them, faithfully
practised his law in Egypt and wrote books to elucidate their master’s
legal theories, commented on his books and preserved his legal pronouncements.
His system, however, could not get a substantial following in Iraq where
it was assailed by the strongly consolidated and state-patronised system
of Abu Hanifah.
The first ‘Abbasid period was
an epoch of enormous compilation activity in all the branches of knowledge
including
Fiqh. The greatest and most basic works on theoretical
and practical law of all the legal systems were accomplished in this period.
Malik
laid down the foundation of his system by writing his Mu’atta’
and his pupils consolidated it by their practices and writings based
thereon;
Shafi‘i compiled his cardinal book on the Usul of
Fiqh, the al-Risalah, and the other one, al-Umm, in
which he set forth concrete legal issues in the light of his principles
under separate chapters. The jurists of Egypt among whom he disseminated
his legal theories and practices, consolidated his system by writing supplementary
and elucidatory books and by acting upon them in practice. Abu Hanifah’s
perfected and systematised theory of Ra’ay, coupled with his
Fatawa, was translated into writing by his three pupils, Zufar,
Muhammad Hasan
and Abu Yusuf and thus a large number of books
on applied law came out in this period. Similarly, the Musnad of
Ahmad Ibn Hanbal
was supplemented as a source of law by the compilations
of his Fatawa
by his followers after his death. The putting of the
legal principles and practices of the four Imams and other Mujtahids
in black and white primarily and the mass of books written in support
and amplification of every one of them by their respective adherents secondarily,
paved the way for the formation of legal creeds (Madhahib) and the
division of the Muslims into separate groups of law.
In all the legal systems which were evolved during this
period, tradition formed their main source and substance. This was due
to the fact that Fiqh, from the earliest times, had originated in
the Tradition and was developed by a people who had been deeper-rooted
in the ideology of tradition. The
Qur’an had legislated on concrete
topics in about 200 of its verses only, dedicating the rest of its over
five thousand verses to the enunciation, elaboration and repetition of
the spirit which it sought to establish and from which legislation was
to spring in the ever-changing conditions of dynamic life. This spirit
clashed with the traditional psychology of the Arabs and their pre-Islamic
traditions and therefore they could not assimilate it. Consequently, Hadith
formed, from the very beginning, the main source of law and continued
to develop and multiply in the hands of the Traditionists as years rolled
on. The Traditionists commanded immense reverence from the masses as they
claimed to be the preservers of the sayings and the deeds of the Prophet
(sws) and acted as ministers of their legal needs in accordance with their
consecrated Prophetic usage. Transmission and cultivation of Hadith
in every land were carried on widely throughout the Umayyad period
after which it became still more intense when
Hadith was put in
black and white.
The great Mujtahids who evolved
legal systems in the ‘Abbasid period could not, with one or two
exceptions, ignore or make light of Hadith which, since early Islam,
had formed the cornerstone of legislation and so continued to be, after
the Qur’an, the main source of law in almost all systems. Hadith,
in this context, meant a great deal more than what the Prophet (sws) had
actually said or done and implied much more than what a Sahih Hadith
warranted. Even the school of Ra’ay which had been so strict
in the matter of the acceptance of Hadith and so ardent in the exercise
of Ra’ay and the deduction of presupposed legal corollaries from
particular phenomena, had, for its security, to take cognisance of Hadith
and give it a respectable representation in their legal code. Abu
Yusuf, the chief justice of the ‘Abbasid realm, and Muhammad
Hasan, another important judge, had to modify their views greatly with
regard to the sovereign role of Ra’ay in legislation and admit in
their law books and legal dispensations a large number of the Traditions
which their previous standards of an authentic Hadith would not
allow. The admission of Hadith into the system of Abu Hanifah
continued to grow so rapidly that we find in the famous law book, al-Hidayah
(sixth century AH), claiming to rest on the Hanafi system, a
Tradition in support of almost all legal ordinances or in refutation of
the legal positions of Shafi‘i.
In the over-a-dozen legal systems
which flourished in the early centuries of Islam we get evidence of a single
school only which entirely ignored Hadith (for the uncertainty which
attached to its correct preservation) and counted on the Qur’an as
the only source of legislation. Reference to it is found in al-Umm of
Shafi‘i where he refutes the upholders of this opinion with all
his powerful eloquence. This school and what it stood for remained, it
appears, in obscurity and without any considerable following, which shows
the thoroughness of the hold which Hadith and legal tradition had
on the followers of Islam as early as the second century AH.
The four most widely prevalent legal
systems and other minor ones controlled the legal activity of the Muslim
world and embraced all sorts of religious, social, economic, fiscal and
criminal cases. The judges and Muftis in every land and city practised
law either in accordance with the major systems and this was more common,
or any one of the minor ones, or according to their own intellect as seasoned
by the cumulative study of all. In other words, the dispensers of public
justice or legal needs were free to pursue any legal line and follow any
legal creed, and there was no fixed or established code of law to be uniformly
used in every land under Muslim domination. The result was that contrary
legal judgements would oft and anon be passed by the judges and Muftis
of the same place and the baser elements of society, taking advantage
of the unfixed position of law, would often taint the decision. The ruling
government did not, in the first place, possess that sound perspective
and grasp of Islam which could make it promulgate a uniform scheme of legislation
based on the spirit of the Qur’an and, secondly, the execution of
such a scheme was infinitely difficult and risky in view of the prevalence
of diverse courses of law grounded as they were, on the one hand, in deep
traditional sanctity and place and person prejudices, and strongly guarded,
on the other, by religious doctors (Traditionists and Mujtahids)
who commanded immense influence with the common people. Yet, there is historical
evidence of some such project, indeed much limited and partial in its nature,
having been contemplated by Mansur, the second ‘Abbasid Caliph
(136-158). It is said that he requested Malik to allow relegation
of the legislative activity of the whole realm to his Mu’atta. But
it was turned down by the Imam on the score that in every land and city
diverse and conflicting Traditions of the Prophet (sws), his Companions
and Tabi‘un had already set their feet deeply in legal practices
and that it was not possible to get hem supplanted by new ones. This was
a very sound counsel as it took cognisance of the important factor, namely,
the traditional position of law, which exerted its fullest weight in all
legislation. The prejudices and sympathies of the masses of every land
and city had become staunchly attached to the code of traditional law which
their local jurists and Mujtahids cultivated and practised and it
was very hard to destroy those prejudices and sympathies. Were Mansur
to prevail upon the Imam and carry through his suggestion, his caliphate
would have been torn with religious turmoil.
Of all the leading systems of law
prevalent in the Muslim world during the first and the second centuries,
the one which allowed comparatively the greatest measure of Ijtihad
in the cultivation of law, was the School of Ra’ay of Iraq.
This school was very dominant in the early ‘Abbasid period, as most
of the early rulers appointed only such persons as official judges of the
realm as followed it. Soon it spread to the east and its principles and
methods came to be followed by the majority of the people of Iran and those
living in lands across the Oxus. The school of I‘tizal, dealing
with important questions of beliefs and practices of Islam in rational
terms and that known as Kalam, aiming at rebutting with a philosophical
mental equipment anti-Islamic objections raised by the non-Muslims (the
Christians, the Jews, the Zoroastrians, the Manicheans, etc.) and the Muslim
sceptics, were also in philosophised Ijtihad, was the backbone of
I‘tizal and Kalam. The Fiqh of Iraq, although following a
traditional course, was influenced inescapably by this Ijtihad in
many ways in its onward march. The Mu‘tazilis and Mutakallims
would usually be jurists and vice versa and many legal questions would
come under their purview. The application of Ijtihad in deducing
legal decisions under the influence of the two was a learned practice and
an important qualification of the jurists of Iraq and other lands owing
allegiance to its legal courses. Other law schools could not remain wholly
unaffected by the Ijtihad elements of I‘tizal and Kalam
and, though the two, particularly the first, were decried by almost
all Traditionists, their spirit, subtly and unconsciously, did affect other
legal systems in one way or the other.
Ijtihad, I‘tizal and
Kalam were under the zealous patronage of the early ‘Abbasid
rulers and, therefore, their opponents, the pure Traditionists who
formed a minority in Iraq, could not openly assail them. Secretly resisting
and slandering them (I‘tizal, Kalam and Ijtihad), they watched
matters painfully until a golden opportunity was afforded to them by Mamun
and the Mu‘tazilah advisers. In 218 AH, he enforced in his domains
the Mu‘tazilah dogma of the creation of the Qur’an. A leading
Traditionist of Baghdad, Ahmad Ibn Hanbal, refused to accept it
and was consequently imprisoned by Mamun’s successor, Mu‘tasim
(218-227 AH). This unwise attempt to force a doctrine on the people
had already antagonised many against the Mu‘tazilah and rendered
their activities suspicious in the eyes of the common man. This incident
excited a great commotion. Ahmad Ibn Hanbal became a religious martyr
and the Mu‘tazilah highly unpopular. The enforcement of this dogma
showed to the Traditionists in a practical way the undesirability of the
freedom of thought and further fortified their belief that Ijtihad was
a dangerous practice, worthy of abandonment, and that the right course
was to follow the accumulated stores of the tradition of which they had
become sacred custodians.
A great reaction against the freedom
of Ijtihad set in among the public of Baghdad and was thoroughly
exploited by the Traditionists. Taking advantage of the favourable situation,
they rose to suppress it and debase the Mu‘tazilah and oust them
from the position which they enjoyed at the court and appropriate that
position themselves. Their efforts bore fruit and their aspirations were
fulfilled by Mutawakkil (232-247 AH), the successor of the three
consecutive Mu’tazili rulers, Mamun, Mu‘tasim and
Wathiq. With him the Traditionists and all they stood for rose to
an exalted position and the Mu‘tazilah and all they stood for collapsed
never to rise again. Mutawakkil patronised the former, entrusting
to them the religious welfare of the Muslims and persecuted the latter.
He did this to calm down public feelings which ran high at the moment and
to spare his kingdom the hazards of a popular revolt, otherwise he was
seriously interested neither in the Traditionists nor in the Mu‘tazilites,
as he had none of the religious earnestness and intellectual enlightenment
of Mamun. Orders were issued by him in 234 AH revoking the dogma;
this was a triumph for the Traditionists. Ahmad Ibn Hanbal became
the most dominant religious personality in the kingdom and his followers,
in particular, and the Traditionists, in general, began to command ever-increasing
influence at the court and in the religious and legal life of the realm.
The king invited a delegation of the Traditionists, reports Suyuti,
to his capital, Samarra, showed them great honour, bestowed gifts
on them and ordered them to narrate the Traditions regarding the attributes
of God and His being seen by the human eye (the Mu‘tazilies believed
neither in the attributes of God being separate from His essence nor in
the possibility of the human eye seeing Him in the Hereafter). Quoting
two instances of the tremendous susceptibility of the public mind to traditional
Islam and the response which the Traditionists evoked from them soon after
the revocation of the dogma by the State, the same historian continues:
‘Abu Bakr Ibn Shaybah, the Traditonist, sat in the Friday mosque
of Rusafah and about thirty thousand men gathered round him to hear
the Traditions, while his brother sat in the Friday mosque of Mansur
and about the same number surrounded him to hear the Traditions.’ Referring
to the suppression of Ijtihad by Mutawakkil, the historian
Mas‘udi says: ‘When the Caliphate passed to Mutawakkil, he
ordered abandonment of polemics and abolition of all the rationalised religious
activities which had been in vogue during the days of Mu‘tasim and
Wathiq and ordered the leading Traditionists to freely propagate
Hadith and uphold Sunnah and Jama’ah.’
From Mutawakkil’s time onward,
the leadership of Fiqh in Iraq and other eastern lands (rational
and progressive elements in the law of Hijaz, Syria, Egypt, North
Africa and Spain had already been negligible) passed into the hands of
people who were Traditionists first and Mujtahids last, a reversal
of the position existing before him. Sedulous efforts were made by the
Traditionists to mould Islam into inflexible traditionalism and make themselves
permanent custodians of all departments of Muslim life. Having been divested
of all healthy elements of Ijtihad, legal activity from the fourth
century till the present day lost all its creativity. It was confined to
the following:
(i) The Traditionists tried to cover all the
legal heritage with the Traditions of the Prophet (sws), that is to say,
they launched a campaign to provide with a Tradition every legal opinion
which had emanated from one or more Companions, Tabi‘un or Mujtahids.
It was done to popularise the traditional law and rid it of the place and
person prejudice in which it had been involved.
(ii) Deduction of far-fetched, vague or improbable corollaries
from the traditional law.
(iii) Rise of legal bickerings and polemics revolving
mainly round the systems of Shafi‘i and Abu Hanifah. The
motives of such polemics would, most often, be the desire to parade one’s
learning or to condemn the legal position of one or the other of the two
Imams or to ingratiate oneself into the favour of the ruling principles
of Shafi‘i or Hanafi bias, or to debase a rival in law. A
large number of polemical treatises in support or condemnation of the legal
opinions of either of the two systems was the outcome.
(iv) Refutation of the legal opinions of one another
by the Fuqaha of a city or land, the motives of the refutation being
usually analogous to those enumerated in (iii). No. Scruples of honesty,
decency, fair-play would be entertained in such refutations.
(v) Undue importance was given to trifling details of
law and particularly those of prayers and fast and bickering over those
details even to the extent of charging each other with Kufr.
‘They took their religious doctors and
monks as their lords, ignoring God’ (9:31), and ‘When they are invited
to follow the system of life which God has sent to you from above, they
say: No, we will follow the course on which we have found our fathers’
(31:21). These Qur’anic verses flash painfully on the mind of one
who makes an impartial survey of the chequered career of Fiqh in
its historical and factual background, from its early beginning to the
third century of Islam when Ijtihad, despite its march on the orbit
of tradition, was considerably free and thence onward to the last century
when fetters of a rank conventionalism were imposed and super-imposed on
all departments of Muslim life.
(Courtesy: Iqbal: A Journal of
Bazm i Iqbal, July 1957)
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