Islamic Law and its Jurisdiction:
It is no means inevitable that law should have become so central to higher learning among most Muslims in the pre-modern period. For over a thousand years the great majority of Muslim jurists agreed that out of over six thousand verses in the Qur’an there were only five hundred verses with legal content. Most of the “legal” verses concern ‘ibadat, approximately “acts of devotion,” such as prayer and the pilgrimage. Out of these five hundred verses, there are approximately one hundred and ninety that deal with non-ritual aspects of the law; only matters of inheritance are laid out in any detail.
The Qur’an, according to one very widely accepted reading, by its spirit encourages legal culture since it speaks repeatedly of the hudud, literally, “the limits” or “boundaries.” In the Qur’an this word does not mean “the prescribed punishments,” as it came to mean in later Islamic law, but “the limits” which circumscribe good behavior; and in almost all instances hudud in the Qur’an is best translated as “laws.”
For example, in a verse on divorce (and most mentions of “the limits” are in passages on divorce and fasting), the Qur’an reads, “… these are the laws [hudud] of God: do not transgress them.
Those who transgress them are unjust (or ‘oppressive’).” (II: 229). Another verse on divorce says, “… these are the laws of God. One who transgresses [literally, “passes beyond them”] has done injustice [or “acts oppressively”] to him or herself …” (LXV: 2). In earlier centuries the study of Islamic law was called “the laws/limits and the knowledge [of them],” al-hudud wa-l-’ilm, or simply the “knowledge” (al-’ilm). And indeed the Qur’an connects laws and knowledge, in a verse which ends, “…and these are the laws [hudud] of God; he makes them clear [yubayyinu-ha] to a people who understand/know [ya’lamuna, from the same root as al-’ilm].” (II: 230).
The Qur’an also offers a number of statements specifying that certain things are “permitted” (halal) or “forbidden” (haram). Therefore, given that there were some “laws” specifically laid down and some things actually classified as “permitted” or “forbidden,” and given that Muslims were in touch with three powerful legal systems, the Roman, the Jewish, and the Sassanian Persian, is it surprising that legally minded Muslims felt it necessary to go beyond the brief treatment of the law in the Qur’an to develop a fully fledged legal system?
Islamic jurisprudence (Fiqh) is probably one of the most aspect in the life of a Muslim because it provides the individual with the ruling for the practical aspect of daily life. From the moment of a person awakes issues related to the personal hygiene, Salat, business, marriage, divorce, Hajj, Zakat, fasting, law of succession issues related to Judicial System and the law of the govern the citizen and his role and the role of state merit attention
It is for this reasons that we find the Quran and the Hadish addressing the importance of Islamic jurisprudence by instruction us even at the time of jihad to have a group of people who continue to delve into and study FIQH so that they are able to guide the reminder of community and fighter on their return.
Fiqh: Definition and Importance
Fiqh or Islamic Jurisprudence as we know it has been literally defined as “to understand”.1 The Qur’an also uses it with this meaning in Surah Al-A’raf, verse: 179 “they have hearts wherewith they understand not”. In Surah Al-Munafiqun, verse: 7 appears the verse: “but the hypocrites do not understand”. Initially Fiqh was used in a broad sense that extended to the issues of doctrine and belief. As the science of Usul-Fiqh (principles of jurisprudence) developed, Fiqh became a special subject that dealt with outward practices. Some distinguished between the doctrinal issues by using the term Fiqh Al-Batin and the practical aspects as Fiqh Al-Zhahir Technically, Fiqh has been defined in various ways by the different scholars of the schools of law, but we will suffice with one comprehensive definition which is common to all. Fiqh is the knowledge of the practical laws of the Shari ah that are derived and deduced from specific and detailed evidences. By practical laws of the Shari ah, we include all that is required by a Muslim individual in his daily life, which includes Salat, Zakat, fasting, Hajj (pilgrimage), Marriage, Divorce, Laws of Succession, Jihad etc.
Through the above definition, we have excluded ethical issues that concern the heart like sincerity, hatred, anger, pride and many others. The laws with regard to belief have also been excluded environment wherein the word of Allah is upheld. Thus every Muslim in particular must be well aware if he/she is leading his/her life in conformity to Allah’s orders and wishes.
This then, shows us the importance and need for Fiqh. This is further supported by verse: 122 in Surah Al-Tawbah wherein Allah says; “It is not proper for the believers to go forth (in Jihad) all together; there should be a group from every band that goes out (in Jihad), which remains behind acquiring an understanding in matters of their religion (liyatafaqqahu), so that they are able to admonish the others on their return, so that they will guard themselves (against evil)”.
This verse clearly illustrates to us that even in a noble act like Jihad, some people ought to be excluded for the sole purpose of learning and understanding their Din so that they may be in a position to warn others. These people are the Jurists (fuqaha plural of faqih-jurist) In addition, numerous Ahadith of the Prophet reaffirm the importance of Fiqh and its position in the life of a Muslim. The Prophet Muhammad said, “When expeditions beyond the Arabian peninsula.
The Laws of Fiqh, thus in some way served as a uniting factor between different peoples because they were governed by common laws. The Importance of Islamic Jurisprudence (Fiqh) Human beings have been created by Allah to serve Him and to create an Allah intends good for a person, then He grants him the understanding of Din”.3
The word yufaqihhu is used in this Hadith which clearly refers to an insight and understanding in matters of religion. The various laws that govern a person’s daily life were learnt by the companions from the Prophet and they held on to these during their This stage begins when the Prophet Muhammad received revelation at the age of forty in the year 610 until his demise, which extends over a period of 23 years. This period can further be divided into the 13 years before Hijrah and the 10 years thereafter.
Most of the verses revealed prior to the Hijrah concentrated on Aqidah (theology &
doctrine) establishing the existence of Allah and responding to the non-Muslims and reaffirming the finality of the prophethood of the Prophet Muhammad in the hearts of the believers. There were however some Fiqhî Laws that were revealed that included the obligation to perform the five daily Salat.
Once the Muslim community had been established in Madinah after the Hijrah, gradually more and more of the laws were revealed in order to govern the affairs and lives of the individuals and the community and the newly founded Islamic state. During the ten years we witnessed the application and subsequent approval of the four major sources of evidence in Islam and more specifically in Fiqh. These sources are the Qur’an, Sunnah, Ijma‘ and Qiyas. The ten years in Madinah was when the very basis of the Shari‘ah was laid by the Prophet.
During this time laws were derived from the four sources.
1. The Quran
2. The Sunnah
3. Al Izma
1. The first source, the Qur’an: Which is the word of Allah revealed to the The First Stage in the Development of Fiqh. The 6200 verses in the Qur’an primarily deal with establishing Aqidah (Islamic dogma). It has been reported that the Maliki scholar, Ibn Al- Arabi deduced the laws from about 864 verses while some scholars have estimated the number to be about 500.
The Qur’an was revealed gradually sometimes in accordance with occurances and incidents. Surah Al-Isra verse: 106 “And (it is) a Qur’an which We have divided (into parts) in order that you might recite it to men at intervals. And We have revealed it in stages.” Very often, if the Sahaba were faced with some issue, they hurried to the Prophet who provided them with the solution or else they waited for revelation from Allah after which they immediately complied.
An example of the Sahaba’s questioning is the issue about fighting in the sacred months of Hajj. Allah responded with verse 217 in Surah Al-Baqarah, “ They ask you concerning fighting in the sacred months…”. As the Qur’an was being revealed, the Prophet Muhammad read it to the Companions who in turn memorized it and some wrote it down. In this way, it was all written in the Prophet’s time, but not in one single book form.
2.Some of the prominent scribes amongst the companions were: Abu Bakr, Umar, Uthman, Ali, Ubay ibn Ka b, Abd Allah ibn Mas ud, Zayd ibn Thabit and others. However, the compilation of the Qur’an in a single book form was started as per suggestion from Umar ibn Al-Khattab and was finally completed in Uthman ibn Affan’s time. The second source, the Sunnah: Which is the statements, actions, acknowledgements and descriptions of the Prophet Muhammad. We know that the Prophet was sent to teach us the Qur’an and furthermore his statements and actions are inspired by Allah. The Prophet sent his emissaries to different parts to teach the people and the Sahaba themselves, as they learned from him they practiced and applied it. The Qur’an made five daily Salat obligatory and the Sunnah specified the method, requirements and conditions etc. Allah says, “Establish Salat”. While in the Hadith, we find statements like, “Perform your Salat in the way you see me make Salat”. Likewise, about Zakat, regarding which Allah says, “And those in whose wealth there is a recognized right for the one who asks, and for the unlucky who has lost his property and wealth”.
But how much must we execute and what is the minimum amount on which Zakat is liable. Again, this is clarified by the Hadith: Narrated by Abu Sa id Al-Khudri: Allah’s Messenger said, “No Zakat is due on property amounting to less than five uqiya (of silver), and no Zakat is due on less than five Wasq”. One uqiya is equal to 119grams, while one Wasq is equal to 60 Saa’. One Saa’ is equal to +- 3. 11kg Narrated by Abd Allah ibn Umar:
The Prophet said, “On a land irrigated by rain water or by natural water channels or if the land is wet due to a nearby water channel, Ushr (one-tenth) is compulsory, and on the land irrigated by the well, half of an Ushr (one-twentieth)”. Likewise, the Prophet’s guidance covers issues and aspects relating to fasting, H ajj, marriage, divorce, business etc. There were many additional rulings that were taught to us by the Prophet in his capacity as the messenger of Allah as we have been instructed in the Qur’an, “Whatever the Messenger brings to you, then take it, and whatever he prohibits you from, then abstain from it”.
What every individual must be aware of is that the Sunnah never contradicts the Qur’an. Instead, the Sunnah in relation to the Qur’an can be placed on a few levels.
3.The Sunnah explains and clarifies some verses in the Qur’an. Eg. The Sunnah conforms with the Qur’an.. The Hadith that explained Zhulm in the verse in Surah Al-An am as associating partners with Allah (Shirk). Where the Sunnah contains a ruling on which the Qur’an is silent. Al-Ijma‘ is defined as the agreement and consensus of the Mujtahids of the Muslim community after the Prophet Muhammad in a particular era on a specific ruling.
However, this agreement and consensus must be based on the Qur’an or Sunnah. Thus it was not found as long as the Prophet was alive, since he was the means of resolving all conflict. Ijma‘ as a source of Islamic Jurisprudence is based and entrenched in the Qur’an and Sunnah. Allah says in Surah Al-Nisa, verse: 115 “Whoever contradicts and opposes the Messenger after the right path has been shown clearly to him, and follows other than the path of the believers, We shall keep him in the path he has chosen, and burn him in Hell – what an evil destination.”
This is further supported by a Hadith wherein the Prophet said, “My Ummah will never agree on something that is false and the Hand of Allah (His help) is with the congregation.”
There are some scholars who maintain that this agreement was possible in the companions time, but more difficult in the era’s that followed because of the difficulty to ascertain the presence of Mujtahids scholars in different parts of the world and their agreement on the issue at hand. Therefore some scholars referred to a general agreement amongst the Mujtahids even though one or two were not part of this consensus.
This was known as a ‘silent Ijma and was accepted by many scholars. Qiyas (analogical reasoning) is when we apply the ruling of a former issue to a new issue because of a common reason or factor ( illat).
The following is an example to illustrate and explain the definition. Alcohol was forbidden by the Qur’an and the Sunnah. However, we find the intoxicating factor former ruling on alcohol is passed on drugs etc. This process is called qiyas. The Second Stage in the development of Islamic Jurisprudence (From the death of the Prophet Muhammad until the end of the second century) During the Prophet’s time, the foundations and principles of jurisprudence were established.
Thus the duty of later scholars was to utilize these and deduce rulings on new issues. This period witnessed the spread of Islam beyond the Arabian Peninsula and with the result the Muslims interacted with various other non-Arab communities, which subsequently resulted in more ‘new’ issues that required Shar i rulings and verdicts. The jurists and jurisconsults (Mufti’s) were required to apply themselves in resolving these matters. This period was one of great academic progress. Fiqh maxims were written and many were engaged in reporting and transmitting Hadith and interpreting the Qur’an. Despite the nature of this period, the legal scholars and jurists ultimate goal still was to deduce laws from the Qur’an and Sunnah that conformed to the spirit and objectives of the Shari ah. Due to the different approaches and methodologies of different legal scholars, different schools developed.
However, we are able to say that during this period, Islamic Jurisprudence matured and developed fully.The period after the Prophet may be divided into two phases. The first being that of the rightly guided Khalifs’ that lasted for about thirty years. It commenced with Abu Bakr and terminated when H asan ibn Ali relinquished his position to Mu awiya. The second phase commenced with Mu awiya and the ensuing rule of the Bani Umayyah until the end of the first hundred years.
After the death of the Prophet Muhammad, his companions pledged their support to the first Khalif, Abu Bakr who ruled for two years and three months. He was followed by Umar ibn Al-Khattab who ruled for ten years and six months and was succeeded by Uthman, who ruled for twelve years.
He was followed by Ali ibn Abi Talib who ruled for four years and nine months. Ali was succeeded by his son, Hasan who ruled for about six months until he handed over the reigns of power to Mu awiya, thus concluding the period known as the Khilafah on the Prophetic model that lasted for thirty years as predicted by the Prophet. It is worthy to note that during the latter period of Uthman’s era, there was a group of rebels that revolted against him under the leadership of Abd Allah ibn Saba, a Yemeni Jew.
This group was eventually responsible for murdering Uthman. Initially their grievances were political in nature and later they became known as the Shi ah with their own jurisprudence. After Uthman’s martyrdom and the ensuing differences amongst the companions over the cause of action pertaining to the perpetrators of the crime, a group known as the Khawarij emerged who also had their own jurisprudence. What was the Islamic Jurisprudence like during the period of the Rightly guided Khalifs?
The four Khalifs were all trained in jurisprudence and other matters of Islam by the best teacher, the Prophet Muhammad. They were very capable jurists but at the same time consultation (shura) formed an essential part of their rule. In addition this period was one that had not yet witnessed many significant changes, with the result the number of new issues that required Ijtihad were considerably few. The practice that involved a single person who discussed various issues while others listened was something that was started during the companion’s time. It is reported that Abu Hurayrah, Abd Allah ibn Abbas and others did this. The following are some examples of the Ijtihad during the period of the Khalifs’:
During Abu Bakr’s time:
1. When the companions were unsure as to where they ought to bury the Prophet. Abu Bakr resolved the disagreement by referring to the Sunnah. The inheritance of the grandmother who came enquiring about her share of the inheritance. Abu Bakr was unaware and thus agreed to consult the people. Al-Mughirah ibn Shu bah informed him that the Messenger of Allah granted her one sixth and he was supported by Muhammad ibn Maslamah. Abu Bakr accepted this and gave her the one sixth.
During Umar’s time:
1. His decision to gather the people behind a single Imam for the Tarawih Salat with twenty rak ats in the month of Ramadan. Umar made many other excellent contributions in economic matters and issues related to the judiciary. He even wrote to the judges instructing them in various ways.
During Uthman’s time:
1. He completed the process of compiling the Qur’an and thereafter he gathered the people on a single script.
2. He decided to shorten his Salat during H ajj because he regarded himself as a resident of Makkah. He maintained that shortening the Salat was related to travelling and not connected to the Hajj.
During Ali’s period:
1. Umar intended to stone a mentally ill woman for adultery when she delivered after six months. Ali opposed this and supported his objection with verse 233 of Surah Al-Baqarah. He concluded that the shortest time to delivery is six months and he went on to say that Allah had overlooked and pardoned one who is insane.
Other jurists during the period of the Khalifs:
During the period of the rightly guided Khalifs, there were a number of companions who were known for their expertise in jurisprudence and pronouncing legal verdicts (fatwa).
Some of them were:
1. Aishah (d. 57 A.H). The wife of the Prophet and daughter of Abu Bakr.
2. Hafsah (d. 41 A.H). The wife of the Prophet and daughter of Umar.
3. Anas ibn Malik (d. 90 A.H). The last companion to die in Basrah.
4. Abu Hurayrah (d. 59 A.H). The one who narrated the most Hadith.
5. Abd Allah ibn Amr ibn Al- Aas (d. 65 A.H).
6. Abu Ayyub Al-Ansari (d. 52 A.H).
7. Maymunah, the last of the Prophet’s wives.
8. Sa d ibn Abi Waqas (d. 55 A.H)
9. Sa id ibn Zubayr
10. Al-Zubayr ibn Al- Awwam (d. 36 A.H)
11. Talha (d. 36 A.H)
12. Jabir ibn Abd Allah (d. 78 A.H). He had a study circle in the Prophet’s Mosque.
13. Utbah ibn Ghazwan (d. 17 A.H)
14. Bilal ibn Rabah (d. 20 A.H)
15. Uqbah ibn Aamir (d. 58 A.H)
16. Imran ibn Husayn (d. 52 A.H)
17. Ma qil ibn Yasar
18. Abu Bakrah, Nufay ibn Al-Harith (d. 51 A.H)
Other jurists during the period of the Khalifs:
There were a number of followers of the Prophet’s companions (Tabi un) who were accomplished scholars of jurisprudence and fatwa during the period of the rightly guided Khalifs. Some of them were:
1. Shurayh ibn Al-Harth Al-Kindi (d. 80 A.H), who was appointed by Umar as a Judge to Kufah.
2. Ilqamah ibn Qays Al-Nakha i (d. 61 A.H). He was a famous jurist of Iraq who was trained by Abd Allah ibn Mas ud.
3. Masruq ibn Al-Ajda Al-Hamadani (d. 63 A.H). He transmitted the verdicts of Umar.
4. Al-Aswad ibn Yazid ibn Qays Al-Nakha i (d. 74 A.H).
5. Abu Idris Al-Khawlani (d. 80 A.H). He was a senior judge of Syria.
6. Abidah Al-Silmani (d. 72 A.H). He acquired his knowledge of jurisprudence from Ali and Ibn Mas ud.
7. Suwayd ibn Ghafalah (d. 80 A.H). He reported from the four rightly guided Khalifs.
8. Amr ibn Shurahbil
9. Zir ibn Hubaysh (d. 82 A.H). He reported from the last three Khalifs.
10. Abd Al-Malik ibn Marwan (d. 86 A.H).
The following are some of the salient features of Islamic Jurisprudence (fiqh) at the time of the Khalifs:
· As soon as an issue arose, the jurists looked into it and attempted to resolve it. In this way the process of extrapolation (istinbat) expanded.
· The jurists in this period did not engage in speculating on hypothetical rulings and providing rulings for it before these actually occurred. This was regarded as a futile exercise.
· The politics of the day followed the developments in jurisprudence and not vice versa. This was mainly due to the fact that they relied greatly on consultation.
· The laws of jurisprudence formed the basis of the constitution for the society. The jurists enjoyed such authority and freedom that even legal practitioners today don’t enjoy.
· The prevalence of consensus (ijma) was made possible because of the concept of consultation. This does not mean that the jurists did not disagree, they did but their agreements out numbered their disagreements.
· Some accomplished scholars in the third and fourth centuries. During the third and fourth centuries there were a number of accomplished scholars who may have reached the level of Ijtihad.
Some of these scholars were:
1. Al-Fadl ibn Dukayn who was from Kufah. He passed away in 219 A.H.
2. Sulayman ibn Harb Al-Azdi who was the Judge of Makkah. He passed away in 224 A.H.
3. Al-Qasim ibn Sallam Al-Azdi who was from Baghdad. He passed away in 224 A.H.
4. Yahya ibn Yahya ibn Bukayr who studied under Malik and some of his contemporaries. He passed away in 226 A.H.
5. Sa id ibn Mansur who was from Khorasan. He authored a book known as Sunan. He passed away in 227 A.H.
6.Yahya ibn Ma in who was from Baghdad. He wrote about 600 000 Hadith. Illustrious scholars like Al-Bukhari, Muslim and Abu Dawud studied under him. He died in 233 A.H.
7. Ali ibn Abd Allah ibn Nujayh. He died in 234 A.H.
8. Abu Bakr Abd Allah ibn Muhammad ibn Abi Shaybah. He passed away in 235 A.H. and is the author of Al-Mus annaf.
9. Khalifah ibn Khayyat who died in 240 A.H. He is the author of Al-Tabaqat.
10. Abd Allah ibn Abd Al-Rahman Al-Darimi. He died in 255 A.H. He was from Samarqand and is the author of Al-Musnad. He was an accomplished scholar of Hadith and jurisprudence. The Peri od of maturity (The period from 300 – 400 A.H when Islamic Jurisprudence was partly consolidated on the strength from the previous stage).
11. Muhammad ibn Isma il Al-Bukhari. He died in 256 A.H. He is regarded as the leader of the scholars of H adith and his book Al-Jami‘ Al-Sahih (Sahih Al-Bukhari) is the most authentic work after the Qur’an. About 90000 scholars narrated this book from him in his lifetime.
12. Muslim ibn Al-Hajjaj Al-Qushayri. He died in 261 A.H. and is the compiler of the famous Hadith work that is second after Sahih Al-Bukhari.
13. Abu Zur ah Al-Razi. He died in 264 A.H. He is said to have memorized about 700 000 Hadith.
14. Abu Dawud, Sulayman ibn Al-Ashath Al-Sijistani. He died in 275 A.H. His book Al-Sunan is essential for any student of Islamic Jurisprudence.
15. Abu Esa, Muhammad ibn Esa Al-Tirmidhi. He died in 279 A.H. He is the author of the famous Jami‘ which is one of the six famous Hadith compilations. He arranged the Hadith according to the rulings in jurisprudence.
16. Abu Abd Al-Rahman, Ahmad ibn Shu ayb Al-Nisa’i. He died in 304 A.H. and is the author of the last of the six major Hadith compilations.
17. Abu Bakr Muhammad ibn Ishaq ibn Khuzaymah. He died in 311 A.H. He is said to have memorized juristic rulings the way people memorize verses of the Qur’an.
18. Abu Hafs, Umar ibn Ahmad ibn Shahin. He died in 335 A.H. He is the author of about 330 works.
19. Abu Hatim, Muhammad ibn H ibban. He died in 354 A.H. He was a specialist in Hadith and Jurisprudence and served as a Judge in Samarqand.
20. Abu Al-Qasim, Sulayman ibn Ahmad Al-Lakhmî Al-Tabarani. He died in 360 A.H. He travelled for about thirty three years acquiring knowledge and is the author of the famous Ma‘ajim.
21. Abu Bakr Ahmad ibn Ibrahim Al-Isma ili. He died in 371 A.H. and was from Jurjan. Imam Al-Dhahabi referred to him as an authority in Hadith and jurisprudence.
22. Abu Abd Allah, Muhammad ibn Ishaq ibn Mandah. He died in 395 A.H. The above are some of the scholars. Because of the need of brevity I avoided lengthy profiles. Some of these scholars may have followed Imam Al-Shafi in certain issues but they were still probably capable of engaging in Ijtihad.
During the third and fourth centuries there were scholars of the four schools of jurisprudence that contributed to the spread of the respective schools by documenting the legal rulings and then promoting them. we will attempt to list and name some of the scholars of these four schools who fulfilled this role.
In the Hanafi school:
· Ibrahim ibn Rustum Al-Marwazi who died in 211 A.H. He authored Al-Nawadir in Hanafi Jurisprudence. He narrated from Muhammad ibn Al-H asan and Imam Malik.
· Esa ibn Aban who died in 221 A.H. He was scholar of Hadith and a Judge.
· Ahmad ibn Amr Al-Khassaf who died in 261 A.H. He is the author of Al-Awqaf.
· Abu Jafar, Ahmad ibn Muhammad Al-Tahawi. He died in 321 A.H. He initially followed the Shafi i school and then adopted the Hanafi school. He was a specialist in Hadith and jurisprudence and authored many useful books that include Ma‘ani Al-Athar.
· Abu Mansur, Muhammad ibn Muhammad Al-Maturidi. He died in 333 A.H.
· He was a leading scholar in matters of theology and authored some books on the principles of jurisprudence.
· Abu Bakr, Ahmad ibn Ali Al-Jassas. He died in 370 A.H. He was a student of Al-Karkhi and the commentator of books written by his teacher and Al-Tahawi.
· Abu Abd Allah, Yusuf ibn Muhammad Al-Jurjani. He died in 398 A.H.
· He is the author of Khazanat Al-Akmal.
· Abu Bakr, Muhammad ibn Musa Al-Khawarizmi. He died in 403 A.H.
The following are some of the famous Maliki scholars during this period:
· Abu Marwan, Abd Al-Malik ibn Abd Al- Aziz Al-Majishun. He died in 212 A.H. He was a leading Mufti of this school and he promoted the school in Madinah.
· Asad ibn Al-Furat. He died in 213 A.H. He heard the Muwatta from Malik and he travelled to Iraq where he studied under Abu Yusuf and Muhammad ibn Al-Hasan, the two students of Imam Abu H anifah. He promoted the issues and rulings contained in the Mudawwanah in Qayrawan.
· Abu Muhammad, Abd Allah ibn Abd Al-Hakam. He died in 214 A.H.
· He was very acquainted with issues in this school and was a close friend of Imam Al-Shaf i. He summarized Ashhab’s books in a single book that is said to contain about 18 000 juristic rulings. This was at the time when the trend to summarize and condense large detailed works actually began.
· Yahya ibn Yahya Al-Laythi. He died in 234 A.H. He is one of the most famous narrators of Al-Muwatta. He is responsible for promoting the school in Spain (Andalus) and he even encouraged the governors to appoint Judges who belonged to the Maliki school.
· Suhnun Abd Al-Salam ibn Sa id Al-Tanukhi. He died in 240 A.H. He took the Mudawwanah by Asad to Ibn Al-Qasim who verified and corrected it. He then promoted it in Spain and Qayrawan. He is also responsible for making the school the dominant one in North Africa.
· Abu Abd Allah, Muhammad ibn Ibrahim ibn Al-Mawwaz. He died in 269 A.H. and is the author of one of the most reputable books in this school known as Al-Mawwaziyah.
· Abu Ishaq, Isma il ibn Ishaq. He died in 282 A.H. He is the author of Ahkam Al-Quran and Al-Mabsut in jurisprudence. Because of his expertise as a scholar the school of Malik spread in Iraq. He was also an accomplished Judge.
· Abu Al-Hasan, Ali ibn Isma il Al-Ash ari. He died in 334 A.H. Although he was an expert in jurisprudence, he is more noted for his contribution to theology and dogma. He spent about thirty years as Mu tazilite and then questioned their positions in theology. He found answers to these questions in the Sunnah. He publicly denounced the Mu tazilite views.
· Abu Muhammad, Abd Allah ibn Abi Zayd. He died in 386 A.H. He was an expert in the Maliki school and his written books are widely acclaimed. His book, Al-Ziyadat ala Al-Mudawwanah in the Maliki school is compared to Musnad Ahmad in the Hanbali school.
· Abu Bakr, Muhammad ibn Al-Tayyib Al-Baqillani. He died in 403 A.H. He was a respected Judge and one who contributed greatly to the Ash ari school in Islamic Dogma.
The following are some of the famous Shafii scholars in this period:
· Abu Ya qub, Yusuf ibn Yahya Al-Buwayti. He died in 231 A.H. He was a close associate of Imam Al-Shafi i and succeeded him in his study circle. He wrote the famous Al-Mukhtasar wherein he summarized and gathered Imam Shafi is views.
· Abu Ibrahim, Isma il ibn Yahya Al-Muzani. He died in 264 A.H. He was a leading Shafi i scholar and the author of books that are regarded as references in this school. Some Shafi i scholars regard some of his views as being outside the principles of jursiprudence of this school.
· Abu Zur ah, Muhammad ibn Uthman ibn Zur ah. He died in 302 A.H. He was an influential Judge who is the first person to introduce this school to Damascus. In fact, he gave one hundred Dinars to anyone who memorized Mukhtasar Al-Muzani.
· Abu Ali, Al-Hasan ibn Al-Qasim Al-Tabari. He died in 305 A.H. and is one of the first scholars to write on the differences of opinion amongst the jurists. He authored books like Al-Ifsah and others.
Some famous scholars of the Hanabali school were:
1. Abu Ya qub, Ishaq ibn Mansur Al-Kawsaj Al-Marwazi. He died in 251 A.H. and was very familiar with the verdicts of Imam Ahmad and Imam Ishaq.
2. Abu Al-Fadl, Salih ibn Ahmad. He died in 266 A.H. He is Imam Ahmad’s son and he promoted his father’s verdicts. He was a Judge in Isfahan.
3. Abu Abd Al-Rahman, Abd Allah ibn Ahmad. He died in 290 A.H. and is
another one of Imam Ahmad’s sons. He reported the Musnad and Tafsir from
The period of ‘old age’ or ‘degeneration’ of Islamic Jursiprudence (from the beginning of the fifth century until present). This stage commences from the beginning of the fifth century and continues until the present. As we have have already noticed from the preceeding chapters, Islamic jurisprudence matured and reached its highest point. In this stage, it ‘declined’ to a significant extent and this may be attributed to the following:
• A greater inclination towards attempting to choose the strongest view or ruling in a particular school of jurisprudence (tarjih).
• Many scholars occupied themselves with lengthy commentaries on earlirer works.
• Many were preoccupied with cond ensing, abridging and summarizing other works in Jurisprudence. This was done in such a way that they combined as many rulings as possible with as few words as possible. The process of writing poetry texts (mutun) began and eventually became the adopted method and approach in studying jurisprudence. Although, these texts contained immense benefit with regard to verifying and illucidating the purport of words. Sometimes, the real objective and motive was not realized.
• Some scholars were preoccupied with writing footnotes and marginal notes to older works.
The political instability in the Muslim World in the early fifth century affected the growth and development of Islamic Jurisprudence because it resulted in less contact between the scholars of the different areas. Various empires ceased to exist after they were taken over by others.
The Muslim Empire in Morocco and surrounding areas was rescued with the coming of influential leaders that included the likes of Yusuf ibn Tashfin, who established Islam and promoted jurisprudence. Due to his efforts, the Maliki school flourished, while in Qayrawan and Tunisia they continued to suffer at the hands of the Fatimid Shi ah’s.1
After Yusuf ibn Tashfin and his son, there was once again a period of degeneration until about 555 A.H. It was around about this time when the Muwahhidun appeared.
They were responsible for some kind of academic revival. In fact, there were some leaders who even discouraged the strict adherence to the Maliki school and they instead promoted Ijtihad. Ya qub Al-Mansur, was one such leader who is supposed to have burnt books in the Maliki School and he even instructed some scholars of H adith to gather Ahadith from ten Hadith compilations on juristic matters. In reality, he really turned people away from the Maliki School and compelled them to follow the Zhahiri School. As soon as he died, people returned to the Maliki School. Despite their efforts, there were scholars like Abu Al-Hasan Ali ibn Ishrin and others who were able to dictate the entire Mudawwanah from memory and thus they preserved the school of Malik.
The Muwahhidun’s failure to promote the Zhahiri School can be attributed to the
• They wished to compel people to accept their school.
• They labeled it as Ijtihad, but in reality they were promoting the Zhahiri School.
• They were succeeded by another empire, who undid whatever they had hoped to achieve. This is partly due to the fact that they were not necessarily keen on promoting the religion, rather they wished to eradicate the Maliki School.
This continued until very recently where Islamic Jurisprudence could be described as being divided into three types:
1. Islamic Jurisprudence as per the Muwatta and the Mudawwanah.
2. Jurisprudence as per the rulings and verdicts of the Judges.
3. Jurisprudence that was government controlled.
The Islamic Empire continued to weaken until it eventually collapsed in Spain. By 1011 A.H., almost everyone in Spain (Andalus) was forced into Christianity. Books and institutes of learning were destroyed and some historians mention that the Cardinal even burnt about 80 000 Arabic manuscripts in Granada. Much of the Islamic Legacy was lost due to these incidents.
In the East, there were bloody wars particularly when the crusaders took over Syria and surrounding areas. Once again, when it seemed that the muslims were in a serious crisis, they were rescued by a dynamic leader, Salah Al-Din Al-Ayyubi, who liberated Masjid Al-Aqsa from the crusaders and Egypt was freed from the Fatimid’s.
Iraq on the other hand was the capital of the Islamic Empire (Khilafat) but it too sufferred a great calamity and test. The Muslims had never witnessed something as destructive as this. The Tartars under Haulaku took over Baghdad and killed hundreds of thousands of Muslims.
The Muslim leader, Al-Mu tasim Al- Abbasi was killed in 656 A.H. Many schools were destroyed and thousands of books were burnt. Not long thereafter, before the year 700 A.H., Haulaku’s grandson accepted Islam along with about 100 000 soldiers who were eager to redeem themselves. Towards the end of the eigth century, Timur Link, a Tartar conquered parts of Iran, and regions of Asia and even advanced towards China.
In about the seventh century, the Turkish Ottoman Empire emerged and gradually grew in strength and consolidated its control. They managed to spread to areas like Greece, Bulgaria, Bosnia, Hungary and many regions of Russia. While the Muslims were suppressed in Spain (Andalus), in the However, the major centers of learning that included Baghdad, Damascus, Cordoba and others enjoyed similar attention under the Ottomans as with other Empires and dynasties. The Ottomans declared Istanbul (Constantinople) as their capital and the other cities were required to comply. Turkish was the language of the Ottomans and thus became the official language. With the result, the progress of Islamic Jurisprudence was hampered, because Islamic Jursiprudence in particular and the other Islamic Sciences in general are governed by the Arabic Language which is the Language of the two divine sources; the Qur’an and the Sunnah.
The scholars and judges who were appointed were all proficient in Turkish and thus did not engage in much Ijtihad, instead they busied themselves with summaries and marginal notes. Because the Ottomans were predominantly adherents of the Hanafi School, it in turn gained more popularity and recognition. They still managed to preserve the original form and approach to Islamic Jurisprudence. East they were gaining momentum.
This continued until the Muslim Empire was forced to split into smaller states because of pressure from Russia and other power hungry colonizing nations that included Britain. During this period, there were many fierce and bloody battles for freedom and independence. Because the inhabitants of the Muslim Lands were largely involved in the fight for survival, the state of Islamic Jursiprudence and the Arabic Language suffered.
It is worthy to note however, that as a result of their insistence to promote the Zhahiri School, many specialist Hadith scholars were produced.
Another factor that had a negative impact on Islamic Jurisprudence was the effect of those who supposedly attained the ranks of ‘Muftis’. In many cases, these people were not qualified and competent to carry out this great responsibility. The situation deteriorated until people began sufficing with statements of certain scholars in a particular school. In some cases, when they wished to educate a child, they adopted the following approach; they taught him the Qur’an, then rhetoric, therafter the Muwatta and then the Mudawwanah.
This was followed by works by Ibn Al- Attar and Ahkam Ibn Sahl. The situation would have worsened, were it not for scholars like Abu Al-Walid Al-Baji and others who inspired an amazing revival. Sometimes the above mentioned approach led to the alienation of Islamic Jurisprudence from the Hadith, whereas they were previously inter-related. Some scholars tended to over indulge in trivial juristic matters and in the process they neglected the Sunnah. During this period, there were scholars who wrote volumes about the lives and virtues of their respective Imams.
Some famous scholars in the period 500-1400 Despite the various negative factors that influenced the state and nature of Islamic Jursiprudence, there was still no shortage of scholars and jurists.
The following are some of the scholars in the period 500-1400 A.H according to their respective schools:
In the Hanafi School
1. Abu Al-Hasan Ahmad ibn Muhammad Al-Quduri (d.438). He is the author of the famous Mukhtasar in this school. He used to engage Abu Hamid Al-Isfarayini, a leading Shaf i scholar in debate.
2. Abu Zayd Abd Allah ibn Umar Al-Dabbusi (d. 430). He is the first of the Hanafi scholars known to write about disagreement.
3.Ali ibn Muhammad Al-Bazdawi (d. 482). He is the author of the famous Al- Mabsut in about eleven volumes.
4. Abu Hafs Umar ibn Muhammad Al-Nasafi (d. 537). He was a renowned Mufti and the author of about one hundred books in Jurisprudence, Hadith, History and Tafsir.
5. Muhammad ibn Ahmad Al-Sarakhsi (died towards the end of the century). He is the author of encyclopaedic work also known as Al-Mabsut in about fifteen volumes. He was even regarded as a Mujtahid in the Hanafi school.
6. Abu Bakr ibn Mas ud Al-Kasani (d. 578). He is the author of the famous Bada Al-Sanai .
In The Maliki School
· Abu Abd Allah Muhammad ibn Umar Bashkawal (d. 419). He was a scholar ofHadith and Jursiprudence. He memorized the Mudawwanah and Al-Nawadir.
· Abu Dhar Abd ibn Ahmad Al-Harawi (d. 435). He is famous narrator of SahihAl-Bukhari and a person who studied under illustrious scholars like Al-Baqillani.
· Abd Allah ibn Yasin Al-Jazuli (d. 451). He spread Islam along with Maliki Schoolin the desert regions of North Africa. He is regarded a true reviver (mujaddid) in this region.
· Abu Umar Yusuf ibn Umar ibn Abd Al-Barr (d. 463). He was senior \ scholar of Hadith and an accomplished jurist of Andalus. He was a Judge, who may even be regarded as a reviver (mujaddid) in jurisprudence.
· Abu Al-Walid Sulayman ibn Khalaf Al-Baji (d. 494). He is the author of
excellent commentaries to Al-Muwatta and a Judge in Andalus.
In the Shafi i School
· Abu Ishaq Ibrahim ibn Muhammad Al-Isfarayini (d. 418). He is said to have attained the level of Ijtihad.
· Abu Al-Tayyib Tahir ibn Abd Allah Al-Tabari (d. 450). He was a Mufti and a Judge in Baghdad and the person from who the Iraqi’s acquired knowledge of the Shafi i School. He engaged in debates with Hanafi
· Abu Al-Hasan Ali ibn Muhammad Al-Mawardi (d. 450). He is the author of the famous Al-Hawi in Jursiprudence. He was a Judge in many places.
· Abu Bakr Ahmad ibn Al-Husayn Al-Bayhaqi (d. 458). He was a specialist in Hadith and he defended and promoted the school.
The methodology of the Qur’an is such that in most cases it deals with the broader principles and does not delve into specifics. This then makes it possible for future generations to continue extrapolating laws from the principles enshrined in the Qur’an. We are well aware that because of public welfare (maslahah) etc a certain ruling may change when certain conditions change.
Therefore issues which the Qur’an has discussed in somewhat detail was to show human beings that such issues will never change. This further reaffirms the point that these are not open for Ijtihad and include issues related to inheritance, family matters and some of the punishments for major crimes.
Once we have understood the above, we will understand the need for the Sunnah which clarifies and provides detail on many principles in the Qur’an. Having said this, we must note even though the Prophet provided us with detail in many aspects of our lives, there is still a substantial amount that requires continuous Ijtihad. This helps us understand the Hadith reported by Abu Dawud wherein the Prophet said: “Indeed Allah sends for this community (Ummah) at the head of every hundred years one who will revive and renew for it its religion.”
We have observed through the various stages in the development of Islamic Jurisprudence that the legists followed a methodology that has its roots in the life of the Prophet Muhammad. Over the centuries there were various factors that influenced the nature of Islamic Jurisprudence until we eventually saw the emergence of the four schools of jurisprudence which withstood different obstacles and ultimately became firmly rooted and established within the Muslim community.
The development of Islamic Jurisprudence was not without disagreement. However, the disagreement did not result in conflict. Another point of note is that when the concept of the Khalifah was abandoned and the orientalists began spreading, there were and still are scholars who are making the call for Muslims to abandon the four schools of jurisprudence. Some like Hasan Al-Turabi, Al- Ashmawi and Suhrur even maintain that the Principles of Jurisprudence (Usul-Fiqh) are an obsolete science that fails to meet the requirements of the modern age.
– Abd Al-Hadi, Muhammad, Ikhtilaf Al-Sahabah Asbabuhu wa Atharuhu fi Al-
Al-Islami, Cairo: Maktabah Madbouli.
– Abd Al-Khaliq, 1993, Abd Al-Ghani, Hujjiyat Al-Sunnah, Cairo: Dar Al-Wafa.
– Abu Dawud, 2002, Sunan, Riyadh: Dar Al-Salam Publishers.
– Abu Ghuddah, 1992, ‘Abd Al-Fattah, Al-Isnad min Al-Din, Aleppo: Maktab Al-
Matbu’at Al-Islamiyah Etd-06062006-134114/unrestricted