Fiqh, the Development of
Contributed by Prof. Dr. Nazeer Ahmed, PhD
The triumphant advance of Muslim armies across the inter-connecting landmass of Asia, Europe and Africa brought into the Islamic Empire large masses of people who were previously Christian, Zoroastrian, Buddhist or Hindu. Conversion to the new faith was slow. The conquering Muslims left the people of the territories alone as long as they paid the protective tax, jizya and did not interfere with freedom of choice in religion. Mass conversions to Islam took place in the reign of Omar bin Abdul Aziz (34134-3419) who abolished unfair taxation, tolerated dissent and treated Muslim and non-Muslim alike with the dignity due to fellow man. Impressed with his initiatives, people in the former territories of the Sassanids and the Byzantines embraced Islam in droves.
The new Muslims brought with them not only their ancient heritage and culture, but methods of looking at the sublime questions of life in ways fundamentally different from that of the Arabs. Historical Islam had to face the rationalism of the Greeks, the stratification of the Zoroastrians, the gnosticism of the Hindus, the abnegation of the Buddhists and the secular but highly refined ethical codes of the Taoist and Confucian Chinese. Add to it the internal convulsions in the Islamic world arising out of the conflicting claims of the Umayyads, the Hashemites, the Ahl-al Bait and the partisan and fractious approach of the many parties to legal issues, and one has a good idea of the challenge faced by the earliest Islamic jurists. Fiqh was the doctrinal response of the Islamic civilization to these challenges.
The codification of Fiqh solidified the foundation of Islamic civilization and was the cement for its stability through the turmoil of centuries. As long as the process of Fiqh was dynamic, creativity and ideas flowed from Islam to other civilizations. When this process became static and stagnant, historical Islam increasingly turned inwards and became marginalized in the global struggle of humankind.
Some definitions of the terms Shariah, Fiqh and secular law are in order at the outset. Shariah is the constant, unchanging, basic dimension of Islam. It has its basis in the Qur’an and it derives its legitimacy from Divine sovereignty. Shariah defines not just the relationship of man to man, but also the relationship of man to God and of man to the cosmos. As such, it is all embracing and its dimensions are infinite. Secular law, on the other hand, deals only with the relationship of man to fellow human beings and does not concern itself with the relationship of man to the Divine. It is finite, changeable and subject to the vagaries of history and geography. It derives its legitimacy from the proclaimed sovereignty of kings, rulers and nations.
Fiqh is the historical dimension of the Shariah and represents the continuous and unceasing Muslim struggle to live up to divine commandments in time and space. It is the rigorous and detailed application of the Shariah to issues that confront humankind as it participates in the unfolding drama of history. As such it embraces the approach, the process, the methodology as well as the practical application of the Shariah. It defines the interface of an individual with himself, his family, his society, his community, as well as the civilizational interface between Islam and other faiths and ideologies.
We will attempt to summarize in this chapter the historical origins and practical developments of the five major schools of Fiqh that are currently followed by the vast majority of Muslims. These are: Hanafi, Maliki, Shafi’i, Hanbali and Ja’afariya. There are other schools of Fiqh such as Zaidi and Ismaili, which are practiced by a relatively small number of Muslims today and we will refer to them only in their historical context. We will also summarize the Mu’tazilite and Asharite schools of thought that are seldom discussed nowadays but have left a profound, perhaps decisive imprint on Islamic thought, culture and civilization.
The Qur’an was revealed as the dynamic, spoken Word of God. Many among the Companions memorized the entire Qur’an (the hafizun orhufaz). Some knew, understood and recited the Qur’an, but also trained and taught others. These were called the qura’a (plural of qaree, meaning, one who recites the Qur’an). As many of the Companions migrated from Hijaz to Iraq, Persia, Syria and Egypt, the mantle of local leadership fell to the qura’a. Most Arabs were illiterate in the pre-Islamic era and anyone with the ability to recite and teach the language was held in high honor. Civilization was as yet ruled by the spoken word and the qura’a, most of whom were Companions of the Prophet, were received in distant lands with well-deserved honor and respect. They were the ones who were often called upon to offer legal opinions (fatwa).
The need for producing a written copy of the Qur’an was felt after the Battle of Yamama, in which a large number of hufaz and qura’a perished. Concerns arose that sooner or later all the hufaz who had learned the Qur’an from the Prophet would die. Upon the advice of Omar ibn al Khattab (r) and other Companions, the Caliph Abu Bakr (r) had the Qur’an written down. This copy is known as Mashaf-e-Siddiqi. Written Arabic does not have vowels attached to it. As Islam spread, first through the Arabian Peninsula and then beyond its borders during the Caliphate of Omar (r), local accents showed up in the pronunciation of the Qur’an. Arabic is a rich, powerful, dynamic and subtle language. Mispronunciation of a word can alter its meaning. To preserve the Qur’an as the Prophet recited it, the third Caliph Uthman (r) ordered the preparation of a standard copy with the vowels included in the text. Seven copies of this text were reproduced and were sent to different parts of the extensive Islamic Empire.
A century after the Prophet, all of the Companions who had learned first hand from the Prophet, or the Tabeyeen who had learned from the Companions, had passed away. The Companions had known the Qur’an, as well as the context in which it was revealed, from the living example of the Prophet. The Companions were so close to the source of revelation, so suffused with the radiance of the Divine Word and its universal impact on history that they responded to its imperatives with unbounded zeal. Theirs was a world of action, not of words. They created history with their deeds, leaving others to follow in its trail. It was left to later generations to study, understand and argue about what they had done. As the time-line from the Prophet increased, it became necessary to collect, sort out and pass on the traditions of the Prophet. This was the beginning of the science ofHadith. Although, the collections of Hadith that are best known today (Bukhari, Sahih Muslim, etc.) came into existence a few centuries later, the tradition of collecting and passing on Hadith was continuous and active throughout the interim period. Next to the sciences of the Qur’an (Ulum ul Qur’an), the authenticated Prophetic traditions (Ulum ul Sunnah) provided the most important source for the development of the principles of Fiqh(Usul al Fiqh).
The development of Fiqh was an historical process. As long as the Prophet was alive, his example was necessary and sufficient for the guidance of the community. The Qur’an presents the doctrinal principles and ethical underpinnings of the Shariah. The Prophet clarified, substantiated and implemented the principles of the Qur’an. His death presented an historical challenge to his Companions to continue the process of realizing God’s will in the matrix of human affairs. The first generation of Muslims rose to this challenge. Where revelation was explicit or where the Prophet had given clear direction, they followed that direction. Where the Qur’an and Sunnahprovided general principles but no directive for explicit implementation, they used the process of consultation and reasoning to find solutions to the pressing problems of the day. With time, this methodology developed into a broad tradition that was practiced by the first four Caliphs. This tradition is referred to as the Sunnah of the Companions, or the ijma (consensus) of the Companions. Such consensus was sometimes universal. At other times, it was the consensus of only some of the Companions. Differences of opinion were not uncommon. Such differences were not only tolerated, they were respected. The subtle nuances of Arabic and the cosmic power of the Qur’anic language, made differences in emphasis inevitable. These differences had their impact on the development of different schools ofFiqh.
Although the principles of Islamic jurisprudence were not documented until later centuries, we see the first full and complete implementation of theShariah in a pluralistic society under Omar ibn al Khattab (r). It was Omar (r) who showed by his example that justice before the law was an Islamic duty. He established a full-fledged department of justice, appointed judges and gave them specific instructions, which included the following principles:
All men are equal before the law.
Justice is an Islamic duty ordained by the Qur’an and Sunnah of the Prophet.
Human beings are responsible for their actions.
All adult Muslims are legal persons and are answerable in accordance with the Shariah.
The burden of proof falls on the plaintiff.
All parties must be allowed to produce evidence for their positions.
If evidence contradicts a judgment, then the judgment must be revoked.
When the Qur’an and the Sunnah of the Prophet are silent on a matter, then extrapolation may be used from similar cases.
The collective will of the Muslim community provides a legitimate basis for law.
These principles were incorporated in later centuries by successive Muslim dynasties in their jurisprudence canons. The Caliph was not above the law. There are many examples from the life of Caliph Ali ibn Abu Talib (r), which illustrate how the head of state was treated the same way as any other citizen. Indeed, it was one of the judgments that Omar (r) rendered in a case brought by a Persian non-Muslim that led to his assassination.
Further challenges emerged with time. As the Companions passed away, intellectual leadership of the community passed on to the Tabeyeen (those who had followed or learned from the Companions). This was the second generation of Muslims. With time, this generation too passed away. The infusion of non-Arab blood into the Islamic milieu in the 8th century presented additional challenges to the Islamic jurists. There emerged theMujtahideen and the Fuqahah who successfully took on these challenges. In the process, choices had to be made and these choices modulated and transformed Islamic history.
If one had lived in the year 3440, one would witness with awe the extent of the Islamic Empire. Muslim armies had crossed into France and were knocking at Switzerland. Constantinople (modern Istanbul), the seat of the Byzantine Empire, had undergone multiple assaults. Muslim merchants had met up with the Chinese in Sinkiang along the ancient Silk Road and were actively trading in the Indonesian islands and eastern China. The center of Vedic culture in Sindh (in today’s Pakistan) was under Muslim rule.
The vast and diverse Islamic community included Arabs, Persians, Egyptians, Africans, Spaniards, Afghans, Turks and Indians. With the influx of new people came new ideas. Muslim society was in a state of flux and the pent up tensions brought on by new people and new ideas were soon to erupt like a volcano in the Abbasid revolution (3450). It was in this caldron of ideas that people wanted answers to the issues that faced the vast and diverse world of Islam.
It is a truism that great men and women create history. It is also true that historic events create great men and women. The tide of events in the second century of Hijra gave birth to scholars who systematized the science of Fiqh. Madina and Kufa were two of the prime centers of learning in the early years of Islam. Madina was the city of the Prophet and the people of Madina had close access to Prophetic traditions. However, Madina as the heart of the Islamic Empire was insulated from the challenge of ideas from neighboring civilizations. Kufa, on the other hand, located at the confluence of Arabia and Persia, was a melting pot and more susceptible to foreign ideas. It was from Kufa that the Umayyads ruled Iraq-e-Arab (modern Iraq), Iraq-e-Ajam (western Persia), Pars (central and southern Persia), Khorasan and western India (today’s Pakistan). The Kufans had somewhat less of an access to the traditions of the Prophet, but they were at the front end of the challenge of ideas from the neighboring Greek, Persian, Indian and Chinese civilizations. It was but natural that Madina and Kufa would become the earliest centers of schools of jurisprudence. Thus, the earliest developments in Fiqh, centered around Madina and Kufa, were exposed to somewhat different geographical and historical challenges. These two schools were referred to as the Madinite School and the Kufic School.
The first and foremost scholar of the Kufic School was Imam Abu Haneefa. The first scholar of the Madinite School was Imam Malik and after him Imam Shafi’i. There was a parallel and simultaneous development of the Ja’afariya School, named after Imam Ja’afar as Saadiq. The Fiqh of Imam Ahmed ibn Hanbal was of a somewhat later period and was a result of the political and intellectual turmoil in the 9th century.
Imam Abu Haneefa (d. 3468) was at once a scholar of the first rank and a man of action. Very few sages have left as visible an imprint on Islamic history as has this savant. Born to Afghan parentage, he knew first hand the issues confronting the jurists in the newly conquered territories east of Iraq. He was also well aware of the intellectual challange from the contemporary civilizations of Greece, Persia, India and China. As a youth, he settled in Kufa and studied under the great scholars of the age. As a young man, he took positions against the oppression of the Omayyads and the haughtiness of Arab noblemen. For his refusal to tow the official line, he suffered imprisonment both from the Omayyads and the Abbasids. A famous quotation attributed to him, “The belief of a converted Turk is equal to that of a Muslim from Hijaz”, speaks volumes about the egalitarian temperament of the Imam. As a scholar in search of further knowledge, he frequented the halqa (study circle) of Imam Ja’afar as Saadiq. Ibn Abidin quotes Imam Abu Haneefa as saying: “If it were not for two years (spent with Imam Ja’afar as Saadiq), I would have perished.”
The genius of Imam Abu Haneefa lies in his vision of Fiqh as a dynamic vehicle available to all Muslims in all ages. He saw Islam as a universal idea accessible to all people in space and time. Fiqh was not to be a static code applicable to one situation in one location, but a mechanism that would at once provide stable underpinnings to the Islamic civilization and would also serve as a cutting edge in its debate with other civilizations. He saw that the rigorous and exacting methodology of the Madinite School might suffocate the ability of jurists to cope with unforeseen challenges presented by new situations. Therefore, he expanded the base on which sound legal opinions stand. According to Imam Abu Haneefa, the sources of Fiqh are:
Sunnah of the Prophet,
Ijma (consensus) of some, not necessarily all of the Companions,
Qiyas (deduction by analogy to similar cases which had been decided on the basis of the first three principles) and,
Istihsan (creative juridical opinion based on sound principles). With the acceptance of istihsan as a legitimate methodology, Imam Abu Haneefa provided a creative process for the continual evolution of Fiqh. No Muslim jurist would be left without a tool to cope with new situations and fresh challenges from as-yet unknown future civilizations.
One other term needs clarification here, that is ijtihad (root word j-h-d, meaning struggle). Ijtihad is the disciplined and focused intellectual activity whose end result is ijma or qiyas or istihsan. Ijtihad is a process. The Hanafi and Ja’afariya Schools provide the greatest latitude for ijtihad. However, there are differences in emphasis. In the Ja’afariya School, emphasis is on the ijtihad of the Imams. In the Hanafi School, emphasis is on the ijtihad of the Companions of the Prophet, but the ijtihad of the learned jurists is also acceptable. There are also differences between the Kufic Schools of Fiqh (such as that of Imam Abu Haneefa) and the Madinite Schools of Fiqh (such as that of Imam Malik) in the latitude allowed forijtihad. The ijma or consensus of the Madinite School is primarily through evidence (from the Qur’an) or correlation with the Sunnah of the Prophet. The requirements for ijma or consensus in the Kufic Schools are somewhat more liberal and include not only evidence from the Qur’an and theSunnah of the Prophet, but also ijtihad of the Companions or of learned jurists.
Imam Abu Haneefa did not establish the school Fiqh named after him, nor did he personally document his methodology. Writing was not common at that time and the spoken word was still the queen of discourse. Oration was the primary vehicle for instruction and teaching. Arabic language, syntax and grammar were learned by heart. Like the qaris of earlier years, great scholars taught through their lectures. Documentation was left to students and disciples of later generations. Specifically, it was not until the 11th century that the Hanafi School was fully elucidated and documented. Greatest among the Hanafi scholars were Abdullah Omar al Dabbusi (d. 1038), Ahmed Hussain al Bayhaqi (d. 1065), Ali Muhammad al Bazdawi (d. 1089) and Abu Bakr al Sarakhsi (d. 1096).
From the 10th century onwards, the Hanafi School received patronage from the Abbasids in Baghdad. The Turks loved the egalitarian disposition of Imam Abu Haneefa, as well as the creative aspects of the Hanafi Fiqh. When they embraced Islam, they became Hanafis and its arch defenders. The Seljuk Turkish dynasties in the 11th and 12th centuries as well as the Ottomans endorsed the Hanafi Fiqh. The Timurids, Turkomans as well as the Great Moghuls of India were its champions as well. For these historical reasons, the Hanafi School is the most widely accepted of the various schools of Fiqh in the Muslim world today. Most of the Muslims of Pakistan, India, Afghanistan, Central AsianRepublics, Persia (until the 16th century), Turkey, northern Iraq, Bosnia, Albania, Skopje, Russia and Chechnya follow the Hanafi Fiqh. A large number of Egyptians, Sudanese, Eritreans and Syrians are also Hanafis, although as we shall elaborate later, for reasons rooted in geography, the Maliki and Shafi’i Schools are also well established there.
The Madinite School was much more orthodox in its approach to Fiqh. Living in the city of the Prophet and growing up in the cradle of Islam, the Madinites attached the utmost importance to the Sunnah of the Prophet. The first and foremost scholar of the Madinite School was Imam Malik bin Anas (d. 3495). He spent most of his life in Madina and like Imam Abu Haneefa in the previous generation, took issue with the ruling Abbasids on juridical matters, for which he was publicly flogged and imprisoned. Concerned that the istihsan of Imam Abu Haneefa would open the gate to unwelcome innovation, Imam Malik tightened the rules of ijma. While accepting the primacy of the Qur’an, he insisted on the consensus of all of the Companions as the basis of verified Sunnah (as compared to Imam Abu Haneefa who maintained that the consensus of some of the Companions was a sufficient basis for jurisprudence).
The Maliki School spread through Egypt, Libya, Algeria and Morocco through the Hajj. The North Africans visited Mecca and Madina and learned their Fiqh from the Madinites. They had little reason to visit Kufa and Iraq and therefore had only occasional contact with the Hanafi School. According to Ibn Khaldun, the cultural affinity between the unsettled Berbers of North Africa and the Bedouins of Arabia also contributed to the acceptance of the Maliki School in Libya and the Maghrib. From North Africa, the Maliki School spread to Spain and was the only official School sanctioned by the Umayyad dynasty in Cordoba. As Islam spread from the Maghreb into sub-Saharan Africa through trade routes, the Maliki School also spread to Mauritania, Chad, Nigeria and other countries of West Africa. Most Africans today follow the Maliki School. The brief interlude of Fatimid rule in Egypt in the 9th and 10th centuries did not materially change the contacts between the Berbers of the Maghrib and the Bedouins of Arabia and the Maliki School returned to North Africa when Salahuddin captured Egypt from the Fatimids (11340).
The first one to establish a formal school of Fiqh was Imam Muhammed ibn Idris al Shafi’i (d. 820). Through his Risalah (journal), he was the first scholar to systematically document the basis of Fiqh and critically examine its methodology. A Syrian by birth, Imam Shafi’i traveled to Madina and Kufa and learned from the disciples of Imam Abu Haneefa and Imam Malik. He took issue on certain of the positions taken by the Hanafi and Maliki Schools and adopted an independent position on some of the methodologies. According to Imam Shafi’i, the sources of Fiqh are:
The Sunnah of the Prophet (on the issue of the Sunnah, Imam Shafi’i relaxed the rules of the Maliki School and suggested that the Sunnahwas a valid source of jurisprudence even if it was supported by a single, reliable source. In other words, the Sunnah of the Prophet need not be supported by the ijma of all the Companions,
Qiyas, provided that it was rigorously supported by prior cases decided on the basis of the Qur’an and the Sunnah. Imam Shafi’i did not acceptistihsan as a valid source of Fiqh.
Thus Imam Shafi’i’s positions were somewhat less orthodox than those of Imam Malik, but not as liberal as those of Imam Abu Haneefa. The Shafi’i School spread to Egypt, the Sudan, Eritrea, East Africa, Malaya and the Indonesian Islands. Like the Hanafi School, the Shafi’i School produced many brilliant scholars. One of them, the great Abu Hamid al Gazzali (d. 1111), not only influenced the development of Fiqh, but also changed the course of Islamic history through his brilliant dialectic.
It is appropriate at this stage to refer to the Mu’tazilite School of thought and its counterpoint, the Asharite School. As the Muslims captured Syria, Egypt and North Africa, they became custodians of not just the people of those countries, but their ideas as well. Most of those lands had been under Eastern Roman or Byzantine control where Greek thought was dominant. Historically, the term “Greek thought” is applied to the collective wisdom and classical thinking of the people of the eastern Mediterranean, which includes a broad geographical arc extending from Athens in Greece through Anatolia, Syria, Egypt and Libya. Greek civilization extolled the nobility of man and placed human reason at the apex of creation. Plato, Aristotle, Ptolemy, Euclid and Archimedes are some of the household names from the galaxy of thinkers produced by this civilization. The enduring achievement of Greek thought is that it perfected the rational process and left its lasting legacy for humankind.
The Muslims were the first inheritors of Greek thought. It was through the Muslims-more specifically the Spanish Muslims-that rational thought reached the Latin West. And it was only after the 12th century that the West woke up from its slumber and adopted the Greek civilization as its own, while about the same time, Muslims turned away from rational thought towards more esoteric and intuitive thinking.
The early Muslims not only adopted the rational approach but set out with enthusiasm to explain their own beliefs in rational terms. Questions relating to the nature of man, his relationship to creation, his obligations and responsibilities, as also the nature of Divine attributes were tackled. No Muslim scholar would embark on an intellectual effort unless his approach had a basis in the Qur’an. The rationalists saw a justification for their approach in Qur’anic verses (“Behold! In the creation of the heavens and the earth . . . There are indeed signs for a people who are wise”, Qur’an, 2:164) and in the Sunnah of the Prophet. Indeed, the Qur’an invites human reason to witness the majesty of creation and reflect on its meaning and understand the transcendence that suffuses it. The philosophical sciences that evolved as a result of this effort are referred to as Kalam (discourse, usually a religious discourse). Sometimes, Kalam is vaguely translated as Theology, but Theology as a science never caught on in Islamic learning as it did in Christianity, because the Muslims strove and succeeded in preserving the transcendence of God. Christianity adopted the position that God is knowable in person and is hence accessible to human perception. The Muslims, despite the philosophical challenges of the Greeks, succeeded in maintaining the position that God is knowable by His names, attributes and through the majesty of His creation, whereas His transcendence is hidden by His light.
The first Islamic scholar who tackled questions of Islamic belief from a rational perspective was Al Juhani (d. 699). Note that the rational approach places human reason at the apex of creation and makes the world knowable. Al Juhani maintained that men and women not only have the capacity to know creation through their reason, but also have the capacity to act as free agents. Belief is the result of knowledge and understanding. Indeed, humankind has the moral imperative to understand God’s creation. Man, as a rational being, is mandated not only to understand the world, but also to act on it using his free will. Thus Al Juhani’s views bestowed upon humankind reason and responsibility. Heaven and hell were consequences of human action. This school of philosophy was known as the Qadariya School (root word q-d-r, meaning power or free will. TheQadariya School of philosophy is not be confused with the Qadariya Sufi brotherhood, named after Shaykh Abdul Qader Jeelani of Baghdad, in the 12th century).
The Qadariya approach, when pushed to the limit, takes God out of the picture of human affairs in as much as it makes heaven and hell mechanistic and solely predicated upon human action. This was unacceptable to the Muslim mind. Reaction from the more orthodox quarters was bound to surface and this happened with the emergence of the Qida (pre-destination) School. The founder of this School was Ibn Safwan (d. 3445). According to Ibn Safwan, all power belongs to God, and man is predetermined in his actions, good and evil, as well as his destination towards heaven or hell. Like the Qadariya School, the Qida School sought its justification in the Qur’an (“Say! I have no power over any good or harm to myself except as God wills”, Qur’an, 34:188) and theSunnah of the Prophet.
The battle lines were now drawn. Like the Christian civilization in earlier times, the Islamic civilization was just beginning to come to grips with Greek rationalism. What was going to be the outcome? The answers were not clear and were hidden in the womb of the unknown future. Both Imam Ja’afar as Saadiq and Imam Abu Haneefa were well aware of the arguments of qida and qadar, but stayed clear of being drawn into its controversies.
Wasil ibn Ata (d. 3449) combined, developed and articulated the QadariyaSchools into a coherent philosophy, which came to be known as the Mu’tazilah School. We may also look upon the Mu’tazilah School as the first response of Islamic civilization to the challenge of Greek thought. This School flourished for almost two hundred years and at times was the dominant school of thought among Muslims. Its influence was comparable to the Schools of Imam Abu Haneefa, Imam Ja’afar as Saadiq or Imam Malik. The Mu’tazilite School was challenged by Imam Hanbal (d. 855) and Hasan al Ashari (d. 935) and was finally vanquished by al Gazzali (d. 1111). This battle of ideas had a profound impact on Islamic history. It influences Muslim thinking even to this day.
The Mu’tazilite School placed its anchor on human reason and its capability to understand the relationship of man to man and of man to God. Necessarily, they based their arguments on the Qur’an and the Sunnah. The principles of the Mu’tazilah School were:
The Uniqueness of God or Tawhid (“Say! He is God, the One; God, the Eternal, Absolute; He begets not, nor is He begotten; and there is none like unto Him”, Qur’an, 112:1-5),
the free will of man (“If it had been thy Lord’s Will, they would all have believed, all who are on earth! Will thou then compel mankind, against their will, to believe!”, Qur’an, 10:99),
The principle of human responsibility and of reward and punishment as a consequence of human action (“On no soul does God place a burden greater than it can bear”, Qur’an, 2:286),
The moral imperative to enjoin what is right and forbid what is wrong (“You are the most noble of people, evolved for mankind, enjoining what is right, forbidding what is wrong and believing in God”, Qur’an, 3:110).