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Fiqh, the Development of

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:
  • The Qur’an,
  • 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 Qur’an,
  • 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).
The Mu’tazilites applied these principles to the issues of relationships of man to man, of man to the created world and of man to God. By placing man at the center of creation, they sought to make him the architect of his own fortunes and emphasized his moral imperative to fashion the world in the image of God’s command.
Caliph Mamun adopted the Mu’tazilite School as the official dogma of the Empire. From Caliph Mansur to Caliph Al Mutawakkil (8434-861), the Mu’tazilites enjoyed official patronage. It was during this period that aDarul Hikmah was established in Baghdad and books of Greek philosophy, Hindu astronomy and Chinese technology were translated into Arabic. Learning flourished and Baghdadbecame the intellectual capital of the world.
The undoing of the Mu’tazilites was their excessive zeal and their inability to comprehend the limitations of the methodology they championed. With official sanction, they punished those ulema who disagreed with them and tried to silence all opposition. They also overextended their deductive methodology to attributes of God and of the Qur’an. In Islam, God is unique and there is none like unto Him. Therefore, the Mu’tazilites argued, the Qur’an cannot both be part of Him and apart from Him. To preserve the uniqueness of God (Tawhid), they placed the Qur’an in the created space. In other words, they said that God created the Qur’an at a certain point in time. The issue of createdness caused a great deal of division and confusion among Muslims. Furthermore, by maintaining that reward and punishment flowed mechanistically from human action, they left their flank exposed for an intellectual attack. If humans are automatically rewarded for their good deeds and automatically punished for their evil, then where is the need for Divine Grace? This deterministic approach was repugnant to Muslims and a revolt was inevitable.
The challenge to the Mu’tazilites came from the Usuli (meaning, based on principles) ulema, the best known among whom was Imam Hanbal (d. 855). A great scholar, he learned the principles of Fiqh from all the Schools prevalent in his generation, namely, Hanafi, Maliki, Shafi’i and Ja’afariya, as well as the Kalam (philosophical) Schools of the era. Mu’tazilite ideas were causing a great deal of confusion among the masses. Stability was required and innovation had to be combated. Imam Hanbal argued for strict adherence to the Qur’an and the verified Sunnah of the Prophet. Any principle, legal or philosophical, not based on the Qur’an and the Sunnahwas to be considered bida’a (innovation). Imam Hanbal took issue with the principle of ijma (unless it was sanctioned by the Sunnah) and totally rejected istihsan and qiyas as methodologies for Fiqh. His position was a direct challenge to the Mu’tazilites who enjoyed official patronage from the Caliphs. Consequently, Imam Hanbal was punished and jailed for most of his life. His sustained and determined opposition galvanized those who fought the Mu’tazilites.
Imam Hanbal was joined in his fight against the Mu’tazilites by the inductive (as opposed to deductive) philosophers. The inductive philosophers derived their inspiration from those Ayats in the Qur’an that call upon man to use both his senses and his reasoning to witness the signs of God. In other words, the Qur’anic approach is both empirical and rational as opposed to the purely speculative reasoning championed by the Mu’tazilites. The Mu’tazilite neglect of the empirical and their dependence solely on the rational proved to be their undoing. The struggle of Imam Hanbal bore fruit and Caliph Al Mutawakkil abandoned the Mu’tazilite School in 8434. In turn, when the Asharites gained the upper hand, the Mu’tazilites were punished, jailed and silenced. Such is the fate that differing ideas have suffered at times in Islamic history!
The Hanbali School flourished in Arabia and western Iraq until the Wahhabi movement in the 18th and 19th centuries supplanted it. Because it was considered disruptive of accepted practices, it came into conflict with the Ottomans in the 18th century. The Ottomans accepted tasawwuf as a legitimate mode of knowing and, since they were Hanafis, were much more liberal in their interpretations. After the Wahhabis captured the Hijaz from the Ottomans in 19134, the Hanbali Fiqh became the official jurisprudence in Arabia (later known as Saudi Arabia). As practiced in Arabia, the Hanbali Fiqh is known for its abhorrence, indeed condemnation, of anything that is bida’a (innovation, a practice not in strict accordance with the Qur’an and the verified Sunnah of the Prophet).
The four schools of Sunnah Fiqh-Hanafi, Maliki, Shafi’i and Hanbali-are mutually recognized and there have been moves in recent years to bring the Ithna Ashari and Zaidi Fiqhs also under the “ mutual recognition” umbrella. Historically however, there have been occasions when frictions between them played an important part in the outcome of historical events. Specifically, just before the invasions of Genghiz Khan (1219), one reads of overt hostility between the followers of the Hanafi, Shafi’i and Ja’afariya Fiqh in Khorasan and Persia, a situation that played to the advantage of Genghiz in his war against the Shah of Khorasm.
The school of thought that had perhaps the most pervasive impact on Islamic thinking was the Asharite. Indeed, one may take the position that Asharite ideas have been a primary driver of Islamic civilization since the third century after the Hijra. The vast majority of Muslims through the centuries have followed one of five schools of Fiqh (Hanafi, Maliki, Shafi’i, Hanbali, Ja’afariya) plus the Asharite philosophy. The difference is that the five schools of Fiqh are overtly discussed and have been the source of cooperation and friction, whereas Asharite ideas have been absorbed into Islamic culture like water in an oasis. The direction, achievements and failures of Islamic civilization have been influenced in no small measure by Asharite thinking. From Al Gazzali of Baghdad (d. 1111) to Muhammed Iqbal of Pakistan (d. 1938), Asharite ideas have burst out on the Islamic landscape like an ebullient fountain and have influenced the direction of collective Muslim struggles.
Named after its architect, al Ashari (d. 935), it was the Asharite School that finally defeated the Mu’tazilites. Al Ashari was initially a Mu’tazilite. The Mu’tazilite School had placed reason above revelation and had come to the erroneous conclusion that the Qur’an was created in time. Such views were repugnant to Muslims. Al Ashari turned the argument around and placed revelation ahead of reason. Reason is time bound. It requires a-priori assumptions about before and after. Revelation is transcendent. By definition, it is not subject to our understanding of time and our assumptions of before and after. It is revelation, not reason, that tells us what is right and wrong, helps us differentiate between moral and immoral, enlightens us of the attributes of God and gives us certainty about heaven and hell. Reason is a tool bestowed by God upon humans so that they may sort out the relationships in the created world and reinforce their belief.
The crux of the Asharite argument lies in its definition of the phenomenon of time. Al Ashari was well aware of the Greek view that matter may be divided into atoms. He extended this argument to time and postulated that time moves in discrete steps. At each discrete step and all times in between, the power and Grace of God intervenes to determine the outcome of events. This conceptual breakthrough enabled the Asharites to preserve the omnipotence of God. Whereas the Mu’tazilites had failed on this score precisely because they assumed (much as Newtonian Mechanics does today) that time is continuous so that a given action automatically and mechanistically leads to a reaction. If the outcome of an event is completely determined by the action that causes it, then there is no room for the intervention of God and the world becomes secular. This is precisely what happened to the Western (and now global) civilization a thousand years later. We may summarize the Asharite pyramid of knowledge as follows: Atoms and the physical world are at the lowest rung of the ladder. The physical world is subject to reason. But reason itself is subject to and superseded by revelation. By contrast, the model presented by the Mu’tazilites (as well as the Greeks and the modern secular civilization) places both the physical world and revelation subject to understanding by reason.
Two other important elements of the Asharite philosophy need to be stated. The Asharites asserted that only God is the owner of all action (Qur’an, 10:100). Man has no independent capacity to act but is merely an agent who has acquired this capacity as a gift from God. This doctrine, known as the doctrine of Kasab, was misunderstood and misinterpreted by later generation of Muslims as predestination. Indeed, some Muslims raised predestination to be the sixth pillar of Islam. One may put forward the argument that it was a contributing factor in the stagnation that was to envelop the Muslim world in later centuries.
Second, the Asharites held that there is a divine pattern in nature but no causality. The cause and effect that we perceive is only apparent and is only a reflection of the attributes that are inherent in nature. This doctrine was a central argument in Al Ghazzali’s famous treatise, Tahaffuz al Filasafa (The Repudiation of the Philosophers, circa 1100) that provided the death-knell for philosophy in Islam and fundamentally changed the course of Islamic history. Ibn Rushd (1198), perhaps the greatest philosopher the world has produced since Aristotle, provided a counter-argument to this doctrine in his famous treatise, Tahaffuz al Tahaffuz (Repudiation of Repudiation, circa 1190). The Muslims adopted Al Gazzali, whereas the West adopted Ibn Rushd and the two civilizations went in different directions. The consequences for the unfolding of global history were enormous.
The appearance and development of the Mu’tazilite and Asharite doctrines more than a thousand years ago is essential to an understanding of Islamic history and of contemporary Muslims. The Mu’tazilites stood on the shoulders of the Greeks but made the error of applying their methods to the Qur’an and forcing their views on fellow Muslims. For this error, their ideas were banished from Islam into the Latin West. The Asharites stood on the shoulders of the Mu’tazilites but repudiated their methods and called them kafirs. Later generation of Muslims misunderstood the Asharites, confused their doctrine with predestination and went to sleep! It is only in the last hundred years that Muslim thinkers such as Muhammed Iqbal of Lahore have made an attempt to reconcile the doctrines of predestination and the free will of man.
The Ja’afariya School developed autonomously and in parallel with theSunnah Schools of Fiqh. And like its sister schools, its roots are in the Qur’an and the Sunnah of the Prophet. Although it follows an autonomous route for its sources, on most practical matters the positions of the SunnahSchools and the Ja’afariya School are identical or similar. Indeed, on most issues, the differences in the positions taken by the Ja’afariya Fiqh and theSunnah Schools are smaller than the differences among the SunnahSchools themselves.
A student of history must reject the polemical position taken by some Muslims that there are only four schools of recognized Fiqh, namely, Hanafi, Maliki, Shafi’i and Hanbali. The Ja’afariya Fiqh is as legitimate as theSunnah Schools of Fiqh by virtue of the historical fact that it has flourished since the time of the Prophet and is accepted by a sizable section of the Islamic community. Similarly, the Zaidi School of Fiqh is also historically legitimate although we have made a conscious decision not to cover it here because it is followed by a smaller number of Muslims.
The Qur’an accords a special place of honor to the Prophet’s household (“God wishes to remove from you all impurity, O Members of the Family and to make you pure and without blemish”, Qur’an, 33:33). The members of the Prophet’s household are referred to in the Qur’an as Ahl-al Bait. Sahih Hadith confirms that the term Ahl-al Bait refers to Ali (r), Fatima (r), Hassan and Hussain, as well as Aqil, Ja’afar, Abbas and their offspring 1. Some other hadith refer only to Ali (r) , Fatima (r), Hassan and Hussain as Ahl-al Bait. On his return from the last pilgrimage, the Prophet stopped at a place called Gadeer e Qum and declared: “O people! I have left certain things; if you will love them you will never go astray. They are the Book, which is like a rope extending from the heaven to the earth and my family”2. In addition, ahadith from both Sunni and Shi’a sources also confirm the exalted position of Ali (r) as the “gateway to knowledge” and “heir” to the Prophet (Hadith: “Ali is to me as Aaron was to Moses, except that there shall be no Prophet after me”).
Central to the Ja’afariya Fiqh is the doctrine that the chain of authority forFiqh flows from the Qur’an to the Sunnah to Ahl-al Bait and by inference, exclusively to the Imams among the Ahl-al Bait. By comparison, the Sunni position accepts the chain of authority from the Qur’an to the Sunnah to the Ijma of the companions and is based on the confirmed ahadith: “O people! I leave for you the Book of Allah and my Sunnah. If you follow them, you will never go astray.”3. And again, “My ummah shall never agree upon an error”. The two positions show up for the first time with extreme clarity in the question put to Ali ibn Abu Talib (r) and Uthman bin Affan (r) by the committee to nominate a Caliph after the assassination of Omar ibn al Khattab (r). The question was: “Will you conduct the affairs of the community in accordance with the Qur’an, the Sunnah of the Prophet and the Sunnah of the two Shaykhs (Abu Bakr (r) and Omar (r) )?” Ali (r) answered that he would follow the Qur’an and the Sunnah of the Prophet. Uthman (r) said he would indeed follow the Qur’an, the Sunnah of the Prophet and of the two Shaykhs and was nominated as the Caliph, demonstrating that the majority among the Companions had accepted this position.
Despite the differences on the issue of succession and of the disastrous civil wars, there were no separate schools of Fiqh for the first one hundred years after the Prophet. The differences were political; they were not onFiqh or the Shariah. There are many instances when Muawiya ibn Abu Sufyan asked for guidance from Ali ibn Abu Talib (r) on specific issues ofFiqh, even though the two were locked in a bitter civil war. The Ahl-al Bait, specifically the house of Ali ibn Abu Talib (r) and Fatimat uz Zahra (r), beloved daughter of the Prophet, had heard and transmitted many Ahadith directly from the Prophet. The sayings of Ali (r), Nahjul-Balaga, are unsurpassed as a source for Islamic ethics and teaching.
The crystallization of Fiqh as a cultivated discipline occurred at the time of Imam Ja’afar as Saadiq (d. 3465). Imam Ja’afar as Saadiq was a genius-a scholar, teacher, guide and Imam. He initiated and held halqas (circles) wherein the greatest scholars of the age would gather, consult and learn. Imam Abu Haneefa was a contemporary of Imam Ja’afar and attended many of the halqas at the home of Imam Ja’afar.

Like Imam Abu Haneefa, Imam Ja’afar as Saadiq did not write down theFiqh named after him. He was the teacher who lectured and elaborated on the principles of Fiqh using the methodology of the qura’a prevalent in early Islam. It was left to his disciplines to catalogue and document the teaching of Imam Ja’afar. The most important of the Imamiya writers was Muhammed ibn al Hasan al Qummi (d. 903). It was he who documented the doctrines of Wilayat and Imamate, although both doctrines were in existence since the period of Caliph Ali (r). Wilayat comes from the wordwali (guardian, master, kinsmen) and is a central Shi’a doctrine. It affirmed that the guardianship of the Islamic community after the Prophet must be in the hands of a wali, the first of who was Ali ibn Abu Talib (r). The community must have a master and such mastership must reside exclusively and uniquely with Ahl-al Bait. As God has purified the household of the Prophet, the Imams are consequently pure and innocent and are uniquely and exclusively qualified to provide the wilayat for the community. The Ja’afariya School accepts the Imamate of twelve Imams: Imam Ali (r), Imam Hassan, Imam Hussain, Imam Ali Zainul Abedin, Imam Muhammed Baqir, Imam Ja’afar as Saadiq, Imam Musa Kazim, Imam Ali Rida, Imam Jawwad Razi, Imam Hadi, Imam Hasan Askari and Imam Muhammed Mahdi. Due to its acceptance of twelve Imams, the Ja’afariya School is referred to as Ithna Ashari (Those who believe in twelve Imams). The Ja’afariya School also believes in Isma, meaning that God shields the designated Imams from sin, religious error and forgetfulness.

It is in matters of personal law that the Ja’afariya Fiqh has certain differences with Sunni Fiqh. In matters relating to the community, the Ja’afariya Fiqh is stringent, like the Shafi’i Fiqh. On issues that have no precedence, it allows for ijtihad, much like the Hanafi School, which admits the process of istihsan.

The development of Ja’afariya Fiqh reflects the political fortunes of the Shi’a movement, much as Hanbali Fiqh also reflects the political circumstances of its era. After the tragedy of Karbala, the Ja’afariya movement was primarily apolitical, avoiding a head-on collision with the Omayyads. The Abbasid revolution seemed to present some hope since the Abbasids were fellow Hashemites. These hopes were dashed as the Abbasids first took advantage of the Shi’as and then persecuted them even more harshly than the Omayyads. Bereft of all hope for restoring to Ahl-al Bait the political authority they deserved, the Shi’a movement became (except for the Fatimid interlude) increasingly introspective.

However, there was no escape from the philosophical controversies raging in the 8th century. Much like its sister Sunnah Schools, the Ja’afariya Fiqhevolved along two broad lines during this period-the rationalist and the traditionalist. The rationalist schools evolved into the Akhbari School, which emphasized the primacy of relevant texts as a source of Fiqh. The acceptable texts included the Qur’an, Hadith of the Prophet and the Hadithof the Imams. The traditionalist Schools coalesced into the Usooli School and emphasized methodology and principle over textual authenticity. In its approach, the Usooli School of the Ja’afariya Fiqh was very much like theUsooli Schools of Imam Abu Haneefa and Imam Shafi’i. And, like the Hanafi School, it accepted ijtihad as an acceptable methodology for Fiqh where there was no clear and explicit guidance from the Qur’anand the Sunnah of the Prophet.

Thus the Ja’afariya and the Sunnah Schools of Fiqh are like different streams taking off from the same mighty lake and watering the Islamic landscape from different directions. Their deductions are often the same because they are based on the Qur’an and the Sunnah of the Prophet, although their intermediate sources may be different.

Fiqh built a bridge for the Islamic civilization to the future. What strikes a student of history is the confidence and enthusiasm with which Muslims faced the ideas prevalent in the world at that time. By the 11th century, Islamic civilization had crystallized its response to its sister civilizations of the day. And this response was fundamentally different to the rational challenge of the Greeks and the spiritual challenge from the East. After a brief period of flirtation and experimentation, Greek thought was discarded and sent packing to the West. Ibn Rushd’s Tahafuz al Tahafuz (circa 1190) was almost a wistful goodbye of a Muslim scholar who was leaving his Islamic homeland and migrating to the Latin West. On the other hand, Islam responded to the challenge from the East by internalizing and Islamizing many of its spiritual elements.

Sufi thought flourished and after the destruction of the Mongols, took root and became the primary vehicle for the expansion of Islam. The Islamic archetype was to be a Hafiz, a Rumi or a Shah Waliullah, rather than Al Kindi or Abu Ali Sina or Al Baruni or Ibn Rushd. With the notable exception of Ibn Khaldun (d. 14034), the empiricists and rationalists of the past slowly disappeared. Science and civilization thus had entirely different relationships in the West and in Islam after the Middle Ages. The West adopted Abu Ali Sina (Avicenna) and Ibn Rushd (Averoes) and their empirical/rational methods and made science (as we know it today) an integral part of their culture and civilization. The Muslims increasingly turned their back on the empirical/rational approach and became introverted, caught up in self-contemplation. The process accelerated in the 19th century as the Muslim world was colonized by Europe, and the historical continuity of the Muslims with their own past was severed.

Those Muslims who declare that there is no conflict between science and religion in Islam must ponder over this. Having taken science out of the initial gambit, you cannot put it back in the middle game or the end game. You must change the initial gambit, namely, the fundamental assumptions on which Muslim civilization has built its world-view since the debate between the Mu’tazilites and the Asharites in the 9th century, to come up with a coherent and comprehensive philosophy of science and civilization.

With time, stagnation set in and what was once a bridge to the future became a bridge only to the past. The schools of Fiqh became mazhabs and got solidified. Heredity, official sanction, political events, tribal and national loyalties all played their historical part in this fixation. By the 11th century, Islamic civilization had become a city-based civilization. The Mu’tazilites and the Asharites had knocked the wind out of each other. The qaris, who had wandered through the desert in the early years of Islam teaching the Qur’an from hamlet to hamlet, had given way to professional teachers whose jobs depended on preserving the status quo. People longed for a break from controversies. A broad consensus developed that the existing schools of Fiqh were sufficient to meet the challenges of the day. Islam had successfully withstood the onslaught of Greek thought and had successfully accommodated the spiritual challenge from eastern religions. It appeared that the civilizational interfaces between Islam and its sister civilizations of the day had been well defined. It was now time to rest the case. The door to ijtihad was therefore closed and people inculcated taqleed(to copy or to follow). They became Sunni, Shi’a, Hanafi, Maliki, Shafi’i, Hanbali, Ja’afari, Zaidi and Fatimid.

Political developments also contributed to intellectual stagnation. In the 9thcentury, the Fatimids conquered Egypt and ruled over a predominantly Sunni population using the Fatimid Fiqh. The Fatimid challenge elicited a Turkish response as champions of the Sunni Fiqh. The central authority of the Caliphate disintegrated and in its place emerged autonomous sultanates and emirates. The 16th century saw the emergence of three mighty dynasties, those of the Ottomans, the Safavids and the great Moghuls. The Safavids adopted the Ja’afariya Fiqh whereas the Ottomans and the Moghuls championed the Hanafi Fiqh. Certain ideological differences were inevitable, but mazhab was often used in their mutual warfare for the control of border areas. Only geography and the relatively primitive technology of the day prevented them from waging total war against each other. Nonetheless, their respective parochial policies ensured that by the 134th century, Persia was primarily Ithna Ashari, whereas India, Pakistan, Central Asia and the Ottoman Empire were predominantly Hanafi. The last major attempt by a ruler to bring about reconciliation between Shi’a and Sunni mazhabs was Nadir Shah. Initially, a benevolent ruler, he became a miser after he sacked Delhi and made off with its great loot (13439). Returning to Persia, he gathered the Sunni and Shi’a Ulema in an attempt to reconcile their historical fragmentation. For this effort, both the Sunnis and the Shi’as abused him, which made him more of a despot. He died a miser, scornful of both Sunni and Shi’a Ulema and in turn scorned by history.

The death of ijtihad is sometimes blamed on the Mongol and Tatar invasions. This is not historically correct. The process of stagnation was well under way before the double hammer of Crusader invasions (11th, 12thand 13th centuries) and Mongol destructions (13th century) brought an end to the Baghdad Caliphate. These external events, however, helped to consolidate the status quo. Faced with the possibility of extinction, Islamic civilization increasingly turned inwards to its own inner soul. And the mantle of intellectual leadership passed from the qura’a and the fuqha to the Sufis.

The major schools of Fiqh clearly served the needs of early Muslims, ensured social cohesion, protected the community from the ideas of foreign civilizations and safeguarded it during historical crises. However, the issues that were addressed reflected the condition of the Muslims at that time. In the 8th century, Islam was politically and militarily dominant in West Asia and the Mediterranean. Certainly, there was interaction with the civilizations of Greece, China and India but due to the primitive technology of the day, each civilization was more or less autonomous in its own region of influence. The challenge before the Muslims was first to sort out and stabilize their own internal relationships and then to define their relationship with the ideas from other civilizations. And this they achieved in the context of the times, separating “Dar al Islam” from “Darl al Harab”.Dar al Islam was where Fiqh was applied. Darl al Harab was that other world where the “infidels” lived and which had to be challenged.

That paradigm needs reexamination. Today, fully a third of all Muslims live in countries that are predominantly non-Muslim. Fiqh is not a static tool. It is the historical dimension of the Shariah. In a shrinking world, drawn together by technology, where the information revolution has made national boundaries porous, the civilizational interfaces are different from those of the 8th and 9th centuries.

In the 21st century, Islam faces not the rationalism of the Greeks, or the abnegation of the Buddhists, or the polytheism of the Vedics but the global hegemony from a materialist civilization opposed to any form of religion. The focus of this civilization is economic centralization. In its inexorable thirst for centralization, today’s global materialist civilization has co-opted science, technology, philosophy, ethics, politics and has marginalized religion itself. The great issues of the day are primarily economic, not spiritual. Today, all people of religion, the Muslims, Christians, Jews, Buddhists and Hindus are in the same boat, confronted with defining their interfaces with each other and with this global, materialist civilization. Clearly, a coherent response has yet to emerge from the Muslim ulema.
1. Ref: Sahih Muslim, Hadith 5920.
2. Ref: Tradition number 8344 from Sahih Tirmidhi as related by Zaid ibn Arkam, among the traditions taken from Kanz ul Ummal.
3. Ref: Hijjatul Wida, Farewell speech at the Mount of Arafat, on the authority of Rabiah ibn Umayyah, who repeated the sermon after him.

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