The Evolution of Fiqh: ISLAMIC AND THE MADHIHABS pdf download

THE EVOLUTION OF FIQH – Book Sample

Contents – The Evolution of Fiqh

1. Introduction

1. The First Stage: Foundation
   1. The Method of Legislation
   1. General Content of the Qur’aan
   1. The Makkan Period (609-622 C.E.) The Madeenan Period (622-632 C.E.) Legal Content of the Qur’aan
   1. The Basis of Legislation in the Qur’aan
      1. 1.             The Removal of Difficulty
      1. 2.             The Reduction of Religious Obligations
      1. 3.             The Realization of Public Welfare
      1. 4.             The Realization of Universal Justice
   1. Sources of Islamic Law Section Summary
2. The Second Stage:
3. Establishment Problem-Solving Procedures of the Righteous Caliphs
4. Individual Sahaabah and Ijtihaad  
5. Absence of Factionalism Characteristics of Fiqh
6. Section Summary
7. The Third Stage:
   1. Building Factors Affecting Fiqh
   1.  Characteristics of Fiqh –
   1. Reasons for Differences
   1. Compilation of Fiqh
8. The Fourth Stage: Flowing

• The Development of Fiqh
  • Period of the Great Imams
  • Period of the Minor Scholars
  • Sources of Islamic Law
  • Section Summary
• The Madh-habs: Schools of Islamic Legal Thought The Hanafee Madh-hab

• Awzaa‘ee Madh-hab
• The Maalikee Madh-hab
• The Zaydee Madh-hab
• The Laythee Madh-hab
• The Thawree Madh-hab
• The Shaafi‘ee Madh-hab
• The Hambalee Madh-hab
• The Dhaahiree Madh-hab
• The Jareeree Madh-hab
• Section Summary
• Main Reasons for Conflicting Rulings
• Word Meanings
• Narrations of Hadeeths
• Admissibility of Certain Principles
• Methods of Qiyaas
• Section Summary
• The Fifth Stage: Consolidation
  • Four Madh-habs
  • Compilation of Fiqh
  • Section Summary
• The Six Stage: Stagnation and Decline Emergence of Taqleed
• Reasons of Taqleed
• Compilation of Fiqh
• Reformers
• Section Summary
• Imaams and Taqleed
• Imaam Abu Haneefah
• Imaam Maalik ibn Anas
• Imaam Ahmad ibn Hambal
• Students of the Imaams
• Comment
• Section Summary
• Differences Among The Ummah Differences Among the Sahaabah Section Summary
• Conclusion

INTRODUCTION

Fiqh and Sharee’ah – The Evolution of Fiqh

For a proper understanding of the historical development of Islamic law, the terms Fiqh and Sharee’ah need to be defined. Fiqh has been loosely translated into English as “Islamic law” and so has Sharee’ah, but these terms are not synonymous either in the Arabic language of to the Muslim scholar.

Fiqh literally means, the true understanding of what is intended. An example of this usage can be found in the Prophet Muhammad’s statement: “To whomsoever Allaah wishes good, He gives the Fiqh (true understanding) of the Religion” ((Reported by Mu‘aawiyah and collected by al-Bukhaaree (Sahih Al-Bukhari (Arabic-English), vol.4, pp. 223-4, no.346), Muslim, (Abdul Hamid Siddiqi, Sahih Muslim (English Trans.), (Beirut: Dar al-Arabia, n.d.), vol.3, p. 1061, no.4720), at Tirmidhee and others.)). Technically, however, Fiqh refers to the science of deducing Islamic laws from evidence found in the sources of Islamic law. By extension it also means the body of Islamic laws so deduced.

Sharee’ah, literally means, a waterhole where animals gather daily to drink, or the straight path as in the Qur’anic verse.

“Then we put you on a straight path (Sharee’ah) in you affairs, so follow it and do not follow the desires of those who have no knowledge.” ((Soorah al-Jaathiyah (45): 18.))

Islamically, however it refers to the sum total of Islamic laws which were revealed to the Prophet Muhammad (SW.), and which are recorded in the Qur’aan as well as deducible from the Prophet’s divinely-guided lifestyle (called the Sunnah) ((Muhammad Shalabee, all-Madkhal fee at-Ta’reef bil-fiqh al-Islaamee, (Beirut: Daar an-Nahdah al-Arabeeyah, 1969), p. 28.)).

The distinction

From the previous two definitions, the following three differences may be deduced:

1. Sharee’ah is the body of revealed laws found both in the Qur’aan and in the Sunnah, while Fiqh is a body of laws deduced from Sharee’ah to cover specific situations not directly treated in Sharee’ah law.
2. Sharee’ah is fixed and unchangeable, whereas Fiqh changes according to the circumstances under which it is applied.
3. The laws of Sharee’ah are, for the most part, general: they lay down basic principles. In contrast, the laws of Fiqh tend to be specific: they demonstrate how the basic principles of Sharee’ah should be applied in given circumstances.

Note

1. In this book on the evolution of Fiqh the term “Islamic Law” will be used to mean the laws of Sharee’ah and the laws of Fiqh combined. The terms Fiqh or Laws of Fiqh and Sharee’ah or Law of Sharee’ah will be used where a distinction seems necessary.
2. At the end of this book there is a glossary of Arabic terms and their plurals used in this book. In the text of this book the English plural is used except in cases where the Arabic plural is more widely known. For example, Muslims is used instead of Muslimoon and Soorahs instead of Suwar.

The Method of Legislation – The Evolution of Fiqh

Sections of the Qur’aan were continuously revealed to the Prophet Muhammad (s.w.) from the beginning of his prohethood in the year 609 CE until shortly before his death (623 CE), a period of approximately twenty-three years. The various sections of the Qur’aan were generally revealed to solve the problems which confronted the Prophet (SW.) and his followers in both Makkah and Madeenah. A number of Qur’anic verses are direct answers to questions raised by Muslims as well as non-Muslims during the era of prophet hood. Many of these verses actually begin with the phrase “They ask you about.” For example,

“They ask you about fighting in the forbidden months. Say, ‘Fighting in them is a grave offense, but blocking Allaah’s path and denying Him is even graver in Allaah’s sight.’ “ ((Soorah al-Baqarah (2): 217))

“They ask you about wine and gambling. Say, ‘There is great evil in them as well as benefit to man. But the evil is greater than the benefit.’” ((Soorah al-Baqarah (2): 219))

“They ask you about menses. Say, ‘It is harm, so stay away from (sexual relations with) women during their menses.’ ” ((Soorah al-Baqarah (2): 222.))

A number of other verses were revealed due to particular incidents, which took place during the era of the Prophet (s.w.). An example can be found in the case of Hilaal ibn Umayyah who came before the Prophet (s.w.) and accused his wife of adultery with another of the Prophet’s companions. The Prophet (s.w.) said, “Either you will receive the fixed punishment (of eighty lashes) on your back.” Hilaal said, “Oh Messenger of Allaah! If any of us saw a man on top of his wife, would he go looking for witnesses?” However, the Prophet (s.w.) repeated his demand for proof. Then angel Gabriel came and revealed to the Prophet (s.w.) the verse:

“As for those who accuse their wives and have no evidence but their own, their witness can be four declarations with oaths by Allaah that they are truthful and a fifth invoking Allaah’s curse on themselves if they are lying. But the punishment will be averted from the wife if she bears witness four times with oaths by Allaah that he is lying, and a fifth oath invoking Allaah’s curse on herself if he is telling the truth.” ((Soorah an-Noor (24): 6-9))

The same was the case of Islamic legislation found in the Sunnah, much of which was either the result of answers to questions, or were pronouncements made at the time that incidents took place. For example, on one occasion, one of the Prophet’s companions asked him,

“Oh Messenger of Allaah! We sail the seas and if we make Wudoo (ablutions) with our fresh water we will go thirsty. Can we make Wudoo with sea water?” He replied, “Its water is pure and its dead (sea creatures) are Halaal (permissible to eat).” ((Collected by at-Tirmidhee, an-Nasaa’ee, Ibn Maajah and Abu Daawood (Sunan Abu Dawud (English Trans.),p. 22, no. 38), an authenticated by al-Albaanee in Saheeh Sunan Abee Daawood, (Beirut: al-Maktab al-Islaamee, 1st ed., 1988), vol.1, p.19, no. 76.))

The reason for this method of legislation was to achieve gradation in the enactment of laws, as this approach was more easily acceptable by Arabs who were used to complete freedom. It also made it easier for them to learn and understand the laws since the reasons and context of the legislation would be known to them.

This method of gradual legislation was not limited to the laws as a whole, but it also took place during the enactment of a number of individual laws. The legislation of Salaah (formal prayers) is a good example of gradation in the enactment of individual laws. In the early Makkah period, Salaah was initially twice per day, once in the morning and once at night ((al-Madkhal, p. 74-8.)).

Shortly before the migration to Madeenah, five times daily Salaah was enjoined on the believers. However, Salaah at that time consisted of only two units per prayers, with the exception of Maghrib (sunset) prayers, which were three units. After the early Muslims had become accustomed to regular prayer, the number of units were increased to four for residents, except for Fajr (early morning) prayer and that of Maghrib ((See Sahih Al-Bukhari (Arabic-English), vol.1,p.214, no. 346)).

General Content of the Qur’aan

In Makkah, Muslims were an oppressed minority, whereas after their migration to Madeenah they became the ruling majority. Thus, the revelations of the Qur’aan during the two phases had unique characteristics which distinguished them from each other.

The Makkan Period (609-622 CE) – The Evolution of Fiqh

This period starts with the beginning of the prophet hood in Makkah and ends with the Prophets Hijrah (migration) to the city of Madeenah. The revelations of this period were mainly concerned with building the ideological foundation of Islaam, Eemaan (faith), in order to prepare the early band of converts for the difficult task of practically establishing the social order of Islaam. Consequently the following basic topics of the Makkan revelations all reflect one aspect. Or another of principles designed to build faith in God.

(i)         Tawheed (Allaah’s Unity)

Most of the people of Makkan believed in a Supreme Being known by the name “Allaah” from the most ancient of times. However, they had added a host of gods who shared some of Allaah’s powers or acted as intermediaries. Accordingly, Makkan revelations declared Allaah’s unique unity and pointed out that gods besides Allaah are no benefit.

(ii)        Allaah’s Existence – The Evolution of Fiqh

Some of the early verses presented logical arguments proving the existence of God for the few Makkans who actually denied it.

(iii)       The Next Life

Since there was no way for human beings to know about the next life, the Makkan revelations vividly described its wonders, its mysteries and its horrors.

(iv)       The people of God

The Makkan verses often mentioned historical examples of earlier civilizations which were destroyed when they denied their obligation to God, like the ‘Aad and the Thamood, in order to warn those who rejected the message of Islaam and to teach the believers about the greatness of Allaah.

(v)        Salaah (Formal Prayer)

Because of the critical relationship between Salaah and Tawheed, Salaah was the only other pillar of Islaam to be legislated in Makkah, besides the declaration of faith (Tawheed).

(vi)       Challenges

In order to prove to the pagan Makkans that the Qur’aan was from God, some of the Makkan verses challenged the Arabs to imitate the style of the Qur’aan.21

The Madeenan Period (622-632 CE) – The Evolution of Fiqh

The Hijrah marks the beginning of this period and the death of the Prophet (s.w.) in 632 CE marks the end. After the Prophet’s migration to Madeenah and the spread of Islaam there, he was appointed as the rular, and the Muslim community became a fledgling state. Thus, revelation was concerned primarily with the organization of the Muslim State.

And it was during this period that the majority of the social and economic laws of the Sharee’ah were revealed. Revelations during this period also strengthened the foundations of Eemaan and Tawheed, which were established during the Makkan period. However, most of the following basic topics of the Madeenan revelations concentrate on the laws necessary for the development of an Islamic nation.

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