USUL AL FIQH AL ISLAMI: SOURCE METHODOLOGY IN ISLAMIC JURISPRUDENCE


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  • USUL AL FIQH AL ISLAMI: SOURCE METHODOLOGY IN ISLAMIC JURISPRUDENCE


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    CHAPTER THREE

    LEGISLATION AFTER THE TIME OF THE SAHABAH

    The time of the Sahabah
    came to an end between 90-l00 AH, and was followed by the time of the Tabi'un whose scholars became responsible
    for Fiqh and giving Fatawa. The last of the Sahabah in Kufah died in 86 or 87 AH. The
    last one in Madinah, Sahl ibn Sa'd al Sa'idi, died in 91 AH. The last one in
    Basrah, Anas ibn Malik, died in 91 AH (some say 93 AH). The last one in
    Damascus, 'Abd Allah ibn Yusr, died in 88 AH. The last one of the Sahabah, 'Amir ibn Wathilah ibn 'Abd
    Allah (Abu Tufayl), died in 100 AH.

    Thereafter, those who became responsible for
    issuing Fatawa were the freed
    men Mawali, most of whom had
    lived with the Fuqaha' among
    the Sahabah, such as: Nafi',
    the freed man of Ibn 'Umar; 'Ikramah, the freed man of Ibn 'Abbas; 'Ata' ibn
    Rabah, the Faqih of Makkah; Tawus, the Faqih of the people of Yemen; Yahya ibn
    Kathir, the Faqih of Yamamah; Ibrahim al Nakha'i, the Faqih of Kufah; Hasan al
    Basri, the Faqih of Basrah; Ibn Sirin, also of Basrah; 'Ata' al Khurasani in
    Khurasan, and others. Indeed, Madinah was unique in having a Faqih from Quraysh, Sa'id ibn al
    Musayyab.

    These Tabi'un
    very rarely altered the Fatawa
    of the Sahabah from whom they
    had gained their knowledge; hence it is difficult to find differences between
    their methods of deriving judgements and those of their predecessors. Even so,
    the methods of deriving judgements were, at this stage, starting to evolve and,
    in the process, to become clearer than ever before.

    It is narrated that Hasan
    ibn 'Ubayd Allah al Nakha'i said: "I asked Ibrahim al Nakha'i: 'Did you
    hear from others all the Fatawa
    which I hear you giving?' He said, 'No.' I asked him: 'Then you give Fatawa that you did not hear?' He said:
    'I heard what I heard; but when I was confronted with matters concerning which
    I had not heard anything, I compared them, by analogy, with matters which I had
    heard about.'"31

    Among the significant features of this period was
    the emergence of differences of opinion between legal scholars on a variety of
    matters. This was underscored by two decisions taken by the Khalifah of the times, 'Umar ibn 'Abd al
    'Aziz.

    1. He ordered that practices attributed to the
    Prophet (PBUH) should be collected and written down. Accordingly, the people of
    every locality wrote down in books whatever they knew to be a part of the
    Sunnah32.

    2.He restricted the authority to issue Fatawa, in most districts, to a few named
    individuals, as he did in Egypt, when he named only three people for this
    purpose. Interestingly, two of them were freedmen, Yazid ibn Abu Habib and Abd
    Allah ibn Abu J'afar, and the third was an Arab, Ja'far ibn Rabi'ah. When the Khalifah was questioned about appointing
    two freedmen and only one Arab, he answered : "What fault is it of mine if
    the freedmen are improving themselves and you are not?"33

    In his letter to Abu Bakr Muhammad ibn 'Amr ibn
    Hazm al Ansari, the Khalifah
    explained his reasons for ordering that the practices attributed to the Prophet
    (PBUH) should be written down. He wrote: "Look for whatever Hadith of the
    Prophet (PBUH), or Sunnah, or practice you can find. Then write these down for
    me; for I fear that this knowledge will pass away with the passing of the
    scholars."34

    AFTER THE TABI'UN: THE
    TIME OF THE MUJTAHID IMAMS

    This period was described by Wali Allah al Dahlawi
    as follows:

    "The Fuqaha'
    of the period took the Hadith of the Prophet (PBUH), the decisions of the early
    judges, and the legal scholarship of the Sahabah,
    the Tabi'un and the third
    generation, and then produced their own Ijtihad."

    This was the way the legal scholars of those times
    worked. Basically, all of them accepted both the Musnad35
    as well as the Mursal36
    Hadith."

    Moreover, it became their
    practice to cite the opinions of the Sahabah
    and Tabi'un as evidence.
    Essentially, there were two reasons for this:

    1.  Such opinions were actually Hadith of the
    Prophet (PBUH) which had been narrated by one of the Sahabah or the Tabi'un who had, for fear of misquoting,
    not dared to attribute the Hadith to the Prophet (PBUH).

    2. The other likelihood is that such opinions were
    derived by the Sahabah from the
    texts of Hadith, and represented their own understanding of the Sunnah.

    In this respect, of course, the Sahabah were better than those who came
    later, because they had known the Prophet (PBUH), and were thus more capable of
    interpreting what he had said. Therefore, their judgements and opinions were
    accepted as authoritative, except in cases where they themselves differed, or
    where their pronouncements were in clear contradiction to sound Hadith of the
    Prophet (PBUH).

    On the other hand, in cases where two or more
    Hadith conflicted, the scholars would refer to the opinions of the Sahabah in order to determine which of
    the two Hadith was the correct one. Thus, if the Sahabah said that a Hadith had been abrogated, or was not to
    be understood literally; or if they did not expressly say anything about a
    Hadith, but had ignored it, and had not acted in conformity with it, thus
    indicating that the Hadith was in some way defective, or that it had been
    abrogated, or that its interpretation was other than the literal, then the Mujtahid Imams would accept their
    opinions.

    When the pronouncements of the Sahabah and Tabi'un differed on any matter, then each Faqih would follow the rulings of those
    from the same region as himself, and his own teachers, because he would be more
    able to discern the authenticity, owing to his familiarity with the narrators,
    of the opinions and sayings that reached him on their authority. Likewise, the Faqih would be better acquainted with
    their legal methodology.

    The legal school of thought based on the opinions
    of 'Umar, 'Uthman, Ibn 'Umar, 'A'ishah, Ibn Abbas and Zayd ibn Thabit, and
    their companions from among the Tabi'un, like Sa'id ibn al Musayyab (d 93 AH),
    'Urwah ibn Zubayr (d 94), Salim (d 106), Ata' ibn Yasar (d 103), Qasim ibn
    Muhammad (d 103), 'Ubayd Allah ibn 'Abd Allah (d 99), al Zuhri (d 124), Yahya
    ibn Sa'd (d 143), Zayd ibn Aslam (d 136) and Rabi'at al Ra'i (d 136), was the
    school most acceptable to the people of Madinah. It was for this reason that
    Imam Malik based his legal arguments on their teachings.

    In the same way, the legal opinions of 'Abd Allah
    ibn Mas'ud and his companions, the judgements of the Khalifah 'Ali, Shurayh (d 77), and al
    Sha'bi (d 104), and the Fatawa
    of Ibrahim al Nakha'i (d 96) were the most acceptable to the people of Kufah.

    Commenting on this phenomenon, Wall Allah al
    Dahlawi wrote:

    When Masruq (d 63 AH) followed Zayd ibn Thabit's
    opinion concerning sharing out the inheritance between the grandfather and the
    brothers [of the deceased], 'Alqamah (d 62) asked him, "Is any of you more
    knowledgeable than Abd Allah (ibn Mas'ud)?"

    Masruq answered, "No, but Zayd ibn Thabit and
    the people of Madinah share the inheritance between the grandfather and the
    brothers..."

    Thus, if the people of Madinah agreed on a matter,
    the scholars of the generation following the Tabi'un
    adopted it resolutely. This is what Malik meant when he said: 'The Sunnah
    concerning which we, the people of Madinah, have not differed is
    such-and-such.'

    If the early scholars at Madinah had differed
    concerning any matter, the later scholars would follow those opinions which
    were stronger and more dependable either by virtue of their having been adopted
    by a majority of the early scholars, or of their having been the result of
    sound legal analogy, al Qiyas,
    or which were derived from some text in the Qur'an or the Sunnah. It is to this
    process that Malik refers when he says: 'This is the best that I have heard.'
    Then, if the later scholars could find no solution to a problem in the work of
    their predecessors, they would themselves turn to the relevant texts in order
    to formulate their own legal opinions.

    At this stage, the scholars were inspired to start
    recording things in writing. So Malik (d 179) in Madinah, Ibn Abu Dhi'b (d
    158), Ibn Jurayj (d 150?) and Ibn 'Uyaynah (d 196) in Makkah, al Thawri (d 161)
    in Kufah, and Rabi' ibn Subayh (d 160) in Basrah, began to write things down,
    and they all followed the same method.

    When the Khalifah,
    Mansur, performed Hajj and met
    al Imam Malik, he said: 'I have decided to order that copies be made of these
    books which you have written. I will send a copy to every region of the Muslim
    world and order the scholars to act in accordance with them and not refer to
    any other works.'

    Malik said '0 Amir al Mu'minin, do not do that!
    Already the people have heard different legal opinions, and listened to Hadith
    and narrations; and they have accepted whatever reached them first, so that
    this has contributed to differences in the prevailing practices among people.
    Leave the people of each town with the choice they have already made.'

    The same story is told with reference to the Khalifah, Harun al Rashid, that he wanted
    to obligate the people to follow the Muwatta.'

    But Malik said to him: 'Do not do that, for the Sahabah of the Prophet used to differ on
    the Sunnah. Then they scattered and settled throughout the Muslim world; and
    now their different ways are firmly established.'

    ... Malik was the most knowledgeable about the
    Hadith related by the people of Madinah from the Prophet (PBUH), and Malik's
    chains of narrators were the most reliable. He was also the most knowledgeable
    about the judgements of 'Umar and the legal pronouncements of 'Abd Allah ibn
    'Umar and 'A'ishah and their companions from among the seven Fuqaha'. The sciences of Hadith narration
    and Fatawa were based on the
    knowledge of Malik and those like him.

    Abu Hanifah was the most devoted to the legal
    interpretations of Ibrahim al Nakha'i and his colleagues, and would very rarely
    transgress their arguments. He was excellent at producing decisions based on
    Ibrahim's method, exact in employing that methodology in order to deal with
    details of case law.

    If you wish to know the truth about what we have
    stated, then summarize the teachings of Ibrahim and his cohorts as recorded in
    the following works: Al Athar
    "Traditions" by Muhammad al Shaybani, the Jami' "The Compendium" of Abd al Razzaq and the Musannaf "Compilation' of Ibn Abu
    Shaybah, and compare them with Abu Hanifah's formal opinions. Indeed, you will
    find that Abu Hanifah departs only rarely from their way, and even then his
    opinion will not differ from the opinions of the jurists of Kufah."37

    In fact, al Dahlawi's comments need to be
    considered. He was very eager to stress that al Imam Malik and Abu Hanifah, and
    their companions, were more or less conforming to the opinions of the Tabi'un and the Sahabah before them (as opposed to
    generating their own Ijtihad), and had not transcended the jurisprudence of
    their predecessors. This, however, is a conclusion with which it is difficult
    to agree.

    It is well known that there are various approaches
    to Fiqh; and each of the Imams adopted a different approach to the subject. It
    is not a simple matter to claim that these were drawn from the Sahabah and the Tabi'un. Consider, for example, Malik's
    taking the customs and practices of the people of Madinah as a (secondary)
    source for legislation; or Abu Hanifah's use of al Istihsan and al 'Urf.38

    Moreover, neither of them based their arguments on
    the Fatawa of the Tabi'un, but
    rather competed with them, saying: "They were men [of knowledge] and so
    are we."

    In addition, unlike anyone before them, each had
    laid down his own set of conditions for accepting Hadith as authentic.

    Moreover, the incidence of an increased circulation
    of Hadith in those times, in addition to the appearance of Hadith that had
    never been circulated at all, led, in some cases, to legal rulings and
    positions quite different from those held by the Sahabah.

    RATIONALISTS AND TRADITIONISTS:
    AHL AL HADITH AND AHL AL RA'I

    Perhaps this truth may become all the more
    intelligible when we mention the emergence of two informal schools of legal
    thought, the rationalists or Ahl al Ra'i,
    and the traditionists or Ahl al Hadith,
    and the appearance of differences between them concerning both source
    methodology, and issues of case law. While it is true that both of these
    schools had their roots in the approaches of the preceding two generations, it
    was at this time that their differences in matters of Fiqh become clear; and it
    was at this time that people began grouping themselves on the basis of their
    differences in deriving legal points from the sources.

    Writers on Islamic legal history emphasize that the
    rationalist school of Ahl al Ra'i
    was an extension of the school of 'Umar and Abd Allah ibn Mas'ud who, among the
    Sahabah, were the most
    wide-ranging in their use of Ra'y
    (lit. opinion). In turn, 'Alqamah al Nakha'i (d. 60 or 70 AH), the uncle and
    teacher of Ibrahim al Nakha'i, was influenced by them. Ibrahim then taught
    Hammad ibn Abu Sulayman (d 120 AH) who, in turn, was the teacher of Abu
    Hanifah.

    The same historians stress that the traditionist
    school of Ahl al Hadith was a
    continuation of the school of those Sahabah whose fear of contradicting the
    letter of the source texts Nusus
    made them circumspect to the point where they never went any further than the
    texts. This was the case, by and large, with 'Abd Allah ibn 'Umar ibn al
    Khattab, 'Abd Allah ibn 'Amr ibn al 'As, al Zubayr, and 'Abd Allah ibn 'Abbas.

    The school of Ahl
    al Hadith
    became widespread in the Hijaz for many reasons, of which
    perhaps the most important were the great number of Hadith and other narrations
    known to the people of that area, and the fact that the region was more stable
    after the seat of the Khilafah
    had been moved, and most of the political activity had been transferred, first
    to Damascus, then to Baghdad. The Imam of Madinah, Sa'id ibn al Musayyab (d 94
    AH), once noted that the people of Makkah and Madinah had not lost much of the
    Hadith and Fiqh, because they were familiar with the Fatawa and reports of Abu Bakr, 'Umar,
    'Uthman, 'Ali (before he became Khalifah),
    'A'ishah, Ibn Abbas, Ibn 'Umar, Zayd ibn Thabit and Abu Hurayrah, and thus did
    not need to use Ra'i in order
    to derive law.

    The school of Ahl
    al Ra'i
    , on the other hand, gained currency in Iraq. The scholars
    of this group thought that legal interpretations of the Shari'ah should have a
    basis in reason, should take into account the best interests of the people, and
    should be backed by discernable wisdom. Indeed, these scholars felt it their
    duty to uncover these meanings and the wisdom behind the laws, and to make the
    connection between them; so that if the reasons for any law were to lose
    relevance with the passing of time and the changing of circumstances, the law
    would no longer be valid. If they found the reasons behind the law, they would
    sometimes prefer to cite arguments based on an analytical treatment of those
    reasons. Thus, in many cases, reason would be accorded legalistic preference
    when such reasoning conflicted with the evidence of certain categories of
    Hadith.

    The spread of this method in Iraq was helped by the
    numbers of Sahabah influenced
    by the methods of 'Umar. Among them were Ibn Mas'ud, Abu Musa al Ash'ari,
    'Imran ibn Husayn, Anas ibn Malik, Ibn Abbas and others. The spread was also
    assisted by the transfer of the Khilafah
    to Iraq, and the settling there of 'Ali and his supporters.

    When the sects, like the Shi'ah and Khawarij, appeared in Iraq, conflict arose and the
    fabrication of Hadith became widespread39.
    Consequently, the legal scholars of Iraq were forced to lay down conditions for
    the acceptance of Hadith, according to which only a few of the reports given by
    the Sahabah living in Iraq were
    acceptable. Moreover, the great number of legal problems and the constant
    increase in unprecedented legal issues in that area were more than could be
    dealt with on the basis of reliable Hadith.

    So, it was in this way that the Ummah, those who
    had not become involved with either the Shi'ah
    or the Khawarij, was divided
    into two groups, Ahl al Hadith
    and Ahl al Ra'i; and the
    conflict between them intensified.

    Thus, Ahl al
    Ra'i
    often used to criticize Ahl
    al Hadith
    for having little intelligence and less
    Fiqh-understanding; while Ahl al Hadith
    claimed that the opinions of Ahl al Ra'i
    were based on no more than conjecture, and that they had distanced themselves from
    the necessary circumspection in those matters of religious significance which
    could only be ascertained through recourse to the source-texts.

    In fact, Ahl al
    Ra'i
    agreed with all Muslims that once a person has clearly
    understood the Sunnah, he may not reject it in favour of what is no more than
    someone's opinion. Their excuse in all those cases in which they were
    criticized for contradicting the Sunnah is simply that they did not know any
    Hadith concerning the matter in dispute, or that they did know a Hadith but did
    not consider it sound enough owing to some weakness in the narrators or some other
    fault they found in it (a fault which perhaps others did not consider to be
    damaging), or that they knew of another Hadith which they considered sound and
    which contradicted the legal purport of the Hadith accepted by others.

    Moreover, Ahl
    al Hadith
    agreed with Ahl al
    Ra'i
    on the necessity of having recourse to reason whenever a
    matter occurs for which there is no specific ruling in the source texts. Still,
    in spite of these areas of agreement, the conflict and tension between the two
    groups remained acute.

     

     

     

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