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.