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 TWO

    THE SAHABAH WHO GAVE FATAWA DURING THE PROPHET'S LIFETIME

    The Sahabah who gave Fatawa in the Prophet's lifetime were: Abu Bakr, 'Uthmtan,
    'Ali, 'Abd al Rahman ibn 'Awf, Abd Allah ibn Mas'ud, Ubay ibn Kab, Mu'adh ibn
    Jabal, Ammar ibn Yasir, Hudhayfah ibn al Yaman, Zayd ibn Thabit, Abu al Darda,
    Abu Musa al Ash'ari and Salman al Farisi, may Allah be pleased with them.

    Some Sahabah
    gave more Fatawa than others. Those who gave the most Fatawa were: 'Aishah Umm
    al Mu'minin, 'Umar ibn al Khattab and his son Abd Allah, 'Ali ibn Abu Talib,
    Abd Allah ibn Abbas and Zayd ibn Thabit. The Fatawa
    given by any one of these six would fill a great volume. For example, Abu Bakr
    Muhammad ibn Musa ibn Ya'qub ibn al Khalifah Ma'mun collected the Fatawa of Ibn Abbas in twenty volumes.

    Those from whom a lesser number of Fatawa were narrated are: Umm Salmah Umm
    al Mu'minin, Anas ibn Malik, Abu Sa'id al Khudri, Abu Hurayrah, 'Uthman ibn
    'Affan, Abd Allah ibn Amr ibn al 'As, 'Abd Allah ibn Zubayr, Abu Musa al
    Ash'ari, Sa'd ibn Abu Waqqas, Salman al Farisi, Jabir ibn Abd Allah, Mu'adh ibn
    Jabal and Abu Bakr al Siddiq. The Fatawa
    of each of these thirteen would fill only a small part of a book.

    To this list can be added Talhah, al Zubayr, 'Abd
    al Rahman ibn Awf, 'Imra-n ibn Husayn, Abu Bakrah, 'Ubadah ibn al Samit and
    Mu'awiyah ibn Abu Sufyan. The rest gave only a few Fatawa, and only one or two, in some instances more, have
    been transmitted from any of them. Their Fatawa
    could be collected into a small volume, but only after much research and
    sifting through texts18.

    In preparing their Fatawa the Sahabah
    used to compare the particulars of events that had happened to them with
    similar matters for which judgments had been given in the texts of the Qur'an
    and the Sunnah. In thus referring the matter to the sources, they employed the
    method of looking for the meaning and legal significance through examination of
    the text's literal wording, its implications, and any other relevant details.

    Having arrived at a decision, they would then
    explain to others how they had adduced the arguments that led them to their
    judgments, whether these had been derived from the letter of the text or from
    its spirit, and the people would follow them. Indeed, these early Muslim
    jurists never stopped researching a question until they reached a decision they
    felt certain of, and until they were completely satisfied that they had done
    their best and could do no more.

    THE ERA OF THE GREAT
    SAHABAH

    After the time of the Noble Prophet (PBUH) came the
    era of the Great Sahabah and
    the Rightly Guided Caliphs Khulafa'
    Rashidun
    . This period lasted from 11 to 40 AH. The Reciters Qurra' was the term used at the time to
    denote those Sahabah who had a
    good understanding of Fiqh and
    gave Fatawa.

    THE TIME OF ABU BAKR AL
    SIDDIQ

    Maymun ibn Mahran summed up Abu Bakr's method of
    arriving at legal judgments as follows:

    Whenever a dispute was
    referred to him, Abu Bakr used to look in the Qur'an; if he found something
    according to which he could pass a judgment, he did so. If he could not find a
    solution in the Qur'an, but remembered some relevant aspect of the Prophet's
    Sunnah, he would judge according to that. If he could find nothing in the
    Sunnah, he would go and say to the Muslims: 'Such and such a dispute has been
    referred to me. Do any of you know anything in the Prophet's Sunnah according to
    which judgment may be passed?'. If someone was able to answer his question and
    provide relevant information, Abu Bakr would say: 'Praise be to Allah Who has
    enabled some of us to remember what they have learnt from our Prophet.' If he
    could not find any solution in the Sunnah, then he would gather the leaders and
    elite of the people and consult with them. If they agreed on a matter then he
    passed judgment on that basis.19

    If all the methods mentioned above failed to
    produce any result, then he would make Ijtihad and form his own opinion, either
    by interpreting a text in such a way as its legal implications became apparent,
    or by exercising his own legal acumen.

    An example of Ijtihad of the first kind was when he
    was asked about the Kalalah. In
    response, Abu Bakr said: "My opinion, if it is correct, then it is from
    Allah, and if it is wrong, then it is from myself and from the Shaytan. The Kalalah is one who has neither ascendants nor
    descendants."20

    Another example of the same was the instance when
    'Umar mentioned to him the following Hadith of the Prophet (PBUH): "I have
    been commanded to wage war against people until they say that there is no god
    but Allah..."21,
    and Abu Bakr said, "Zakah
    is a part of it."22

    When Abu Bakr wanted to wage war against those who
    were withholding Zakah, 'Umar
    cited this Hadith to show that fighting them was not permitted, because the
    Prophet had said: "...until they say that there is no god but Allah. Then,
    if they say this, their blood and their wealth will be spared by me, except
    where due by right (ie. unless they do acts that are punishable in accordance
    with the Shari'ah of Islam).

    According to 'Umar, these acts were: adultery,
    murder, and apostasy; since withholding Zakah
    was not expressly mentioned by the Prophet (PBUH). But Abu Bakr said to him:
    "Zakah is a part of it. By
    Allah, I would fight anyone who performed Salah
    but did not pay Zakah! If
    anyone were to withhold from me even the smallest amount they used to pay to
    the Prophet, I would go to war with them over it."

    An example of the second type of Ijtihad was when
    he decided that the mother's mother may inherit, but the father's mother may
    not.

    Some of the Ansar said to him: "You allow a
    woman to inherit from the deceased, while he would not inherit from her if she
    were the deceased. And you have left with nothing the woman from whom he would
    inherit were the situation reversed." Abu Bakr then decided that both
    maternal and paternal grandmothers would share one-sixth of the inheritance.

    Another example is his judgment that everyone
    should receive an equal share from the public treasury. 'Umar asked him:
    "How can you consider one who entered Islam with misgivings to be equal to
    one who left his home and wealth behind, and migrated to be with the
    Prophet?" Abu Bakr, however, insisted that: "They all entered Islam
    for the sake of Allah, and their reward is with Him; this world is
    nothing." when, however, 'Umar became the Khalifah, he differentiated between people and paid the
    "stipend" according to how early each person had entered Islam,
    whether they had migrated, and how much they had suffered for the sake of
    Islam.

    Another example of Abu Bakr's exercise of Ijtihad
    was when he compared the appointment by the Khalifah
    of his own successor, to the appointment by means of Bay'ah. Thus, he appointed 'Umar to be
    the Khalifah after him, and the
    Sahabah agreed with him.

    Khalid ibn al Walid wrote to Abu Bakr, telling him
    that in some areas of the Arabian Peninsula he had found men engaging in
    homosexual practices. Abu Bakr decided to consult the Sahabah of the Prophet (PBUH) as to what
    he should do about it. One of the Sahabah
    was 'Ali, and his was the strictest judgment.

    He said, "his sin was known only in one
    nation, and you know what Allah did to them. I suggest that these people should
    be burnt to death."

    Abu Bakr wrote back to Khalid to tell him that they
    should be burnt to death; and this was done.23

    SPECIAL FEATURES OF
    FIQH IN THE PERIOD

    a. The use of al
    Qiyas
    was widespread in cases where there was no relevant text in
    the Qur'an or Sunnah and none of the Sahabah
    objected to this.

    b.Al Ijma' was also widely used as
    a basis for judgment. This was facilitated by the fact that the Sahabah were few, and it was easy for
    them to agree amongst themselves. They used al
    Ijma'
    in many cases; for example, their decisions that the Khalifah or Imam should be appointed,
    that apostates should be fought and killed, that an apostate could not be taken
    as a prisoner of war, and that the Qur'an should be collected and written down
    in one volume.

    THE TIME OF 'UMAR IBN
    AL KHATTAB

    'Umar's recommendations to the judge, Shurayh, as
    mentioned above, explain his way of deriving judgments from the available
    evidence. The most noticeable feature of 'Umar's methodology, however, is the
    fact that he often consulted the Sahabah
    and discussed matters with them so as to reach the best understanding and find
    the most appropriate way to carry out judgments. In his approach to questions
    of legalities, 'Umar was like a shrewd and cautious chemist whose intent is to
    produce medicine that will cure disease without causing adverse side effects.

    As a result, 'Umar left us a great wealth of
    jurisprudence. Ibrahim al Nakha'i (d.97 AH) said that when 'Umar was martyred,
    "nine-tenths of all knowledge disappeared with him.24

    Ibn Mas'ud said of him, "whatever path 'Umar
    chose, we found it easy to follow."25

    'Umar's understanding was comprehensive and he was possessed
    with good common sense. Thus, he was quick to relate the particular to the
    general, and could pursue the ramifications of an issue back to basic
    principles in order to see its wider implications. This is how he was during
    the time of the Prophet (PBUH) and Abu Bakr, and he did not change when he
    himself became the Khalifah.

    'Umar learnt a great deal from the Prophet (PBUH).
    He often noticed that the Prophet would refrain from issuing an order to the
    people to do something good, although he wanted to do so, because he did not
    want to subject them to hardship. He (PBUH) often used to say: "If it were
    not that I am afraid to impose hardship on my Ummah, I would have commanded
    them to do... such and such."26

    Sometimes he would forbid them to do certain
    things, and then, when he saw that the reason for forbidding them was no longer
    valid, he would lift the ban. On other occasions, he would be about to forbid
    something, and they would tell him of the hardship and distress that such a
    prohibition would cause them, so he would refrain from it so as to protect them
    from hardship.

    'Umar saw how the Prophet (PBUH), whenever he was
    faced with a choice between two things, would always choose the easier of the
    two; and this had a great effect on 'Umar. Indeed, he well understood that the
    Shari'ah has purposes and aims which must be discerned and considered; and that
    there are grounds for, and reasons behind, these judgments; some of which are
    made clear in the primary texts while others are only alluded to. He felt it
    the duty of scholars to discover those reasons which are not specified in the
    texts, so that legal judgments may be applied to new issues and developments,
    and everything brought under the judgment of Allah so that people will not
    become accustomed to seeking remedies and legal rulings on their problems
    outside the law of Allah.

    Hence, when we look at 'Umar's practice of Ijtihad,
    we will find clear methods of arriving at judgments. Anyone who studies his Fatawa will readily see that the
    reasoning behind them is based on the public interest, on taking precautions to
    prevent wrong-doing or to combat corruption, and on adopting the easiest and
    most expedient course under the law.

    'Umar, for example, declared some judgments invalid
    because the reasons for enforcing them no longer applied, or because some of
    the conditions for following them no longer prevailed. Among those judgments:
    his request to the Prophet (PBUH) that the prisoners of the battle of Badr should be killed; his suggestions
    about Hijab, and that the
    Prophet (PBUH) should not tell the people that whoever said "there is no
    god but Allah" would enter Paradise, in case they relied only on that and
    made no further effort; his suggestion to Abu Bakr that he should no longer
    give an extra share from the public treasury to those who had recently embraced
    Islam; and his decision not to share out the conquered land among the army.

    THE TIME OF UTHMAN IBN
    'AFFAN

    When allegiance was given to 'Uthman, it was done
    on the condition that he work in accordance with the Book of Allah, the Sunnah
    of His Prophet, and the precedent set by the first two Khulafa'. This, he promised to do. 'Ali,
    however, indicated that when he became Khalifah
    he would be prepared to work according to the Book of Allah and the Sunnah of
    His Prophet, and then to do the best that his own knowledge and energy would
    allow. Because 'Uthman showed that he was willing to undertake to work in
    accordance with the precedents set by the first two Khulafa' he was supported by Abd al Rahman, who had the
    casting vote. Thus, a third source of legislation, the precedent set by the
    first two Khulafa'; was added
    at the time of the third Khalifah,
    and was approved by him.

    Since 'Ali had reservations about this, when he
    himself became the Khalifah he
    acted according to his own Ijtihad in matters for which the earlier Khulafa' had already produced Ijtihad.
    For example, 'Ali reconsidered the issue of whether slave women who had
    begotten children for their masters could be sold.

    'Uthman ibn Affan was one of the Sahabah who did not produce a great
    number of Fatawa, probably
    because most of the matters he came across had already been dealt with by Abu
    Bakr and 'Umar, and he preferred to adopt their opinions. But in some cases, he
    had to make Ijtihad, just as his predecessors had done. Once, before 'Uthman
    had become Khalifah, 'Umar
    asked him about a legal matter. In reply, 'Uthman said: "If you follow
    your own opinion, that will be right. But, if you follow the opinion of the Khalifah before you (i.e. Abu Bakr), that
    is better, because he was so good at passing judgment!"

    He also performed his own Ijtihad when, during the Hajj, he did not shorten Salah in Mina; though certainly it is
    permitted to do so. There are two possible explanations for this: the first is
    that he had been married at Makkah, and thought that the people of Makkah were
    not permitted to shorten their Salah
    in Mina; the second explanation is that he was afraid that some bedouins might
    be confused when they watched him do so, and so he did not.

    'Uthman also formulated the Ijtihad that all people
    should read the Qur'an according to Zayd's way of recitation, because he
    thought that this was the most sound, and the most likely to forestall the
    occurrence of disagreements.

    THE TIME OF 'ALl IBN
    ABU TALIB

    'Ali was like 'Umar ibn al Khattab in the way he
    understood and applied the texts of the Qur'an and in his deep concern with
    linking particular issues to general principles. Prior to his assuming the
    office of Khalifah, he was
    considered the best judge in Madinah.

    When the Prophet (PBUH) appointed 'Ali judge in
    Yemen, he (PBUH) prayed for him, saying: "0 Lord! Guide his heart and make
    him speak the truth." Indeed, 'Ali proved to be an excellent judge, and
    resolved many difficult cases.

    'Ali described his own knowledge by saying:
    "By Allah, no verse of the Qur'an was ever revealed except that I knew
    concerning what it was revealed, and where and why it was revealed. My Lord has
    bestowed upon me a heart that is understanding and a tongue that is
    articulate."

    Whenever a matter was referred to Ali for judgment,
    he would accept it without hesitation. And if he was asked to give a Fatwa, he would do so by citing from the
    Book of Allah, and then the Sunnah of the Prophet (PBUH). Indeed, the extent of
    his knowledge of the Qur'an and Sunnah was very well known.

    'A'ishah said: "In regard to the Sunnah of the
    Prophet (PBUH), he was the most knowledgeable of all people."

    'Ali used to formulate his own opinion by means of
    Ijithad based on al Qiyas, al Istishab27,
    al Istihsan28
    and al Istislah29,
    always basing his opinion on the broader aims of the Shari'ah. when consulted
    concerning a possible increase in the Hadd-punishment
    for one found guilty of drinking alcohol, he compared drunkenness to the false
    basis that drunkenness could lead a person to make such an accusation.

    During his Khilafah,
    'Umar consulted 'Ali concerning the punishment of a group of people who jointly
    conspired to commit premeditated murder. 'Ali said, "0 Commander of the
    Faithful! If a group of people joined together in stealing, would you not cut
    one hand off of each of them?" when 'Umar replied in the affirmative, 'Ali
    said, "Then the same applies in this case." Consequently, 'Umar
    uttered his famous saying: "If all the citizens of San'a were to join
    together in murdering one man, I would execute the lot of them."

    The analogy between murder and robbery was made
    because in each case there is a criminal motive shared between all who commit
    these acts, and it is this which requires rebuke and deterrent punishment.

    Moreover, 'Ali preferred to burn alive those
    overzealous apostates and heretics who defied him, although he was well aware
    that the Sunnah ruling was merely to put such disbelievers and apostates to
    death. In this ruling, 'Ali showed himself keen to establish the strictest
    possible deterrent from the worst kinds of apostasy, because he considered this
    to be a very serious matter. Thus, he established the harshest punishment for
    such an act, so as to deter people from committing it. Moreover, to emphasize
    this, he recited the following verses of poetry extemporaneously:

    "when I realized how
    grievous the matter was, I lit my bonfire and called for Qanbar."

    Once 'Umar heard of a woman whose husband was away
    on a military expedition, and who was receiving strangers in her home. He
    therefore decided to send a messenger to her that she should not receive
    strangers while her husband was absent. when the woman heard that the Khalifah wanted to speak to her, she
    became fearful and, as she was pregnant, she miscarried the child on her way to
    see 'Umar.

    'Umar, greatly disturbed by what had occurred,
    consulted the Sahabah about the
    matter. Some of them, including 'Uthman ibn 'Affan and 'Abd al Rahman ibn 'Awf,
    assured him: "You were merely attempting to educate her; you have done
    nothing wrong."

    Then 'Umar turned to 'Ali, asking his opinion. 'Ali
    replied, "These men have spoken, and if this is the best opinion they can
    come up with, then fair enough. But, if they have spoken only to please you,
    then they have cheated you. I hope that Allah will forgive you for this sin,
    for He knows that your intention was good. But, by Allah, you should pay compensation
    for the child."

    'Umar said, "By Allah, you have spoken
    sincerely to me. I swear that you should not sit down until you have
    distributed this money among your people."

    THE FUQAHA' AMONG THE
    SAHABAH AND THE TABI'UN

    This period is considered to have begun with the
    passing of the period that preceded it, in 40 AH, when the period of the
    "Rightly Guided" Caliphs ended. Thus began a new era, that of the Fuqaha' from among the Sahabah and the elder Tabi'un. Legislation at this stage was
    still very much as it had been during the previous stage, as the sources of
    that legislation, ie. the Qur'an, the Sunnah, al Ijma' and al Qiyas,
    remained the same. Nonetheless, legislation at this stage differed in many
    aspects from what had gone before.

    Among the more significant changes were the
    following:

    1. Scholars had become more interested in delving
    into what lay beyond the explicit meanings of the texts.

    2.Their ways of dealing with the Sunnah underwent
    a great deal of change. Essentially, this difference was the outcome of
    political differences that accompanied the emergence of various sectarian and
    philosophical factions, such as the Shi'ah
    and Khawarij, whose attitude to
    the Sunnah was different. The Shi'ah
    refused to accept Hadith which were not narrated by their own followers; and
    the Khawarij refused to accept
    Hadith if, anywhere in the chain of the Hadith's narrators there was no more
    than a single narrator30.
    The Khawarij also rejected all
    Hadith not supported by a text from the Qur'an.

    3.Owing to the divisions which had arisen, al Ijma' was no longer a possibility in
    this period. Basically, this was because every group mistrusted the scholars of
    every other group, and would no longer accept any of their opinions, whether
    they agreed or disagreed with them. In addition, the Fuqaha' from among the Sahabah had become scattered all over the
    Islamic world, so that it was no longer possible for them to meet in order to
    discuss matters.

    4. Also in this period, the narration of Hadith and
    Sunnah became popular, whereas this had not previously been the case.

    5.The fabrication of Hadith, for many well-known
    reasons which we do not need to discuss here, became widespread. In this
    respect, Muslim reported that Ibn Abbas said: "We used to narrate many
    Hadith from the Prophet (PBUH) without ever having to worry about fabrication.
    But when people started to be careless in narrating things attributed to the
    Prophet, we stopped narrating Hadith."

     

     

     

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