Shariah,
Fiqh and the Sciences of Nature - Part 1
By Professor Nazeer
Ahmed
California, US
In the dialogue between Islam and other civilizations,
the role of the Shariah takes center stage. At
a recent conference of Islamic scholars in Jakarta,
Indonesia, an American professor from the University
of Arkansas argued that the development of Islamic
jurisprudence must step out of the fold of the
Shariah for it to be relevant to modern times.
In this series of articles, this writer submits
that far from scuttling the Shariah, it must be
broadened and judiciously applied not just to
jurisprudical issues but also to the sciences
of nature and the sciences of man.
The process of ijtihad must be strengthened, ethics
based on the Shariah evolved for Muslim minorities,
and the fold of divine law expanded to embrace
natural science and history. In this series of
articles, we summarize the historical development
of the sciences of fiqh, and articulate the fundamentals
of a Shariah of Nature and a Shariah of History.
Some definitions of the terms Shariah, fiqh and
secular law are in order at the outset. Shariah
(origin: shara’a, meaning to prescribe)
is the constant, unchanging, basic dimension of
Islam. It has its basis in the Qur’an and
it derives its legitimacy from Divine sovereignty.
In its most pristine form, it is stated in the
shahada “la ilaha il Allah”, the literal
translation of which is “there is no god
but God”. But in its esoteric sense, it
also means “there is no reality but the
Reality”. 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 it includes the sciences of
nature and the sciences of man.
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. The
terminology is important because too often the
term Shariah is used loosely to connote Fiqh.
A great deal of confusion can be avoided, if the
precise differentiation between Shariah and its
application in various schools of fiqh is kept
in mind.
Fiqh is the historical dimension of the Shariah
and represents the continuous and unceasing struggle
of man 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 summarize here 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’tazilah and Asharite schools of thought
that have left a profound, perhaps decisive imprint
on Islamic thought, culture and civilization.
The triumphant advance of Muslim armies across
the interconnecting landmass of Asia, Europe and
Africa in the seventh and eighth centuries 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, and did not interfere with freedom of choice
in religion. Mass conversions to Islam took place
in the reign of the Umayyad Caliph Omar bin Abdul
Aziz (717-719 CE) who abolished unfair taxation
on Persia and Egypt, tolerated dissent and treated
Muslim and non-Muslim alike with justice and dignity.
Responding to his initiatives, people in the former
Persian and Byzantine territories 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, 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.
The Qur’an was revealed as the dynamic,
spoken Word of God to the Prophet Muhammed (pbuh)
who arranged and organized it in accordance with
divine commandments. Many among the Companions
memorized the entire Qur’an (the hafizun
or hufaz). Those who knew and recited the Qur’an
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 but they were proud of their
language 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 were received in distant
lands with well-deserved honor and respect.
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
and other Companions, the Caliph Abu Bakr had
the Qur’an written down. This copy is known
as Mashaf-e-Siddiqi. Written Arabic does not have
vowels attached to it. During the Caliphate of
Omar (r) Islam attracted newcomers, first in the
Arabian Peninsula and then beyond its borders,
and 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,
annotated to accommodate different accents, and
were sent to different parts of the extensive
Islamic Empire. This writer had the privilege
of witnessing one of the original copies in the
museum in Samarqand.
A century after the Prophet, all of the Companions
who had learned first hand from the Prophet, and
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
of hadith. 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). A serious student of history
must also note that the Prophet also imparted
spiritual knowledge to his Companions, each according
to his station, heart to heart, which has been
passed on through the generations as the authentic
Sunnah of the Prophet.
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 Sunnah provided
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, and their
consensus the ijma 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 historical development
of different schools of fiqh.
A student of history cannot take the position
that there is a single, universal Islamic position
in applied jurisprudence. There are Islamic positions,
not the Islamic position, collected and codified
in different schools of fiqh, which are relevant
in their historical context. The differences reinforced
the resiliency of Islam; however, they have also
been a source of friction among partisan groups.
Although the principles of Islamic jurisprudence
were not documented until later centuries, we
see the first full and complete implementation
of the Shariah 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. The edicts that were
passed by Omar (r) became the principal foundation
of the Maliki fiqh in later years.
Further challenges emerged with time. As the Companions
passed away, intellectual leadership of the community
passed on to the Tabeyeen. This was the second
generation of Muslims. With time, this generation
too passed away. Then came the Tabe-Tabeyeen,
the third generation who had learned from the
Tabeyeen. The infusion of non-Arab blood into
the Islamic milieu in the 8th century presented
additional challenges to the Islamic jurists.
There emerged the Mujtahideen 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.
(To be continued).
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