Signs from Allah: History, Science and the Soul in Islam
16. The Development of Fiqh - 2
By Prof Dr Nazeer Ahmed, PhD
Concord, CA
The first and foremost scholar of the Kufic School was Imam Abu Haneefa. The first scholar of the Madinite School was Imam Malik and after him Imam Shafi’i. There was a parallel and simultaneous development of the Ja’afariya School, named after Imam Ja’afar as Saadiq. The Fiqh of Imam Ahmed ibn Hanbal was of a somewhat later period and was a result of the political and intellectual turmoil in the 9th century.
The genius of Imam Abu Haneefa lies in his vision of Fiqh as a dynamic vehicle available to all Muslims in all ages. He saw Islam as a universal idea accessible to all people in space and time. Fiqh was not to be a static code applicable to one situation in one location, but a mechanism that would at once provide stable underpinnings to the Islamic civilization and would also serve as a cutting edge in its debate with other civilizations. He saw that the rigorous and exacting methodology of the Madinite School might suffocate the ability of jurists to cope with unforeseen challenges presented by new situations. Therefore, he expanded the base on which sound legal opinions stand. According to Imam Abu Haneefa, the sources of Fiqh are:
• The Qur’an,
• Sunnah of the Prophet,
• Ijma (consensus) of some, not necessarily all of the Companions,
• Qiyas (deduction by analogy to similar cases which had been decided on the basis of the first three principles) and,
• Istihsan(creative juridical opinion based on sound principles and hasana, that which is good). With the acceptance of istihsan as a legitimate methodology, Imam Abu Haneefa provided a creative process for the continual evolution of Fiqh. No Muslim jurist would be left without a tool to cope with new situations and fresh challenges from as-yet unknown future civilizations.
One other term needs clarification here, that is ijtihad (root word j-h-d, meaning struggle). Ijtihad is the disciplined and focused intellectual activity whose end result is ijma or qiyas or istihsan. Ijtihad is a process. The Hanafi and Ja’afariya Schools provide the greatest latitude for ijtihad. However, there are differences in emphasis. In the Ja’afariya School, emphasis is on the ijtihad of the Imams. In the Hanafi School, emphasis is on the ijtihad of the Companions of the Prophet, but the ijtihad of the learned jurists is also acceptable. There are also differences between the Kufic Schools of Fiqh (such as that of Imam Abu Haneefa) and the Madinite Schools of Fiqh (such as that of Imam Malik) in the latitude allowed for ijtihad. The ijma or consensus of the Madinite School is primarily through evidence (from the Qur’an) or correlation with the Sunnah of the Prophet. The requirements for ijma or consensus in the Kufic Schools are somewhat more liberal and include not only evidence from the Qur’an and the Sunnah of the Prophet, but also ijtihad of (some of) the Companions or of learned jurists.
Imam Abu Haneefa did not establish the school of Fiqh named after him, nor did he personally document his methodology. It was not until the 11th century that the Hanafi School was fully elucidated and documented. Greatest among the Hanafi scholars were Abdullah Omar al Dabbusi (d. 1038), Ahmed Hussain al Bayhaqi (d. 1065), Ali Muhammad al Bazdawi (d. 1089) and Abu Bakr al Sarakhsi (d. 1096).
From the 10th century onwards, the Hanafi School received patronage from the Abbasids in Baghdad. The Turks loved the egalitarian disposition of Imam Abu Haneefa, as well as the creative aspects of the Hanafi Fiqh. When they embraced Islam, they became Hanafis and its arch defenders. The Seljuk Turkish dynasties in the 11th and 12th centuries as well as the Ottomans endorsed the Hanafi Fiqh. The Timurids, Turkomans as well as the Great Moghuls of India were its champions as well. For these historical reasons, the Hanafi School is the most widely accepted of the various schools of Fiqh in the Muslim world today. Most of the Muslims of Pakistan, India, Afghanistan, Central Asian Republics, Persia (until the 16th century), Turkey, northern Iraq, Bosnia, Albania, Skopje, Russia and Chechnya follow the Hanafi Fiqh. A large number of Egyptians, Sudanese, Eritreans and Syrians are also Hanafis, although as we shall elaborate later, for reasons rooted in geography, the Maliki and Shafi’i Schools are also well established there.
The Madinite School was much more orthodox in its approach to Fiqh. Living in the city of the Prophet and growing up in the cradle of Islam, the Madinites attached the utmost importance to the Sunnah of the Prophet. The first and foremost scholar of the Madinite School was Imam Malik bin Anas (d. 795). He spent most of his life in Madina and like Imam Abu Haneefa in the previous generation, took issue with the ruling Abbasids on juridical matters, for which he was publicly flogged and imprisoned. Concerned that the istihsan of Imam Abu Haneefa would open the gate to unwelcome innovation, Imam Malik tightened the rules of ijma. While accepting the primacy of the Qur’an, he insisted on the consensus of all of the Companions as the basis of verified Sunnah (as compared to Imam Abu Haneefa who maintained that the consensus of some of the Companions was a sufficient basis for jurisprudence).
The Maliki School spread through Egypt, Libya, Algeria and Morocco through the Hajj. The North Africans visited Mecca and Madina and learned their Fiqh from the Madinites. They had little reason to visit Kufa and Iraq and therefore had only occasional contact with the Hanafi School. According to Ibn Khaldun, the cultural affinity between the unsettled Berbers of North Africa and the Bedouins of Arabia also contributed to the acceptance of the Maliki School in Libya and the Maghrib. From North Africa, the Maliki School spread to Spain and was the only official School sanctioned by the Umayyad dynasty in Cordoba. As Islam spread from the Maghreb into sub-Saharan Africa through trade routes, the Maliki School also spread to Mauritania, Chad, Nigeria and other countries of West Africa. Most Africans today follow the Maliki School. The brief interlude of Fatimid rule in Egypt in the 9th and 10th centuries did not materially change the contacts between the Berbers of the Maghrib and the Bedouins of Arabia and the Maliki School returned to North Africa when Salahuddin captured Egypt from the Fatimids (1170).
The first one to establish a formal school of Fiqh was Imam Muhammed ibn Idris al Shafi’i (d. 820). Through his Risalah (journal), he was the first scholar to systematically document the basis of Fiqh and critically examine its methodology. A Syrian by birth, Imam Shafi’i traveled to Madina and Kufa and learned from the disciples of Imam Abu Haneefa and Imam Malik. He took issue on certain positions taken by the Hanafi and Maliki Schools and adopted an independent position on some of the methodologies. According to Imam Shafi’i, the sources of Fiqh are:
• The Qur’an,
• The Sunnah of the Prophet (on the issue of the Sunnah, Imam Shafi’i relaxed the rules of the Maliki School and suggested that the Sunnah was a valid source of jurisprudence even if it was supported by a single, reliable source. It need not be supported by the ijma of all the Companions,
• Qiyas, provided that it was rigorously supported by prior cases decided on the basis of the Qur’an and the Sunnah. Imam Shafi’i did not accept istihsan as a valid source of Fiqh.
• Thus Imam Shafi’i’s positions were somewhat less orthodox than those of Imam Malik, but not as liberal as those of Imam Abu Haneefa. The Shafi’i School spread to Egypt, the Sudan, Eritrea, East Africa, Malaya and the Indonesian Islands. Like the Hanafi School, the Shafi’i School produced many brilliant scholars. One of them, the great Abu Hamid al Gazzali (d. 1111), not only influenced the development of Fiqh, but also changed the course of Islamic history through his brilliant dialectic.
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