Signs from Allah: History, Science and the Soul in Islam
15. The Development of Fiqh
By Prof Dr Nazeer Ahmed, PhD
Concord, CA
The triumphant advance of Muslim armies across the inter-connecting landmass of Asia, Europe and Africa 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, jizya and did not interfere with freedom of choice in religion. Mass conversions to Islam took place in the reign of Omar bin Abdul Aziz (717-719) who abolished unfair taxation, tolerated dissent and treated Muslim and non-Muslim alike with the dignity due to fellow man. Impressed with his initiatives, people in the former territories of the Sassanids and the Byzantines 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, and 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.
Some definitions of the terms Shariah, Fiqh and secular law are in order at the outset. Shariah is the constant, unchanging, basic dimension of Islam. It has its basis in the Qur’an and it derives its legitimacy from Divine sovereignty. 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 its dimensions are infinite. 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.
Fiqh is the historical dimension of the Shariah and represents the continuous and unceasing Muslim struggle 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 summarize in this session 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’tazilite and Asharite schools of thought that are seldom discussed nowadays but have left a profound, perhaps decisive imprint on Islamic thought, culture and civilization.
The Qur’an was revealed as the dynamic, spoken Word of God. Many among the Companions memorized the entire Qur’an (the hafizun or hufaz). Some knew, understood and recited the Qur’an, but also 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 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, most of whom were Companions of the Prophet, were received in distant lands with well-deserved honor and respect. They were the ones who were often called upon to offer legal opinions (fatwa).
A century after the Prophet, all of the Companions who had learned first hand from the Prophet, or 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).
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, or the ijma (consensus) 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 development of different schools of Fiqh.
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, which included the following principles:
• All men are equal before the law.
• Justice is an Islamic duty ordained by the Qur’an and Sunnah of the Prophet.
• Human beings are responsible for their actions.
• All adult Muslims are legal persons and are answerable in accordance with the Shariah.
• The burden of proof falls on the plaintiff.
• All parties must be allowed to produce evidence for their positions.
• If evidence contradicts a judgment, then the judgment must be revoked.
• When the Qur’an and the Sunnah of the Prophet are silent on a matter, then extrapolation may be used from similar cases.
• The collective will of the Muslim community provides a legitimate basis for law.
These principles were incorporated in later centuries by successive Muslim dynasties in their jurisprudence canons. Further challenges emerged with time. As the Companions passed away, intellectual leadership of the community passed on to the Tabeyeen (those who had followed or learned from the Companions). This was the second generation of Muslims. With time, this generation too passed away. 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.
It is a truism that great men and women create history. It is also true that historic events create great men and women. The tide of events in the second century of Hijra gave birth to scholars who systematized the science of Fiqh. Madina and Kufa were two of the prime centers of learning in the early years of Islam. Madina was the city of the Prophet and the people of Madina had close access to Prophetic traditions. However, Madina as the heart of the Islamic Empire was insulated from the challenge of ideas from neighboring civilizations. Kufa, on the other hand, located at the confluence of Arabia and Persia, was a melting pot and more susceptible to foreign ideas. It was from Kufa that the Umayyads ruled Iraq-e-Arab (modern Iraq), Iraq-e-Ajam (western Persia), Pars (central and southern Persia), Khorasan and western India (today’s Pakistan). The Kufans had somewhat less of an access to the traditions of the Prophet, but they were at the front end of the challenge of ideas from the neighboring Greek, Persian, Indian and Chinese civilizations. It was but natural that Madina and Kufa would become the earliest centers of schools of jurisprudence. Thus, the earliest developments in Fiqh, centered around Madina and Kufa, were exposed to somewhat different geographical and historical challenges. These two schools were referred to as the Madinite School and the Kufic School.
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