The Evolution of Fiqh(2. The Second State: ESTABLISHMENT)

This stage represents the era of the Righteous Caliphs{ the Righteous

 Caliphs Abu Bakr, ‘Umar, ‘Uthmaan and ‘Alee, were four

of the closest companions of the Prophet (s.w.), who presided over the

Muslim state after the Prophet’s (s.w.) death.}and the

major Sahaabah (companions of the Prophet (s.w.). 
It extends from the caliphate of Abu Bakr (632-634CE) to 
the Islamic state were rapidly expanded during the first twenty
 years of this stage to include Syria, Jordan, Egypt, Iraq, and Persia.
 Thus, Muslims were suddenly brought into contact with totally 
new systems, cultures, and patterns of behavior for which
 specific provision was not to be found in the

laws of Sharee’ah.
 To deal with the numerous new problems, the

Righteous Caliphs relied heavily on decisions by consensus (Ijmaa’)

as well as Ijtihaad, in which they had been trained by the Prophet

(s.w.) while they were with him after his migration to Madeenah. In

the course of their extensive use of Ijmaa’ and Ijtihaad, these caliphs

established procedures which later became the basis for legislation in

Islaam, that is Fiqh.

In this section we shall examine, in some detail, the

problem-solving procedures developed by the Righteous Caliphs 
and the general approach used by individual Sahaabah in making

deductions. We shall also attempt to show why this period was

comparatively free of that factionalism which marked later periods,

and we shall note certain characteristics of Fiqh during this period,

some of which are in strong contrast with later developments.

 

Faced with a new problem, the caliph of this period would

generally take the following steps in order to solve it:

(1) He would first search for a specific ruling on the problem in the

Qur’aan.

(2) If he did not find the answer there, he would then search for a

ruling on it in the Sunnah, the sayings and actions of Prophet

(s.w.).

(3) If he still did not find the answer, he would then call a meeting

of the major Sahaabah and try to get unanimous agreement on a

solution to the problem. (This unanimity was referred to as

Ijma’.)

(4) If unanimity could not be arrived at, he would then take the

position of the majority.

(5) If however, differences were so great that on over-whelming

majority opinion could be determined, the caliph would make his

own Ijtihaad, which would then become law. It should also be

noted that the caliph had the right to over-rule the consensus.

al-Madkhal, pp. 107

 

In addition to formal meetings of the major Sahaabah which

were called by the caliphs for decision-making, there arose many

day-to-day situations where individual Sahaabah were asked to make

rulings. In such cases they tended to follow three general courses of

action.

In the first place, Sahaabah who were in decision-making

positions made it clear that their deductions were not necessarily as

Allaah intended. For example, when Ibn Mas’ood was questioned

about the inheritance rights of a woman who had been married

without a defined Mahr (dowry), he said, “I am giving my opinion

about her. If it is correct, then it is from Allaah, but if it is incorrect,

then it is from me and Satan.”

Abu Daawood (Sunan Abu

Dawud (English Trans.), vol. 2, p. 567, no. 2111)

Secondly, if they made different rulings on a problem in

their individual capacities and were later informed of an authentic

(Hadeeth) saying or action of the Prophet (s.w.) on the subject, they

would immediately accept it dropping all differences. For example,

after the Prophet’s (s.w.) death, the Sahaabah held different opinions

as to where he should be buried. When Abu Bakr related to them that

he had heard the Prophet (s.w.) say that prophets are buried in the

spot where they die, they dropped their differences and dug his grave

beneath his wife ‘Aa’eshah’s house.

Finally, when neither authentic proof nor unanimity could be

arrived at, the companions of the Prophet (s.w.) used to respect the

opinions of each other and would not force other Sahaabah to follow

any individual opinion. The only exception to this rule was if they

found people following practices, which though formerly acceptable

later became prohibited. For example, Mut’ah, a pre-Islamic form of

temporary marriage which had been allowed in the early stages of

Islaam, was forbidden by the time of the Prophet’s (s.w.) death.

Some of the Sahaabah were unaware of the prohibition and thus

continued to practice temporary marriage during Abu Bakr’s

caliphate and the first half of ‘Umar’s caliphate. When ‘Umar

became aware of the practice of Mut’ah, he forbade it and prescribed

a severe punishment for the offence. Sahih Muslim

Although the Sahaabah debated and differed on various

points of law, their differences rarely reached the level of disunity

and factionalism, which characterized later periods. This was mainly

due to the following factors, which tended to preserve their unity:

‘Umar withdrew his opinion. (collected by Abu Daawood

(1) The Caliphs’ reliance on mutual consultation (Shooraa) to arrive

at a ruling.

(2) The ease with which a consensus could be arrived at. It was easy

to hold consultative meetings since the early caliphs did not

allow the Sahaabah to move far from the capital of the Islamic

State, Madeenah.

(3) The general reluctance of individual Sahaabah to make legal

rulings (Fatwaas). Instead, they tended to re-direct puzzling

questions to other Sahaabah who were better qualified to answer

them.

(4) The infrequent quotation of Hadeeth, which they tended to

confine to specific and actual problems. This was due to:

(a) Their fear of misquoting the Prophet (s.w.) who had said,

“Whoever tells a lie in my name will find in my name find

his seat in the fire.”(Sahih Al-Bukhar

(b) The fact that Caliph ‘Umar ibn al-Khattab forbade excessive

quotation of Hadeeth and ordered the Sahaabah to

concentrate on the narration and study of the Qur’aan.

As we trace the historical development of Fiqh showed

different characteristic trends during different periods of political

and socio-economic development. First, we can discern that the

outstanding characteristic of Fiqh during the period of the Righteous

Caliphs was its realism; that is, it was based on actual problems

rather than on hypothetical or imaginary ones. This realistic form of

Fiqh was later referred to in Arabic as al-Fiqh al-Waqi’ee (realistic

Fiqh) to distinguish it from the hypothetical Fiqh advocated by the

“Reasoning People” (Ahl ar-Ra’i) who came to prominence in

Kufah, Iraq, during the time of the Umayyads.

Secondly, although the Righteous Caliphs tended, as we

have noted above, to follow certain procedures to achieve legal

rulings, neither they nor the Sahaabah as a whole prescribed set

procedures to be followed throughout the Islamic nation (the

Ummah); nor did they make a record of the laws resulting from their

legal rulings. This open mindedness in areas not clearly defined by

Sharee’ah reflects, in the first place, the Sahaabah’s respect for

freedom of opinion in such matters. Such an attitude contrasts

strongly with the appearance of rigidity on the part of certain later

scholars. In the second place, it was in keeping with the Sahaabah’s

policy of recommending for the masses the careful study of the

Qur’aan without the distraction of legal rulings on matters not

defined therein.

A third characteristics of Fiqh in this period relate to the use

of personal opinion in making legal rulings. The majority of the

Sahaabah preferred to stick closely to the literal meanings of texts of

the Qur’aan and the Sunnah. As a general practice, they avoided

giving personal interpretations. Ibn ‘Umar, one of the leading jurists

among the Sahaabah who remained in Madeenah all his life,

followed this practice. On the other hand there were other Sahaabah

who favored the wide use of personal opinion in areas undefined by

either the Qur’aan or the Sunnah. However, they were careful to

attribute resulting errors entirely to themselves, so as not to bring

discredit to Islamic law. ‘Abdullaah ibn Mas’ood (who later settled

in Iraq) represented this school of thought.

The fourth characteristic of Fiqh in the period of the

Righteous Caliphs concerns the modification of some laws of

Sharee’ah, owing to one or another of two factors: the disappearance

of the reason for the laws existence, or a change in social conditions.

An example of the first is the prohibition by Caliph ‘Umar of the

practice of giving cash gifts from the central treasury (Bayt al-Maal)

to newly converted Muslims and to those leaning towards the

acceptance of Islaam. ‘Umar reasoned that the practice had been

followed by the Prophet (s.w.) in the early stages of Islaam, when

there was urgent need for all possible support, but that there was no

longer any need to canvass for supporters. The second factor

mentioned above (changing social conditions) prompted a change in

the divorce law. Owing to the tremendous influx of wealth from

newly acquired territories, marriage (both single and multiple)

became easier to contract and, consequently, divorce became

alarmingly more frequent. To discourage abuse of divorce, Caliph

‘Umar altered and aspect of the law. In the time of the Prophet (s.w.)

the pronouncement of three divorce statements at any one time was

considered to be merely one divorce statement and it was reversible.

Caliph ‘Umar declared such multiple pronouncements to be binding

and therefore irreversible.

Fifthly, the Madh-hab during the period of the Righteous

Caliphs was unified and directly linked to the state as in the time of

the Prophet (s.w.). The Madh-hab under each of the caliphs was that

of the caliph himself since the caliph in each case had the final say in

all legal decisions involving Ijtihaad of Ijmaa’. Consequently,

deduced rulings made by a caliph were never openly opposed by his

successors during his lifetime. However, when the succeeding caliph

came to power, his Madh-hab would then be given precedence over

that of his predecessor and the deduced rulings of his predecessor

would be changed to conform to his opinion.

 

1. The basis of the deductive Fiqh principles, Ijmaa’ and Qiyaas

(Ijtihaad)(, was laid during the time of thje Righteous Caliphs.

2. The sudden addition of vast new territories brought Muslims into

sudden contact with many different cultures, and this produced a

host of new problems which were not specifically covered by the

laws of Sharee’ah.

3. Legal rulings became increasingly necessary, and the Righteous

Caliphs gradually developed certain procedures for arriving at

Ijtihaad with minimum of disagreement.

4. The Sahaabah in general also followed decision-making

procedures which helped them to avoid hard and fast rulings.

5. The combined approval of the Righteous Caliphs and the

Sahaabah in the matter of legal rulings tended to promote unity

and to provide little of no occasion for factionalism within the

Islamic nation.

6. Only one Madh-hab existed during the period of the Righreous

Caliphs. This unified approach to Fiqh prevented the rise of

Madh-habs not linked to the state until the end of the period.

7. Particular emphasis was placed on the study of the Qur’aan by

the masses, while excessive quotation of Hadeeths was

discouraged.

8. Although there was some difference of approach among the

Sahaabah in the matter of the use of personal opinion, this

difference did not in fact result in any factionalism during the

period under review.

9. So far as Fiqh was concerned, there continued to be one general

approach, that is one Madh-hab. However, the different practices

of such Sahaabah as Ibn ‘Umar in Madeenah and ‘Abdullah ibn

Mas’ood in Kufah (Iraq) in the use of personal opinion could be

seen as the early beginnings, or the foreshadowing of a division

of Islamic scholars into different Madh-habs.