This stage extends from approximately 750 CE to 950 CE,
and
covers the rise of the ‘Abbaasid Dynasty founded by Caliph
Abul-‘Abbaas
(reign 750-754)[The ‘Abbaasids were descendants of al-‘Abbaas, the uncle of the Prophet
Muhammad (s.w.).],
its consolidation and the beginning of its
decline.
It was during this period that Fiqh took shape as an
independent
Islamic science; Islamic scholarship was actively
supported
by the caliph and it flourished as discussion and debate on
controversial
issues became widespread; Madh-habs multiplied’
various
compilations of Hadeeth and Fiqh were made; and Arabic
translations
of scientific, philosophical and theological works exerted
influence
on Islamic thought.
By the end of the period, Fiqh was
clearly
divided into two sections; Fundamental principles (Usool)
and
secondary principles of scientific, philosophical and theological
works
(Furoo’); sources of Islamic law were identified and
deferences
developed between the major Madh-habs separating them
from each
other.al-Madkhal, p. 128.
In the
development of Fiqh during this period, there were
two major
trends relating to the evolution of the Madh-habs. The
first
occurred during the period of the Great Imaams, founders of the
major
Madh-habs, and their major students. Although these Madhhabs
were fast
becoming distinct entities, they continued the tradition
of
flexibility in making and accepting legal rulings which had
characterized
the earlier periods.
The second trend covered the period
following the death of
the major scholars of the Madh-habs. It
represents
the beginning of that rigidity in making and accepting
legal
rulings which is the main characteristic of Madh-habs, and
consequently
of Fiqh, in succeeding generations.
The
development of Fiqh in the period of the Great Imaams (750-850
CE) and
their major students was affected by the following factors.
A. State
Support for Scholars
The early
‘Abbaasid Caliphs made a show of great respect
for
Islamic law and its scholars. The reason for this lay in the fact
that they
owed their office to their claim that they were seeking a
return to
a caliphate based on Sharee’ah and its legitimate
interpretation. Consequently, the ‘Abbaasid caliphs of this period all
took
pride in sending their children to study under the major scholars
of the
time, and, what is more, some of the caliphs became scholars
of
Islamic law in their own right; for example,
Caliph Haroon ar-Rasheed
(rule 786-809 CE).
Furthermore, these caliphs made a
practice
of consulting the outstanding Islamic scholars on most
matters
of Fiqh. A classical example is that of Imaam Maalik whom
Caliph
al-Mansoor commissioned to compile an authoritative book
of the
Sunnah of the Prophet (s.w.). On its completion, the Caliph
consulted
Maalik about allowing him to make it the state
constitution,
which would have made the Madh-hab of Imaam
Maalik
binding on all Muslims. However, the Imaam refused to have
it done,
since he was aware that his compilation including only those
Hadeeths
of the Prophet (s.w.) that were available in Hijaaz where
Imaam
Maalik had taught and founded his Madh-hab. He felt
strongly
that no single Madh-hab should be binding on all Muslims
in view
of the fact that any single Madh-hab would exclude the many
other
Hadeeths narrated by Sahaabah who had traveled to other parts
of the
state. Muwatta Imam Malik
This is a
clear example of that flexibility which
characterized
the founders of the Madh-habs. The factor of state
support
and patronization of Fiqh scholars contributed largely to the
flourishing
of the many Madh-habs which had arisen in the latter part
of the
Umayyad period.
However,
it should be noted that although scholars and
judges
were allowed a greater measure of freedom of opinion, they
were
often subjected to severe punishment if their rulings ran counter
to
political policy. For example, Imaam Malik was jailed, beaten and
tortured
for giving a Fatwaa that challenged an official policy of the
‘Abbaasid
Caliph. According to this policy, the people were made to
swear
that if they broke their oath of allegiance to the caliphs they
would be
automatically divorced from their wives. Imaam Maalik’s
Fatwaa
ruled that divorce under compulsion was null and void.
B.
Increase in Centers of Learning
Though
the states of North Africa and Spain{
An
Umayyad Prince, ‘Abdur-Rahmaan ibn Mu’aawiyah, dramatically
escaping
death at the hands of the Abbaasids, succeeded in reaching
Spain where he
laid the foundations of the Umayyad Dynasty
of Cordova in 756 CE.} had
split off
from the
‘Abbaasid Empire, the territories of the ‘Abbaasid state
were
expanded to include all of Persia, India and Southern Russia,
and the
capital was not moved to Baghdad. Consequently, the centers
of
learning and Madh-habs multiplied.
Scholars
and students from the various centers of learning
began
journeying back and forth in search of further knowledge
about the
conclusions reached by their contemporaries in other parts
of the
Muslim State. A good example of this is the journey of
Muhammad
ibn al-Hasan, a prominent student Abu Haneefah
(founder
of the Hanafee Madh-hab), from Iraq to Madeenah in order
to study
under Imaam Maalik, founder of the Maalikee Madh-hab,
and to
memorize his book of Hadeeths, al-Muwatta’. Likewise,
Imaam
ash-Shaafi’ee, founder of Shaafi’ee Madh-hab, journeyed
first to
Hijaaz[The western coast of the Arabian peninsula shich
includes the cities of Makkah
and Madeenah.] to study
under Imaam Maalik, then to Iraq in order
to study
under Muhammad ibn al-Hasan, and finally to Egypt to
study
under Imaam al-Layth ibn Sa’d, founder of the Laythee Madhhab.
These
journeys resulted firstly in the reconciliation of some of
the major
differences which had arisen among scholars and
ultimately
in the combination of some of the schools of Islamic legal
thought.
For example, Imaam ash-Shaari’ee combined the Fiqh of
Hijaaz
with that of Iraq and Egypt and formed a new school of law,
the
Shaafi’ee Madh-hab. Here again are noteworthy examples of the
flexibility
of the early Imaams in their approach to Fiqh.
C. The
Spread of Debate and Discussion
Whenever
scholars or their students met, they would
exchange
thoughts on various Islamic issues which had arisen in
their
particular areas. If there was a major difference of opinion
about a
particular solution, they would debate back and forth until a
common
conclusion was reached or various options were accepted.
These
legal debates also took place by mail, as in the case of the
debate
between Imaam Maalik and Imaam al-Layth about Madeenite
customs.[Imaam
al-Layth opposed Imaam Maalik’s inclusion
of the opinion of
Madeenitees
as a source of Islamic legal rulings.]
The huge
increase in the number of debating sessions,
whether
by mail or in face to face meetings between founders and
students
of various Madh-habs resulted in the clarification of certain
important
issues and the seeding out of mistaken rulings or
judgements
among scholars of Islamic law.
In this
early stage in the development of Madh-habs there
was a
marked lack of rigidity or dogmatism on the part of scholars
and their
students. That is, issues were objectively analyzed and
conclusions
arrived at on the basis of the validity of the proofs
presented.
In fact Imaam Abu Haneefah and Imaam Shafi’ee were on
record as
stating that if a Hadeeth was known to be accurate, then
that
should be considered their Madh-hab.
A noteworthy example
concerns
the law relating to the drinking of Khamr and other
intoxicants.
Imaam Abu Haneefah, founder of the Hanafee Madhhab,
had ruled
that the Islamic prohibition of Khamr covered only
the
product of fermented grape juice (the literal meaning of Khamr)
and did
not extend to intoxicants in general. According to this ruling,
intoxicating
drinks made from other sources were allowable so long
as the
consumer did not become drunk.Fiqh as-Sunnah,
However, Abu Haneefah’s
three
main students (Abu Yoosuf, Muhammad ibn al-Hasan and
Zufar)
later rejected the ruling of their teacher, since they
encountered
reliable Hadeeths of the Prophet (s.w.) clearly indicating
that all
intoxicants were to be included in the meaning of Khamr.
This free
exchange of ideas and willingness to change even
the
rulings of the founding fathers of the Madh-habs vividly
illustrates
the absence of that rigidity and sectarianism which
characterized
the methodology of later scholars of the Madh-habs.
The
development of Fiqh during the period of the minor
scholars
of the Madh-habs (850-950 CE) that is, the second
generation
of students, was affected by the following factors.
A.
Comopilation of Fiqh
In order
to make legal rulings and establish principles, previous
scholars
were obliged to spend a great deal of time and effort hunting
in
various parts of the Islamic State for Hadeeths and Athars
(Sayings
and acts of the Sahaabah and their students). In this period,
the
Sunnah of the Prophet (s.w.) was systematically collected and
compiled
in books of Hadeeth, thereby leaving scholars free to
concentrate
on the comprehension and application of Hadeeth.
Fiqh was
also compiled on a wide scale and in a systematic
fashion
during this period. Some scholars personally compiled their
own
rulings, while others, such as Imaam Abu Haneefah and Imaam
Ahmad ibn
Hambal, dictated various problems and their solutioins to
their
students, who subsequently compiled them. Imaam Maalik’s al-
Muwatta’
is a collection of Hadeethss and opinions of the Sahaabah
along
with his personal ruolingl, and Imaam ash-Shaafi’ee’s book of
Fiqh
entitled al-Umm contains his legal rulings supported by their
proofs.
Types of
Compilation:
1. The
early books of Fiqh were usually a mixture of legal rulings,
Hadeeths,
opinions of the Sahaabah and of students of the
Sahaabah.
Al-Muwatta’ of Imaam Maalik is a classical example
of this
stage.
2. Some
books of Fiqh were written about the basic principles of
Fiqh,
Hadeeths being mentioned only in order to prove the
correctness
of the authors’ deductions. Kitaab al-Kharaaj by
Imaam Abu
YoosufThe main student of Imaam Abu Haneefah.
and al-umm by Imaam ash-Shaafi’ee are
both good
examples of this type of writing.
3. Other
books of Fiqh concentrated of the application of Fiqh
principles
with but little reference to Hadeeths. These books
were
arranged in chapters according to the issues under
discussion.
The six books of Imaam Muhammad ibn al-Hasan[One of the main students of Imaam
Abu Haneefah]and al-Mudawwanah by
Imaam Ibn al-Qaasim[The main student of Imaam
Maalik.] are
examples of this type of writing.
At first,
the compilation of proofs for each legal ruling on
various
issues included the texts of Hadeeths along with their chains
of
narrators. Gradually concern for the chains of narration decreased,
and
scholars merely quoted the text of the appropriate Hadeeth along
with a
reference to the books of Hadeeth in which it could be found.
With the
de-emphasizing of the importance of Hadeeth, or
by
neglecting to mention their sources and their levels of
authenticity,
the stand of the Madh-habs became the most important
consideration.
Thus, the opinions of the Madh-habs were gradually
given
precedence over one of the primary sources of Islamic law,
namely
the Sunnah. In these developments lay the beginnings of that
rigidity
which later became the hallmark of the Madh-habs.
However,
later in this period, some prominent scholars reversed this
trend,
somewhat, by reintroducing the practice of quoting the sources
and
commenting on the accuracy of the Hadeeths.
B. Court
Debates
There
were also court debates during this period which were
held for
the interest and amusement of the caliphs and members of
the royal
court. Some scholars like magicians, singers, dancers and
jesters,
had become a permanent fixture of the royal court. They
competed
among themselves for the favors of the caliphs, and they
invented
issues solely for the purpose of debate. As a result,
hypothetical
Fiqh took on new dimensions as it evolved from
sublime
origins in the era of the Sahaabah and the early scholars, to
the
ridiculous product of court debates.
Court
debates also spawned competitiveness and dogmatism,
since the
loser of a debate not only lost monetary reward from the
caliph
but also personal prestige. Furthermore, because loss of
personal
prestige also entailed loss of prestige on the part of one’s
Madh-hab,
the principle of defending one’s Madh-hab, right or
wrong,
came to be considered virtue. As a result, Madh-hab
sectarianism
became rampant among the court scholars.
C.
Compilation of Hadeeths
However,
there arose an opposing trend among specialists in
Hadeeth
compilation and criticism, where by issues of Fiqh were
tackled
without dependence on the traditional rulings of existing the
earlier
scholars by basing their positions on authentic Hadeeths
wherever
available, rather than slavishly following earlier rulings
merely
because they had been made by prominent scholars.
Focusing on
Hadeeth to resolve the problems of Fiqh, great scholars
of Hadeeth like Imaam al-Bukhaaree (810-870 CE) and Imaam Muslim
of Hadeeth like Imaam al-Bukhaaree (810-870 CE) and Imaam Muslim
(817-875
CE) went to great pains to collect from all possible sources
authentic
Hadeeths of the Prophet (s.w.) and Athars of the Sahaabah.
These,
they arranged in chapters according to the format established
by the
Fiqh scholars. The initiator of this trend was the last of the
major
Imaams, Ahmad ibn Hambal, who compiled the most
extensive
work of Hadeeth called al-Musnad. Both Imaam al-
Bukhaaree
and Imaam Muslim were among his students.
Al-Madkhal, p. 133.
D. The
Organization of Fiqh
Through
translations of the great books of science and
philosophy
from Greece, Rome, Persia, and India,
Most of the translation occurred during the
first half of this
period (750- 830 CE)
but its effect was mostly felt in the latter
half of the period.
Islamic scholars gained
insight into new systems of reasoning,
deduction and inference.
This new knowledge influenced their
approach to Fiqh which
they proceeded to organize into
fundamentals (Usool) and secondary principles (Furoo’).
fundamentals (Usool) and secondary principles (Furoo’).
In time, Tafseer (explanation of the
Qur’aan),
Hadeeth and Nahw (grammer) developed under
these influences into specialized branches of learning.
these influences into specialized branches of learning.
The
positions of major scholars of Fiqh were recorded and
the
primary sources of Islamic law were identified and classified
in order of their importanceal-Madkhal, pp. 128-134.
in order of their importanceal-Madkhal, pp. 128-134.
By the
end of this period, the following sources of Islamic
law in
the order stated became widely accepted by most scholars:
1. The
Qur’aan
The
Qur’aan was the first source of law and its passages
were
accepted unanimously as being authentic. However, there were
some
differences of opinion in interpretation of some of its passages..
2. The
Sunnah
Hadeeths
of the Prophet (s.w.) wee next in importance.
However,
scholars for their acceptance and application set various
conditions.
3.
Opinion of the Sahaabah
The
opinion of the Sahaabah either as a group or
individually
was considered the third most important source of law.
This
source was divided into two parts according to the positions
taken by
the Sahaabah.
(a) If
they were united on an opinion it was referred to as
Ijmaa’.
(b) If
they had different opinions on a single issue, each opinion
was
referred to as a Ra’i (personal opinion)
4. Qiyaas
Ijtihaad
based on evidence found either in the Qur’aan, the
Sunnah or
Ijmaa’ was next in order of importance. The method of
reasoning
used was a form of analogical deduction called Qiyaas. An
example
of Qiyaas is the prohibition of marijuana based on the
Prophet’s
statement: “Every intoxicant is Khamr and every form of
Khamr is
Haraam.”Sahih Muslim
Since
Marijuana has as intoxicating effect it
can be
classified as Khamr and thus Haraam (prohibited).
5.
Istihsaan (Legal Preference)
This
principle involves the preference of an opinion based on
a
circumstantial need over an opinion based on Qiyaas. This
principle,
referred to by various names, scholars of most schools of
thought
used (e.g. Istislaah). An application of Istihsaan is seen in
the
treatment of a contract for the manufacture and salw of as item.
According
to Qiyaas, based on the Prophet’s statement, “Whoever
sells
food should not do so until he has in his own possession”,
Reported by Ibn ‘Umar
and collected by Maalik contracts of
this
type are invalid, since the item is nonexistent at the
time of
the contract.
However, since such contracts have been
universally
accepted by people and the need for such contracts is
obvious,
the ruling by Qiyaas was dropped and the contracts were
allowed,
based on the principle of preference (Istihsaan).
6. ‘Urf
(Custom)
Local
customs were accepted as a source of law in a given
region as
long as they did not contradict any of the principles of
Islamic
law; for example local marriage customs concerning dowry’
payment.
The dowry (Mahr) according to Islamic law, must be
agreed
upon as part of the marriage contract but it has no set time to
be paid.
It is the custom of Egyptians as well as others that a portion
of it
called the Muqaddam must be paid before the marriage
ceremony
while the reminder called the Mu’akhkhar is only required
to be
paid in the case of death or divorce, according to whichever
occurs
first.Usool al-Fiqh al-Islaamee
Another
example of ‘Urf can be seen in rental customs.
Islamic
law does not require the payment of a price until the thing
being
sold has been delivered completely. However, it is the
accepted
custom that rent is paid before the rented place or object
has been
used for the agreed time period.
Although
this process of organization and classification
was, for
the most part, positive development; nevertheless, when
coupled
with the prevailing trends toward factionalism, it served to
further
widen the gaps between the Madh-habs. Thus, we find slight
variations
in the terminology given to the same principle become
sources
of friction and opposition.
For example, the Maalikee Madhhab
considered
the Hanafee principle of Istihsaan unacceptable
yetapplied
the same principle under the name Masaalih Mursalah.
While the
Shaafi’ee Madh-hab rejected both these terms and applied
a similar
principle calling it Istis-haab.
1. Fiqh
took on a definite shape as an independent Islamic science
during
this period.-
2. The
many Madh-habs which had appeared in the latter part of
the
Umayyad period flourished and the centers of learning
increased
throughout the ‘Abbaasid state due to state patronage.
3. For
the first time the Fiqh of the various Madh-habs was
successfully
compiled on a large and systematic scale.
4. Fiqh
became organized and divided into two main segments:
Usool
(fundamental principles) and Furoo’ (secondary
principles)
and the main sources of Islamic law were clearly
defined
and graded.
5. The
Sunnah in its entirety was also collected and Recorded in
books of
Hadeeth by the end of this stage.
6. During
the first half of this period, the Madh-habs under the
guidance
of their founders continued to experience a great deal
of mutual
exchange of ideas. However, under the second
generation
of students, there was a trend toward rigidity and a
breaking
down of flexibility which characterized the period of
the great
Imaams and the scholars before them.
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