The Evolution of Fiqh(8 THE SIXTH STAGE: STAGNATION AND DECLINE)

This stage covers approximately six centuries starting with

the sacking of Baghdad in 1258 CE and the execution of the last

‘Abbaasid caliph, al-Musta’sim, and ending around the middle of the

nineteenth century of the Christian era. This period also represents

the rise of the Ottoman Empire, founded in 1299 CE by the Turkish

leader ‘Uthmaan I, until its decline under the attacks of European

colonialism.

The prevailing characteristic of this period was that of

Taqleed (the blind following of a Madh-hab) and factionalism. This

degenerative trend resulted in the dropping of all forms of Ijtihaad

and the evolution of the Madh-habs into totally separate entities

closely resembling sects. The compilation of Fiqh during this period

was limited to commenting on previous works and was directed

toward the promotion of individual Madh-habs. Thus, the dynamism

of Fiqh was lost and many of the laws became increasingly

outmoded and inapplicable in their existing forms. In order to fill this

legislative gap, European law codes were gradually introduced in

place of some of the Islamic laws, which had fallen into disuse.

Eventually with the advance of European colonialism and the

breaking up of the Muslim Empire, European laws supplanted

Islamic law. Certain reformers sought to stem the tide of stagnation

and decline, calling for a return to the original purity of Islaam and

its laws. However, factionalism has continued to the present day, in

spite of an increase in institutional teaching of comparative Fiqh.

The blind following of a Madh-hab.

The scholars of this period left all forms of Ijtihaad and

unanimously issued a legal ruling, which was intended to close the

door of Ijtihaad permanently. They reasoned that all possible issues

had already been raised and addressed, and there was therefore no

need for further Ijtihaad.
{ Muhammad Husein adh-Dhahabee, ash-Sharee’ah al-Islaameeyah,

(Egypt: Daar al-Kutub al Hadeeth, 2nd ed. 1968), p. 12.} 
With that step, a new concept of Madhhab

arose, namely that one of the four Madh-habs had to be followed

for one’s Islaam to be valid. In time this concept became firmly

embedded among the masses as well as the scholars of Fiqh. Thus,

the religion of Islaam itself became restricted within the confines of

the four existing Madh-habs; Hanafee, Maalikee, Shaafi’ee and

Hamblee.

These schools of law came to be considered divinely

ordained manifestations of Islaam. All of them were supposed to be

completely correct, equal and representative of true Islaam, yet there

were innumerable differences among them. In fact there were

scholars in this period who interpreted some Hadeeths in such a way

as to prove that the Prophet (s.w.) him-self had predicted the

appearance of the Imaams and their Madh-habs.
 Consequently, any attempt to go beyond these canonical 
Madh-habs was considered heretical  and anyone
 who refused to follow one of these Madh-hab was 
classified an apostle. The hyper conservative scholars of this

stage even went so far as to rule that whoever was caught

transferring from one Madh-hab to another was liable to punishment

at he discretion of the local judge. A ruling was also made in the

Hanafee Madh-hab prohibiting the marriage of a Hanafee to a

Shaafi’ee.{Muhammad Naasir ad-Deen al-Albaanee, Sifah Salaah an-Nabee,

(Beirut: al-Maktab al-Islaamee ninth ed.1972), p. 51.}

And even the second most important pillar of Islaam,

Salaah, was not spared the effects of Madh-hab fanaticism. The

followers of the various Madh-habs began to refuse to pray behind

the Imaams from other Madh-habs. This resulted in the building of

separate prayer niches in the masjidMasjid (plural Masaajid) , 
the Muslim house of worship.) communities where more than

one Madh-hab existed. 
Masjids of this type can still be seen in places

like Syria, where Sunni Muslims follow either the Hanafee or

Shaafi’ee Madh-hab. Even the most holy masjid, al-Masjid al-

Haraam of Makkah, which represents the unity of Muslims and the

religion of Islaam, was affected. Separate prayer niches were set up

around the Ka’bah: one for an Imaam from each of the schools. And

when the time for Salaah came, an Imaam from one of the Madhhabs

would lead a congregation of followers from his Madh-hab in

prayer; then another Imaam from one of the other Madh-habs would

lead his congregation of followers and so on. It is interesting to note

that separate places of prayer for each of the Madh-habs remained

around the Ka’bah until the first quarter of the twentieth century

when ‘Abdul-‘Azeez ibn Sa’oud and his army conquered Makkah

(October of 1924) and united all worshippers behind a single Imaam

regardless of his or their Madh-habs.
 

Taqleed (blind following) has to be distinguished from Ittibaa’

(reasoned following). The principle of following the rulings of our

predecessors is normal and natural. In fact, it is by closely following

earlier interpretations of Islaam that the message of Islaam remains

uncorrupted through time. For, those early interpretations were

founded on the Prophet’s (s.w.) divine inspiration and his divinely

guided life style. The Prophet (s.w.) himself said that the best

generation was his generation, then the generation following his, and

then the generation following that.Sahih Muslim

 However, since Muslims of

earlier generation, with the exeption of the Prophet (s.w.), were not

infallible, even those earlier interpretations should not be followed

blindly without without regard to certain basic principles of reason

which enable us to distinguish between right and wrong. In this book

the term Taqleed (blind following) is used to refer to the actions to

those who slavishly follow a single Madh-hab regardless of errors

that they see. As for the common people who do not have the

knowledge to make independent decisions in doubtful situations, it is

for them to follow whatever knowledge is available to them, keep

their minds open and rely on open-minded scholars as much as

possible.

Taqleed was the result of a number of factors, internal and

external to the Madh-habs, which affected the development of Fiqh

and the attitude of scholars. No one cause can be singled out as the

main cause nor can all of the factors be identified. 
 
The following only a few of the more obvious factors which led
 to this stage of stagnation.

1. The schools of Fiqh were completely formed and the minutest of

details worked out. The laws for what had occurred, as well as

what might occur, were already deduced and recorded due to the

extensive development of speculative Fiqh. This left little room

for Ijtihaad and originality. As a result, they’re developed and

over dependence on the works of earlier scholars of the Madhhabs.

2. The ‘Abbaasid caliphate, which had come to power under the

banner of restoring Islamic law to its former place , lost its

power to the King’s ministers (wazeers), many of whom were

shi’ites, and the empire eventually broke up into mini-stages.

The new rules-by-proxy were more interested in private power

struggles than in either religious scholarship or government

according to Islamic laws.

3. The crumbling of the ‘Abbaasid empire into mini-states was

accompanied by each state following the Madh-hab, Spain the

Maalikee Madh-hab, and Turkey and India the Hanafee. Each

state began the practice of choosing its governors, administrators

and judges only from those who followed its official Madh-hab.

Consequently, scholars who wanted to become Qaadees (judges)

in the courts of these states had to follow the official Madh-hab

of the state.

4. Some unqualified individuals began to claim the right to make

ijtihaad in order to twist the religion to suit their wishes.

Consequently, many incompetent scholars began making rulings,

which misguided the masses on a number of issues. In the

ensuring confusion, the reputable scholars of the day tried to

close the door of Ijtihaad in order to protect the Sharee’ah from

being tampered with. al-Madkhal, pp. 136-137.
 

The same factors which led to Taqleed also caused scholars

to confine their creative activity to merely editing and revising

previous works. The Fiqh books of earlier scholars were condensed

and abridgements of them were made. These abridgements were later

shortened in order to make them easy to memorize, and many of

them were actually put to rhyme. This process of condensing

continued until the summaries, which resulted, became virtual ridles

to the students of the day. The following generation of scholars

began to write explanations of the summaries and poems. Later

scholars wrote commentaries on the explanations and others added

footnotes to the commentaries.

During this period some books on the fundamentals of Fiqh

(Usool al-Fiqh) were written. In these works, the correct method of

making Ijtihaad was outlined and the conditions which were laid

down by these scholars were so strict that they excluded not only the

scholars of their time but also many of the earlier scholars who had

made Ijtihaad.

There were also a few books, which were written, on

comparative Fiqh during this period. As in the previous period, the

opinions of the Madh-habs and their proofs were collected and

criticized in these books. The authors then defined as most accurate

those opinions, which were held by their particular Madh-hab.

Toward the end of this period, an attempt was made to

codify Islamic law under the auspices of the ottoman caliphs. A

panel of seven top ranking scholars of Fiqh was formed and

entrusted with the job. It was completed in 1876 CE and enforced as

law by the Sultan throughout the Ottoman Empire under the title

Majallah al-Ahkaam al-‘Aadilah (The Just Codes)

Anwar Ahmed Qadri, Islamic Jurisprudence in the Modern World,

(Lahore, Pakistan: Ashraf, First edition 1963) p. 65.

  However, even this seemingly noble attempt was 
affected by Madh-hab fanaticism.

All of the scholars on the committee were appointed from the

 Hanafee Madh-hab. Consequently, the resulting code totally ignored

the contributions of the other Madh-habs to Fiqh.

With the expeditions of Columbus and Vasco de Gama,

Western European states began to capture the routes and sources of

international trade. Subsequently, European imperialism beginning

with Java, which fell to the Dutch in 1684, absorbed Muslim East

Asian states. After Transyvania and Hungary fell from ottoman

hands to Austria in 1699 and the defeat of the Ottomans by Russia in

the Russo-Turkish war of 1768-74, the European territories of the

Ottoman Empire were soon lost, one after another.
Islamic Jurisprudence in the Modern World, p. 85.

This process culminated in the total dissolution the
 Ottoman Empire during the First World War and
 its division into colonies and protectorates.

Consequently, European law codes replaced Islamic laws
 throughout the Muslim world.

Although European colonialism was officially ended some

years ago, Islamic law has remained in disuse in all Muslim

countries with the exception of Saudi Arabia which has codified

Islamic law according to the Hambalee Madh-hab, Pakistan to a

large degree according to the Hanafee Madh-hab and Iran which has

recently done so according to the Ja’faree Madh-hab.

The Fiqh Madh-hab of the Ithnaa ‘Ashreeyah (Twelver) Shi’ite sect

falsely attributed to Imaam Ja’far as-Saadiq (d.765 CE).

In spite of the general decay described above, there existed

from time to time throughout this period a few outstanding scholars

who opposed Taqleed and dared to raise the banner of Ijtihaad. They

called for a return to the roots of the religion, to the true sources of

Islamic law and to reliance on these foundations above all else.

Some of these reformers and their contributions are described

hereafter.

Ahmad ibn Taymeeyah (1263-1328 CE) was not foremost

among the reformers of this period. Because of his challenge of the

status quo, many of his contemporaries declared him an apostate and

had the authorities jail him repeatedly. Ibn Taymeeyah was,

however, one of the greatest scholars of his time. Initially, he had

studied Fiqh according to the Hambalee Madh-hab, but did not

restrict himself to it. He studied the sources of Islamic law in depth

and mastered all the Islamic sciences which were known at that time.

Furthermore, he examined the writings of various sects which had

broken off from islaam, studied the religious books of the Christians,

the Jews and their various sects and wrote extensive critiques on all

of them. Ibn Taymeeyah also took part in the Jihaad against the

Mongols who had occupied the eastern and northern provinces of the

former ‘Abbaasid state and were at that were among the greatest

Islamic scholars of their time and carried on to the next generation

the banner of Ijtihaad and a return to the pure sources of Islaam

which he had raised. Among them was Ibn Qayyim, a great scholar

in the fields of Fiqh and Hadeeth criticism and Ibn Katheer, a master

in Tafseer, History and Hadeeth.

Muhammad ibn ‘Alee ash-Shawkaanee (1757-1835 CE)

born near the town of Shawkaan in Yemen, was also among the

reformers to this Period. Ash-Shawkaanee studied Fiqh according to

the Zaydee Madh-hab[One of the major Shi’ite Madh-habs of Fiqh (see pp. 60-65).] and became one of its outstanding scholars.

He then went into an in-depth study of the Hadeeth of his time. At

this point he freed him self of the Madh-hab and began making

independent Ijtihaad. He wrote a number of works in Fiqh and its

fundamentals in which issues studied from the points of view of all

the Madh-habs were concluded with solutions based solely on the

most accurate proofs and the most convincing arguments. Imaam

ash-Shawkaanee took the position that Taqleed was Haraam and

wrote a number of books on the topic, for example, Al-Qawl al-

Mufeed fee Hukm at-Taqleed. Consequently, he also came under

attack from most of the scholars of his time.
Muhammad ibn ‘Alee ash-Shawkaanee, Nayl al-Awtaar, vol. 1, pp. 3-6.

Another noteworthy reformer was the great schoar Ahmad

ibn ‘Abdur-Raheem better known as Shah Walee Allaah Dihlawee

(1703-1762 CE). He was born in the Indian sub-continent where

Taqleed was, perhaps, most rampant. After he had mastered the

various Islamic sciences, he called for the re-opening of the door of

Ijtihaad and the re-unification of the schools of Fiqh. In this efforts to

re-examine Islamic principles and to find out on what authority the

legal schools based their regulations, Shah Walee Allaah rejuvenated

the study of Hadeeth. Although he did not go so far as to reject the

existing Fiqh schools, nevertheless he tought that everyone was free

to choose a particular decision different from that taken by the school

to which he belonged himself, if he was convinced that the case was

better confirmed by Hadeeth.

 A.J. Arberry, Religion in the Middle East (Cambridge University Press,

1969-reprinted 1981) vol. 2, pp. 128-9.

However the over all state of degeneration and stagnation

has continued until today, despite the efforts of modern thinkers like

Jamaal ad-Deen al-Afghaanee (1839-1897 CE) who traveled

throughout the Muslim world calling for reform. Jamaal ad-Deen

traveled to India, Makkah, and Constantinople, settling finally in

Egypt. He called for free political, religious and scientific thought

and denounced Taqleed and state corruption. Jamaal ad-Deen

thought these ideas at the University of Jamaal ad-Deen’s ideas were

extremist. For example, he elevated the human mind and its logical

deductions to a level equal to that of Divine Revelation. His

intentions also became suspect due to his involvement with the

Masonic movement which was at that time establishing new

branches in the Middle-East.
{The oldest and most famous  Islamic University in the Muslim world.
  It was first established in Egypt by the Faatimid Shi’ite state in 

the year 361AH/972 CE.}
 

Muhammad ‘Abduh (1849-1905 CE) was among

Afghaanee’s most famous students. Under the influence of

Afghaanee and Ibn Muhammad ‘Abduh, and Taqleed and its

supporters were systematically attacked. But, due to Muhammad

‘Abduh’s leaning toward extreme modernism, he eventually deviated

in some of his interpretations and legal rulings.
For example, in his Tafseer of the Qur’aan 
he Prophets of directly performed by God through the forces
 of nature.  To him the flocks of birds which

dropped clay pebbles on the army of Abrahah and his elephant

during their attack on the Ka’bah were simply airborne microbes

which spread disease among them. Likewise, he made a Fatwaa

allowing Muslims to be involved in business transactions involving

interest. He based this ruling on the Fiqh principle that dire
  necessity makes the forbidden allowable. 

 The fallacy of his ruling lay in the fact that Fiqh
 specifically defines dire necessity as involving matters

of life and death or loss of limb, and this was simply not the case

where business transactions are concerned. Muhammad ‘Abduh’s

main student, Muhammad Rashed Ridaa (d. 1935), carried on his

mentor’s attack on Taqleed, but rejected most of his teacher’s

excesses. However, other students of Muhammad ‘Abduh became

the nucleus of the extreme modernist movement and deviated in

many areas even more than their teacher.
For example, his student Qaasim Ameen (died 1908) 
was the first to make a vehement attack on polygamy, 
the simplicity of Islamic divorce and the use of the veil.

Other scholars of the twentieth century, such as Hassan al-

Bannaa (d.1949), founder of the Ikhwaan Muslimoon movement

Sayyid, Abul-A’laa Mawdudi (1903-1979), founder of the Jama’at

Islami movement, and more recently the great Hadeeth scholar of our

era, Naasir ad-Deen al-Albaanee have picked up the banner of

Islamic Revival and have called for the unfication of the Madhhabs.

[The book, Fiqh as-Sunnah, by as-Sayyid Saabiq, one of al-Bannaa’s

followers, represents a serious attempt to answer that call.]
But, to this day, the majority of scholars remain firmly

bound to sectarian Islaam in the form of one of the four Madh-habs.

In doing so, they unknowingly perpetuate division among the ranks

of the Muslim nation. Nor does there appear to be much hope for an

end to this process in the near future; for, with very few exceptions,

present day Islamic institutions of learning throughout the Muslim

world actively propagate a sectarian view of Islaam.

It is true that comparative Fiqh is now being given a

prominent place in the syllabuses of these institutions, and the
 study of Hadeeth has become more popular than it was only
 a century ago. But, the reality is that these two potentially
 dynamic and regenerative subjects have been defused by
 the sectarian system of Islamic education
.
Each university adheres to the official Madh-hab of the

country in which it is situated and thus all the core Fiqh courses 
 of the Islamic law Syllabus (called Sharee’ah or Usool al-Deen) 
are taught according to the state Madh-hab[One of the 
few exceptions to this rule at the present time is the Islamic 
University of Madeenah, Saudi Arabia. 
 Over 80% of the student body comes from various parts
 of the Musim world and no Madh-hab is given

preference over the other in the study of Fiqh.
 At the college level. This is done to fulfill the

local government’s need for judges who conform to the Madh-hab

used in the civil law system of the state. For example, the University

of al-Azhar in Egypt, the most venerated institution in the Muslim

world, is the only university in which all of the major Madh-habs are

taught. However, students entering the university are required to

indicate their Madh-hab are placed in the same class. 
 From the beginning of their studies until they graduate, 
all of their professors will be from their own Madh-hab. 
Accordingly, the positions of the other Madh-habs are studied
 merely as oddities, and the great books

of Hadeeth are read more for the blessing than for the 
revelation of truth.

 Whenever a conflicting opinion is encountered in the course of

these studies, the teacher in the sectarian institution examines it

superficially and rejects it in the light of the compelling arguments,

which he develops to support the position of his particular Madhhab.

Thus, although other positions may be supported by very strong

proofs, the sectarian teacher’s treatment denies them the

consideration they deserve. Similarly, if a strong Hadeeth which

appears contrary to the position taken by the Madh-hab is met while

reading the books of Hadeeth, the teacher either re-interprets it to

support his Madh-hab or he deftly explains it away. And if neither of

the two is possible, a series of weak Hadeeths are quoted in support

of the Madh-hab’s position without the slightest mention that they

are weak. In that way, it appears that there is a greater number of

Hadeeths supporting the Madh-hab’s position, and the students are

convinced of the correctness of their Madh-hab.

1. Ijtihaad in all its forms was put aside, and the blind following

(Taqleed) of one of the four Madh-habs was made compulsory

on all Muslims.

2. The four Madh-habs became totally incompatible and the

Muslim Ummah was virtually split into four religeous sects.

3. Scholarly activity was restricted to writing commentaries on

previous works and promoting the position of the author’s

particular Madh-hab as in the period of consolidation.

4. There were commendable attepts by certain reformers to revive

the original and dynamic nature of Fiqh, but their efforts proved

unequal to the task of eradicating Madh-hab fanaticism which

had became so deeply ingrained.

5. Attempts at the codification of Islamic law were made, but the

results suffered from sectarian views, and with the advent of

European colonialism they were supplanted by European law

codes.

6. There has been some lessening of Madh-hab fanaticism in recent

years as a result of the reformist movements and the wide-spread

teaching of comparative Fiqh in modern institutions of learning.

7. The state of stagnation and decline of Fiqh and the existence of

Madh-hab factionalism have continued until the present day.