The Evolution Of Fiqh by Bilal Philips

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. 95

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.” 96 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.97

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:.

(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.”98.

(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.