The Evolution Of Fiqh by Bilal Philips

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.

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 arRasheed (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.111This 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.

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.114

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.115 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.