The Evolution Of Fiqh by Bilal Philips

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.

Hadeeths of the Prophet (s.w.) wee next in importance.

However, scholars for their acceptance and application set various conditions.

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)

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.”124 Since Marijuana has as intoxicating effect it can be classified as Khamr and thus Haraam (prohibited).

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”,125 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).

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.126 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 tecorded 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.