The Evolution Of Fiqh by Bilal Philips

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-hab192 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 alMufeed fee Hukm at-Taqleed. Consequently, he also came under attack from most of the scholars of his time.193

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.194

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.195

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 alBannaa (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.196 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-hab197. 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.