View Printable Version :: Email to a Friend
Evolution of Law in Islam
M.A. Fariq

The pre-Islamic Arabs had no systematic law. Their conduct in individual life was controlled by the conventions of the family or the clan to which they belonged. In the broader aspects of their lives, a clan, sub-tribe and tribe would usually have recourse to the arbitration of the oldest man (Shaykh) among them or the Kāhin (soothsayer) or anyone noted for ripe judgement and impartiality. The arbitration of these arbiters would not, however, be absolutely binding on those who sought it: they would break it without incurring any serious harm except the displeasure of the community. Some settled tribes of Madīnah and Makkah had, besides the conventions, a body of laws which they had derived from the neighbouring Jewish settlements and the civilised people of Syria in their commercial travels.

Islam brought a systematic law and its potential to the Arabs. The Qur’ān and the Prophet (sws) were the first sources of the Islamic law. The Qur’ān provided basic legislation, that is, the cardinal principles on which the structure of the Muslim society was to be based and left minor and circumstantial issues to be decided by the Prophet (sws) and, after him, by the Muslims themselves in the light of its dicta.

The basic legislation had two sides – the spiritual and the mundane. The spiritual side dealt with such vital matters as the position of God, the Creator of the universe, His attributes, His powers, the position of man in the universe viz-a-viz the Creator, the purpose of His creation, His role in the universe, His ultimate end and His moral ideal. Twenty-nine-thirtieth of the Qur’ān revolved round this side of the basic legislation and it was this side on which the foundations of Islamic life were to rest. This was the most important part of the Qur’ān and constituted the substance and spirit of Islam and all the apostolic books before it aimed at the vindication and establishment of this part. But, unfortunately, the first embracers of Islam generally did not grasp and assimilate it owing to the mighty influence of their tribal instincts and traditional ideals and, therefore, the order of life which they built up lacked proper foundation and could not vindicate the real spirit of Islam, set forth in the twenty-nine-thirtieth part of the Divine Book.

The mundane side of the basic legislation, comprising about one-thirtieth part of the whole book, dealt with the legislation of quite a number of civil, matrimonial, criminal, religious and political matters affecting the Muslim society at Madīnah during the eleven years of the Prophet’s residence there.

As long as the Prophet (sws) lived, that is, during the twenty-three years of his apostolic career, he was also a legislator, of course, in accordance with the spirit and the dictum of the Qur’ān and in matters which were not directly considered by the latter. The legislation, for example, determining the mode and the time of prayers, and the amount of Zakāh to be paid, came from him and any matter which he decided or ordered in particular matters assumed the authority of law in similar circumstances.

These two, i.e. The Qur’ān and the Prophetic practice (Sunnah), were the exclusive sources of law during the life-time of the Prophet (sws). As new and quite unforeseen conditions faced the Muslims in their political and territorial expansion after him, the use of Ijtihād or Rā’ay (individual judgement), in the light of the above-noted primary sources, became a third source of legislation. Many Companions used it, including Abū Bakr (rta), ‘Umar (rta), ‘Uthmān (rta) and ‘Alī (rta), whenever the Qur’ān and the Sunnah did not provide law. Abū Bakr’s caliphate was short (about three years) and the range of Muslim sovereignty was restricted to Arabia alone. The problems which arose during his caliphate were, therefore, neither numerous, nor very diverse, being to a large extent similar to those which had already arisen in the Prophet’s life-time and for which he had made legislation.

The conquest of new lands – Iraq, Syria, Persia and Egypt – in the caliphate of the second Caliph, ‘Umar (rta), brought with it a big mass of quite new civil, military, social, criminal, fiscal and revenue problems, provision for which had been made neither in the Qur’ān nor in the Prophetic usage. Further, the problems of every land, even district, were very often different from those existing in others and, as such, called for different legislation. In the legislative history of Islam, ‘Umar’s caliphate figures out very prominent. It provided legislation for a large number of political, military, revenue and economic problems which assumed the status of legal precedents for the future generations and commanded a legal authority second only to that of Hadīth and the Qur’ān. He was the first caliph to appoint legists, judges and teachers of Fiqh (law) in every great Muslims city. He was the first caliph whose caliphate saw the spread of the Companions – about 2,000 in number, we are informed – to far-off lands as military generals, warriors, counsellors and religious guides. They formed a very important nucleus of legislation in the chequered problems facing the Muslims in their new and alien homes.

Legal activity flourished a great deal at the capital itself and Ijtihād or Rā’ay played a prominent role in it. This Ijtihād meant the application of deduction to the principles of the Qur’ān or Sunnah and the derivation of new judgements therefrom to meet new situations.

But ‘Umar (rta) followed not only the letter of the law while using his Ijtihād, but also its spirit. There is enough evidence to prove that in the exercise of his Ijtihād, he always tried, as far as he could, to vindicate the purpose lying at the background of every legal provision, enunciated by the Qur’ān or the Prophet (sws). The following episode may serve as an illustrative instance. The slaves of an Arab, Hātib Ibn Abī Balta‘ah by name, stole away the she-camels of another Arab of the sub-tribe, Muzaynah. They were brought to ‘Umar (rta) as the accused and they confessed their guilt. The son of Hātib was called by the Caliph and told that his father’s slaves had stolen the she-camels and owned their guilt. Thereafter, he order the cutting of their hands in accordance with the canon of the Qur’ān with regard to thieves. But, presently, he perceived the unjustifiability of the sentence and thus addressed the son of Hātib, revoking his order: ‘By Allah, had I not known that you employ them as labourers and keep them hungry so much as to make it lawful for them to eat anything forbidden by Allah, I would have cut off their hands.’

Further, in the appointment of judges ‘Umar (rta) was guided more by the consideration of a man’s ability to understand the basic principles of the Qur’ān and the Prophet’s Sunnah and apply them properly to particular cases than by the mere fact of his being a Companion. This attitude of the Caliph is demonstrated by the appointment of Ka‘ab Ibn Sūr al-Azdī and Shurayh al-Kindī as judges and teachers of Fiqh in A.H. 18 at Basrah and Kūfah respectively. Neither of the two was a Companion but both gave such striking proof of their command of deductive talent by deciding two cases with the help of analogy from the Qur’ān that the Caliph was prompted to send them as legists to the greatest provincial towns of the Caliphate.

After the time of ‘Umar (rta) onwards, centres of law sprang up everywhere in the Muslim world. The Caliph, as noted before, appointed judges and teachers of law in every great city. Further, he attached Companions of note to the judges of some provincial towns for their help and guidance. The judges and teachers of Fiqh sometimes sought the assistance of the Companions in dispensing justice and tendering Fatāwa. Very often people would refer the multifarious problems of their day-to-day life to the Companions residing in their city for legal advice.

The mosques of Basrah and Kūfah were the centres of law in Iraq, those of Fustāt, Damascus, Makkah, Madīnah, and San‘ā’ were centres in Egypt, Syria, Hijāz and Yemen respectively. The following Companions played the leading role: in Basrah, ‘Imrān Ibn Husayn (d: 52), Abū Mūsā ‘Ash‘arī (d: 44); in Kūfah, ‘Abdullāh Ibn Mas‘ūd (d: 32) and ‘Alī (d: 40); in Damascus, Mu‘ādh Ibn Jabal (d: 18) and Abū Dardā; in Fustāt ‘Abdullāh Ibn al-‘Ās (d: 73) and ‘Abū Dharr (d: 31); in Yemen; Kaysān; in Madīnah, ‘Umar (d: 23), ‘Uthman (d: 35), Ibn ‘Umar (d: 73), ‘Ā’ishah (d: 58), Ibn ‘Abbās (d: 69), and Zayd Ibn Thābit; and in Makkah, Ibn ‘Abbās.

The Companion and non-Companion judges and teachers of Fiqh in every land derived and practised law throughout the Rāshidah Caliphate and the Umayyad rule in the light of all the three sources of legislation, namely, the Qur’ān, Hadīth and Rā’ay or Ijtihād. At some places, and under particular circumstances, the importance and use of Hadīth or Rā’ay were emphasised. Hadīth had generally greater appeal to the Arab mind for several reasons: it satisfied their psychology of love for tradition, it possessed a high sanctity for being associated with the Prophet and it vested those who cultivated it with great respect in the eyes of the public. The importance and use of Rā’ay were pronounced at such places where Hadīth had not reached in abundance and where the problems of life were far too complex and rapidly growing to be adequately met with the Hadīth, as it had been limited to the simple social, economic, and political conditions of Madīnah and related more to the personal life of the Prophet (sws) and his religious practices than to the practical problems of life.

Makkah and Madīnah were the homes of Hadīth and the Companions, who acted as judges, teachers of Fiqh and ministers of law there throughout the Rāshidah Caliphate (11-40) and the greater part of the Umayyad rule, became in the latter half of the first century the nucleus of a school of Fiqh known as the school of Hadīth. A number of people who had absorbed the legal ministrations of the Companions, and, in some cases, were attached to them as pupils became, after their teachers’ death, the custodians of the legal science which they had imbibed from them. They treated the legal decisions and judgements of their teachers as equivalent to the traditions of the Prophet (sws). They jealously preserved and guarded the legal knowledge inherited from their predecessors, decried the use of Rā’ay as being against the spirit of traditions, and resorted to it only and quite reluctantly when the Qur’ān, Hadīth and the legal precedents of the Companions totally failed to give guidance. Although most of the leading Companions themselves freely employed Rā’ay whenever need arose, their successors abhorred it and banned exercise except in extreme cases.

These people are known as the first class of the jurists of Makkah and Madīnah with Ibn Jurayj, ‘Urwah Ibn Zubayr (d: 94), Sa‘īd Ibn Musayyab (d: 93), Sālim Ibn ‘Abdullāh (d: 106), as the most prominent Tābi‘ūn. They were followed by the second class of the Tābi‘ūn jurists who had imbibed from them not only the legal heritage of the Companions but also the additional fund of the Fatāwa issued by their teachers on the basis of that heritage or, as the last resort, on Rā’ay. Hadīth of the Prophet (sws), Fatāwa of the Companions and those of the Tābi‘ūn became the legacy of the second class of the Tābi‘ūn jurists and they jealousy guarded and preserved it, according the same status to it as to Hadīth, and decided cases with its help and in its light, unless the exercise of Rā’ay became an absolute necessity.

New layers of law precedents continued to accumulate in this way as new generations of the Tābi‘ūn jurists flourished one after the other.

On the same traditional lines, too, proceeded Fiqh in all other great cities, with Hadīth or Rā’ay dominating its culture in keeping with the mental attitude of its cultivators and the particular circumstances of the place. The elements of Hadīth, of course, after the pattern of the one existing at Makkah and Madīnah, were in ascendance through the Umayyad period in the law practices of Hijāz, Syria and Egypt, though the last two lands could not be so seriously indifferent towards Rā’ay as those of Hijāz because of the much more complex and numerous problem prevailing there in contrast to the more or less static condition of the Arabian peninsula.

The school of Hadīth in Fiqh found a true rival in the school of Rā’ay or Qiyās of Iraq. Kūfah, the most populous Arab city of Iraq after Basrah, was its centre and cradle. The characteristics of this school was the use of Qiyās (analogy) in commenting on the Qur’ān and tendering legal judgements. The founder of the school was ‘Abdullāh Ibn Mas‘ūd (rta), a Companion of talent. After him, it was maintained and advanced by his pupils and also by ‘Alī (rta) who had stayed there as Caliph for about four years prior to his murder. In about 20 AH, Ibn Mas‘ūd (rta) was commissioned to Kūfah by ‘Umar (rta) to teach the Qur’ān and Fiqh to the populace. A circle of devotees surrounded him as pupils in Fiqh and the Qur’ān. He would often be faced with problems (Iraq being socially and economically far more advanced a land than either Hijāz or Egypt) for which he had known no precedents at Madīnah and for which no Hadīth was available. He would, therefore, use his Rā’ay, of course, subject to the dicta of the Qur’ān on such occasions and such occasions were very numerous.

His pupils preserved his verdicts and judgements and made them the basis of their own legal decisions – Fatāwa. After Ibn Mas‘ūd (rta), the official judge of the city was Shurayh and the decisions of this celebrated jurist, though not a pupil of Ibn Mas‘ūd (rta), were based more on common sense and analogy (Qiyās) than on Hadīth. He catered for the legal needs of the city in an official capacity for more than fifty years. He was not a Companion and knew little of Hadīth and, in fact, Hadīth was generally little known in Iraq owing to the paucity of the Companions there and its inadequacy to meet the complex situations of the highly chequered civilisation of that land. Further, ‘Alī (rta) also liberally exercised his Ijtihād in dealing with the legal issues which faced him in the day-to-day administration. With Ibn Mas‘ūd (rta) as its founder and Shurayh and ‘Alī (rta) as its first pioneers, the Iraqi School of Fiqh pursued a legal course in which Rā’ay or Qiyās was the dominating factor. But like the rival School of Hadīth, it also followed a traditional path. The legal decisions of Ibn Mas‘ūd (rta) became the law precedents of his pupils and were jealously preserved by them and so was also the case with the legal pronouncements of Shurayh, and ‘Alī (rta). The next generation of the Tābi‘ūn who had assimilated this store of law and were mentally disciplined in the legal methods of the school made it the basis of all legislation which they were called upon to formulate, and preserved and guarded it with as much care and tenacity as their rivals at Makkah and Madīnah. They would use Rā’ay only when the store of their inherited law failed to give them any guidance, but as long as the legal verdicts of their predecessors could analogously or by any logical method inspire them with legal solutions, they would not exercise Ijtihād. Yet they would make a liberal use of this means or what they called Qiyās in deducting all possible legal corollaries (called by them: Furū‘) of particular issues without their having actually occurred in practical life. This practice of theirs thoroughly antagonised them with the school of Hadīth which highly detested the deduction of a legal corollary unless need for it had actually arisen. Further, the deductions which they made analogously from the Fatāwa of their predecessors involved a logical insight into the points (often very subtle and obscure) of similarities and differences of cases or their causes and also logical reasoning which, most often, were absent in the jurists of Hijāz. They were generally very adept in (acquainted as they had been with logical methods in their long association with Logic and Philosophy) discovering the points of similarities and differences of cases and in deducing legal inferences from the legal verdicts of their predecessors.

Moreover, this school had a positive attitude toward the Hadīth of the Prophet (sws). They accepted such Traditions only as were famous (Mashhūr) or in common prevalence or had been transmitted by sets of more than one transmitter, though such Traditions were quite small in number. This attitude, coupled with their practice of inferring provisions for all possible legal aspects of particular cases in advance of their occurrence was the most distinctive feature of this school and for which it was looked down upon by the school of Hijāz.

These were the two very well-defined and widely prevalent law schools of the Umayyad period. The school of Hadīth dominated the whole of Hijāz, parts of Syria and Egypt, that of Rā’ay ruled the legal activity of Kūfah, Basrah and the rest of ‘Irāq.

But extremist tendencies in legal matters also existed among the followers of the two schools in so far as some jurists entirely banned Rā’ay and took Hadīth (which covered the Traditions of the Prophet (sws), the Companions and the Tābi‘ūn) as the exclusive source of legislation after the Qur’ān, while others forsook Hadīth totally and declared Rā’ay as the only satisfactory means of legislation after the Qur’ān. The Fiqh of the Zāhirīs (followers of Dā’ūd Zāhirī, 200-270 AH) and that of the Khawārij, represented the two extreme views.

The legal methods of individual judges and ministers of law at many places in Iraq, Syria, Egypt and North Africa worked on lines more moderate than those of the two major schools. They did not restrict or ban either Rā’ay or Hadīth, nor did they prescribe strict conditions for either. They first looked up to the Qur’ān for getting a legal provision; in case of failure they looked for a Hadīth and if this source too failed them, they exercised their Ijtihād or Rā’ay or Qiyās. Further, they neither attempted deduction of presupposed law corollaries (Furū‘), nor limit the range of Hadīth by prescribing the condition of Shuhrat to it like the school of Iraq, nor restrict the authoritative character of Traditions to those current in Makkah and Madīnah alone as was the attitude of the jurists of the two cities.

These three schools constituted the main channels of legal activity throughout the Umayyad period. By its end, the position of every one of them was as follows: Makkah and Madīnah had three layers of Fiqh prepared by three generations, the first comprising the Companions and the other two, the Tābi‘ūn. These layers commanded great sacredness, were closely guarded and actively pursued by those who inherited them. The jurists of the second and the succeeding generations evinced a strong bias for the Fatāwa of their predecessors which made them shut their eyes to the Fatāwa of the jurists of other places, however sound and just they might be. They even refused to accept the Traditions which were not known to them or were not current in their cities. No legal judgement (or Hadīth) was looked upon as authentic and authoritative unless it was associated with some member of their school or based on the legal heritage peculiar to them. Rā’ay was only used when this heritage failed to give direct legal guidance, and, further, the scope, the nature and the method of its exercise were not sufficiently wide, adequate or logical.

The school of Iraq, on the other hand, had four layers of Fiqh when the Umayyad period ended. The first layer began with the Companions, Ibn Mas‘ūd (rta) and ‘Alī (rta) and the fifth was completed and perfected by Abū Hanīfah (d: 150). Every preceding layer of Fiqh was held almost in the same regard by every succeeding generation of the jurists of this school as was the case with the layers of Makkah and Madīnah. Place and person prejudice was here, too, displayed in the cultivation of law, and outside legislation would not be accepted by the followers of this school as law precedent. As an example of this prejudice we may note the following remark of Abū Hanīfah to al-Awzā‘i, the great Mujtahid of Syria: ‘Ibrahīm (a Kūfī Tābi‘ī jurists of the School of Rā’ay) had greater legal wisdom than Sālim (a Tābi‘ī jurist of the School of Hadīth at Madīnah) and had not Ibn ‘Umar (rta) been a Companion of high calibre, I would have declared ‘Alqamah (a jurist of Kūfah among the first Tābi‘ūn generations) superior to the former’. They would accept only Mashhūr Traditions (including the verdicts of the great Companions) and all possible legal corollaries of practical cases deduced on large scale by means of analogy. The theory of Rā’ay was formulated, elaborated, systematised and evolved in what came to be technically called Qiyās. The theory of Istihsān (rejection of an analogous deduction from a canon) in the interests of justice and that of Istislāh for the vindication of the spirit of law, or the realisation of the great interests of public justice at the sacrifice of individual interests, were formulated and the two came to play quite an important part in the development of Fiqh.

The third school did not undergo any specific changes except that the person-and-place prejudice was also prevalent among them in so far as they guarded and preserved and set as precedent the legal judgement of the jurists of their lands. They did not generally shut their doors to outside Hadīth whether it belonged to the Prophet (sws) or his Companions. Hadīth and Rā’ay went hand in hand in their legal practices.

The ‘Abbāsid period heralded a great career for the evolution of Fiqh. The first two centuries of the ‘Abbāsid rule, particularly the first is distinguished for large-scale and basic compilation of books, for the formulation and codification of its Usūl (fundamentals), the crystallisation of some of its schools, and the rise of new ones. This evolution was due, partly to the extraordinary demands for legislation of a very rapidly developing and complex civilisation, partly to the peaceful atmosphere of the realm and partly to the keen interest which the kings and great men displayed in the patronage of learning, specially in religion and law. Unlike the Umayyad princes who simply, and yet not always, appointed judges to cater for public justice in accordance with their Ijtihād and individual legal outlook, the ‘Abbāsid government appointed a chief justice at Baghdad who was to control all the judicial appointments of an extensive empire. This naturally implied that the official legal activity of the realm should conform to the particular legal outlook of the chief justice and to a considerable degree in practice it did follow this pattern although Ijtihād was still free and freedom of maintaining individual outlook was still unchallenged.

Apart from the official judges, who were appointed in every city and who, as noted above, had to follow, to a considerable extent, the legal methods of their head, the chief justice, there were numerous legists who privately cultivated law in every city, town and village and were consulted by the public in their legal needs. They (the legists) either followed the School of Hadīth, or that of Rā’ay or the moderate one or owned allegiance to none and acted according to their own Ijtihād or legal insight. Similarly, the common people were free in consulting the Muftis, and individual wishes or bias counted more in such consultation than school or party prejudice. Such conditions, however, did not last long. The compilation of the books of different schools of Fiqh in the second half of the second century A.H. (first ‘Abbāsid period) set the stage for the hardening of the legal attitude of the public and their division into different jurisprudential groups (Madhāhib).

Broadly speaking, the development of Fiqh in theory and practice, during the first two centuries, proceeded along the lines of Madhāhib (legal courses) of over a dozen great Mujtahids who pursued their own legal methods and ideologies in the cultivation of law. They are Hasan Basrī (Basrah), Awzā‘ī (Syria), Abū Hanīfah (Iraq), Layth Ibn Sa‘ad (Egypt), Mālik Ibn Ans (Madīnah), Sufyān Ibn ‘Uyaynah (Makkah), Shāfi‘ī (Egypt), Ishāq Ibn. Rahwayh (‘Iraq), Abū Thawr (Adharbāijān and Armenia), Ahmad Ibn Hanbal (Baghdad), Dā’ūd Zāhirī (Khurasan) and Ibn Jarīr Tabarī (Iraq). Some of these Mujtahids lived the greater part of their lives in the first century, some lived in the second and some in the third. Most of their courses fell out of use after the third century, owing partly to the paucity of influential personages among their followers, partly to the lack of zealous supporters who could propagate and espouse their cause by pen and speech, and partly because of the inherent weakness of some of them, such as lay in the system of Dā’ūd Zāhirī who practically repudiated Rā’ay and stuck unreservedly to the canons of the Qur’ān and Hadīth. The courses which did not suffer from these disadvantages but which emerged stronger and stronger with the flow of time are the four schools of Fiqh known after the names of Abū Hanīfah, (80-150 AH), Shāfi‘ī (150-204 AH), Mālik (93-179 AH) and Ahmad Ibn Hanbal (164-241 AH). These schools crystallised into well-defined individualistic patterns only after the third century when brakes were applied to Ijtihād. Every one of these four Mujtahids was the representative of one or other of the schools of Fiqh that had grown during the Umayyad period. Abū Hanīfah was the greatest champion of the School of Rā’ay of Iraq. He died seventeen years after the establishment of the ‘Abbāsid government. He was a great analogist and since he perfected and systematised the theory of analogy (Qiyās or Rā’ay) on which the school associated with his name rested, he is generally called its founder. But he neither put down his views regarding Rā’ay in black and white, nor deposited his hundreds and thousands of Fatāwa in a book form. It was left to his three pupils, Muhammad Hasan, Zufar Hudhalī and Abū Yusuf (chief justice of the realm) and particularly the first two, to undertake the compilation of his Fatāwa, and those of his predecessors of the School of Rā’ay and tackle new problems of law in conformity with his perfected theory of analogy.

Mālik, Ahmad Ibn Hanbal and Shāfi‘ī are all champions of the school of Hadīth, but since they differed from one another in very important respects in their attitude towards Hadīth, they came to have separate theories and courses of Fiqh. Mālik was born at Madīnah (AH 93), read Fiqh with its jurists (the second class of the Tābi‘ūn, Nāfi‘ and Zuhrī being the most important of them) and inherited the legal heritage of his predecessors. He was the champion of this legal heritage and the most outstanding legists of Madīnah in his day. Legal tradition of Madīnah was the guiding principle of this Fiqh and he gave Hadīth of the Prophet (sws) a prominent position in his system. He argued that since the Prophet (sws) had lived the greater part of his life as a legislator at Madīnah, the Madīnans should naturally be the most well-acquainted persons with the Sunnah and its Nāsikh and Mansūkh. On the basis of this proposition, he regarded their practices in legal matters as authoritative as law and greater in authenticity than a Sahīh Hadīth. He further regarded the practices of the majority of the Madīnans, even if their entire concord was not available, as equal in authority to law and greater in legal force than a Hadīth transmitted by few transmitters (Khabr i Wāhid), because their practice in both cases implied that the contrary Traditions had been abrogated by the Prophet (sws). Secondly, he bestowed on the legal opinions of the Companions, and, sometimes, on those of the Tābi‘ūn, including himself, the legal authority of Hadīth, if a Sahīh Hadīth from the Prophet (sws) was not available. Rā’ay or Qiyās, according to him, could be exercised only when Ijmā‘ of the Madīnans, Hadīth of the Prophet, the legal judgement of the Companions and the Tābi‘ūn failed as sources of legislation. But Mālik, unlike Abū Hanīfah and his school did not prescribe the condition of Shuhrat for the acceptance of a Hadīth, and admitted as authentic – and in this he concurred with Shāfi’ī – Traditions transmitted by few transmitters (Khabr i Wāhid), provided they came to the standard of Sahih or Hasan.

Thus, acceptance of Sahih or Hasan Hadīth, recognition of Ijmā‘ of the entire population of Madīnah or its majority as law and preference of this Ijmā‘ over Sahih or Hasan Traditions, and award of the status of a Hadīth or law to the judgements of the Companions and the Tābu‘ūn in preference to Qiyās, constituted the chief principles of Mālik’s Fiqh.

Shāfi‘ī’s attitude towards Hadīth may be summed up as follows: He recognised the legal authority of a Sahih Hadīth (of correct and uninterrupted Isnād) whether it was Mashhūr or not and whether or not it was prevalent at Madīnah or Makkah (the rigorous conditions of Mālik) in preference to Qiyās, or Ijmā‘ or the judgement of a Companion or Tābi‘ī.

Ahmad Ibn Hanbal’s attitude towards Hadīth was different from that of Mālik or Shāfi‘ī and his Fiqh was almost entirely based on Tradition to the exclusion of Rā’ay. He gave the legal judgements of the Companions the status of apostolic Hadīth, preferred even Mursal or Dā‘if Traditions to Rā’ay (which neither Mālik nor Shāfi‘ī allowed) and abhorred legislation in matters which had not been traditionally legislated. Rā’ay according to him could be resorted to only in cases of extreme necessity when traditional law afforded no help.

To put the difference of their attitudes in more clear and plain terms, let us notice the order of the relative importance in which every one of them places his sources of legislation. The Qur’ān is the first source according to all of them. The second source according to Mālik, is Ijmā‘ of the residents of Madīnah; after it, Hadīth of the Prophet (Mashhūr, Sahih and Hasan); next to it, the legal verdicts of the Companions and the Tābi‘ūn of Madīnah; and, lastly, Rā’ay.

The second source with Shāfi‘ī is a Sahīh Hadīth (whether Mashhūr or not or whether singly narrated or by sets of transmitters) and not Ijmā‘. Again, while to Mālik, Ijmā‘ means Ijmā‘ of the residents of Madīnah, Shāfi‘ī extends its scope to the people of other places also. Further, Mālik sometimes gives preference to the opinions of a Companion or Tābi‘ī, including himself, over a Hadīth, which Shāfi‘ī would never concede. Rā’ay comes next to Ijmā‘ according to Shāfi‘ī unlike the order of Mālik.

The second source of legislation, according to Ahmad, was Hadīth of the Prophet (sws) and the opinions of the Companions. Even the weak and Mursal Traditions, unaccepted by either Mālik or Shāfi‘ī, could serve, in his system, as sources of law. Next to these ranked the legal verdicts of the Tābi’un# jurists and lastly, Rā’ay.

These differences – and quite momentous differences they are – arose mainly from the decision whether or not to accept Hadīth of the Prophet (sws) and the judgements of the Companions and the Tābi‘ūn as bases of legal rules. Besides these, there were other important differences too, which potentially influenced the segregation of their legal courses. Mālik accepted and practised the principles of Masālih-Mursalah and Istihsān in legislation while Shāfi‘ī characterised them as arbitrary and unjustificable courses. Rā’ay, as a source of law, was accorded but an insignificant position by Mālik without there being any serious effort on his part to define its nature or scope. Shāfi‘ī, on the other hand, gave serious consideration to it, defined its nature and scope carefully, bestowed on it an influential and honourable position in the domain of legislation. Ahmad Ibn Hanbal almost entirely ignored Rā’ay.

Although, Hadīth formed the main fountain of the Fiqh of each of the three Imams, the differences in their outlooks and attitudes, referred to above, led inevitably to the separation of their legal courses. Ahmad Ibn Hanbal compiled a Musnad of 4,000 Traditions in which he set forth not only Sahīh Traditions but also Dā‘if and Mursal ones. His refusal to accept the dogma of the creation of the Qur’ān originally imposed by the ‘Abbāsid Mu‘tazilite ruler, Mā’mun (d. 218 AH), his unflinching attitude in the matter when most of the leading jurists of the day had succumbed to the official pressure and, above all, the severe punishment inflicted on him for his refusal to fall in line with the royal policy, bestowed on him the sanctity of a religious martyr and rallied round him a large number of enthusiasts, supporters and devotees. After his death, his Musnad and the numerous legal judgements which he had issued in his lifetime were held in great reverence by his followers and became an authoritative legal system for them. Thus, he became the founder of a juristic system which was predominantly based on Tradition and which had very little to do with Rā’ay.

Mālik was the inheritor of the legal tradition of Madīnah (the home of Hadīth) and the most prominent jurist of his day in the whole of Hijāz. A circle of pupils, two very illustrious among them being Shāfi‘ī and Muhammad Hasan of Iraq, gathered round him at the mosque of the city where he regularly sat for legal ministration and compiled and edited his verdicts and methods of law. He also compiled a book, known as Mu’attā’, in which he collected all the Traditions and judgement of the Companions and the Tābi‘ūn, including his own, in reference to particular legal issues. The fact that he was the leading exponent of the legal heritage of the Prophet (sws) and his Companions, coupled with his sober personality and religious zeal, influenced some of his pupils very deeply. On returning to their homes, they propagated the Fiqh which they had imbibed from their teacher. Four of them happened to be the most illustrious jurists of Egypt and through them Mālik’s legal system radiated throughout the whole of the Maghrib (the West). Yahyā Ibn Yahyā, a fifth pupil, originally a native of South Africa, settled down in Spain. His long association as a student of law with the birth-place of Islam invested his personality with a sacred charm. He became an honorary legal adviser to the Caliph of Spain. All appointments of jurists and judges would be made under his advice and he recommended only those who followed his legal system which was grounded in Mālik’s. A powerful incentive to learn Mālik’s law was, thus, provided, and Mu’attā’, together with the Imam’s all other Fatāwa, soon became the cornerstone of the legal practices of Spain.

Particular circumstances played a decisive part in the evolution of the legal system of Shāfi‘ī. Being a pupil of Mālik he, at first, followed him in letter and spirit. But when he visited Iraq, observed the complex conditions of life prevailing there and met with the representatives of the school of Rā’ay with whom he had long debates over legal controversial matters, a change took place in his outlook. He noticed that at Madīnah, Hadīth was the most dominating factor in legislation, while in Iraq Rā’ay was the main source of law. He was a talented man and this anomaly set him thinking and roused his critical faculties to the utmost. He examined the principles of legislation of the jurists of Madīnah and of Iraq and found them carried to immoderate limits. He examined the Rā’ay theory prevalent in Iraq and the Ijmā‘ theory upheld by Mālik and also the attitude of both the schools towards Hadīth. He struck a middle course between what seemed to him the excesses of the two. He brought back Rā’ay from its forward position and defined and fixed its scope, defined the extent and nature of Ijmā‘ and very greatly extended the range of the legal authority of Hadīth by fixing Sahīh Hadīth as standard thereof. Having done this, he set forth the relative priorities of the sources of law. He put the Qur’ān at the top, next to it, the Sahīh Hadīth, next, Ijmā‘ and lastly, Rā’ay. He expounded all his theories and arguments with regard to Hadīth, Rā’ay and Ijmā‘ in a well-argumented manner in a treatise, called al-Risālah. This was the first work in Islam about the Usūl or the fundamentals of law, and it immensely influenced and determined the trends and tendencies of Fiqh in the years to come. His other monumental book, the famous al-Umm, dealing with applied law and its principles but mainly with the first, was dictated by him to his pupils in Egypt where he had settled after his sojourn in Iraq. His style in both these books is highly vigorous and his arguments in support of his viewpoints often very reasonable and convincing – and hence the great mental response which they evoked. His pupils, al-Buwayh and al-Muzanī, being the most famous among them, faithfully practised his law in Egypt and wrote books to elucidate their master’s legal theories, commented on his books and preserved his legal pronouncements. His system, however, could not get a substantial following in Iraq where it was assailed by the strongly consolidated and state-patronised system of Abū Hanīfah.

The first ‘Abbāsid period was an epoch of enormous compilation activity in all the branches of knowledge including Fiqh. The greatest and most basic works on theoretical and practical law of all the legal systems were accomplished in this period. Mālik laid down the foundation of his system by writing his Mu’attā’ and his pupils consolidated it by their practices and writings based thereon; Shāfi‘ī compiled his cardinal book on the Usūl of Fiqh, the al-Risālah, and the other one, al-Umm, in which he set forth concrete legal issues in the light of his principles under separate chapters. The jurists of Egypt among whom he disseminated his legal theories and practices, consolidated his system by writing supplementary and elucidatory books and by acting upon them in practice. Abū Hanīfah’s perfected and systematised theory of Rā’ay, coupled with his Fatāwa, was translated into writing by his three pupils, Zufar, Muhammad Hasan and Abū Yūsuf and thus a large number of books on applied law came out in this period. Similarly, the Musnad of Ahmad Ibn Hanbal was supplemented as a source of law by the compilations of his Fatāwa by his followers after his death. The putting of the legal principles and practices of the four Imams and other Mujtahids in black and white primarily and the mass of books written in support and amplification of every one of them by their respective adherents secondarily, paved the way for the formation of legal creeds (Madhāhib) and the division of the Muslims into separate groups of law.

In all the legal systems which were evolved during this period, tradition formed their main source and substance. This was due to the fact that Fiqh, from the earliest times, had originated in the Tradition and was developed by a people who had been deeper-rooted in the ideology of tradition. The Qur’ān had legislated on concrete topics in about 200 of its verses only, dedicating the rest of its over five thousand verses to the enunciation, elaboration and repetition of the spirit which it sought to establish and from which legislation was to spring in the ever-changing conditions of dynamic life. This spirit clashed with the traditional psychology of the Arabs and their pre-Islamic traditions and therefore they could not assimilate it. Consequently, Hadīth formed, from the very beginning, the main source of law and continued to develop and multiply in the hands of the Traditionists as years rolled on. The Traditionists commanded immense reverence from the masses as they claimed to be the preservers of the sayings and the deeds of the Prophet (sws) and acted as ministers of their legal needs in accordance with their consecrated Prophetic usage. Transmission and cultivation of Hadīth in every land were carried on widely throughout the Umayyad period after which it became still more intense when Hadīth was put in black and white.

The great Mujtahids who evolved legal systems in the ‘Abbāsid period could not, with one or two exceptions, ignore or make light of Hadīth which, since early Islam, had formed the cornerstone of legislation and so continued to be, after the Qur’ān, the main source of law in almost all systems. Hadīth, in this context, meant a great deal more than what the Prophet (sws) had actually said or done and implied much more than what a Sahīh Hadīth warranted. Even the school of Rā’ay which had been so strict in the matter of the acceptance of Hadīth and so ardent in the exercise of Rā’ay and the deduction of presupposed legal corollaries from particular phenomena, had, for its security, to take cognisance of Hadīth and give it a respectable representation in their legal code. Abū Yūsuf, the chief justice of the ‘Abbāsid realm, and Muhammad Hasan, another important judge, had to modify their views greatly with regard to the sovereign role of Rā’ay in legislation and admit in their law books and legal dispensations a large number of the Traditions which their previous standards of an authentic Hadīth would not allow. The admission of Hadīth into the system of Abū Hanīfah continued to grow so rapidly that we find in the famous law book, al-Hidāyah (sixth century AH), claiming to rest on the Hanafī system, a Tradition in support of almost all legal ordinances or in refutation of the legal positions of Shāfi‘ī.

In the over-a-dozen legal systems which flourished in the early centuries of Islam we get evidence of a single school only which entirely ignored Hadīth (for the uncertainty which attached to its correct preservation) and counted on the Qur’ān as the only source of legislation. Reference to it is found in al-Umm of Shāfi‘ī where he refutes the upholders of this opinion with all his powerful eloquence. This school and what it stood for remained, it appears, in obscurity and without any considerable following, which shows the thoroughness of the hold which Hadīth and legal tradition had on the followers of Islam as early as the second century AH.

The four most widely prevalent legal systems and other minor ones controlled the legal activity of the Muslim world and embraced all sorts of religious, social, economic, fiscal and criminal cases. The judges and Muftīs in every land and city practised law either in accordance with the major systems and this was more common, or any one of the minor ones, or according to their own intellect as seasoned by the cumulative study of all. In other words, the dispensers of public justice or legal needs were free to pursue any legal line and follow any legal creed, and there was no fixed or established code of law to be uniformly used in every land under Muslim domination. The result was that contrary legal judgements would oft and anon be passed by the judges and Muftīs of the same place and the baser elements of society, taking advantage of the unfixed position of law, would often taint the decision. The ruling government did not, in the first place, possess that sound perspective and grasp of Islam which could make it promulgate a uniform scheme of legislation based on the spirit of the Qur’ān and, secondly, the execution of such a scheme was infinitely difficult and risky in view of the prevalence of diverse courses of law grounded as they were, on the one hand, in deep traditional sanctity and place and person prejudices, and strongly guarded, on the other, by religious doctors (Traditionists and Mujtahids) who commanded immense influence with the common people. Yet, there is historical evidence of some such project, indeed much limited and partial in its nature, having been contemplated by Mansūr, the second ‘Abbāsid Caliph (136-158). It is said that he requested Mālik to allow relegation of the legislative activity of the whole realm to his Mu’attā. But it was turned down by the Imam on the score that in every land and city diverse and conflicting Traditions of the Prophet (sws), his Companions and Tābi‘ūn had already set their feet deeply in legal practices and that it was not possible to get hem supplanted by new ones. This was a very sound counsel as it took cognisance of the important factor, namely, the traditional position of law, which exerted its fullest weight in all legislation. The prejudices and sympathies of the masses of every land and city had become staunchly attached to the code of traditional law which their local jurists and Mujtahids cultivated and practised and it was very hard to destroy those prejudices and sympathies. Were Mansūr to prevail upon the Imam and carry through his suggestion, his caliphate would have been torn with religious turmoil.

Of all the leading systems of law prevalent in the Muslim world during the first and the second centuries, the one which allowed comparatively the greatest measure of Ijtihād in the cultivation of law, was the School of Rā’ay of Iraq. This school was very dominant in the early ‘Abbāsid period, as most of the early rulers appointed only such persons as official judges of the realm as followed it. Soon it spread to the east and its principles and methods came to be followed by the majority of the people of Iran and those living in lands across the Oxus. The school of I‘tizāl, dealing with important questions of beliefs and practices of Islam in rational terms and that known as Kalām, aiming at rebutting with a philosophical mental equipment anti-Islamic objections raised by the non-Muslims (the Christians, the Jews, the Zoroastrians, the Manicheans, etc.) and the Muslim sceptics, were also in philosophised Ijtihād, was the backbone of I‘tizāl and Kalām. The Fiqh of Iraq, although following a traditional course, was influenced inescapably by this Ijtihād in many ways in its onward march. The Mu‘tazilīs and Mutakallims would usually be jurists and vice versa and many legal questions would come under their purview. The application of Ijtihād in deducing legal decisions under the influence of the two was a learned practice and an important qualification of the jurists of Iraq and other lands owing allegiance to its legal courses. Other law schools could not remain wholly unaffected by the Ijtihād elements of I‘tizāl and Kalām and, though the two, particularly the first, were decried by almost all Traditionists, their spirit, subtly and unconsciously, did affect other legal systems in one way or the other.

Ijtihād, I‘tizāl and Kalām were under the zealous patronage of the early ‘Abbāsid rulers and, therefore, their opponents, the pure Traditionists who formed a minority in Iraq, could not openly assail them. Secretly resisting and slandering them (I‘tizāl, Kalām and Ijtihād), they watched matters painfully until a golden opportunity was afforded to them by Māmūn and the Mu‘tazilah advisers. In 218 AH, he enforced in his domains the Mu‘tazilah dogma of the creation of the Qur’ān. A leading Traditionist of Baghdad, Ahmad Ibn Hanbal, refused to accept it and was consequently imprisoned by Māmūn’s successor, Mu‘tasim (218-227 AH). This unwise attempt to force a doctrine on the people had already antagonised many against the Mu‘tazilah and rendered their activities suspicious in the eyes of the common man. This incident excited a great commotion. Ahmad Ibn Hanbal became a religious martyr and the Mu‘tazilah highly unpopular. The enforcement of this dogma showed to the Traditionists in a practical way the undesirability of the freedom of thought and further fortified their belief that Ijtihād was a dangerous practice, worthy of abandonment, and that the right course was to follow the accumulated stores of the tradition of which they had become sacred custodians.

A great reaction against the freedom of Ijtihād set in among the public of Baghdad and was thoroughly exploited by the Traditionists. Taking advantage of the favourable situation, they rose to suppress it and debase the Mu‘tazilah and oust them from the position which they enjoyed at the court and appropriate that position themselves. Their efforts bore fruit and their aspirations were fulfilled by Mutawakkil (232-247 AH), the successor of the three consecutive Mu’tazilī rulers, Māmūn, Mu‘tasim and Wāthiq. With him the Traditionists and all they stood for rose to an exalted position and the Mu‘tazilah and all they stood for collapsed never to rise again. Mutawakkil patronised the former, entrusting to them the religious welfare of the Muslims and persecuted the latter. He did this to calm down public feelings which ran high at the moment and to spare his kingdom the hazards of a popular revolt, otherwise he was seriously interested neither in the Traditionists nor in the Mu‘tazilites, as he had none of the religious earnestness and intellectual enlightenment of Māmūn. Orders were issued by him in 234 AH revoking the dogma; this was a triumph for the Traditionists. Ahmad Ibn Hanbal became the most dominant religious personality in the kingdom and his followers, in particular, and the Traditionists, in general, began to command ever-increasing influence at the court and in the religious and legal life of the realm. The king invited a delegation of the Traditionists, reports Suyūtī, to his capital, Samarra, showed them great honour, bestowed gifts on them and ordered them to narrate the Traditions regarding the attributes of God and His being seen by the human eye (the Mu‘tazilies believed neither in the attributes of God being separate from His essence nor in the possibility of the human eye seeing Him in the Hereafter). Quoting two instances of the tremendous susceptibility of the public mind to traditional Islam and the response which the Traditionists evoked from them soon after the revocation of the dogma by the State, the same historian continues: ‘Abū Bakr Ibn Shaybah, the Traditonist, sat in the Friday mosque of Rusafah and about thirty thousand men gathered round him to hear the Traditions, while his brother sat in the Friday mosque of Mansūr and about the same number surrounded him to hear the Traditions.’ Referring to the suppression of Ijtihād by Mutawakkil, the historian Mas‘ūdī says: ‘When the Caliphate passed to Mutawakkil, he ordered abandonment of polemics and abolition of all the rationalised religious activities which had been in vogue during the days of Mū‘tasim and Wāthiq and ordered the leading Traditionists to freely propagate Hadīth and uphold Sunnah and Jamā’ah.’

From Mutawakkil’s time onward, the leadership of Fiqh in Iraq and other eastern lands (rational and progressive elements in the law of Hijāz, Syria, Egypt, North Africa and Spain had already been negligible) passed into the hands of people who were Traditionists first and Mujtahids last, a reversal of the position existing before him. Sedulous efforts were made by the Traditionists to mould Islam into inflexible traditionalism and make themselves permanent custodians of all departments of Muslim life. Having been divested of all healthy elements of Ijtihād, legal activity from the fourth century till the present day lost all its creativity. It was confined to the following:

(i) The Traditionists tried to cover all the legal heritage with the Traditions of the Prophet (sws), that is to say, they launched a campaign to provide with a Tradition every legal opinion which had emanated from one or more Companions, Tābi‘ūn or Mujtahids. It was done to popularise the traditional law and rid it of the place and person prejudice in which it had been involved.

(ii) Deduction of far-fetched, vague or improbable corollaries from the traditional law.

(iii) Rise of legal bickerings and polemics revolving mainly round the systems of Shāfi‘ī and Abū Hanīfah. The motives of such polemics would, most often, be the desire to parade one’s learning or to condemn the legal position of one or the other of the two Imams or to ingratiate oneself into the favour of the ruling principles of Shāfi‘ī or Hanafī bias, or to debase a rival in law. A large number of polemical treatises in support or condemnation of the legal opinions of either of the two systems was the outcome.

(iv) Refutation of the legal opinions of one another by the Fuqahā of a city or land, the motives of the refutation being usually analogous to those enumerated in (iii). No. Scruples of honesty, decency, fair-play would be entertained in such refutations.

(v) Undue importance was given to trifling details of law and particularly those of prayers and fast and bickering over those details even to the extent of charging each other with Kufr.

‘They took their religious doctors and monks as their lords, ignoring God’ (9:31), and ‘When they are invited to follow the system of life which God has sent to you from above, they say: No, we will follow the course on which we have found our fathers’ (31:21). These Qur’ānic verses flash painfully on the mind of one who makes an impartial survey of the chequered career of Fiqh in its historical and factual background, from its early beginning to the third century of Islam when Ijtihād, despite its march on the orbit of tradition, was considerably free and thence onward to the last century when fetters of a rank conventionalism were imposed and super-imposed on all departments of Muslim life.


(Courtesy:  Iqbal: A Journal of Bazm i Iqbal, July 1957)

For Questions on Islam, please use our