The Development of Fiqh

Adapted from Chapter of Shaksiyyah Islamiyyah (The Islamic Personality) Volume 1 by Sheikh Taqiuddin an-Nabhani

Fiqh is one of the most important Islamic disciplines having the greatest effect on society. It is one of the most important branches of the Islamic culture. That is because the Islamic culture is the Kitab and Sunnah and whatever is relied upon and laid down in order to understand the Kitab and Sunnah. Even though the Islamic culture includes sciences of the Arabic language, hadith and tafseer, the most prominent thing that appears from it are the thoughts which relate to the viewpoint about life and the solutions which treat the problems of life. In other words, it appears in the beliefs ('aqaid) and Shari'a rules because they are a practical culture adopted to face life’s problems which, in most cases, contains thoughts about beliefs and solutions i.e. the rules. Fiqh is nothing other than the knowledge of these rules.

The Islamic culture and the learning of Shari'a rules began from the time the Messenger (saw) was sent. The Messenger (saw) was the only reference point for the shari'a rules, because he was sent to teach people Allah's deen. He (swt) said:

“O Messenger (saw)! Proclaim (the Message) which has been sent down to you from your Lord. And if you do not, then you have not conveyed His Message.”[TMQ 5:67]

He (swt) said:

“And We have also sent down unto you (O Muhammad[saw]) the reminder and the advice (the Quran), that you may explain clearly to them.” [TMQ 16:44]

With the exception of the Messenger (saw), no Muslim has the right to independently put forward an opinion regarding any viewpoint or ruling. Due to the Messenger's (saw) presence among the Muslims at his time, referring to him regarding anything they came across was easy. However, it was not permitted for any of them to give his own opinion regarding any event. That is why, when they came across an event or a dispute arose or one of them had an idea, they would refer to the Messenger (saw). And he (saw) would give an opinion, settle their disputes and answer their questions, sometimes with an ayah and sometimes with a hadith. As for what has been reported that certain Sahaba exercised ijtihad in the time of the Messenger (saw) and pronounced judgments according to their own ijtihad in certain disputes or that they deduced, through their own ijtihad, the rule regarding certain events. This does not make these ijtihads a source for shari'a rules. Rather they constitute an understanding of the Shari'a, in accordance with the order of the Messenger (saw). They constitute the application of the Shari'a, relying on the Kitab and Sunnah as understood by those mujtahidin. This is demonstrated by the circumstance in which these ijtihads took place. It has been reported that the Prophet (saw) sent 'Ali b. Abi Talib (r.a.) to Yemen as a judge. He (saw) told him: “May Allah guide your heart and affirm your tongue. When two disputants sit before you, do not pronounce judgment until you have listened to the latter just as you did with the former. It is more proper (for you to does this) so that the judgment becomes manifest to you.”

It has been reported that the Prophet (saw) sent Mu'az b. Jabal to Yemen and he (saw) said to him: “With what will you judge when you come upon a judgment which you do not find in the Book of Allah or the Sunnah of His Messenger. What judgment will you give?” Mu'az said: 'I will exercise my own ijtihad.’ The Messenger (saw) said: “'Praise be to Allah who has made the messenger of the Messenger of Allah to accord with what Allah and His Messenger are pleased with.” [Ahmad: 5/230, Abu Dawud:3592, at-Tirmizi:1327]

It is reported that some people were disputing over a hut between themselves. So Hudhayfa was sent to judge between them. And he (saw) said to 'Amr b. al-'As: “You give judgement for this issue.” So 'Amr said: Shall I exercise ijtihad while you are present? He (saw) said: “Yes. If you are right you will get two rewards and if you make a mistake you will get one.”

All of these reports and other such examples indicate that the ijtihadats taking place in the days of the Messenger (saw), from the Muslims in his time, were in accordance with his order. Therefore, he was their source. Thus, the time of the Messenger (saw) was a time in which the source of the entire Islamic culture existed. That continued ever since he was sent until his death, within a period of time not exceeding twenty two years and a few months, in which the whole Quran was revealed and the sublime Sunnah was made complete. They are the only texts considered as the source of thoughts, rules and culture in Islam.

With the death of the Messenger (saw), in the eleventh year of the Hijra, began the age of the Sahaba. It is an age of tafseer, opening of the doors of deduction (istinbat) for issues that did not possess a (clear) text. The Sahaba saw that not all of the texts of the Quran and the Sunnah were disseminated widely amongst the people such that they are accessible to each and every person. Because the texts of the Quran were written down on special parchments preserved in the house of the Messenger (saw) and preserved in the houses of certain Sahaba. And the Sunnah had not been written down yet. They saw that the texts of the Kitab and Sunnah legislated rules for events and issues which took place at the time of legislation. Rules were not legislated for events and issues that had only a possibility of taking place. Events and issues took place and needs arose amidst the Muslims which did not take place during the time of the Messenger (saw). There were no clear texts for the problems arising later which would state their ruling. Likewise, they saw that not every Muslim was qualified to refer to the texts of the Kitab and Sunnah for himself and understand the ruling indicated by them. Since the masses cannot understand the texts except by means of someone who will make them understand the rules of Islam. Therefore, they realised that it was incumbent on them to disseminate the Noble Quran and the hadiths of the Messenger (saw) among the Muslims. So, they undertook the responsibility of compiling the Quran and from this compilation they made many copies which they circulated amongst the Muslims. And they took precautions ensuring the trustworthiness of the narration of the Sunnah and the trust in the scrutiny of the narrators. They also realised that it was incumbent on them to demonstrate to the Muslims the necessary clarification and explanation of the texts of the Kitab and Sunnah. So they began to teach people the deen. Then they took the view that they should provide people with legal verdicts for the events and issues happening to them for which there was no (clear) text. Thus, they began to deduce rules which were necessary for the issues that took place. Due to this they undertook the obligation of the deen in the best manner possible.

The methodology according to which the Sahaba proceeded in the Shari'a rules is that when they found a text (nass) in the Quran or Sunnah which indicates the ruling on an incident that has happened, they stopped at the limit of this text, and they confined their efforts to understanding the text and becoming acquainted with what is intended in it, in order to attain its correct application on the reality. If they did not find a text in the Quran and the Sunnah indicating the ruling on incidents that they are confronted with, they made ijtihad to deduce its ruling. In their ijtihad they used to rely on their own understanding of the texts of the Shari'a, and their knowledge of the Shari'a that they obtained from directly speaking to the Messenger (saw) and witnessing the revelation of the verses and their application on incidents. By studying the incidents for which they made ijtihad, one notices that they used to make analogy between (an incident) which had a text with one that did not have a text, and they used to consider the acquisition of a benefit (maslaha) and repulsion of a harm (mafsada) as an 'illah (legal cause) for rulings. And they used to consider the benefit (maslaha) indicated by the Shari'a as the true benefit (maslaha). They used to make analogy between the benefit (maslaha) (for which no text was mentioned) with a benefit for which a text was mentioned. They did not hold their own opinion about a maslaha (benefit) because holding an opinion (which is from oneself) is forbidden. The historians, muhaddithun and fuqaha (jurists) transmitted many ijtihadats of the Sahaba. By studying these ijtihadats the extent of their adherence to the Shari'a and the extent of their advancement in understanding the Shari'a becomes clear. A story was brought to the attention of Umar, about a man who was killed by his stepmother and her lover. 'Umar hesitated: are many people to be killed for the murder of one person? 'Ali said to him: What do you think if a group participated in the theft of a slaughter camel. So this one took a part and that one took another part. Would you cut their hands? He said: Yes. Ali said: well it is the same thing. So Umar acted upon Ali's opinion and wrote to his 'Amil: ‘kill them both for if the whole population of San'aa participated I would have had them killed’.

And when they disagreed about the question of joint share, when a woman died leaving a husband, mother, uterine brothers and full brothers. Umar used to give the husband half, the mother a sixth, and the uterine brothers a third. So nothing remained for the full brothers. It was said to him: Suppose our father was a donkey. Are we not from one mother? So he changed his view and gave them a share. They used to acquaint themselves with the maslaha (benefit) for which the text came, if it was understood from the text. Another example is when Allah (swt) said:

“As-sadaqat (zakat) are only for the Fuqara (poor), and al-masakin (needy) and those employed to collect (the funds); and for to attract the hearts of those who have been inclined (towards Islam).” [TMQ 9:60]

So Allah made those whose hearts have been reconciled to Islam a source of expenditure from the sources of zakat. It has been established that the Prophet (saw) used to give money to people whose hearts had been reconciled to Islam. After the death of the Messenger (saw) it is narrated about 'Umar that he forbade the payment of those whose hearts had been reconciled (al-mu'allaftu qulubuhum). He told them: ‘Allah has made Islam strong and so Islam has no need of you, either you stick to Islam or else between you and us is the sword.’ 'Umar was of the view that the inclining of hearts towards Islam was there because the state was weak because the expression 'reconciling hearts' (ta'leeful al-qulub) indicates this. For when are hearts reconciled except when you are in a state of need? Umar took the opinion that the need to reconcile hearts ended when Islam became strong. And without the need to reconcile hearts the 'illah (legal cause) is not applicable, due to this the hukm also is not applicable.

The Sahaba used to investigate and ask the people about the Shari'a texts regarding matters they did not know. And they (may Allah be pleased with them) used to be all gathered together in the Hijaz, discussing the Kitab and Sunnah. If in the Kitab and Sunnah they did not find a hukm for the issue they are looking for, they would ask Muslims if anyone of them knows that the Messenger of Allah (saw) passed a judgement for this issue. That is why they used to refer to each other and get together to discuss its issue and give an opinion for it. Abu Bakr and 'Umar used to deduce rules and refer to the people. Al-Baghawi has narrated in his Masabih al-Sunnah: “When a dispute was reported to Abu Bakr he used to look into the Book of Allah. If he found something to judge between them, he gave that judgement. And if it is not found in the Book. And he knew a sunnah from the Messenger of Allah regarding that matter, he would give judgement by it. Failing that he would go out and ask the Muslims; such and such matter has come to me, do you know of any judgement given by the Messenger of Allah (saw) pertaining to this?' Probably the whole group would agree mentioning a judgment by the Messenger of Allah (saw). Abu Bakr would say: 'Praise be to Allah Who has made people amongst us memorise (issues) concerning our Prophet (saw).' If he failed to find a sunnah of the Messenger of Allah (saw) he gathered the heads of people and the best amongst them and consulted them. If they had a consensus on a matter he would judge with that. It has been reported that 'Umar used to consult the Sahaba despite his knowledge of fiqh. To the point when an incident would be referred to him he would say: Call 'Ali for me, call Zayd. He used to consult them and settle the dispute with whatever they were agreed upon. Due to the Sahaba referring to each other, differences of opinion between them were rare because each Sahabi expressed to another Sahabi his own perspective and the evidences he educed. Their view on the whole was true and correct and each one referred to each other. And even though their views differed in certain rules, but their differences were rare and it was in understanding and not in the method of understanding.

When the conquests expanded and the Sahaba became separated in various cities and it became difficult for those Sahaba to meet, every time an incident presented itself which had not text. Each Sahaba gave his own opinion without expressing it to others or referring to others due to the difficulty of meeting, since the cities were distant from each other. And also due to the need to give an opinion on an incident occurring in the city in order to give judgement by it. In every Muslim city there was one or more Sahaba. They were the reference point for rulings. They used to deduce rules which had no text and assume the task of clarifying and explaining the text just as they took the responsibility of teaching the people the Kitab and Sunnah. The Sunnah had still not been written down, therefore the opinions of Sahaba differed about a single incident and each one had an evidence for the opinion he had educed and gave legal verdicts with. However, all of these opinions were Shari'a rules and were acceptable to all of them, since their disagreement was only in their understanding. As for their method of ijtihad, it was one. Which is to consider the text of the Quran and hadith and examine the texts, and insure that the accredited maslahas (benefit) are the ones only indicated by the Shari'a, and make analogy to issues and maslahas. The unity of the methodology in ijtihad did not allow the difference in understanding to have any effect. On the contrary, it was one of the reasons for the growth and expansion of fiqh. Their legal verdicts (fatwas) were according to the incidents and issues that took place. The range of their disagreement did not widen and nor did it overstep the furu' (branches of fiqh). The disagreement of the Sahaba in furu' is attributable to two reasons:

First: That most of the texts of the Quran and Sunnah are not definite in indicating what is meant rather they are of speculative meaning (zanniyya al-dalala). Also, they are liable to indicate this or that meaning due to the text sharing two or more linguistic meanings or the text being general such that it is open to specification. Each Mujtahid attempted to understand the text according to what was preponderant from the qara'in (indications).

Second: The Sunnah had not yet been recorded in written form. There was no unanimity on the body of hadith which had spread among Muslims so as to be a common reference. Rather, the hadith was circulated via transmission and memory. Perhaps a mujtahid in Egypt knew a hadith but a mujtahid in Damascus did not know it. Many a time certain mujtahidin would retract from another mujtahid's fatwa when they came to know that someone else knew of a Sunnah that they did not know. This led to disagreements in furu' (branches of fiqh) but the evidences and principles concerning them did not differ, therefore their method of ijtihad did not differ.

In short, the Sahaba (may Allah be pleased with them) were scholars of the Shari'a. They learnt the Quran and acquired the hadith. And took it upon themselves to implement the rules of Islam by mixing with the one responsible for the Message, our master Muhammad (peace and blessings on him). They used to rule the people, judge between them and teach them their deen. They used to be a light for the inhabitants of the country who lived there and trustees of the Shari'a, and in calling people to Islam they were true believers. Reciting the Quran to people and teaching them the laws and rules. In teaching people Islam they use to follow a practical course. So they taught the people the Islam and its rules and the method by which they would benefit in solving the problems of life with those rules. They were rulers and at the same time they were teachers. The people approached the Sahaba and receiving the culture from them, taking Islam and understanding the rules. The opinions in ahkam that they clarified were termed as 'legal verdicts' (fatawa). The fatwa of about one hundred and thirty companions of the Messenger of Allah (saw) (among which there are men and women) have been preserved. There were seven out of these who were the most knowledgeable and gave the most opinions. They have been called the al-mukaththirun (those who were prolific in giving opinions). And they are: 'Umar, 'Ali, Ibn Mas'ud, 'A'isha, Zayd b. Thabit, Ibn 'Abbas and Ibn 'Umar. The Khalifahs, Walis and the rest of the rulers were fuqaha in ahkam, scholars of the Shari'a and busy with fatwa. That is why Islam was embodied in them. Their minds were filled with its culture and their thoughts originated from this culture. They are the ones who implemented these orders, prohibition and rules. So the Khalifah and the Wali were the same people who thought, acted, understood and ruled. That is why their actions used to be correct, and their affairs were on the right path, and their lives were elevated, and their manner of speaking with the people was honest, and their rules adherent to the path of Islam with extreme precision. A group from the Tabi'un stuck to the Sahaba and learnt Quran from them, reported the Sunnah from them, memorised their legal verdicts and their methods of deduction of ahkam. There were those who used to give legal verdicts in the lifetime of the Sahaba like Said b. al-Musayyab in Madinah and Said b. Jubayr in Kufa. Thus, we find after all the Sahaba had gone, the Tabi'un succeeded them in fiqh and istinbat (inference of rules). They used to deduce rules according to their own ijtihad. They used to first look to the Book of Allah and the Sunnah of the Messenger of Allah (saw), if they did not find anything there they would study the fatwa (legal verdicts) of the Sahaba. They used to have opinions concerning the Fatwas of Sahaba from a jurisprudential perspective and they used to outweigh one statement over another. They used to take the opinions of some of them or they might even differ with the Sahaba. The Tabiuns method of inferring rules was the same method of the Sahaba. That is why their fatwas were according to the incidents and issues that took place without the presence of any assumptions. Rather it is according to the incident that you will find the fatwas. The range of disagreement did not become wide between them and nor did the reasons for disagreement on which the Sahaba disagreed overstep the mark, which used to relate to the understanding of the text and not to the Shari'a evidences. Therefore, there were no disagreements amongst Muslims which effected life.

The effect of disputes and debates on Islamic jurisprudence

Two events took place during the time of the Sahaba: The first is the civil war (fitna) regarding 'Uthman. And the second is the debates which took place between the 'Ulama. This resulted in disagreements over the types of Shari'a evidences, which led to the presence of new political groups, which in turn led to the presence of various juristical schools of thought. That is because after 'Uthman (r.a.) was murdered and the bay'a (pledge) of the Khilafah was given to 'Ali b. Abi Talib with whom Mu'awiyya b. Abu Sufyan disputed, and war broke out between the two factions and ended with the judgement of the two arbitrators. This resulted in the formation of new political groups which had not existed before. These groups came to have new opinions. The opinion began politically concerning the Khalifah and the Khilafah. Then it included most of the remaining ahkam. A group of Muslims arose who loathed Uthman for his policies during his khilafah and they resented Ali's acceptance of arbitration (tahkeem). And they were angry over Mu'awiyyah for seizing the Khilafah by force. So they rebelled against all of them. Their view was that Muslims should give pledge to the Khalifah of the Muslims purely according to their choice without coercion or force. And that whoever qualifies for the Khilafah he is eligible to be khalifah. Muslims should give bay'a to him and the Khilafah will be contracted to him by the pledge as long as he is a man, Muslim and just even if he was a Ethiopian slave. And that obedience to the Khalifah is not obliged except if his matter was within the limits of the Kitab and Sunnah. These people did not take rulings reported in hadith narrated by 'Uthman, Ali, Mu'awiyya or if a hadith was narrated by a Sahaba who supported any one of them. They rejected all of their hadiths, opinions and legal verdicts. And they outweighed what was narrated by those they approved of. They only considered their opinions and their own scholars to the exclusion of others. They had their own fiqh, and they are the Khawarij. Another group from the Muslim arose which adored 'Ali b. Abi Talib (r.a.) and loved his decedents. They took the view that he and his descendants had greater right to the Khilafah over anyone else. And they believed he was the wasi (trustee) to whom the Messenger bequeathed the Khilafah after him. They rejected many hadiths narrated about the Messenger (saw) by the majority of the Sahaba. They did not depend on the views of the Sahaba and their legal verdicts. They only relied on the hadiths narrated by their Imams and the family of the Prophet (saw). And relied on the legal verdicts originating from them. They had their own fiqh, and they are the Shi'a. As for the majority of the Muslims they did not adopt the opinions adopted by the aforementioned groups. They took the view that the pledge should be given to a Khalifah from Quraysh, if such a person was found, and they conveyed, without a single exception, great respect, affection and loyalty to all the Sahaba. And they interpreted the disputes between them as being ijtihad in speculative shari'a rules which were not linked to belief (iman) or disbelief (kufr). They used to use as proof every authentic hadith narrated by a Sahabi without any discrimination between the Sahaba. Since, for them, all of the Sahaba were trustworthy. And they took all the fatwas and opinions of the Sahaba. Due to this their ahkam did not accord with the ahkam of the other political groups in a number of topics due to their disagreement regarding ruling, method of istinbat (inference of rules) and in the types of evidences.

From this it becomes clear that the civil war (fitna) when it happened, it created a jurisprudential and political condition which led to disagreements which had an impact on history. However the disagreement was not over the shari'a but in the understanding of the shari'a. That is why all of the people who disagreed were Muslim even though their disagreement exceeded the furu' and rules to the foundations, evidences and the method of inference.

As for the debates which took place between the 'Ulama. It led to juristic disagreements but did not lead to political disagreements. Because the disagreement was not over the khalifah, the Khilafah or the ruling system. It was over the rules and their deduction. The basis of that was that debates and disagreements took place between the certain mujtahidin which led to a disagreement over the method of inference (istinbat). In Madina Islamic discussions concerning the deduction of rules took place between Rabi'a b. Abi 'Abd al-Rahman and Muhammad b. Shihab al-Zuhri. Which led many fuqaha (jurists) of Madina to withdraw from Rabi'a's sessions until they came to give him the title of 'Rabi'at ar-ra'i'. A similar thing also happened in Kufa between Ibrahim al-Nakha'i and al-Sha'bi. From these debates a number of opinions came to be formed about the method of deducing rules until the Mujtahidin came to have difference methodologies in ijtihad. In the middle of the 2nd century A.H. these different methods of ijtihad became apparent and so did the disagreements concerning them, and various views were formed. The Tabi'un used to be close to a group of 'Ulama and mujtahidin, so they came to follow their method. Though, for those who came after them the scope of the disagreement became wider. The reasons for their disagreement did not stop at the understanding but extended to reasons linked to Shari'a evidences and linguistic meanings. It was in this manner that their disagreements took place in the furu' (branches of fiqh) and usul (principles of jurisprudence). They came to form factions, each faction had its own school (mazhab). Owing to this the mazhabs were formed. The schools were many, more than four, five six and more. The disagreement of the mujtahidin over the method of ijtihad is attributable to their disagreement around three issues: first the sources from which the shari'a rules are deduced. Second, the perception of the Shari'a text. And third, disagreement over certain linguistic meanings which are applied in understanding the text.

As for the first it is attributable to four issues:

1. The method of authenticating the Sunnah and the criterion by which one narration is preferred over another.
That is because the authentication of the Sunnah assumes the task of authenticating its narration and the manner of narration. The mujtahidun differed on the method of authentication. Some of them advanced the mutawatir (concurrent) and mashur sunnah as proof and outweighed whatever was narrated by the trustworthy amongst the fuqaha. This meant that they gave the mashur hadith the same hukm (value) of the mutawatir and they used it to specify the 'amm (general) in the Quran. There were those who gave preponderance to what the people of Madina were unanimously agreed upon and disregarded the isolated hadiths (khabar al-ahad) which went against it. And there were those who advanced as evidence what upright ('udul) and trustworthy (thiqat) transmitters narrated whether they were from the fuqaha or not, whether they were from the family of the Prophet (saw) or not, and whether it agreed with the people of Madina or went against it. Amongst them there were those who took the view that hadith transmitters are not to be considered except if they are from their Imams. They had a specific method in transmitting the hadith, in its consideration and use. And they had specific transmitters on which they relied but did not rely on others. Some mujtahidin differed with regards to the mursal hadith. Which is what a Tabi'i narrates directly from the Prophet (saw) while omitting the sahaba. Amongst the mujtahidin there were those who would use the mursal hadith as proof and there were those who did not.

So this disagreement regarding the method of authenticating the sunnah led to some of them using a sunnah as proof which the other did not use. And some of them gave preference to a sunnah which was of lesser preference to others. And this took the disagreement to the manner in which the Sunnah is taken as a Shari'a evidence. So the disagreement in the Shari'a evidences took place.

2. Disagreement regarding the legal verdicts of Sahaba and their evaluation. The mujtahidin and the Imams differed with regards to the jurisprudential legal verdicts which came from individual Sahabas. There were those who took any one of these fatwas and did not restrict themselves to any particular one but did not turn away from all of them either. And there were those who took the view that they constituted only individual jurisprudential legal verdicts ensuing from people who are not infallible, so the scholar has the right to take any one of the fatwas or give legal verdicts which go against all of them. They viewed them as Shari'a rules which have been deduced and not as Shari'a evidences. And there were those who took the view that certain Sahaba were infallible (ma'sum) and his view is to be takes as a Shari’a evidence. So his sayings constitute the sayings of the Prophet (saw) and his actions constitute the actions of the Prophet (saw), and his consent constitutes the consent of the Prophet (saw). As for other Sahaba they are not infallible (ma'sum) so their views are not to be taken at all, not in the capacity of a Shari'a evidence and not in the capacity of a Shari'a rule. Also, there were those who took the view that one should not take from certain Sahaba because of their participation in the civil war (fitna) and those who did not participate, one can take from them. Consequently, another facet of this difference of opinion arose about evidences.

3. Disagreement in qiyas (analogical deduction). Some mujthahdin rejected the use of qiyas as an evidence and they disclaimed its status as a Shari'a evidence. Among them there were those who advanced qiyas as a proof and considered it a Shari'a evidence after the Quran, Sunnah and ijma' (consensus). However, despite their agreement that it constitutes a proof, they disagreed as to what qualifies as an 'illah (legal cause) for the hukm, and on what qiyas is based. As a result the difference of opinion surrounding evidences arose.

4. Disagreement over ijma' (consensus). The Muslims agreed on the consideration that ijma' is a proof. Some of them viewed the ijma' of the Sahaba as a proof and some of them saw the ijma' of the Prophet's family as proof. Some saw the ijma' of the ahl halli wal 'aqd (the influential and leading figures) as proof and some saw the ijma' of the Muslims as proof. There were those who viewed ijma' as a proof because it constituted an agreement on an opinion, therefore, if they agreed on a matter and advanced a view then it is considered an ijma' which is used as an evidence. And there were those who viewed the recognised ijma' as a proof not because it constitutes an agreement on an opinion but because it reveals an evidence. So the Sahaba, family of the Prophet (saw) and the people of Madina had companionship with the Messenger (saw) and saw him. And they are trustworthy ('udul). When they hold a Shari'a opinion but do not cite its evidence, their opinion is considered as disclosing the opinion as having been stated by the Messenger (saw), or he acted upon it or was silent over it. Thus, they reported a hukm but did not report its evidence due to it being widely known amongst them. Therefore, the meaning of ijma' constituting a proof for them is that it reveals an evidence. That is why their agreement and reminding each other, and then giving their opinion, is not considered an ijma'. Rather the ijma is that they should give an opinion without reaching an agreement on it. Therefore another difference of opinion came regarding the evidences.

These four issues have increased the rift of disagreement between the mujtahidin. They are not considered as disagreement over the understanding of the text as was the case in the time of the Sahaba and Tabi'in, but it passed that and became a disagreement over the method of comprehension. In other words, it is not considered as a disagreement over the rules but it surpassed that and became a disagreement over the method of deducing rules. That is why we find some mujtahidin taking the view that the Shari'a evidences are the Kitab, Sunnah, saying of Imam 'Ali (r.a.), ijma' of the family of the Prophet (saw) and the mind, they are the Shi’a. Some of them like those from the Mazhab of Abu Hanifah took the view that the Shari'a evidences are the Kitab, Sunnah, ijma', qiyas, istihsan (juristic preference), the opinion of the Sahabi (mazhab al-sahabi), and the Shari'a of the people of before (shari' min qablina). Some of them were of the opinion that the evidences were the Kitab, Sunnah and ijma', they are the Zahiri’s (literalists). And there were those who held that the evidences were the Kitab, Sunnah, ijma', qiyas, al-masalih al-mursala (considerations of public interest) like As-Shafi, etc... That is why they disagreed about the Shari'a evidences. This led to the differences in the methodology of ijtihad.

As for the second issue to which differences in the method of ijtihad is attributed, it is how the Shari'a text is viewed. Some of the mujtahidin restricted themselves to the understanding of the expression mentioned in the Shari'a text. And they stopped at the limits of the meanings they indicated and confined themselves to these meanings. They have been called the Ahl al-hadith (people of Hadith). Others among the Mujtahidin were called Ahl al ra’i (people of opinion) due to their reliance on the meanings derived from the text, shari’ah principles and Qiyas.

It is from here that many have said that the mujtahidin are divided into two groups: Ahl al-hadith and Ahl al-ra'i.

The scholars attributed to Ahl al-hadith were centered around Madinah, among the Tabi’een attributed to them in Medinah were Sa’eed ibnu Musayyib, Muhammad b. Shihab al-Zuhri, Yahya, and Rabiah-ar-Ra’i, ‘Urwa, Abu Bakr bin ‘Ubaid bin Harith, Qasim bin Muhammed bin Abu Bakr, ‘Ubaidullah, Sulayman bin Yassar, Khaija bin Zaid bin Thabit.

The scholars attributed to Ahl al ra’I were centered around Kufah in Iraq. Among the Tabi’een attributed to them in Kufah were Ash-Sha’bi, Hasan al-Basri, and Ibrahim an-Nakha’ee, Hammaad, Alqamah bin Qais, Masjood bin Ajdah.

This division does not mean that the Ahl al-ra'i in their legislation they do not refer to the hadith and that the Ahl al-hadith in their legislation they do not refer to ra'i (opinion). Rather, all of them take hadith and ra'i (opinion) because all of them agree that hadith is a Shari'a proof, and that ijtihad using ra'i in understanding the intelligible aspect of the text is a Shari'a proof. What becomes apparent to anyone who scrutinises this is that the issue is not the proponents of hadith or ra'i themselves. Rather, the issue is the evidence on which the Shari'a evidence depends. That is because the Muslims relied on the Book of Allah and the Sunnah of His Messenger (saw), if they did not find that clearly stated they operated their own opinion in deducing that from them. So the rule which is clearly stated like: “Allah has permitted trading and forbidden riba (usury).” [TMQ 2:275] its evidence is considered the Book of Allah. And anything clearly stated in the hadith such as: “Let not a man conduct a transaction against the transaction of his brother”, its evidence is considered the hadith. As for anything other than this like the prohibition of leasing property or such as the conquered land coming under the control of the bayt al-mal (treasury) and its use by all the people etc. It is considered an opinion (ra'i) even if it is based on the Kitab and Sunnah. So they called everything that did not have a clear text an opinion (ra'i) even if they acted upon it due to a comprehensive rule (hukm kulliy) or it was deduced from the Kitab and Sunnah. The truth is that this ra'i which is acted upon via a comprehensive rule (hukm kulliy) or general principle or it has been deduced from an understanding of the text mentioned in the Kitab and Sunnah it is not called an opinion but rather it is a Shari'a rule (hukm shar'i) since it is a view based on an evidence, it constitutes adherence to the evidence.

The basis of dividing the mujtahididn into Ahl al-hadith and Ahl al-ra'i stems from the fact that some fuqaha scrutinised the foundations on which the inference (istinbat) had been built. It became clear to them that the meanings of the shari'a rules are comprehensible, and they were revealed to solve the problems of people and to obtain benefits (masalih) for them and avert harms (mafasid) that come their way. Therefore, it is essential to understand the texts as widely as possible, encompassing everything indicated by the expression. On this basis they came to understand and outweigh one text over another and make deductions for issues that did not have a (clear) text. Certain fuqaha devoted their attention to the preservation of the isolated hadith (khabar al-hadith) and the fatwas of the Sahaba. In their inferences they took the path of understanding these isolated hadiths and reports about the Sahaba within the limits of its texts, and they applied them on events that occurred. As a consequence, disagreement arose concerning the consideration of texts as shari'a evidences and whether to consider the 'illah (legal cause) or not.

The origin of the question of using ra'i is that there are evidences which prohibit its use. So in the Sahih of Bukhari, on the authority of 'Urwa b. al-Zubayr who said: 'Abd Allah b. 'Amr b. al-'As overcame us with proof. I heard him say: “Allah will not deprive you of knowledge after he has given it to you, but it will be taken away through the death of the religious learned men with their knowledge. Then there will remain ignorant people who, when consulted, will give verdicts according to their opinions whereby they will mislead others and go astray.” 'Awf b. Malik al-Ashja'i narrated that the Messenger of Allah (saw) said: “My Ummah will become divided into some seventy sects, the greatest will be the test of the people who make analogy to the deen with their own opinions, with it forbidding what Allah has permitted and permitting what Allah has forbidden.” Ibn 'Abbas said that the Messenger of Allah (saw) said: “Whoever speaks about the Quran with his own opinion, let him reserve his place in the fire”. These hadiths are explicit in their censure of the use of ra'i. However, the ra'i is not the same ra'i employed by the scholars of ra'i like the Hanafis. Rather the blameworthy ra'i is that of speaking about the Shari'a without any authority. As for the ra'i which is premised on a shari'a basis, the hadiths and reports about the Sahaba (athar) indicate that it is a shari'a rule not to be considered as a taking a objectionable ra'i. The Prophet (saw) has permitted the judge to exercise his own ijtihad and awards him, despite making a mistake in exercising his own opinion, one reward, if his aim was to gain knowledge of the truth and follow it. The Prophet (saw) ordered the Sahaba on the day of the (battle of) Ahzab (the confederates) to pray the mid-day ('asr) prayer in Bani Qurayza. Some exercised their own ijtihad and prayed on the way, they said it does not mention any delay rather what he meant was to advance quickly, thus they looked into the meaning. The others exercised their ijtihad and delayed the prayer until Bani Qurayza. They prayed the 'asr prayer at night, thus they looked at the wording. The Messenger (saw) accepted both groups, each one on his own opinion. Mu'az narrated 'that when the Messenger of Allah (saw) sent him to Yemen he said: “What will you do when a judgement presents itself. Mu'az said: 'I will judge by what is in the Book of Allah. He (saw) said: But what if it is not in the Book of Allah? He said: I will judge by what is in the Sunnah of the Messenger of Allah (saw). He (saw) said: But what if it is not in the Sunnah of the Messenger of Allah? He replied: I will exercise my own ijtihad, it does not bother me. He said: So the Messenger of Allah beat my chest and said: “Praise be to Allah who has made the messenger of the Messenger of Allah to accord with what pleases the Messenger of Allah.” [Ahmad: 5/230, Abu Dawud:3592, at-Tirmizi:1327]

So this is the ra'i on which the fuqaha, and the mujtahidin proponents of ra'i proceeded on in acting upon the sunnah. It is the ra'i which is based on the text. They are also the Ahl al-hadith even if they were called the Ahl al-ra'i. Even the Hanafis who have become famous as Ahl al-ra'i are agreed that the opinion of Abu Hanifah is that the hadith other than the sahih, i.e. the hasan, is more entitled to be followed than qiyas or ra'i. So he gave precedence to the hadith of qahqaha (laughing aloud), even though it is hasan, over qiyas and ra'i. And he prevented the hand of a thief to be cut for a theft whose value is less than ten dirhams but the hadith did not reach the level of sahih, rather it is hasan which indicates that ra'i for them is an understanding of the text. They gave qiyas a status lower than the hasan hadith let alone the hadith which is sahih. This indicates that what is intended by ra'i is the understanding of the text and the ra'i which is based on the text. So the Ahl al-ra'i are Ahl al-hadith also.

As for the third issue which led to disagreements over the method of deducing rules, it concerns certain linguistic meaning which are applied in understanding the text. The disagreement between the mujtahididn arose from the styles of the Arabic language and whatever they indicated. There were those who took the view that the text was a proof for establishing the hukm from its wording (mantuq), and for proving the opposite of this hukm from the opposite understanding (mafhum al-mukhalif). And there were those who view the unspecified 'amm (general) as definite (qat'y) in dealing with all its parts, and there those who saw it as speculative (zanni). And there were those who viewed the general order as tantamount to an obligation, they did not deviate from this except when there was a qarina (indication) to the contrary. So the order obliges an action. And some of them used to take the view that an order was merely a request to do an action, it is the qarina (indication) which clarifies whether it is an obligation or otherwise. As a result, disagreements arose concerning the understanding of the texts and let to disagreements in the method of ijtihad.

Thus, in this manner the disagreement between the generation of the Tabi'in arose in the methodology of deducing ahkam and each mujtahid came to have his own special methodology. From this disagreement over the method of deducing rules arose various juristic schools which led to the growth of the jurisprudential wealth and made fiqh flourish in its entirety. This is because differences in understanding is natural and it assists the development of thought. The Sahaba used to disagree amongst themselves. 'Abd Allah b. 'Abbas disagreed with 'Ali, 'Umar, Zayd b. Thabit even though he had learnt from them. Many of the Tabi'un disagreed with certain Sahaba yet they took knowledge from them. Malik went against many of his Shaykhs and Abu Hanifah disagreed with Ja'far al-Sadiq concerning certain issues despite learning from him. Al-Shafi'i disagreed with Malik in many issues even though he had learnt from him. Thus, the 'Ulama used to disagree with each other, and students disagreed with their shaykhs and teachers. They did not consider that as bad manners or rebellion against their shaykhs. This is because Islam encourages people to do ijtihad. Every scholar has the right to comprehend and make ijtihad and not be confined to the view of a Sahabi or Tabi'i and nor to be confined to the opinion of a shaykh or teachers.

The Flourishing of Islamic Jurisprudence

The Muslims generally used to make taqleed to the mujtahidin despite their disagreements, since the basis of their disagreements was the Shari'a evidence. So the understanding of every mujtahid of the address of the Legislator (khitab al-shaari') is considered a Shari'a rule with respect to him and with respect to the one who makes taqleed to him. Because, the address of the Legislator is the hukm shar'i (shari'a rule) and the understanding of the Legislator's address is a Shari'a rule, but in respect to the one who understood it and in respect to the one who follows him in this understanding. Those who attained the understanding of the Legislator's address used to make ijtihad. Those who did not reach the level of ijtihad used to follow, in ahkams, those who had reached the level of ijtihad and practised ijtihad. The issue was not that of following the faqih personally just as the issue is not one of making taqleed to a mazhab. Rather, the issue is about adopting the hukm shar'i deduced by the faqih and acting upon it. Since, the Muslim is ordered to follow the Shari'a rule only and to act upon it and not follow a mazhab or person, or act according to any particular mazhab or follow any particular person. When he is able to reach the hukm shar'i through his own ijtihad he should do that, if not he should adopt a hukm deduced by someone else. In the early ages the mujtahidun could be counted by the thousands. That is why we find that the mujtahidun whom the Muslims used to follow were not restricted to four, five, six or any number of mazhabs. Yet there were many mazhabs and numerous mujtahidun. Each group used to follow rules deduced by each mujtahid whether he was from a mazhab or not. For example, the general population of Kufa acted upon the fatwa of Abu Hanifah and Sufyan al-Thawri but the Shi'a used to act upon the mazhab of Ja'far al-Sadiq. The practise of the people of Makkah used to be according to the fatwa of Ibn Jurayj and the people of Madina on the fatwas of Malik. And the people of Basra on the fatwas of 'Uthman. And the people of al-Sham on the fatwas of al-Awza'i and the people of Egypt on the fatwas of Ibn Sa'd, and the people of Khurasan on the fatwas of 'Abd Allah b. al-Mubarak, some of the people of Yemen on the fatwas of Zayd b. al-Husayn. Many of the Muslims used to follow the fatwas of Sa'id b. al-Musayyab, Ibn Abi Layla, 'Ikrama, Rabi'a al-ra'i, Muhammad b. Shihab al-Zuhri, al-Hasan al-Basri, al-Layth b. Sa'd, Sufyan b. 'Uyayna, Ishaq b. Rahwayh, Abi Thawr, Dawud al-Zahiri, Ibn Shubrama and Ibn Jarir al-Tabari. All of them were mujtahids and belonged to mazhabs.

Each mazhab had its own method of ijtihad and a specific opinion regarding the ahkam. Many of the mujtahidin and Imams were judges and rulers in the respective countries. The disagreements of the Imams, judges and rulers led to differences in ahkam. Each one judged with his own opinion or according to the opinion of a faqih whose opinion he holds. This resulted in the presence of different judgements in the state, due to this there were 'Ulama who were obviously inclined towards unifying the ruling by which judgement is given and wanted the Khalifah to issue an order for people to adhere to it. At that time, certain people who knew about the situation of the society took the view that a comprehensive book should be written to which judges and other will refer, to lighten the burden of the judges and make it easy for the litigants.

Ibn al-Muqaffa' wrote a letter to the Khalifah al-Mansur regarding this matter, in which it was mentioned: 'What the Ameer al-mu'minin sees, regarding the matter of those two cities; Basra and Kufah and other cities and regions, of the differences of these contradictory rulings which has reached great proportions regarding rulings relating to life, chastity and property. The rules concerning life and chastity allowed in Basra is forbidden in Kufah, such disagreements are taking place in the heart of Kufah, something is allowed in one area but not in another’. However, al-Mansur did not act according to this letter although he was influenced by it. His influence made him to make the Fuqaha and the muhaddithun to record what has reached them until people had references to which they could refer. The reason for al-Mansur not acting upon the opinion of Ibn al-Muqaffa' in laying down a constitution and canons for the state, which would have brought the people to together on specific ahkams was what happened between him and Malik. Ibn Sa'd narrated in al-Tabaqat that Malik b Anas said: ‘When al-Mansur made hajj he said to me: I have taken the decision to order people to follow the books which you have written. They will be copied, then I will send a copy to every Muslim city and I will order them to act upon them and not refer to any other works. So I said O Ameer al-Mu'minin! Do not do this. The people already hold opinions, and they have heard hadiths and narrated reports, each people took what it already had followed it, leave the people, let the people of each country chose for themselves.' Owing to this, the mazhabs and opinions were not unified and ijtihad and ra'i remained with the people in adopting the hukm they deemed correct. And the choice remained for judges and rulers to judge with what they deemed as appropriate. Due to this, each Imam of fiqh has students who came to study their opinions and explain his school. And the outlook towards this disagreement which took place changed and it became a science on its own right, they called it the science of disagreement ('ilm al-khilaf). They studied it just as they studied usul al-fiqh. They said that the disagreements of the Imams was a mercy (rahma). The student of each Imam used to expand on the furu' (branches of fiqh). It was this expansion which preserved the mazhabs of certain mujtahidin and but was the reason for the extinction of others. Al-Awza'i, al-Hasan al-Basri, al-Thawri and Ibn Jarir al-Tabari are some of the greatest Imams in terms of their breadth of knowledge and ijtihad. However they did not expand in furu' but confined themselves to the usul, and they did not have students who would expound the position of their mazhab, that is why they were not acted upon and they did not spread.

As for the rest of the Imams such as Abu Hanifah, Ja'far al-Sadiq, Zayd b. al-Husayn, al-Shafi'i, Ahmad b. Hanbal and Malik, they had students and followers, so their mazhabs were recorded and continued to exist. Despite the restrictions imposed by Abu Ja'far al-Mansur on Ja'far al-Sadiq and others from the family of 'Ali, he deduced rules and he had students from the Shi'a and others. They recorded his opinions and looked upon them as something akin to the sunnah. His mazhab spread in many regions of the world. Abu Hanifah used to have many students, the most well known are Abu Yusuf, Muhammad b. al-Hasan al-Shaybani and Zufar. They were all mujtahids like Abu Hanifah. Although they mixed their opinions with his, the credit goes to them for recording the mazhab of Abu Hanifah. It is the same for Imam Malik. He used to reside in Madinah, he had many students who were widely known, especially for scrutinising the hadith and transmitters of hadith, especially in regard to the book al-Muwatta. His students after him used to record his fatwas and expand on the furu' and give their views on issues. Despite Malik's fame the credit for spreading his mazhab goes to his students. As for al-Shafi'i he had established his towering fame by his own hands in usul al-fiqh. Which is indicated by what comes in the large work al-Umm which along with al-Risala and Ibtal al-Istihsan are the greatest samples of intellectual awakening in that age. His students, such as al-Rabi' and al-Muzani, who proceeded according this method and studied his opinions and expanded his mazhab and so it spread far and wide. Likewise for Ahmad b. Hanbal. Despite the dominant prevalence of hadith in his mazhab, he had students who expanded his mazhab for him and studied his opinions. The credit first and foremost goes to those students, not only for spreading the mazhab of their teachers and Imams but also for the exposition of the fiqh and ensuring that it flourished, until their age was considered more radiant than the age of the Imams. Since, it was in this age that the commentaries of ahkam and clarification of evidences took place. Thus, the fuqaha rushed ahead in studying fiqh and explaining it especially the science of usul al-fiqh which is the true basis of fiqh. The situation of fiqh continued to spread until it flourished greatly. The pinnacle of its bloom, after the century in which the mazhabs were formed, was in the fourth century A.H.

The Decline of Islamic Jurisprudence

After the era of the students of mujtahidin came the adherents and followers of the mazahib. They did not continue on the path which the Imams and scholars of mazahib followed in ijtihad and in the inference (istinbat) of rules. And nor did they continue on the path taken by the students of the mujtahidin in terms of studying the evidence, clarifying the angle of deduction and the branching out of the rules, and exposition of issues. The followers of each Imam or the scholars of each mazhab were only concerned about taking the side of their own mazhab, supporting its furu' and usul in all of the issues. They were not interested in studying the soundness of the daleel and outweighing the preponderant evidence over the weaker evidence even if it went against their mazhab. Sometimes they were concerned to establish the proofs for the correctness of the view they have taken and invalidate the proofs against it. And at other times their interest was devoted to extolling the Imams and the scholars of the mazahib. This preoccupied the scholars of the mazahib and distracted them from the primary source which is the Quran and Sunnah. A person, among them, did not refer to the text of the Quran or Sunnah, except for the purposes of finding anything that will support the mazhab of his Imam. Accordingly, their studies were confined to their mazhabs. And their zeal for absolute ijtihad and reference to the primary sources in order to derive rules from them became weak. Their eagerness for ijtihad was restricted to their mazhab or to one issue, or simply to make taqleed without scrutiny. Their dependence on taqleed reached the point where they said: any ayah or hadith which goes against what out scholars have said - i.e. our mazhab- it is to be interpreted (to accord with what we say) or it has been abrogated. They made the following of a mazhab an obligation on the Muslim. And they began to study, in Islamic institutions such as al-Azhar, the saying of the author of Jawhara al-Tawheed fi wujub al-taqleed: ‘An obligation it is to follow the learned amongst them. Thus the people spoke with a language understood by them’. [Better translation needed of this]

Rather, they believed that the door of ijtihad should be closed for the Muslims. They held that ijtihad was not permitted until many of the 'Ulama, from amongst those who were qualified for ijtihad and who had the aptitude for ijtihad, did not dare to perform ijtihad or say that they were mujtahids. This decline started towards the end of the 4th century A.H. although in the beginning, until the end of the 6th century and the beginning of the 7th there was some progress. Mujtahidun and scholars were present at a time when the likes of al-Qaffal were advocating the closing of the door of ijtihad. However, from the begging of the 7th century until the end of the 13th century A.H. the decline was complete but it was within the limits of Islam. The decline was in thought but the jurisprudential opinions remained Islamic. As for after the 13th century i.e. from 1274 A.H. till now, the decline has reached the point where the shari'a rules have become mixed with un-Islamic laws and the situation reached the worst possible state of decline.

It was due to this jurisprudential decline that it made it difficult for people to act upon the shari'a rules. So after the Islamic Shari'a had been suitable for the entire world, they made it difficult even for its adherents until they were forced to adopt other laws. Many pious Muslims began to argue about a shari'a which was not the Islamic Shari'a. Towards the end of the 'Uthmani state it was the ignorance of Islam and the ignorant fuqaha which was the principle reason for the backwardness of the Muslims and the end of their state. There were fuqaha who were rigid and always ready to give fatwa forbidding anything new and forbid the thoughts of any thinker. The curiously ludicrous and lamentable thing that happened was that when coffee appeared some scholars gave fatwa forbidding it and when people wore the fez the fuqaha gave the fatwa that it was forbidden to wear it, and when the printing press appeared and the state decided to print copies of the Quran, some fuqaha forbade it to be printed. The telephone appeared and some fuqaha forbade people to speak through it, and many other issues followed. Until the consequence in Islamic jurisprudence was that the Muslims became completely ignorant of it. The issue changed from studying the Shari'a rules to studying western laws. And law schools were founded, those schools whose presence in the Muslims countries is shameful for them. And towards the end of the 'Uthmani state - the Islamic state and its leader the Khalifah of the Muslims - decided to imitate western jurisprudence in the codification of law. Thus they introduced the Majalla in 1282 A.H. as a civil law and a grand edict was issued in 1293 A.H. to put it into effect. And before they had drawn up the Ottoman penal code in 1274 A.H. They introduced that in place of the hudud, criminal (jinayat) and discretionary punishments (ta'zeer). And in 1276 A.H. they introduced the Law of Rights and Commerce in 1276 A.H. Then they introduced the constitution in order to abolish the Khilafah system in its entirety in 1294 A.H. However, it was abolished and then reinstituted in 1326 A.H. (1907 C.E.). However, they tried to make it agree with Islam and kept the Khilafah system. In this way, fiqh (comprehension) declined and became laws and the Shari'a rules were abandoned and rules other than from Islam were adopted under the pretext that they agreed with Islam. An erroneous notion became prevalent that whatever agrees with Islam it is taken from any human being. And the zeal of the 'Ulama waned and they, all of them, became muqallidin (followers). However, that is seen as coming under the shadow of Islam. But after the end of the Khilafah and the kuffars occupation, from the English and French. Then the Muslim countries became states on a nationalistic basis whether Arab, Turk or Iranian etc. The Islamic fiqh was wiped out from existence from the relationships of people, and from education and learning. It was not studied except in certain countries, such as al-Azhar in Egypt, Najaf in Iraq, Zaytuna in Tunisia, however they were studied in the same manner as Greek philosophy was studied, as fanciful philosophy and in a theoretical manner. The decline reached shocking levels since the Islamic fiqh vanished from existence from people's relationships.