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Lecture to 3rd year medical students on Saturday 23rd October 1999
OUTLINE
1.0 OVER-VIEW
A. Contents
B. Pedagogical objectives
C. Fatwa and legal rulings
D. Terminology
E. Sources
2.0 THE LAW IN PERSPECTIVE
A. Law and life
B. Learning the law
C. The law and the Islamic intellectual heritage
D. Main features of the law
E. Legal reasoning and sources of law
3.0 DEVELOPMENT OF THE LAW
A. Stages of development
B. Academic disciplines in the study of the law
C. Pioneers in the development of the law, aimmat al fiqh
D. Pioneers of hadith (aimmat al hadith)
E. Modern jurists
4.0 SCHOOLS OF LAW
A. Definition
B. Evolutionary development
C. Main features of the sunni schools of law
D. Other schools of law
1.0 OVER-VIEW
A. CONTENTS
This course deals with issues of law as they relate to medicine and is divided into 5 units. The units are closely inter-related and need to be studied together. The course more than covers the basic facts of the law that a medical student or practicing physician needs to know.
Unit 1.0 presents the foundations of the law, its sources, purposes and principles. This unit lays the ground for understanding subsequent units in the volume. The presentation follows the famous hadith of Mua'dh Ibn Jabal on the sources of the legal rulings being Qur'an, sunnat, and ijtihad or qiyas. The unit places emphasis on 2 aspects of the law that are often neglected in fiqhi manuals: purposes of the law, maqasid al shariat, and principles of the law, qawaid al shariat. The methodology of extracting legal rulings, istimbat al ahkaam & istidlal, from primary sources is presented in detail. Also emphasized is the use of maqasid and qawaid in reasoning through complicated legal -ethical issues that arise because of contemporary developments in bio-technology.
Unit 2.0 describes 5 aspects of the law that are covered in classical legal works: acts of worship, marriage, inheritance, transactions, and administration of justice. The approach is presenting selected legal aspects as they relate to medical knowledge and practice. This unit has confined itself to aspects of the law that the classical jurists developed and has not covered siyasat shar'iat.
Unit 3.0 describes the legal aspects of normal physiological functions and provides a deeper and empirical understanding of the underlying secrets to many regulations. It is emphasized that as human beings we can use knowledge from medical science to discover the reason, 'illat, behind the provisions of the law but full knowledge of the wisdom, hikmat, of the provision is only with Allah.
Unit 4.0 describes legal aspects of disease conditions and these are either exemption of patients from certain obligations or practical modifications necessitated by the patient's physical condition. A 2-sided approach is used: description of the effect of disease on legal rights and obligations on one hand and the effect of undertaking legal obligations on the management of disease conditions.
Unit 5.0 describes Forensic medicine and judicial procedures. It emphasizes the role of the physician as an expert witness. It is emphasized that medical evidence is like any other evidence that must be considered and weighed in the light of circumstances surrounding the case before arriving at a decision.
B.PEDAGOGICAL OBJECTIVES
This course can be said to be about reading the law while wearing 'medical' glasses. It enables the student to understand the close interaction between the law and medicine since both have the same subject matter, the human.
Medicine is both an art and a science. It deals with the individual, the family, and the environment. The law also deals with the same three phenomena thus the interface between the law and medicine is quite wide. The physician is in intimate contact with people, ill & healthy. He can access the whole spectrum of issues that the law deals with either directly or indirectly. People trust the physician and will turn to him for advice on intimate matters that may even extend beyond the narrow professional confines of the medical profession. Since people's lives are conditioned by the law, the physician will find it inevitable to be involved in some aspects of the law.
The course does not aim at training a physician to be a quasi-jurist. The aim is to equip the physician with sufficient command of the law to be able to conduct his professional activities more effectively since there is no escape for him from confronting practical legal issues.
The Approach is to present Islamic law as it relates to medicine without any comparison with western law.
C. FATWA AND LEGAL RULINGS
This is not a manual of legal rulings
It does not present ready solutions for practical medico-legal or medico-ethical problems and should not be used as a source of legal opinion, hukm & fatwa. Its main purpose is to present the issues involved, discuss the various options available from the Islamic and medical perspectives and leave it to the reader to make his/her choices.
Holistic thinking, tafkiir shumuuli: The manual does not present issues as isolated problems. Each issue is presented in its social, legal, medical, and spiritual-religious perspectives so that an informed solution can be formulated. Attempts have been made to avoid the crisis of partial solutions, juz’iyyat, that has paralyzed the Muslim mind for a long time and has prevented it from being creative and innovative.
Final decision by patient and family
A basic assumption of the manual is that in complicated matters involving ethics and the law, it is the individual (s) involved, the patient or close family, who should make the decision and choice. The role of physicians and jurists, fuqaha, is to make sure that the choice made is an informed one based on correct facts and a clear understanding of the various options involved and the implications of each.
D. TERMINOLOGY
Many Arabic technical terms have been introduced without their translation. Translation leads to imperfections. It also sounds strange if done literally. The original un-translated terms read better. Its technical meaning is explained on the first encounter and is then used thereafter without translation. A secondary objective is building the readers' Arabic legal vocabulary. To make sure readers do not suffer undue stress, the English translations have been retained beside the less commonly used terms. A glossary of legal terms is provided at the end.
E. SOURCES
LAW SOURCES
The basic law material has been extracted from a limited range of references that the author is personally familiar with. The narrow selection was made in view of the fact that this is a teaching and practical manual that need not discuss issues from an academic point of view.
Legal rulings were obtained from the Shafie law manual Umdat al Saalik wa 'uddat al Naasik by Ahmad Ibn Naqib al Masri. Three books were used as sources for usul al fiqh: Al Muwafaqaat fi usuul al shariat by Abu Ishaq al Shatibi, al mahswuul fi 'ilmi usuul al fiqh by al Fakhr al Razi, and a university undergraduate text al wajiiz fi usuul al fiqh by Abdul Karim Zaydaan. Al Shatibi's book mentioned above was also used as a source on maqasid al shariat. Al qawaid al fiqhiyat by al Nasaqi was used as a source on principles of the law. The author also liberally used unpublished material by Dr Sano Koutoub on the qawaid al shariat. Besides these the 9 basic books of hadith collections were used in addition to the sumarized version of Bukhari and buluugh an maraam fi adillat al ahkaam.
2.0 THE LAW IN PERSPECTIVE
A. LAW and LIFE
LAW AND SOCIETY
Law is the anchor that holds society together. There is no successful civilization without law. Islamic law is the basis for Islamic culture, civilization, and societal institutions. Life of the individual, family, and community largely conditioned by the system of law. The law also affects methods of thinking, exchange of ideas and conflict resolution. Islamic law is responsible for the cultural unity of dar al islam.
ISLAMIC LAW IS A COMPLETE SYSTEM
Islamic law is complete, Iktimaal al islam, and is comprehensive, shumuuli. The Law serves the best interests of humans. It can accommodate new challenges and can grow. Islamic law is a viable system that has not been given its due role in shaping Muslim societies.
B. LEARNING THE LAW
OBLIGATION TO LEARN
The law, being so central in the life of individuals and communities, must be studied and known by all those who are concerned. There are three types of knowledge: individually obligatory, fardh ain; communally obligatory, fardh kifayat, and recommended, manduub. Some knowledge becomes fardh when it has to be used such as rules of trade, al buyu'u, for traders and rules of marriage, nikaah, for those contemplating marriage.
REASONS FOR LEARNING
The basic reason for learning the law is to understand the relation with Allah, the relation with other humans and the relation with the environment. This will lead to a good social order that involves promotion of the good by tarbiyat and akhlaq; prevention of the bad by amr and nahy; deterrent punishments, huduud, to prevent people from violating the law with impunity; and rehabilitation after transgressions against the law and against morality, taubat & ghufran. The most important social actions are subsumed under amr and nahy. The law defines who undertakes amr and nahy, to whom they are addressed, what is enjoined and what is forbidden, when, and how.
EXCELLENCE OF KNOWLEDGE OF THE LAW
Knowledge of the law is one of the most exalted occupations. The Qur'an mentioned excellence of knowledge of the law, fadhl al 'ilm (39:9, 58:11, 35:28). If Allah wants good for His servant He gives him understanding of the religion, ie the law, man araada al laahu bihi khayran yufaqihuhu fi al diin (MB #64). The law is needed to tell right from wrong. The human intellect can tell right from wrong but not in all circumstances and left to itself, it could make mistakes.
KNOWLEDGE and ACCOUNTABILITY
Knowledge of the law is the basis of obligations. Those who did not get the message will not be punished (17:15). There are basics in the law that every adult Muslim must know, al ma'alum fi al ddiin bi al dharurat. Ignorant Muslims living in dar al Islam have no excuse not to know the basics of the law. Muslims living in dar al harb are in a different situation.
LEVELS OF KNOWLEDGE
In dealing with the law, people can be divided into two categories. Some people can extract the law for themselves from the primary sources by the process of ijtihad. Many others do not have the intellectual capacity or the background knowledge to extract the law for themselves and have to follow those who can, taqlid.
Taqlid is justified by the Qur'an (16:43, 9:122). Taqliid is condemned on the capable but is obligatory on the unschooled. It may involve following a scholar, taqlid al mujtahid, on a specific legal ruling or it may be following a whole school of law, taqliid of a madhbab, in all its rulings.
C. THE LAW and THE ISLAMIC INTELLECTUAL HERITAGE
Fiqh and usul al fiqh are a pride of the Islamic intellectual heritage. Fiqh is the most developed of the Islamic sciences. It even determined the structure and priorities of other sciences like ulum al hadith. All jurists, fuqaha, were traditionalists, muhadithiin, and books of hadith are organized according to the chapters of the law manuals.
Usul al fiqh is foremost a methodological subject that the ummah is proud of. It introduced methodological rigor to Islamic scholarship. Its impact is felt in all Islamic sciences especially the science of the exigesis of the Qur'an. 'ilm tafsir al Qur'an.
Law has always been at the center of Muslim society. The judge was always one of the top officials in the Islamic government. The first scholars were mostly jurists. Most of the writings in Islamic history were on the law. There is a treasure of manuscripts that have not been published yet. The best evidence of the centrality of the law is its survival and continuing viability and relevance in the industrial society.
D. MAIN FEATURES OF THE LAW
PRIVATE AND PUBLIC
The law has a very interesting public-private duality. Worship, marriage, and some forms of transaction are conducted between individuals without the involvement of government authorities. A marriage or a divorce can be concluded without involvement of the government. Two people with a dispute can go to any person knowledgeable in law and he settles the case for them. On the other hand deterrent punishments, congregational prayer are in public and can only be executed by governmental authority. Some aspects of the law may be both private and public depending on the circumstances.
The duality of public and private spheres sometimes leads to confusion. Court decisions are binding because they are part of the public law. On the other hand taqwah of the person may not be binding because it is private. Taking an oath is considered evidence in court but in reality it is the underlying taqwah that matters.
FIXED AND VARIABLE
The law can be seen as two parts: fixed and variable. The fixed part of the law is stated in the text, nass. It covers the 5 main aspects of worship, ibaadaat, marriage and family life, munakahaat, transactions, mu'amalaat, inheritance, mawariith, and criminal justice, jinayaat. Most of the classical law manuals are confined to the fixed part of the law. The jurists left the variable part to the discretion of the political authority. The variable part is derived by applying general principles of the law to changing circumstances of space and time.
Functions of the fixed part of the law: The fixed part of the law provides the legal foundations of the Muslim society. It is a source of purposes and principles of the law. It also is a source of moral norms for the society.
Functions of the variable part of the law: The variable part represents flexibility, adaptability, and growth. The variable is best served by maqasid and qawaid. There are few law manuals dealing with the variable part of the law because of political constraints on its development. Since it deals with practical issues in the society, the variable law was supposed to be developed by the state. Development was possible in the early madinan society under the 4 rightly-guided khulafa because they were both rulers and mujtahid. They could personally use general principles in the development of legal solutions to new situations. After them, the Islamic state changed in character and the rulers were no longer capable of developing the law. Thus over the past centuries the variable part of the law has not developed.
New challenges: Most legal issues that arise due to modern developments in medicine can be analyzed and solved using the two axioms of maqasid al sharia and qawaid al fiqhiyyat. It is very difficut to treat them using original sources in the sunnat because they just do not exist in an explicit form. It is not enough to know the source of a legal ruling. Thre secrets behind that ruling must also be known. These secrets are found in the study and analysis of the maqasid al shariat.
COMPREHENSIVE
Islam has a comprehensive legal code that is expansive. It is true that the law covers every aspect of the life of the individual as well as that of society. The manner of coverage however differs. The basics of the creed, aqidat; physical purification, taharat; and worship, ibadat, are expounded in detail. The rest of the law is stated as general principles to allow flexibility.
PACKAGING
The law requires an ambience of iman. It can not be applied in isolation. It must be part of a socio-political process. For example the provisions of the law about taking the oath, yamiin, and mula'anat can be abused by immoral persons. Historically the prophet built the faith, iman, and creed, aqidat, before the details of the law were promulgated. The law was introduced in stages, tadarruj, pari passu with the moral development of the society. Thus application of the law to a completely immoral society is difficult and would require establishment of a police state and tight control of everything. There are many aspects of the law that the state does not have to worry about because the family institution takes care of them. Application of the law will be difficult in a society in which the family has broken down completely.
LAW: OPEN OR CLOSED
The law is both closed and open. Its basics are closed and nothing can be added. The field of practical application of the basic principles is still wide open. Islam is complete, iktimal al Islam. Islam abrogated all previous laws. Prophethood was final, khatmiyat al nubuwat. Thus the principles of the law are complete. The applications can develop and change with the change of time and place. Every generation must develop its law. The process of ijtihad is still open.
E. LEGAL REASONING AND SOURCES OF LAW
LAW AND INTELLECT
Discussion has centered on the possibility of deriving law from human intellect. Natural law can derived from reasoning. It is not legal unless it is in conformity with the shariat. The mu 'tazilite view that law can be derived from pure reasoning is wrong. No obligations or punishment can be based on human reason alone. It is the revealed law that supersedes.
ILLAT AND HIKMAT
Most legal rulings can be understood logically. There are a few that have to be taken on faith. The human can understand the underlying reason, illat, for a legal ruling. This may however not correspond to the underlying wisdom, hikmat, of the law-giver which is not always and uniformly clear to humans.
3.0 DEVELOPMENT OF THE LAW
A. STAGES OF DEVELOPMENT
PRE-ISLAMIC LAW
Law of the pre-Islamic communities, shara'u man qablana, is the law of followers of previous prophets; most of which does not exist in pure form. Some of it was accepted by the Qur'an and some was changed or modified. Thus the Muslim must follow only the Qur'an which includes the previous laws.
Pre-islamic Arabia customs and practices were either rejected by Islam, or were islamized, or were modified. Arabs in the pre-Islamic period undertook hajj including circumbulation of the ka'aba, tawaaf; standing at Arafat; sacrifice; and other rites. Islam Islamized and systematised some of these rites while it abolished others.
The issue at stake are those laws that the Qur'an did not mention at all and these fall into two parts. Some laws of previous prophets are found in texts that are not reliable because of a lot of distortion. We do not know whether they are originals or fabrications. Since this is in the province of doubt, we have just to leave them alone. There is no special motivation for us to pursue such laws because the Qur'an and sunnat have given us a complete and comprehensive legal code. There are pre-Islamic laws and customs found all over the world about which we have no textual evidence regarding their validity or otherwise. The general principle of the law is to treat them as permitted customs. We however can not enforce them as legal obligations.
THE LAW IN THE MAKKA PERIOD (-10H to 0H)
There was relatively little legislation in he Makkan period. Even the little legislation that existed was not detailed. Muslims in Makka lived as individuals and not as a community. The Makkan period was mainly concerned with matters of the creed, 'aqiidat. It was a period of spiritual training, tahdhiib al quluub, and preparing the early Muslims for citizenship of the nascent Islamic state. There was therefore no need for comprehensive legislation.
THE LAW IN THE MADINAN PERIOD (1H to 11H)
There was a lot legislation after the hijra necessitated by the foundation of a new multi-ethnic and multi-religious community in Madina. Direct recourse in all matters of the law was to the prophet himself who gave the rulings. Revelation continued to come all through the Madinan period dealing with new situations that arose.
The main sources of law in the Madinan period were the Qur'an and sunnah. Ijtihad was carried out by the prophet and the companions on a limited scale. The limited need for ijtihad is understandable since answers to new issues could be obtained directly from the revelation.
There was rapid development of the law. The Madinan society was complex. Muslims lived alongside non-Muslims, Jews and polytheists. Rural farmers interacted with urban traders. Several ethnic groups existed: Arabs, Hebrews, Persians, Romans, Ethiopians etc. It was a society of rapid changes with continuous influx of new citizens from all over the Arabian peninsula and outside the peninsula. The state was in a continuous state of war with the prophet and his companions going from one campaign to another. The state faced internal threats from the hypocrites and external ones from the Quraish, other Arab tribes, and the two superpowers of that day: Byzantine, al ruum, and Persia, al furs. The state had to survive, grow, and lay the foundation for the Islamic empire despite all these challenges. Legislation was therefore not only for existing conditions but had to encompass situations that would occur in later times and other places.
THE LAW IN THE ERA OF KHILAFAT RASHIDAT (11H to 40H)
The relatively short period of the khilafat rashidat witnessed the expansion of the Muslim state to Africa and central Asia. The challenges in the Madinan state mentioned above continued in addition to the challenges posed by the absorption of so many new nationalities into the state. Some of the new citizens from the provinces of Persia and Byzantine had very sophisticated societies and legal systems.
The law continued to grow in this period mainly because the khulafau al rashiduun were jurists being the most knowledgeable persons of their time. The first 4 khulafa were mujtahids who could derive the law for themselves from primary sources. They also had many knowledgeable companions to help them. Many companions who knew the law could resolve problems as they arose. There was no need for systematization and documentation of the law.
A major development at this time was the compilation of the Qur'an. Abubakr ordered all the various written records to be put together and to be kept by Hafswa. Othman later had the Qur'an written using the Quraishi dialect and copies were sent to all Muslim cities of that time. The collection and writing of hadith was not encouraged at that time. There was fear of confusing hadith with the Qur'an. There was also no special need for hadith because many companions were still alive and knew the legal rulings needed. Hadith collection became necessary later when many companions had passed away and there were fears of fabrications.
The first period of the khilafat rashidat was stable and witnessed major developments in the law. Omar Ibn al Khattab takes pride of place in having made a lot of ijtihad that is still useful to us even today. The second period of the khilafat rashidat, following the assassination of Omar Ibn al Khattab, witnessed civil strife which limited the development of the law while at the same time introducing many new challenges.
THE LAW IN OMAYYAD PERIOD (41H to 132H)
In the period of the tabiun and tabiu al tabiun two major developments started: compilation of the law, tadwiin al ahkaam al shar'iat, and compilation of hadith, jam'u al hadiith. These two developments expanded and bore fruit in the abassid period. The law preceded hadith although the logic would have been hadith first. This is because the jurists, fuqaha, were also muhaddithiin and each started by collecting hadiths on which they based legal opinions. Early hadith books arranged according to chapters of fiqh an indication that their primary purpose was to serve the law.
It was during the omayyad period that rulers were themselves not mujtahids and delegated this functions to jurists called qudha. The system worked well for a short time and problems then surfaced. The jurists were not the executive authority and could not have a bird's eye-view of the problems of society in their development of the law. The rulers also could not whole-heartedly accept the conclusions of jurists because they did not have the background knowledge to appreciate and understand legal reasoning. Very soon a gap grew between the jurists and the rulers which at times turned into hostility and persecution of the jurists. Many jurists started refusing to serve the rulers and confined themselves to the basics of the law in 'aqidat and 'ibadaat which did not bring them into conflict with the rulers.
THE LAW IN THE ABBASID PERIOD (132H to 923H)
The developments in the omayyad period continued under the abassids and many of the problems that had appeared became bigger. He abassid regime was broken after the Mongols sacked Baghdad, killed jurists, and destroyed books in 656H. The Mameluuk in Egypt and Syria continued maintaining a figure-head khalifah from 648H to 922H when the Osmanli state formally took over from the abassids and built a powerful new Muslim state that lasted over 600 years.
The early part of the abassid era was stable and showed much development of the law. The second part of the abassid rule after restoration was a turbulent period. The introduction of Greek philosophy led to mixing the law with theology and led to much theological confusion and argumentation. Further development of the law almost stopped. This did not affect the fixed part of the law that had been fully developed by this time. The problem was the stunting of the variable part of the law.
General decline of the ummah was already visible by the 5th centuryof hijra. The Mongol invasion had destroyed the khilafat in Baghdad followed by centuries of corruption, and fragmentation. It was therefore not surprising that the reformers such as al Juwayni, al Ghazzali, Ibn Qayyim, Ibn Taymiyyah pioneered the development of the variable part of the law in the form of the maqasid al shariat.
THE LAW IN THE POST ABBASSID PERIOD
The abassid period ended formally in 922H but even before that central authority had disappeared and many small states and local dynasties had taken root in Iraq, Persia, Syria, India, Egypt, the Maghrib etc. This was generally a period of decline as far as the law was concerned.
The Ottoman state made a contribution to the law with the development of Majjalat al ahkaam al adliyyat. The majallat codified the most important principles of the law according the hanafi school of law. There was little follow-up development because the process of decline continued until the Muslim world fell under European colonial rule. Imposition of colonial rule led to suppression and marginalization of the shariat.
B. ACADEMIC DISCIPLINES IN THE STUDY OF THE LAW
DEVELOPMENT OF FIQH
The start of schools of law was not planned. The companion of the prophet, Ibn Mas'ud, could be said to have started the first school of law in Kufa where he stayed and taught many people. His disciples taught his interpretation of the law to others. In this way his views spread. The same pattern was followed by other jurists who became, post-humously, founders of schools of law.
It is not surprising that the doyen of jurists, Abu Hanifa, was born and was raised in Iraq where Ibn Mas'ud taught. The compilation of the law became a practical necessity because of the expanding Islamic state and new issues arising. Abu Hanifah gave opinions on these issues and these were systematized later by his students to become the Hanafi school of law. Abu Hanifa was followed by many other jurists who were pioneers of schools of law.
Many schools of law arose. Several schools of law became extinct and only 5 survive to our day: Hanafi, Shafi, Hanbali, Maliki, and Ja'afari. State sponsorship helped maintain and spread some schools for example the Ottoman and Mughal rulers patronized the hanafi school. The Shafi school spread in East Africa and East Asia due to Yamani traders. The maliki school spread in North and West Africa. The hanbali school had become extinct until revived by Ibn Taymiyah and his student Ibn al Qayim.
There is no indication of any new schools being founded in the 15th century. It also seems that the tendency for people to consult the original sources in order to arrive at their own opinions will not lead to decline of the present schools.
DEVELOPMENT OF USUL AL FIQH
Usul al fiqh developed as a solution to the confrontation between ahl al ra'ay and ahl al hadith. Abu Hanifah represented the school of ahl al ra'ay. Ahl an hadith were championed by Malik, al Shafei, Ibn Hanbal, and Daud al Dhahiri. The distinction between ahl al hadith and ahl al ra'ay was not black and white. Each group used the other's methodology. It is also not true to say that ahl al ra-ay did not use hadith. Abu Hanifa and his colleagues were muhaddithuun and based the preponderant majority of their opinions on the nass of the hadith. They differ from ahl al hadith in their more liberal use of qiyaas where it is appropriate.
DEVELOPMENT OF THE PURPOSES AND PRINCIPLES OF THE LAW, maqasid al shariat
Maqasid al shariat are like legal theory with the difference that they are developed from text whereas legal theory is developed from actual court cases. Qawaid al shariat are legal axioms or legal codes.
Al Juwayni (d. 478H) in his book al burhan proposed extensions to the methodology of qiyaas and also proposed general principles, qawaid. Ghazali (d. 505H) developed and systematized al Juwayni's ideas, proposed broad principles of maslahat, and introduced the term maqasid al shariat. He divided the maqasid al shariat into religious, diini, and earthly, duniyawi. Each purpose has dual aspects: securing a benefit, tahsil, and preservation with prevention of harm, ibqa. The term ri'atyat al maqasid covers both tahsil and ibqa. Ibqa as mentioned above has both hifdh and …., promotion. Ghazzali divided the maqasid into three parts: necessities, dharurat; needs, hajiyat; and tawasu'u & taysiir. The third part has come to be known as tahsinat. Some authors included maqasid al shariat under the general theme of ashbaah wa al nadhair.
The new theory of maqasid al shariat opened the way for further development of the flexible part of the Law and excited the interest of many jurists, the most famous being the Andalusian Maliki scholar Abu Ishaq al Shatibi. Most of al Shatibi's work was an elaboration of the ideas proposed by Ghazzali. The new theory did not however lead to major practical changes because by that time the Islamic state was in decline.
DEVELOPMENT OF PRINCIPLES OF THE LAW
Codification, tadwin, of the principles, qawaid, started in the 4th century H. The Law is comprehensive. The Qur'an left out nothing 6:38. The reality however is that ayat al ahkaam and the sunnat do not explicitly and specifically cover every imaginable situation. This means that the Qur'an and sunnat are comprehensive in the sense of providing general principles that can be applied to specific situations. Principles are either stated in the nass or are derived by inductive reasoning.
C. PIONEERS IN THE DEVELOPMENT OF THE LAW, aimmat al fiqh
RIGHTLY-GUIDED KHULAFA
Abubakr: Abd al llaah Ibn Othman Ibn Amir Ibn Abi Quhafa. Born in -51H in Makka. He was a wealthy and respected merchant. He was the first adult male to accept Islam. When he took over the khilafat he saved the nascent state by his wise and courageous decisions. He died in 13H after laying the foundation for the expansion of the Islamic state. During his short reign he was very cautious in his legal rulings and stayed very close to the precedents of the prophet.
Omar Ibn al Khattab Ibn Nufayl Abu Hafs al Qurashi al 'Adawi born in the year -40H and entered Islam in -5H and died in the year 23H. He related 537 hadiths. Many original opinions based on ijtihad were recorded from him. Omar was a bold and very creative thinker who was very practical. The Qur'an on many occasions was revealed to confirm his ijtihad. Abu Bakar relied on his legal opinions. During his reign he made many legal rulings that have now become law.
Othman Ibn Affan Ibn Abi al Aas Ibn Umayyah al Qurashi born in -47H and assassinated in 35H. He related 146 hadith. He lived for a long time. He had a tendency to seek consensus.
Ali Ibn Abi Talib Ibn Abd al Mutalib Abu al Hasan al Hashimi al Qurashi. He was born in Makka in -23H and was raised by the prophet from the age of 5. He married Fatima the daughter of the prophet. When he became the 4th Khalifat in 35H, he moved his capital to Kufa where he was assassinated in 40H. He was very knowledgeable about the law. Ali Ibn Abi Talib is said to be most knowledgeable companion on the law of inheritance.
OTHER THE COMPANIONS
Ibn Masa'ud: Abd al llaah Ibn Masaud Ibn Ghaafil Ibn Habib Abu Abd al llaah Abu Abd al Rahman al Hadli. He was an early convert and was a constant companion of the Prophet carrying his sandals. He related 848 hadith. He died in Madina in 32H at the age of about 60 years.
Ibn Abbas: Abd al laah Ibn Abbas Ibn al Muttalib. He was born in Makka in -3H. He was a cousin of the Prophet. He related 1660 hadith. He was a scholar endowed with a good memory. He died in Taif in 68H.
LEADERS OF THE 4 MAIN SCHOOLS OF LAW
Abu Hanifa bin Nu'umaan: Born in Kufa in 80H. He was the first to study the law systematically. He was a great scholar of hadith who also pioneered qiyaas. He lived in an era of hadith forgery and was therefore very cautious in accepting hadith. He used qiyaas and deduction extensively but was at the same time a great scholar of hadith. He was a rich merchant who used his great wealth to assist his students. He died in 150H.
Malik bin Anas: Malik Ibn Anas Abu Abd al llah al Asbahi al Humayri. He was born in Madina in 93H. He authored the first collection of hadith, al muwatta. Bukhari accepted all the hadiths in the book as authentic. Shafi studied under him. He was persecuted in Madina by the governor. He died in Madina in 179H.
Al Shafi: Muhammad Ibn Idris al Shafi was born in Gaza in 150H. He was brought to Makka as an orphan at the age of 2. He was raised by his mother in conditions of poverty. He memorized the Qur'an by the age of 7 and Muwatta by the age of 10. He was allowed to teach and give fatwa by the age of 15. He studied under Imaam Malik in Madina. He went to Baghdad where he studied under al Shaybani, a disciple of Abu Hanifa. Due to persecution of scholars, he fled Iraq and went to live in Cairo in 199H where he died in 204H. There was considerable development in Shafi's thought such that his opinions issued in Baghdad, al madh'hab al qadiim, were not all the same as those issued in Cairo, al madhhab al jadiid.
Ibn Hanbal: Ahmad Ibn Muhammad Ibn Hanbal Ibn Hilal Ibn Asad Abu Abdullah al Shaybani. He was born in Baghdad in 164H and grew up as an orphan. He traveled to many cities over a period of 16 years in search of knowledge. He memorized 100,000 hadith and recorded only 30,000 of them in his hadith collection. He was a student of Shafi. The hanbali school relied on Qur'an, hadith, and ijma with little use of qiyaas. The imaam was imprisoned and tortured for 28 months but refused to give up his beliefs and follow the ruler's whims. On his death in 241H, his funeral procession was accompanied by 800,000 men and 60,000 women.
OTHER JURISTS
Abu Yusuf: Yaqub bin Ibrahim Ibn Habiib al Ansari Abu Yusuf al Kufi al Baghdadi. He was born in Kufa in 113H. He was a companion of Abu Hanifah and a judge. He died in Baghdad in 182H.
Al Mawardi: Ali Ibn Muhammad Ibn Habiib Abu al Hasan al Mawardi (Shafi). He was born in Basra in 364H. He was the head of the judiciary under the abassid khalifah al Qaim bi Allah and was respected by the rulers. He wrote a famous book in the field of siyasat shariat, al ahkaam al sultaniyah wa al wilayat al diniyat.
Ibn Hazm: Ali Ibn Ahmad Ibn Saied Abu Muhammad Ibn Hazm al Dhaahiri was born in Qurtuba (Spain) in 384H. He was a Minister in the government. He was a follower of Daud al Dhaahiri, a former student of Shafi who accepted only the Qur'an, sunnat, and ijma as sources of law while rejecting qiyaas. Ibn Hazm's writings created controversy and he was expelled dying in exile in 456H.
Al Juwayni: Abd al Malik Ibn Abd al llah Ibn Yusuf Ibn Muhammad Abu al Ma'ali Rukn al Ddiin Imaam al Haramain al Juwayni (Shafi). He was born in 419H in Juwayn (Afghanistan). He first taught in Nishapur but was forced to move to Baghdad due to controversies. He lived in both Makka and Madina. He then returned to teach at the Nizamiyah in Nishapur. Ghazzali was among his pupils. He wrote a major work 'nihayat al matlab fi dirayat al madh'hab'. He died in Nishapur in 478H.
Al Ghazzali: Muhammad Ibn Muhammad Ibn Muhammad Ibn Ahmad Abu Hamid Hujjat al Islam al Ghazzali (Shafi). He was born in Tabiran (near Tus and North of the modern city of Mashhad in Iran) in 450H. He travelled in search of knowledge to Baghdad, Damascus, Jerusalem, Cairo, Alexandria, Makka and Madina. He was a student of Imaam al Haramain al Juwayni. He was appointed a teacher at the Nizamiyah in Baghdad. He later resigned and lived in seclusion for 10 years after which he wrote his masterpiece 'ihya uluum al ddiin'. He died in Tabiran in 505H.
Al Razi: Muhammad Ibn Omar Ibn al Hasan Ibn al Husayn Abu Abd Fakhr al Ddiin al Razi (al Shafi). He was born in 544H south of present-day Teheran. He traveled to Kharazmi, Khurassaan, and finally Herat where he died in 606H.
Ibn Taymiyat: Ahmad Ibn Abd al Halim Ibn Abd al Salam Ibn Abd al llah Abu al Abbaas Taqiu al ddiin Ibn Taymiyah al Harraani (Hanbali). Hen was born in Harraan west of Damascus in 661H. He was imprisoned in Cairo, Alexandria, and Damascus for his opinions. He died in Damascus in 728H.
Ibn al Qayyim: Muhammad Ibn Abubakr Ibn Ayyub Ibn Sa'ad Abu Abd al llaah al Zarraani Ibn al Qayyim al Jawziyyah (Hanbali). He was born in 691H in Damascus. He was a student of Ibn Taymiyah and went to prison with him. He edited and popularizes the writings of his teacher. He died in 751H.
Al Suyuti: Abd Rahman Ibn Abi Bakr Ibn Muhammad Ibn Sabiq al Ddiin Jalal al ddiin al Suyuti (Shafi). He was born in Egypt in 849H. He travelled to Damascus, Yaman, Hejaz, India, Morocco and within Egypt in search of knowledge. After the age of 40 fe decided to live in solitude in order to write. He died in Cairo in 911H.
D. PIONEERS OF HADITH (aimmat al hadith)
COMPANIONS
Abu Huraira: Abd al Rahman Ibn Sakhr al Dawsi. He came to Madina when the prophet was at Khaybar and became a Muslim in 7H. He never left the company of the prophet all through his life. He was governor of Madina and Bahrain for short periods of time. He lived most of his life in Madina where he died in 59H at the age of 79. Abu Hurairah was a prodigious reporter of hadith because he was a close and constant companion of the prophet. He had no home or business to distract him from getting knowledge.
Aisha bint Abubakr: She was born in -9H and married the prophet in 2H. She was very knowledgeable and related a total of 221 hadith. She died in Madina in 58H.
Anas Ibn Malik Ibn Nadr al Khazraji. Born in Madina in -10H. He entered Islam while young and was the personal servant of the prophet. He related over 2200 hadith. He died in Basra at the age of 120 years being the last of the companions to die there.
Ibn Omar: Abd al laah Ibn Omar Ibn al Khattab. Born in Makka in -10H. He was a scholar who avoided conflicts. He was devoted to ibadat and was meticulous in following the sunnat of the prophet. He related ?2639 hadith. He was the last companion to die in Makka in 73H.
Jabir: Jabir Ibn Abd al llaah Ibn Omar Ibn Haram al Khazraji al Ansari. He was born in -16H. He narrated 1540 hadith. He used to teach in the prophet's mosque and was the last companion to die in Madina in 78H.
THE FOLLOWERS (tabiun)
Thawri: Sufyan Ibn Said Ibn Masruq Ibn Habiib Abu Abd al llaah al Thawri. Was born in Kufa in 97H. He taught Abu Hanifa. He died in 161H.
COLLECTORS OF HADITH
Bukhari: Muhammad bin Ismail bin Ibrahim Ibn al Mughirah Abu Abd al llaah al Bukhari. He was born in Bukhara (Uzbekistan) in 194H. He travelled to Makka, Khurassaan, Iraq, Egypt, Hejaz, and Syria in search of knowledge. He collected 600,000 hadith and selected 4400 (counted without repetition) for inclusion in his hadith collection known as al Jami al Sahiih. He was of the Shafi school of law. He died in Samarkand in 256H.
Muslim: Muslim Ibn al Hajjaaj Ibn Muslim Abu al Hasan al Qushayri (Shafi). Was born in Nishapur in 204H. He was a student of Bukhari. He also travelled to Hejaz, Egypt, Syria, and Iraq in search of knowledge. He died in Nishapur in 261H.
Abu Daud: Sulaiman Ibn al Ash'ab Ibn Ishaq Ibn Bashir al Azdi al Sijistani (Shafi). Born in 202H in Sijistan, Persia, he travelled widely in search of knowledge and died in Basra in 275H.
Al Tirmidhi: Muhammad Ibn Isa Ibn Sirra Ibn Musa Abu Isa al Sulami al Tarmidhi was born in 209H in Termidh (Uzbekistan). He travelled to Khurrassaan, Iraq, Madina, and Makka in search of knowledge. He was a student of Bukhari. He died in Termidh in 279H
Ibn Majah: Muhammad Ibn Yazid Al Rub'I Abu Abd al llaah Ibn Majah al Qazwini. He wasborn in Qazwin in Persia in 209H. He travelled to Basra, Baghdad, Syria, Cairo, Hejaz, and Rayy in search of knowledge.
Nisae: Ahmad Ibn Ali Ibn Shuaib Ibn Ali Ibn Sinan Ibn Bahr Ibn Dinar Abu Abd al Rahman al Nasai (Shafi). He was born in Nasa, Persia in 215H. He travelled to Khurasan, Iraq, Syria, Hejaz in search of knowledge. He eventually settled in Egypt. He worked as a judge. He was assassinated in Damascus in 303H.
Ibn Khuzaymah: Muhammad Ibn Ishaq Ibn Khuzaymah Abubakr al Sulami born in 223H in Nishapur. He travelled to Iraq, Syria, the Arabian Peninsula, and Egypt. He died in Nishapur in 311H. He was of the Shafi school of law.
Tabarani: Sulaiman Ibn Ahmad Ibn Ayub al Mutair Abu al Qasim al Lakhami alm Tabarani. He was born in Palestine in 260H. he travelled to Hejaz, Syria, Egypt, Iraq, Persia, and the Arabian peninsula in search of knowledge. He eventually settled down in Isfahan where he died in 360H.
Baihaqi: Ahmad Ibn al Husain Ibn Ali Abubakr al Baihaqi (Shafi). Born in Persia in 384H. Travelled to Baghdad, Kufa, and Makka in search of knowledge. He died in Nishapur in 458H.
Dar Qutni: Ali Ibn Omar Ibn Ahmad Ibn Mahdi Abu al Hasan al Dari Qutni. He was born in Dar Qutn near Baghdad in 306H. He travelled to Egypt in search of knowledge. He returned and died in Baghdad in 385H. He was of the Shafi school of law.
Hakim: Muhammad Ibn Abd al laah Ibn Hamdawiyyah Ibn Nuaim al Ddaabi Abu Abd al llaah al Hakim al Naishapuri. He was born in Naishapur (modern Iran) in 321H. He travelled to Iraq, Hejaz and beyond the Oxus in search of knowledge. He heard hadith from over 2000 shiekhs. He was appointed to the judiciary in Naishapur where he died in 405H. He was of the Shafi school of law.
Nawawi: Yahya Ibn Sharaf Ibn Muriy Ibn Hasan Abu Zakariyah Muhyu al dddiin al Nawawi (Shafi). Born in 631H in Nawa, a village in Syria. He came to Damascus in 649H. He authored three books that are still popular today: Minhaaj al Talibin, the main reference of the shafi school of law; riyadh al salihiin; and kitaab al adhkaar. He lived simply and died in Nawa in 676H.
Hythami: Ali Ibn Abubakr Ibn Sulaiman Abu al Hasan Nur al Ddiin a Haythami. He was born in Cairo in 735H and died in 807H.
'Asqalani: Sheikh al Islam Ahmad Ibn Ali Ibn Muhammad al Kanani Abu al Fadhl Shihab al Ddiin al Asqalani. He was born in Cairo in 773H. He studied in Cairo, Yaman, and the Hejaz. He was appointed to the judiciary and wrote the most famous commentary on Bukhari. He died in Cairo in 852H. He was of the Shafi school of law.
Ibn Kathir: Ismail Ibn Omar Ibn duwi Ibn dara Abu al Fadh Imad al Ddiin . He was born in 701H in a village
outside Damascus and moved into the city at the age of 5. He is more famous for his tafsir of the Qur'an. He was of he shafi school of law.
4.0 SCHOOLS OF LAW
A. DEFINITION
Madh'habs are not sects: They are not parochial either racially or geographically. Each school has a definable consistency in legal rulings which reflects a common set of principles.
Differences between schools: There is more than 50% agreement among the different schools. These differences are due to consistent differences in the methodology of extraction of legal rulings. Differences within schools exist.
B. EVOLUTIONARY DEVELOPMENT
Development of fiqh and schools of fiqh by a process of evolution: The recognized founders never deliberately set out to start a school of law. They studied, gave opinions and taught disciples. The disciples in turn undertook more research and taught others. It became obvious with time that the disciples of each original teacher used a common methodology and approach to legal problems. This common approach slowly came to be recognized as a common methodology.
The first comprehensive books of the law by the Hanafis was al asl or al mabsut by Muhammad Ibn al Hasan al Shaybani (d. 189 AH) and Kitaab al Kharaj by Abu Yusuf. The first books in the Maliki school were al Muwatta by Malik and al Mudawanat al Kubra by Sahnoon. The first book in the Shafei school was al Umm by the founding imaam himself.
Books on the methodology of each school were written much later than the fiqh books. With the documentation of the distinctive methodology, more developments occurred and this served to make the different schools even more distinct because it was no longer probable that a jurist would venture beyond the methodological confines of his school.
The great imaams of the law recognized today as leaders of the 4 sunni schools are: Imaam Abu Hanifah, Imaam Shafei, Imaam Ahmad, Imaam Malik. Some of the schools became extinct like that of Ibn Khaythama and that of Daud al Dhaahiri. The hanbali school nearly became extinct until revived by Ibn Taymiyat and his student, Ibn al Qayyim. The imaams did not have the intention of starting schools. They just researched and taught. It was their students who collected, systematized, expanded, and presented their ideas as a school of law for example Nawawi summarized and systematized the teachings of the shafi school.
C. MAIN FEATURES OF THE SUNNI SCHOOLS OF LAW
HANAFI SCHOOL
The Hanafi school places a lot of emphasis on consistency and logic. It has the following distinguishing features: (a) a general assertion, aam, is considered a definitive, qat'i, source of principles. The Hanafi try their best to identify general principles, kulli, that they later apply to the specific, juz'i. (b) A general principle is a proposition from which legal reasoning starts. (c) The opinion of a companion is accepted as a legal precedent. (d) Ijma is a valid source of law. (e) Khabar al wahid is rejected as a source of law.
THE SHAFEI SCHOOL
The Shafei school relies more on textual evidence, naql, than the hanafi school. Its main features are: (a) the sunnat governs the meanings of the Qur'an, al sunnat qaadhiat ala al Qur'an. (b) The general word does not cover all the possible categories. (c) Khabar al waahid is accepted if the chain of transmission is sound. (d) The opinion of a companion is not binding. (e) Qiyas is a valid source of law and is the only form of ijtihad that is allowed. (e) istihsaan is rejected as source of law.
THE HANBALI SCHOOL
The hanbali school followed the main features of the shafei school but had a more strict handling of hadith. It almost became extinct until it was revived by Ibn Taymiyah and Ibn al Qayyim al Jawziyah.
D. OTHER SCHOOLS OF LAW
THE JA'AFARI SCHOOL
This is the predominant school of law among the shia
THE DHAHIRI SCHOOL
This school was founded by Daud al Dhahiri. It rejected qiyas and insisted on literal, zaahir, interpretation of the text, nass. It became extinct because of its extreme views.