The Evolution of Fiqh(3.THE THIRD STAGE: BUILDING)

This stage covers the rise and fall of the Umayyad dynasty.

The Umayyads were in power for approximately one century,

extending from the death of the last of the Righteous Caliphs 

(‘Alee ibn Abee Taalib) in 661 CE and the ascendancy of the founder 

of the Umayyad dynasty, Caliph Mu’aawiyah ibn Abee Sufyaan,

 until the last of the Umayyad caliphs around the middle of

 the eighth century CE.

The period was marked by great social unrest; the Ummah

divided into various sects and factions; the caliphate was converted

into a kingship; many new practices were introduced, some of which

were Haraam; the scholars refused to sit in the audiences of the

caliphs and in fact fled to outlying areas to avoid conflict and

confusion.al-Madhkal, pp. 121-122.

So far as Islamic Law and the evolution of Madh-habs are

concerned, this period is noteworthy for three main trends. In the

first place, there was a notable increase in the number of Ijtihaads

given by scholars, since Ijmaa’ became more and more difficult

following the dispersal of scholars to outlying areas of the caliphate.

Secondly, the narrations of Hadeeth became widespread and there

was an increasing tendency towards fabrication of Hadeeth. Finally,

the period marked the first attempts at compilation of Fiqh, which

was aimed at preserving the Ijtihaads of the Sahaabah. It was in this

period too that scholars of Islamic Law first divided into fairly clearcut

schools of thought, establishing various Madh-habs which in

later periods were reduced to four major ones.

 

In the history of Fiqh and the evolution of Madh-habs, this

period is one of extremely great significance. In view of this, the

relevant political, social and religious aspects merit the fuller

treatment which follows.

A. Division of the Ummah

Within the first quarter of a century of this period, the

Muslim nation suffered a number of devastating socio-political

blows which caused a number of sects and factions to appear. The

most serious were those caused by rebellions of the Khawaarij, the

Shee’ah, and ‘Abdullaah ibn az-Zubayr and his followers. The

constant vying of these contending elements for control of the

government resulted in a general state of turmoil.

The first two factions, the Khawaarij and the Shee’ah, later

evolved into religious sects which developed their own particular

systems of Fiqh. Relying on unorthodox interpretations of the

Qur’aan and the Sunnah which suited their own socio-political

views, they rejected the contributions of most of the Sahaabah and

the Righteous Caliphs, declaring them to be apostates, and elevated

their own leading figures to the rank of law makers.
 

B. Deviation of the Umayyad Caliphs

The Umayyad Caliphs introduced a number of practices

which were common in the non-Islamic states of that time, such as

Byzantium, Persia, and India. Many of these practices were in clear

contradiction to the Fiqh of the earlier period. For example, the

central treasury, the Bayt al-Maal, was turned into the personal

property of the Caliphs and their families, and taxes not sanctioned

by Islaam were introduced to further increase their fortunes. 
Music, dancing-girls, magicians and astrologers were officially
 introduced as forms of amusement in the court of the Caliph. 
Furthermore, with the forced acceptance of Yazeed as crown
 prince imposed byCaliph Mu’aawiyah in the year 679 CE, 
the office of Caliph was converted into that of hereditary kingship. 
Hence the state-Fiqh link was broken and a significant
 unifying factor of the Madh-hab was thereby lost.

Due to these factors, the Islamic scholars (‘Ulamaa) of this period

avoided sitting in the audiences of the caliphs, and thus the principle

of Shooraa (consultative government) was last. With each successive

caliph the government steadily dereriorated into a dictatorial

monarchy similar to the non-Islamic governments of that day. As a

result, some of the caliphs attempted to manipulate Fiqh in order to

justify their deviations. To combat this distortion, and preserve

authentic Fiqh for later generations, scholars began to collect and

compile the Fiqh of the earlier period.
 

C. Dispersion of the ‘Ulamaa

Many of the scholars of that fled the political centers of the

‘Umayyad state to avoid conflict and confusion as well as

persecution from the various competing factions. This move resulted

in a break-down the principle of Ijmaa’ (unanimous agreement on

points of Islamic law). With the scholars scattered throughout the

state, such unanimity on any new point of law became virtually

impossible to establish. This in turn led to a significant increase in

the individual Ijtihaads of scholars as they attempted to deal with the

multiplicity of new customs and problems in their own areas.

Whenever an outstanding scholar of Fiqh arose in an area, the

students and scholars in that region would gather around him. Often,

even students and scholars from other regions would join them and

in that way a number of schools of Islamic law (Madh-habs)

evolved. During this stage Abu Haneefah and Sufyaan ath-Thawree

became prominent in Kufah, Maalik ibn Anas in Madeenah, al-

Awzaa’ee in Beirut, and al-Layth ibn Sa’d in 

Egypt to mention a few.
 

D. Fabrication of Hadeeth

The narration of Hadeeths increased as the need for

information grew. Since the state had unofficially stopped relying on

the Sunnah of the Prophet (s.w.), scholars in their various capacities

had to go in search of individual narrations of the Sunnah handed

down by the Sahaabah and their students, in order to make their legal

judgements. At the same time a new phenomenon developed: false

sayings and actions began to be attributed to the Prophet (s.w.) for

the first time. For a fabricator to be trusted he would have to relay

some true Hadeeths along with his fabrications. This led to the

beginning of the compilation of Hadeeths and the development of the

science of Hadeeth critism, which aided later scholars in their

Ijtihaads (legal rulings). However, before the science of Hadeeth

evolved, a mixture of true and false reports worked their way into the

body of Islamic knowledge and was inadvertently used by some

scholars in making decisions. In this way, a body of incorrect Fiqh

evolved, which was further bolstered by Fiqh decisions made by

scholars who had rejected certain true Hadeeths because they were

only known to them through the Hadeeth fabricators of their
 areas.al-Mdkhal, pp. 121-126.
 

Scholars and students in the Islamic Empire during this

period tended to divide into two major groups. One group of scholars

leaned towards limiting their deductions to available texts, while the

other group favored the extensive use of deductive reasoning and

Ijtihaad.

The First group avoided making legal rulings on an issue if

clearly defined texts from Hadeeth or the Qur’aan related to the issue

were not available. Their position was based on the obvious meaning

of the Qur’anic verse,

“Do not follow what you have no knowledge

of.”Soorah al-Israa, (17): 36.

The laws whose purposes were identified by Allaah or His Prophet

(s.w.) were used in analogical deductions(Arriving at an answer by logical reasoning based on similarities.)whereas those left

undefined were not. Because of this position, the scholars of this

school of thought were called Ahl al-Hadeeth (Hadeeth people). The

center of the Ahl al-Hadeeth scholars was Madeenah and the Fiqh of

the Madeenan school was, for the most part, practical and based on

real problems.

The other group of scholars felt that all of the various laws

revealed by Allaah had identifiable reasons behind them, whether

these reasons were identified by Allaah and His Prophet (s.w.) or

not. In cases where reasons for a law had not been specifically

defined, these scholars used their powers of reasoning to arive at

possible reasons. Then they applied that law to other circumstances,

which had similar causes. Their approach was based on the practice

of some of the major Sahaabah who had deduced reasons for some of

the divine laws. Due to this group’s support of extensive reasoning,

they became known as Ahl ar-Ra’i (Reasoning People). The center

of the Ahl ar-Ra’i scholars was Kufah in Iraq. The Fiqh of Kufah

developed along hypothetical lines. Problems were invented and

variations of existing situations guessed at, then imaginary solutions

were worked out and recorded. In their discussions they often used

the phrase, “what if it were like this?” and thus were also nicknamed

the What-Iffers.” It should be noted that these two trends

were merely extensions of trends which first appeared among the

Sahaabah.

 

The Different approaches of the Ahl al-Hadeeth and Ahl ar-

Ra’I scholars may be traced to certain political factors combined

with the differing socio-cultural backgrounds of the two areas in

which their schools of thought flourished. From the time of the last

Righteous Caliph, ‘Alee ibn Abee Taalib, the Cpital of the Islamic

state was shifted first to Iraqand then to syria. 

Thus, the Hijaaz [Western coast of the Arabian peninsula

 including Makkah and Madeenah.]was spared much of the

 turbulence and influx of foreign cultures and

ideas which took place at the center of the state. Life in the Hijaaz

continued to be easy-going and simple, due to its isolation.

 The Hijaaz was also the home of the Prophet (s.w.) and the 

birth-place of the Islamic state. Consequently, there was 

an abundance of Hadeeths in this region as well as a wealth 

of legal rulings made by the first three caliphs, Abu Bakr, ‘Umar, and ‘Uthmaan. On the other hand,

Iraq was a new and strange land for Muslims. When capital of the

Islamic State was stationed there, it became a virtual melting pot of

various cultures and gave rise to a great number of situations and

events, which were outside the experience of Muslim scholars of the

time. 

Furthermore, because the number of Sahaabah who settled

there was small, Hadeeths were not nearly as available there as in

Hijaaz. Indeed, Iraq became the birth-place of fabricated Hadeeth as

well as the breeding ground for most of the early deviant sects. Not

being able to rely on the validity of quoted Hadeeth, the scholars of

Iraq tended to rely on Hadeeth, to a lesser extent than did the

scholars of the Hijaaz. The few Hadeeths which these Iraqi scholars

considered accurate were only accepted after the fulfillment of very

strict conditions. The natural result of this development was that the

Iraqi school of thought and its scholars depended more on reason and

logic than on the narrated Sunnah of the Prophet (s.w.).

 al-Madkhal, pp. 126-127.
 

During the period of Four Righteous Caliphs (632-661 CE)

there was no compilation of the Fatwaas (legal rulings) which had

been made by the Sahaabah. The Muslim state was rapidly

expanding and everything was in a state of flux. The practice of

narration of Hadeeth had just started and the early band of Muslims

who formed the core of the state had just begun the awesome task of

guiding the young Muslim nation. Thus, there was neither the time

nor opportunity for undertaking a compilation of the various rulings

and opinions held by the Sahaabah. Furthermore, the Sahaabah

themselves tended to view their efforts at ijtihaad not as infallible

truth binding on the entire Muslim nation, but merely as opinions

applicable to their particular time and situation.

It was during the Umayyad period that the very first attempts

at a compilation of legal rulings occurred. With the change of the

governmental structure from caliphate to monarchy during this

period rulings were increasingly being made which went against the

rulings were increasingly being made which went against the rulings

of the Sahaabah. Those who had studied under the Sahaabah in the

various centers of Islamic learning realized that if a concerted effort

were not made to preserve the earlier rulings, later generations of

Muslims would be unable to benefit from the contributions of the

Sahaabah. Accordingly, early scholars of the Hijaaz collected the

various Fatwaas of ‘Abdullaah ibn ‘Abbaas, ‘Abdullaah ibn ‘Umar

and ‘Aa’eshah bint Abee Bakr.The third wife of the Prophet (s.w.).

 Similarly, the scholars of Iraq

collected the rulings of ‘Abdullaah ibn Mas’oud and those of ‘Alee

ibn Abee Taalib. Unfortunately none of these early collections have

survived in their original form. They are now only known by

references made to them in the books of the next generation of

scholars. However, a large number of the rulings contained in the

original collections have been preserved by way of narration in the

books of Hadeeth, in history books, as well as in later books of Fiqh.

1. The first attempts at compilation of Fiqh were made during the

period of the Umayyads.

2. The scholars of Fiqh during this period followed two main

trends in making their rulings: that of Ahl al-Hadeeth (the people

of Hadeeth) and that of Ahl ar-Ra’i (the people of Opinion).

With the dispersion of the scholars there was a marked increase

in their individual Ijtihaads. The overall result was the evolution

of a number of new Madh-habs.

3. Both the principle of Ijmaa’ and that of consultative government

were lost due to the scholars’ avoidance of the degenerate

Umayyad court.

4. In order to preserve essential Islamic principles in the face of

Umayyad divergence from the Sunnah, the dispersed scholars

relied on frequent narration of Hadeeths and compiled the legal

rulings of the most prominent jurists among the Sahaabah.

5. Social unrest and turmoil sere prevalent during this period and a

number of religious sects and political factions came into being.

6. The Fabrication of Hadeeths in support of sectarian views arose

during this stage for the first time. Scholars, therefore,

saw a need to compile and critically analyze the Hadeeths.