Islamic Law and its Jurists

By Shaykh Zahir Mahmood

The quintessence of Islamic teaching is the Qur’an and Sunna, and the means of understanding these primary sources is accurately crystallized through the science of fiqh (Islamic jurisprudence). Fiqh is the eyesight whilst the Qur’an and Sunna are the light. Eyesight is an indispensable tool for deriving benefit from light; in its absence, light is of little use and vice-versa.

Similarly, it is through the implementation of fiqh that one is able to extract the finer implications and subtleties articulated in the Qur’an and Sunna.

Definition of Fiqh

Fiqh literally means to comprehend and understand. In early Islamic history, the term included legal, ethical and theological norms. Fiqh dealing with creed was termed al-fiqh al-akbar (Imam Abu Hanīfa’s book entitled al-Fiqh al-Akbar and his definition of fiqh bear testimony to this), and the term faqih denoted equally a ‘jurist’ and ‘theologian.’

Later definitions, such as Imam al-Shafi`i’s, begin to portray a dichotomy between legal theory and theology:  ‘Knowledge that is discerned from the detailed proofs (the Qur’an, Sunna, ijma’ (consensus) and qiyas (analogical deduction)) regarding norms for actions in the Shari’a. (al-Fiqh al-Islami wa Adillatuhu  16)

The clause ‘discerned from the detailed proofs’ precludes the layman from indulging in deriving fiqh.  The successful derivation of fiqh requires the ability to discern rulings from the Qur’an and Sunna, ijma` (consensus) and qiyas (analogical deduction).  These derivations entail a complexity that a layman is ignorant of. If he does possess the ability, then he neither belongs to the laity, nor to ordinary scholarship, but to the higher category of the jurists.

Levels of Fiqh

Fiqh (comprehension) has varying levels, the optimum level consists of direct inspiration from Allah, to which the words of the Prophet (may Allah bless him and grant him peace) attest, “For whomsoever Allah wishes good he endows him with fiqh of the religion.”  Ibn Hajr commenting upon this tradition (hadith) remarks, “In this narration there is a clear elucidation of the superiority of the `ulama’ over the laity and that of fiqh in religion above all other sciences. (Fath al-Bari 1:217)

In another tradition the Prophet (may Allah bless him and grant him peace) said, “May Allah keep fresh one who hears my words, preserves them and then conveys them to those who have not heard them.  At times the one carrying fiqh has no fiqh himself, and at times the one carrying fiqh conveys it to one who has more fiqh than himself.”  Hakim and Dhahabi state, “This narration fulfils the conditions of Bukhari and Muslim,” and the former has declared the narration as mashhur (well-known).

The narration delineates that a fundamental purpose of the propagation of traditions is the inference of fiqh from it.  Furthermore, the initial bearer of the traditions may himself not possess the required tools to derive fiqh, whilst a later bearer may, and his derivations may benefit Muslims.  It is here that a distinction is drawn between the muhaddithun and the fuqaha’.  The former place emphasis on memorising texts, chains of transmission, biographies of the transmitters etc, whilst the latter derive from the traditions their deeper implications.

Difference Between Traditionists and Jurists

This distinction between the fuqaha’ and the muhaddithun (traditionists) reaches as far back as to the time of the Companions (may Allah be pleased with them).  Eminent compilers of traditions such as Abu Hurayra (may Allah be pleased with him), who despite transmitting more traditions than many other Sahāba (may Allah be pleased with them), very rarely issued formal legal rulings (fatāwa), and despite his immense knowledge of traditions was not regarded as a faqīh among the Sahāba (in comparison to other Companions).

Further clarification of this distinction is Muhammad Rawas al-Qal`aji’s Silsilat al-Mawsu`at Fiqh al-Salaf, compendiums illustrating the legal rulings of distinguished Sahāba (may Allah be pleased with them).  The work dealing with the fiqh of Abu Hurayra (may Allah be pleased with him) is in total a fifth compared with the rulings of other distinguished Sahāba (may Allah be pleased with them), who transmitted far fewer traditions than Abu Hurayra (may Allah be pleased with him).

Further illustrations can be found in the following examples:

A person rebuked Imam Ahmad b. Hanbal for leaving the circles of Sufyan ibn al-`Uyayna for that of Imam al-Shafi`i.  Imam Ahmad replied, “Keep silent! If a tradition with a higher chain eludes you, then you will acquire it through a lower chain.  However, if the insight of this young man passes you by, I fear you will never come across it again.” (al-Raf` wa ‘l-Takmil fi ‘l-Jarh wa al-Ta`dil  71)

On another occasion Imam Ahmad said, “Knowledge of traditions and the fiqh thereof are more beloved to me than the memorisation of traditions.” (al-Raf` wa ‘l-Takmil fi ‘l-Jarh wa al-Ta`dil  70)  `Ali b. al-Madini said, “The most noblest of sciences is the knowledge of fiqh within the ahadith.”  (Maqam Abi Hanifa 52)

The deep insight and intellectual excellence needed to attain the status of a faqīh ensured that the fuqaha’ remained considerably fewer in number than the Muhaddithun.  Hafiz al-Ramuhurmizi has stated in al-Muhaddith al-Fasil bayn al-Rawi wa ‘l-Wa`i, with his own chain of transmission from Anas ibn Sirin that, “I came to Kufa where I found four thousand seeking traditions and four hundred had become fuqaha’.’” (al-Ta`liq al-Mumajjad `ala Muwatta Muhammad 1:20)

Fiqh of the Traditionists

Notwithstanding their excellence in hadith, many eminent muhaddithun of the ‘Golden Generations’ imbibed the fiqh of bnthe great fuqaha’ of their time. From amongst those eminent muhaddithun who adhered to the opinions of the eponym of the Hanafi school of thought, Abu Hanifa, were eminent figures such as Waki` ibn al-Jarah, a teacher of Ahmad ibn Hanbal, Ishaq ibn Rahaway, Abu Bakr ibn Abi Shayba, `Ali ibn al-Madini and Yahya ibn Ma`in.

Imam Ahmad ibn Hanbal said, “I have never seen anyone equal to Waki` in knowledge, memorisation, acquaintance with the chains of transmission and chapter headings (abwab).” (Tahdhib al-Kamal 30:473)

Yahya b. Ma`īn said, “I swear by Allah I have never seen anyone other than Waki` narrate solely for the sake of Allah, nor anyone who had memorized more than him. He in his era was like Awza`i was in his.” (Tahdhib al-Kamal 30:475)

Yahya b. Ma`in also said, “I have never seen anyone more virtuous than Waki`.”  He was asked if Waki` was even more virtuous than Ibn al-Mubarak.  He replied, “Ibn al-Mubarak is virtuous, but I have never seen anyone more virtuous than Waki`, he would face the Qibla and memorize traditions, he would fast successively and issue fatawa according to the opinion of Abu Hanifa.” (Tahdhib al-Kamal  30:474)

Another from amongst these illustrious scholars was Yahya b. Ma`īn, a teacher of many well-known scholars including Imam Bukhari, Muslim, Abu Da’ud, and Abu Hatim al-Razi to name just a few.

Muhammad ibn Nasr al-Tabari reported, “I heard Yahya b. Ma`in state, ‘With these hands of mine I have written a million traditions.’” (Tahdhib al-Kamal 31:548)

`Abd al-Khaliq said, “I said to Ibn Rumi, ‘I have heard a traditionist say, ‘Yahya b. Ma`in the one who the sun has not risen upon greater than (in traditions) narrated to me.’ He replied, “Why the surprise?  I heard `Ali  al-Madini say, ‘I have never seen amongst the people one equal to him.’” (Tahdhib al-Kamal 31:553)

Imam Dhahabi has stated regarding Yahya ibn Ma`in that he was a staunch Hanafi, notwithstanding the fact that he was a muhaddith.  (al-Kanz al-Mutawari 1:159)

Another eminent scholar who followed the opinions of Imam Abu Hanifa was Yahya al-Qattan, a teacher of Ahmad b. Hanbal, Sufyan al-Thawri, Sufyan b. al-`Uyayna, Shu’ba ibn al-Hajjaj and `Ali ibn al-Madini.

Abu Talib reported from Ahmad ibn Hanbal that he said, “I have never seen anyone like Yahya ibn Sa`id, in his era there was none equal to him.” (Tahdhib al-Kamal 31:337)

Zakariya ibn Yahya al-Saji said, “I heard `Ali ibn al-Madini say, ‘I have never come across anyone who was more knowledgeable regarding the biographies of narrators than Yahya ibn Sa`id al-Qattan.’” (Tahdhib al-Kamal 31:336)

An indication of how a revered scholar such as Yahya ibn Sa`id al-Qattan accepted and acted upon the fiqh of Abu Hanifa is evident from the following statement.  Sa`id al-Qadi states, “I heard Yahya ibn Ma`in say, ‘Yahya ibn Sa`id al-Qattan said, ‘We do not belie Allah when we say that we have never heard an opinion better than that of Abu Hanifa’s, and we have accepted the majority of his statements.’” (al-Ta`liq al-Mumajjad `ala Muwatta Muhammad 1:16)

Formation of Fiqh Schools

These eminent muhaddithun ceded the arduous task of drawing fiqhi rulings to those who were more adequately equipped to take up this demanding intellectual challenge.  This approach was adopted throughout the Golden Generations, a period which witnessed the flourishing of many schools of thought; the majority of which did not survive due to a lack of preservation by their followers. Imam al-Shafi`i stated:  “Layth was a greater faqih than Malik but his students wasted him (through not preserving his teachings).” (Siyar A`lam al-Nubala’ 8:156)

Those schools which were preserved throughout the centuries up until the present day were subjected to rigorous refinement and amendment by the scores of scholars who adhered to them.  In each century, using the usūl al-fiqh (principles of jurisprudence) of the school, casuistic conflict solutions (masa’il) were deduced to deal with the exigencies of the time.

A testimony to the acceptance of these schools of thought is the unfaltering adherence they enjoyed throughout the centuries.  It would be no exaggeration to state that the overwhelming majority of Muslims avidly adopted these schools.  It is only of late, due to a moral and scholarly degeneration in the ummah, that individuals have begun to excoriate the schools and their followers. It is therefore important that whilst facing antagonism, one adhering to the fiqh of one of the great Imams must also adopt their sublime manners, tolerance, and the deep respect and love that they exhibited for their Muslim brothers, even if they contravened their personal position.  May Allah guide them and us, for they are our brothers in the Din, and ‘None of you can be a true believer until he desires for his brother what he wishes for himself.’

Disputation in Fiqh

Disputation, according to Imam Ghazali, is only valid if the following conditions are met:

1. Disputation is a communal obligation (fard kifaya); before one may practice it he must have already fulfilled the individual obligations (fard  `ayn).
2. The purpose of disputation is to seek the truth; and it is justified only when there is not a more important community obligation that should be performed.
3. Disputation is justified only in the case of a mujtahid, capable of arriving at his own legal opinion and who is not bound by the opinions of any school of law.
4. Disputation is justified only in cases that are likely to be of actual occurrence.
5. Disputation should be held privately, rather than in public assemblies in the presence of notables and men of power and influence.
6. In disputation the aim should be to seek the truth regardless of which of the two adversaries finds it.
7. Disputation should be free of certain restrictive rules of dialectic, such as preventing the adversaries shifting from one argument to another.
8. A disputant should dispute with an opponent from whose knowledge he expects to benefit, one who occupies himself with legitimate religious knowledge.

After presenting his eight conditions Imam Ghazali states that there are others of minor importance, “but in these eight conditions there is that which will show you the difference between those who dispute for the sake of Allah, and those who do so for an ulterior motive.” (The Non-Asha`rite Shafi`ism of Abu Hamid Ghazali)