En Evolution of_Fiqh

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The Evolution of Fiqh
(Islamic Law & The Madh-habs)
by
Abu Ameenah Bilal Philips
INTERNATIONAL ISLAMIC
PUBLISHING HOUSE

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Contents
Preface to the Third Editinon
Preface to the Second Edition
Transliteration
Introduction
1. The First Stage: Foundation
The Method of Legislation
General Content of the Qur’aan
The Makkan Period (609-622 C.E.)
The Madeenan Period (622-632 C.E.)
Legal Content of the Qur’aan
The Basis of Legislation in the Qur’aan
1. The Removal of Difficulty
2. The Reduction of Religious Obligations
3. The Realization of Public Welfare
4. The Realization of Universal Justice
Sources of Islamic Law
Section Summary
2. The Second Stage: Establishment
Problem-Solving Procedures
of the Righteous Caliphs
Individual Sahaabah and Ijtihaad
Absence of Factionalism
Characteristics of Fiqh
Section Summary
3. The Third Stage: Building
Factors Affecting Fiqh
Characteristics of Fiqh
Reasons for Differences
Compilation of Fiqh

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Section Summary
4. The Fourth Stage: Flowing
The Development of Fiqh
Period of the Great Imams
Period of the Minor Scholars
Section Summary
5. The Madh-habs: Schools of Islamic Legal Thought
The Hanafee Madh-hab
Awzaa‘ee Madh-hab
The Maalikee Madh-hab
The Zaydee Madh-hab
The Laythee Madh-hab
The Thawree Madh-hab
The Shaafi‘ee Madh-hab
The Hambalee Madh-hab
The Dhaahiree Madh-hab
The Jareeree Madh-hab
Section Summary
6. Main Reasons for Conflicting Rulings
1. Word Meanings
2. Narrations of Hadeeths
3. Admissibility of Certain Principles
4. Methods of Qiyaas
Section Summary
7. The Fifth Stage: Consolidation
Four Madh-habs
Compilation of Fiqh
Section Summary

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8. The Six Stage: Stagnation and Decline
Emergence of Taqleed
Reasons of Taqleed
Compilation of Fiqh
Reformers
Section Summary
9. Imaams and Taqleed
Imaam Abu Haneefah
Imaam Maalik ibn Anas
Imaam Ahmad ibn Hambal
Students of the Imaams
Comment
Section Summary
10. Differences Among The Ummah
Differences Among the Sahaabah
Section Summary
11. Conclusion
Dynamic Fiqh
Proposed Steps
Contradictory and Variational Differences
Glossary
Index of Hadeeths
Bibliography

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PREFACE TO THE THIRD EDITION
A little over a year has passed since the second edition of
this book was published, and, by God’s grace, copies are no longer
available for distribution. However, the public demand for the book
has progressively increased, especially since its disappearance from
the bookstores. My impressions concerning the need throughout the
Muslim world for the clarifications and recommendations contained
in the text have proven true. Not merely because the book has been
relative commercial success, but because of the very positive
intellectual response which I have received from those who has read
it. In fact, in order to make the information contained in the text
available to an even wider audience, some readers have already
undertaken a Tamil translation of the book, and an Urdu translation
has also been commissioned. Consequently, I felt obliged to reprint
the book, in order to meet the growing commercial demand for the
book.
Due to technical problems faced in the first edition which
caused the print on some of the pages to be faded, I decided to re-
typeset the whole text. This also gave me an opportunity to apply the
transliteration scheme more carefully throughout the text than in the
first edition. I also changed the title of the book from Evolution of
the Madh-habs to The Evolution of Fiqh (Islamic Law & The Madh-
habs) in order to further clarify the subject matter of the book. With
the exception of chapter one (The First Stage), which has been
almost totally rewritten, only a few changes have beenmade within
the text itself: corrections where necessary and improvements where
possible. However, with regards to the footnotes, there have been
quite a few modifications. All the Hadeeths mentioned in the text
have been thoroughly referenced to existing English translations,
with the help of brother Iftekhar Mackeen. As for thoseHadeeths
mentioned in the book which are not found in Saheeh al-Bukhaaree
of Saheeh Muslim, I have endeavored to have them all authenticated
in order to remove any doubts in the reader’s mind as to their
reliability and the conclusions based on them. Likewise, Hadeeths

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which were alluded to in the text have been quoted in the footnotes
and or referenced. There have also been some cosmetic changes, like
the improved cover design and the reduction of the size of the book,
all of which I hope will make this edition somewhat more attractive
than its predecessor.
In closing, I ask Almighty Allah to bless this effort by
making it reach those who may most benefit from it, and by adding it
to my scale of good deeds on the day of Judgement.
Riyadh, August 23rd
, 1990
PREFACE TO THE SECOND EDITION
The overall purpose of this book is to acquaint the reader
with the historical factors behind the formulation of Islamic law
(Fiqh), in order that he or she may better understand how and why
the various schools of Islamic law (Madh-habs)1
came about. It is
hoped that this understanding will in turn, provide a basis for
overcoming the petty differences and divisions which occur when
present-day followers of different schools of people without definite
schools try to work together. Thus, another aim of this book is to
provide a theoretical framework for the reunification of the Madh-
habs and an ideological basis for Islamic community work free from
the divisive effects of Madh-hab factionalism.
The pressing need for this book can easily be seen in the
dilemma of convert Muslims. In the course of being educated in the
1
Madh-hab is derived from the verb Dhahaba which means to go. Madh-
hab literally means a way of going or simply a path. The position of an
outstanding scholar on a particular point was also referred to as his Madh-
hab (the path of his ideas or his opinion). Eventually, it was used to refer to
the sum total of a scholar’s opinions, whether legal or philosophical. Later it
was used to denote, not only the scholar’s opinion, but also that of his
students and followers.

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basic laws of Islaam, a convert Muslim is gradually presented with a
body of laws based on one of the four canonical schools. At the same
time he may be informed that there are three other canonical schools,
and that all four schools are divinely ordained and infallible. At first
this presents no problem for the convert Muslim, since he merely
follows the laws presented by his particular teacher, who of course
follows one particular Madh-hab. When however, the new Muslim
convert establishes contact with other Muslims from various parts of
the Islamic world, he invariably becomes aware of certain
differences in some of the Islamic laws as taught by one of another
of the Madh-habs. His teacher, a Muslim born into the faith, will no
doubt assure him that all four Madh-habs are correct in themselves
and that so long as he follows one of them he is on the right path.
However, some of the differences from one school to another are
perplexing for the new Muslim convert. For example, common sense
tells him that one cannot be in a state of Wudoo2
while being out of it
at the same time. But according to one Madh-hab, certain acts break
Wudoo, while according to another Madh-hab those same acts do
not3
. How can a given act be both allowable (Halaal) and forbidden
(Haraam) at the same time. This contradiction has also become
apparent to thinking Muslims, young and old, who are concerned
about the prevailing stagnation and decline in the Muslim world and
who are advocating the revival of Islam in its original purity and
unity.
Faced with several unresolved contradictions, some Muslims
have chosen to reject the Madh-habs and their rulings, claiming that
they will be guided only by the Qur’aan and the Sunnah4
. Others take
the position that despite these contradictions the Madh-habs are
2
Usually translated as ablution it refers to a ritual state of purity stipulated
as a precondition for certain acts of worship.
3
See pages 76-7 of this book.
4
The way of life of the Prophet (sw.). His sayings, actions and silent
approvals which were of legislative value. As a body they represent the
second most important source of Islamic law.

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divinely ordained and therefore one need only choole one of them
and follow it without question. Both of these outcomes are
undesirable. The latter perpetuates that sectarianism which split the
ranks of Muslims in the past and which continues to do so today. The
former position of rejecting the Madh-habs in their entirety, and
consequently the Fiqh of earlier generations, leads inevitably to
extremism and deviation when those who rely exclusively on the
Qur’aan and the Sunnah attempt to apply Sharee’ah law to new
situations which were not specifically ruled on in eitheir the Qur’aan
or the Sunnah. Clearly, both of these outcomes are serious threats to
the solidarity and purity of Islam. As the prophet (sw.) stated, “The
best generation is my generation and then those who follow them”5
.
If we accept the divinely inspired wisdom of the Prophet (sw.), it
follows that the farther we go from the prophet (sw.) generation, the
less likely we are to be able it interpret correctly and apply the real
intentions implied in the Qur’aan and the Sunnah. An equally
obvious deduction is the fact that the rulings of older scholars of note
are more likely to represent the true intentions deducible from the
Qur’aan and the Sunnah. These older rulings – the basis of Fiqh - are
therefore important links and guidelines which cannot wisely be
ignored in out study and continued application of Allaah’s laws. It
stands to reason that out knowledge and correct application of these
laws depend upon a sound knowledge of the evolution of Fiqh over
the ages. Similarly, a study of this development automatically
embraces a study of the evolution of the Madh-habs and their
important contributions to Fiqh, as well as the reasons for apparent
contradictions in some of their rulings.
Armed with this background knowledge, the thinking
Muslim, be he new convert of born into the faith, will be in a
position to understand the source of those perplexing contradictions
5
Narrated by ‘Imraan ibn Husain and collected by al-Bukhaaree
(Muhammed Muhsin Khan, Sahih Al-Bukhari, (Arabic-English),
(Madeenah: Islamic University, 2nd
ed., 1976), vol.5,p.2, no.3.

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and to place them in their new proper perspective. Hopefully, he will
then join the ranks of those who would work actively for the re-
establishment of unity (Tawheed), not only as the mainspring of our
belief in Allah, but also in relation to the Madh-habs and to the
practical application of the laws which underlie and shape the way of
life known as Islam.
The basic material for this book was taken from my clall
notes and research poapers for a graduate course on the history of
Islamic legislation (Taareekh at-Taashree‘) taught by Dr. ‘Assaal at
the University of Riyadh. The material was translated into English,
further developed and utilized as teaching material for a grade twelve
Islamic Education class which I taught at Manarat ar-Riyadh private
school in 1880-81. This teaching text was published in the spring of
1982 by As-Suq Bookstore, Brooklyn, New York, under the title,
Lessons in Fiqh. The present work is a revised and expanded edition
of Lessons in Fiqh.
I would like to thank sister Jameelah Jones for patiently
typing and proofreading the manuscript, and my father, Bradley
Earle Philips, for his suggestions and careful editing of the text.
It is hoped that this book on the history of Fiqh will help the
reader to place the Madh-habs in proper perspective and to
appreciate the pressing need for their re-unification.
In closing, I pray that Allaah, the Supreme, accept this minor
effort toward the clarification of His chosen religion, Islaam, as it is
His acceptance alone which ultimately counts.
Was-Salaam ‘Alaykum,
25th
Nov. 1983/21st
Safar 1404

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TRANSLITERATION
Arabic English Arabic English
a l
b m
t n
th h
j h/t6
h w
kh y
d VOWELS
r Short Vowels
z a
s I
sh u
s Long Vowels
d
t
dH ee
‘ oo
gh Dipthongs
f
q aw
k ay
In order to provide the non-Arab with a more easily read set of
symbols than those in current use, I have adopted a somewhat
innovative system of transliteration particularly with regard to long
vowels. It should be noted, however, that a very similar system was
used by E.W. Lane in preparing his famous Arabic-English Lexicon,
considered the most authoritative work in its field. Many other
scholarly texts, written to teach Arabic pronunciation, also use
6
This taa has been commonly transliterated as “t” in all cases. However,
such a system is not accurate and does not represent Arabic pronunciation.

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similar systems. For example, Margaret K. Omar’s Saudi Arabic:
Urbar Hijazi Dialect, (Washington, DC: Foreign Service Institute,
1975), as well as the Foreign Language Institute’s Saudi-Arabic:
Headstart (Monetery, CA: Defense Language Institute, 1980).
No transliteration can express exactly the vocalic differences
between two languages nor can Roman characters give anything
more than an approximate sound of the original Arabic words and
phrases. There is also the difficulty of romanizing certain
combinations of Arabic words which are pronounced differently
from the written characters. Included in this category is the prefix
“al” (representint the article “the”). When it precedes words
beginning with letters known as al-Huroof ash-Shamseeyah (lit. solar
letters), the sound of “l” is merged into the following letter; for
example, al Rahmaan is pronounced ar-Rahmaan. Whereas, in the
case of all other laetters, known as al-Qamareeyag (lit. lunar letters),
the “al” is pronounced fully. I have followed the pronunciation for
the facility of the average reader by writing ar-Rahmaan instead of
al-Rahmaan and so on.
Note:
Shaddah ( ) The Shaddah is represented in Roman letters by
doubled consonants. However, in actual pronunciation the letters
should be merged and held briefly like the “n” sound produced by
the n/kn combination in the word unknown, or the “n” in unnerve,
the “b” in grab-bag, the “t” in frieght-train, the “r’ in overruled, and
“p” in lamp post, and the “d” in mid-day.
I have made an exception with ( ), instead of iyy, I have
used eey as in islaameeyah because this more accurately conveys the
sound.

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INTRODUCTION
Fiqh and Sharee’ah
For a proper understanding of the historical
development of Islamic law, the terms Fiqh and Sharee’ah
need to be defined. Fiqh has been loosely translated into
English as “Islamic law” and so has Sharee’ah, but these terms
are not synonymous either in the Arabic language of to the
Muslim scholar.
Fiqh literally means, the true understanding of what is
intended. An example of this usage can be found in the Prophet
Muhammad’s statement: “To whomsoever Allaah wishes good,
He gives the Fiqh (true understanding) of the Religion”7
.
Technically, however, Fiqh refers to the science of deducing
Islamic laws from evidence found in the sources of Islamic
law. By extension it also means the body of Islamic laws so
deduced.
Sharee’ah, literally means, a waterhole where animals
gather daily to drink, or the straight path as in the Qur’anic
verse.
“Then we put you on a straight path
(Sharee’ah) in you affairs, so follow it and do
not follow the desires of those who have no
knowledge.”8
Islamically, however it refers to the sum total of Islamic laws
which were revealed to the Prophet Muhammad (SW.), and
7
Reported by Mu‘aawiyah and collected by al-Bukhaaree (Sahih Al-
Bukhari (Arabic-English), vol.4, pp. 223-4, no.346), Muslim, (Abdul
Hamid Siddiqi, Sahih Muslim (English Trans.), (Beirut: Dar al-Arabia,
n.d.), vol.3, p. 1061, no.4720), at Tirmidhee and others.
8
Soorah al-Jaathiyah (45): 18.

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which are recorded in the Qur’aan as well as deducible from
the Prophet’s divinely-guided lifestyle (called the Sunnah).9
The distinction
From the previous two definitions, the following three
differences may be deduced:
1. Sharee’ah is the body of revealed laws found both in
the Qur’aan and in the Sunnah, while Fiqh is a body of
laws deduced from Sharee’ah to cover specific
situations not directly treated in Sharee’ah law.
2. Sharee’ah is fixed and unchangeable, whereas Fiqh
changes according to the circumstances under which it
is applied.
3. The laws of Sharee’ah are, for the most part, general:
they lay down basic principles. In contrast, the laws of
Fiqh tend to be specific: they demonstrate how the
basic principles of Sharee’ah should be applied in given
circumstances.
Note
1. In this book on the evolution of Fiqh the term “Islamic
Law” will be used to mean the laws of Sharee’ah and
the laws of Fiqh combined. The terms Fiqh or Laws of
Fiqh and Sharee’ah or Law of Sharee’ah will be used
where a distinction seems necessary.
2. At the end of this book there is a glossary of Arabic
terms and their plurals used in this book. In the text of
this book the English plural is used except in cases
where the Arabic plural is more widely known. For
example, Muslims is used instead of Muslimoon and
Soorahs instead of Suwar.
9
Muhammad Shalabee, all-Madkhal fee at-Ta’reef bil-fiqh al-Islaamee,
(Beirut: Daar an-Nahdah al-Arabeeyah, 1969), p. 28.

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The development of Fiqh falls traditionally into six
major stages named as follows: Foundation, Establishment,
Building, Flowering, Consolidation, and Stagnation and
Decline.
These stages occur respectively in the following historical
periods:
a) Foundation : the era of the Prophet
(SW.) (609-632 CE)10
b) Establishment : the era of the Righteous
Caliphs, from the death of the
Prophet (SW.) to the middle of the seventh century CE
(632-661)
c) Building : from the founding of the
Umayyad dynasty (661 CE) until its decline in the
middle of the 8th
century CE.
d) Flowering : from the rise of the
‘Abbaasid dynasty in the middle of the 8th
century CE
to the beginning of its decline around the middle of the
10th
century CE.
e) Consolidation : the decline of the
‘Abbaasid dynasty from about 960 CE to the murder of
the last ‘Abbaasid Caliph at the hands of the Mongols
in the middle of the 13th
century CE.
f) Stagnation and Decline : from the sacking of
Baghdad in 1258 CE to the present.
In this work the above mentioned stages in the
development of Fiqh will be described with special reference to
the relevant social and political context of the respective
10
C.E. (i.e. Chirstian Era) is used instead of A.D. (Anno Domini, lit. in the
year of our Lord) because Muslims do not recognize Jesus the son of Mary
as the Lord, but as a Prophet of God.

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periods. As the reader follows this development, he will be
given insight into the evolution of the Madh-habs (schools of
Islamic legal thought) as well as their contributions to Fiqh.
Hopefully he will then be able to appreciate the fact that all the
Madh-habs have contributed in different degrees to the
Development of Fiqh, and that no single Madh-hab can
properly be claimed to represent Islaam of Islamic law in its
totality. In other words, any one school of thought acting alone
does not determine Fiqh. All Madh-habs have been important
instruments for the clarification and application of the
Sharee’ah. Together, Fiqh and Sharee’ah should be unifying
forces that unite all Muslims regardless of place, time or
cultural background. In fact, the only infallible Madh-hab that
deserves to be followed without any questions asked is that of
the Prophet Muhammad himself (SW.). Only his
interpretations of Sharee’ah can be considered divinely guided
and meant to be followed until the last day of this world. All
other Madh-habs are the result of human effort, and thus are
subject to human error. Or as Imaan ash-Shaafi’ee, founder of
the Shaafi’ee Madh-hab, so wisely put it, “There isn’t any of us
who hasn’t had a saying or action of Allaah’s messenger (SW.)
elude him of slip his mind. So no matter what rulings I have
made or fundamental principles I have established, there will
be in them things contrary to the way of Allaah’s messenger
(SW.). However, the correct ruling is according to what the
messenger of Allah (SW.) said, and that is my true ruling.”11
1. The First Stage: FOUNDATION
The first stage in the development of Fiqh covers the era of the
Prophet Muhammad ibn ‘Abdillaah’s apostleship (609-632 CE)
11
Collected by al-Haakim with a continuous chain of reliable narratours to
ash-Shaari’ee (Ibn ‘Asaakir, Taareekh Dimishq, vol.15, sec. 1, p. 3 and ibn
Qayyim, I‘laam al-Mooqi‘een, (Egypt: Al-Haajj ‘Abdus-Salaam Press,
1968), vol. 2, p. 363).

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during which the only source of Islamic law was divine
revelation in the form of either the Qur’aan or the Sunnah [the
saying and actions of the Prophet (SW.)]. The Qur’aan
represented the blueprint in his day-to-day life (i.e. the Sunnah)
acted as a detailed explanation of the general principles
outlined in the Qur’aan as well as a practical demonstration of
their application.12
The Method of Legislation
Sections of the Qur’aan were continuously revealed to the
Prophet Muhammad (s.w.) from the beginning of his
prohethood in the year 609 CE until shortly before his death
(623 CE), a period of approximately twenty-three years. The
various sections of the Qur’aan were generally revealed to
solve the problems which confronted the Prophet (SW.) and his
followers in both Makkah and Madeenah. A number of
Qur’anic verses are direct answers to questions raised by
Muslims as well as non-Muslims during the era of prophet
hood. Many of these verses actually begin with the phrase
“They ask you about.” For example,
“They ask you about fighting in the
forbidden months. Say, ‘Fighting in them is a
grave offense, but blocking Allaah’s path and
denying Him is even graver in Allaah’s
sight.’ “13
“They ask you about wine and gambling.
Say, ‘There is great evil in them as well as
benefit to man. But the evil is greater than
the benefit.’”14
12
al-Madkhal, p. 50.
13
Soorah al-Baqarah (2): 217.
14

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“They ask you about menses. Say, ‘It is
harm, so stay away from (sexual relations
with) women during their menses.’ ”15
A number of other verses were revealed due to particular
incidents, which took place during the era of the Prophet (s.w.).
An example can be found in the case of Hilaal ibn Umayyah
who came before the Prophet (s.w.) and accused his wife of
adultery with another of the Prophet’s companions. The Prophet
(s.w.) said, “Either you will receive the fixed punishment (of
eighty lashes) on your back.” Hilaal said, “Oh Messenger of
Allaah! If any of us saw a man on top of his wife, would he go
looking for witnesses?” However, the Prophet (s.w.) repeated
his demand for proof. Then angel Gabriel came and revealed to
the Prophet (s.w.) the verse:16
“As for those who accuse their wives and
have no evidence but their own, their witness
can be four declarations with oaths by Allaah
that they are truthful and a fifth invoking
Allaah’s curse on themselves if they are lying.
But the punishment will be averted from the
wife if she bears witness four times with oaths
by Allaah that he is lying, and a fifth oath
invoking Allaah’s curse on herself if he is
telling the truth.”17
The same was the case of Islamic legislation found in
the Sunnah, much of which was either the result of answers to
questions, or were pronouncements made at the time that
15
16
Collected by al-Bukhaaree (Sahih Al-Bukhari (Arabic-English), vol. 6,
pp. 245-6, no. 271).
17
Soorah an-Noor (24): 6-9.

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incidents took place. For example, on one occasion, one of the
Prophet’s companions asked him, “Oh Messenger of Allaah!
We sail the seas and if we make Wudoo (ablutions) with our
fresh water we will go thirsty. Can we make Wudoo with sea
water?” He replied, “Its water is pure and its dead (sea
creatures) are Halaal (permissible to eat).”18
The reason for this method of legislation was to
achieve gradation in the enactment of laws, as this approach
was more easily acceptable by Arabs who were used to
complete freedom. It also made it easier for them to learn and
understand the laws since the reasons and context of the
legislation would b e known to them. This method of gradual
legislation was not limited to the laws as a whole, but it also
took place during the enactment of a number of individual
laws. The legislation of Salaah (formal prayers) is a good
example of gradation in the enactment of individual laws. In
the early Makkah period, Salaah was initially twice per day,
once in the morning and once at night.19
Shortly before the
migration to Madeenah, five times daily Salaah was enjoined
on the believers. However, Salaah at that time consisted of
only two units per prayers, with the exception of Maghrib
(sunset) prayers, which were three units. After the early
Muslims had become accustomed to regular prayer, the
number of units were increased to four for residents, except
for Fajr (early morning) prayer and that of Maghrib.20
General Content of the Qur’aan
18
Collected by at-Tirmidhee, an-Nasaa’ee, Ibn Maajah and Abu Daawood
(Sunan Abu Dawud (English Trans.),p. 22, no. 38), an authenticated by al-
Albaanee in Saheeh Sunan Abee Daawood, (Beirut: al-Maktab al-Islaamee,
1st
ed., 1988), vol.1, p.19, no. 76.
19
al-Madkhal, p. 74-8.
20
See Sahih Al-Bukhari (Arabic-English), vol.1,p.214, no. 346.

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In Makkah, Muslims were an oppressed minority,
whereas after their migration to Madeenah they became the
ruling majority. Thus, the revelations of the Qur’aan during
the two phases had unique characteristics which distinguished
them from each other.
The Makkan Period (609-622 CE)
This period starts with the beginning of the prophet
hood in Makkah and ends with the Prophets Hijrah (migration)
to the city of Madeenah. The revelations of this period were
mainly concerned with building the ideological foundation of
Islaam, Eemaan (faith), in order to prepare the early band of
converts for the difficult task of practically establishing the
social order of Islaam. Consequently the following basic
topics of the Makkan revelations all reflect one aspect. Or
another of principles designed to build faith in God.
(i) Tawheed (Allaah’s Unity)
Most of the people of Makkan believed in a Supreme
Being known by the name “Allaah” from the most ancient
of times. However, they had added a host of gods who
shared some of Allaah’s powers or acted as intermediaries.
Accordingly, Makkan revelations declared Allaah’s unique
unity and pointed out that gods besides Allaah are no
benefit.
(ii) Allaah’s Existence
Some of the early verses presented logical arguments
proving the existence of God for the few Makkans who
actually denied it.
(iii) The Next Life
Since there was no way for human beings to know about
the next life, the Makkan revelations vividly described its
wonders, its mysteries and its horrors.

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(iv) The people of God
The Makkan verses often mentioned historical examples of
earlier civilizations which were destroyed when they
denied their obligation to God, like the ‘Aad and the
Thamood, in order to warn those who rejected the message
of Islaam and to teach the believers about the greatness of
Allaah.
(v) Salaah (Formal Prayer)
Because of the critical relationship between Salaah and
Tawheed, Salaah was the only other pillar of Islaam to be
legislated in Makkah, besides the declaration of faith
(Tawheed).
(vi)Challenges
In order to prove to the pagan Makkans that the Qur’aan
was from God, some of the Makkan verses challenged the
Arabs to imitate the style of the Qur’aan.21
The Madeenan Period (622-632 CE)
The Hijrah marks the beginning of this period and the
death of the Prophet (s.w.) in 632 CE marks the end. After the
Prophet’s migration to Madeenah and the spread of Islaam
there, he was appointed as the rular, and the Muslim
community became a fledgling state. Thus, revelation was
concerned primarily with the organization of the Muslim
State. And it was during this period that the majority of the
social and economic laws of the Sharee’ah were revealed.
Revelations during this period also strengthened the
foundations of Eemaan and Tawheed, which were established
during the Makkan period. However, most of the following
basic topics of the Madeenan revelations concentrate on the
laws necessary for the development of an Islamic nation.
(i) Laws
21
al-Madkhal, 51-5.

- 21 -
It was during the Madeenan period that the last three
pillars of Islaam were revealed, as well as the prohibition
of intoxicants, pork, gambling, and the punishments for
adultery; murder and theft were fixed.
(ii) Jihaad
During the Makkan period, Muslim were forbidden to take
up arms against the Makkans who were oppressing them,
in order to avoid their decimation and to develop their
patience. The right to fight against the enemy as well as
the rules of war was revealed in Madeenah after the
numbers of Muslims had dramatically increased.
(iii) People of the Book
In Madeenah, Muslims came in contact with Jews for the
first time and with Christians on a large scale. Thus, a
number of Madeenan verses tackled questions, which were
raised by the Jews in order to befuddle the Prophet (s.w.)
and discredit Islaam. The verses also outlined laws
concerning political alliances with Christians and Jews, as
well as laws permitting marriage with them.
(iv) The Munaafiqs (Hypocrites)
For the first time since the beginning of the final message,
people began to enter the fold of Islaam without really
believing in it. Some entered Islaam to try to destroy it
from within because Muslims were strong and they could
not openly oppose them, while others entered and exited
shortly thereafter in order to shake the faith of the
believers. Consequently, some Madeenan verses exposed
their plots and warned against them, while others laid the
foundations for the laws concerning apostates.22
22
Mannaa’ al Qattaan, Mabaahith fee ‘Uloom al-Qur’aan, (Riyadh: Maktab
al-Ma’aarif, 8th
printing, 1981), pp. 63-4, and al-Madkhal, pp. 55-7.

- 22 -
Qur’anic Fields of Study
The body of information contained in the Qur’aan, as a
whole, may be grouped under three headings with regards to
the fields of study to which they are related:
First: Information related to Belief in God, His angels, His
scriptures His prophets, and the affairs of the next life. These
topics are covered within the field of study known as theology
(‘Ilm al-Kalaam of al-‘Aqeedah)
Second: Information related to deeds of the heart and soul,
and moral principles and rules of conduct aimed at the
development of nobility of character. These areas represent the
field of moral science known as ethics (‘Ilm al-Akhlaq).
Third: Information related to deeds of the limbs and
contained within a body of commandments, prohibitions and
choices. This group represents the field of law.23
Legal Content of the Qur’aan
Islamic legislation in the Qur’aan is comprised of a variety
of acts which have been enjoined by divine decree on
mankind. These acts may be grouped in two basic categories
with regard to the parties involved in the acts:
A. Dealings between Allaah and men. These are the religious
rites which are not valid without correct intentions. Some of
them are purely religious forms of worship, like prayer and
fasting; while others are socio-economic forms of worship,
like Zakaah (compulsory charity); and yet others are socio-
physical forms of worship, like Hajj (pilgrimage to Makkah).
23
Muhammad al-Khidaree Bek, Taareekh at-Tashree’ al-Islaamee, (Cairo:
al-Maktabah at-Tajaareeyah al-Kubraa, 1960), pp. 17-8.

- 23 -
These four acts of worship are considered the foundation of
Islaam after faith (Eemaan).
B. Dealings among men. The laws governing these dealings
may themselves be divided into four sub-sections relative to
the subject matter of the dealings:
a) Laws ensuring and defending the propagation of Islaam.
These, are embodied in the codes of armed or unarmed
struggle (Jihaad).
b) Family laws for the development and protection of the
family structure. These include laws concerning marriage,
divorce and inheritance.
c) Trade laws governing business transactions, rental
contracts etc.
d) Criminal laws specifying punishments and or
compensations for various crimes.24
The Basis of Legislation in the Qur’aan
The Qur’aan itself announces that it was revealed to
reform human conditions. Islaam did not erase all pre-Islamic
customs and practices. Instead, it removed every facet of
corruption and cancelled all customs which were harmful to
the society. Consequently, Islamic legislation forbade interest
because it takes unfair advantage of the less fortunate
members of society; fornication was forbidden due to its
exploitation of women and the destruction of family bonds;
and alcohol was prohibited because of the physical,
psychological and spiritual damage which it inflicts on both
the individual and society as a whole. Trade practices were
reformed by making the basis of trade mutual consent, and by
disallowing all deceptive business transactions. The existing
system of marriage was organized by confirming certain forms
24
Taareekh at-Tashree’ al-Islaamee, pp. 34-5.

- 24 -
and prohibiting others which were, in fact, fornication of
something close to it. The basis of divorce was also
recognized, but its pronouncements were limited.
Because Islaam did not come to destroy human
civilization, morals and customs, in order to build on it a new
civilization with new morals and customs, it looked at
everything from the perspective of human welfare; what was
harmful was removed and what was beneficial was confirmed.
Allaah says in the Qur’aan:
“It commands them to do righteousness and
prohibits them from evil, and it makes
allowable to them the good things and makes
and makes forbidden to them all filth.”25
Islaam is fundamentally system of building and not one of
destruction as its goal is reformation and not merely control
and government. It should be noted, however, that Islaam’s
confirmation of some Arab customs does not mean that it has
taken its laws and principles from other sources, nor does it
mean that those practices which it confirmed are not a part of
divine law. Whatever Islaam confirmed is considered an
integral part of the divine code for the following reasons:
a) Some of the practices were inherited from earlier
generations to which prophets had been sent. A good
example of this is Hajj which was instituted by prophet
Abraham and Ishmael.
b) Islamic principles do not contradict human reason nor are
they unintelligible. Instead they free the human intellect
from irrationality. Consequently, they recognize the useful
results of human intellectual activity.
25
Soorah al-A ‘raaf (7): 157.

- 25 -
c) If the confirmed practices were not present, Islaam would
have instituted them due to the existing human need for
them.
Nevertheless, the number of confirmed practices were,
in fact, quite few in proportion to the many which were
cancelled. And, further-more, even the title that was confirmed
was not kept in its existing form. Only its foundation remained
untouched.26
In order for Islamic legislation to achieve its goal of
reformation, it has enacted a series of legal commandments
and prohibitions, which make up the rules of conduct
governing the social system of Islaam. However in the
enactment of laws, the Qur’anic revelations have taken into
consideration the following four basic principles:
1. The Removal of Difficulty.
The system of Islaam has been revealed for man’s
benefit. It provides him with guidance in all walks of life in
order to ensure for him a righteous lifestyle within a just
society committed to the service of God. Islamic laws are not
meant to be a burden, creating difficulties for man in order for
him to grow spiritually, as some systems may claim, They are
designed to facilitate mankind’s individual and societal needs.
As such, among the pillars on which Islaam is based is the
removal of unnecessary difficulties wherever possible.
Evidence to support the fact that Islamic law is based on the
concept of removal of difficulty can be found throughout the
Qur’aan. The following verses from the Qur’aan are only a
few examples:
26
al-Madkhal, pp. 57-9.

- 26 -
“Allaah does not burden a soul with more
than it can bear.”27
“Allaah wishes for you ease and He does not
wish difficulty for you.”28
“He did not make any difficulty for you in
the religion.”29
“Allaah wishes to lighten the burden for you,
for man was created weak.”30
Because of this principle, Allaah has enacted along with the
divine laws a variety of legal concessions, like the permission
to break fast, and shorten and join prayers during travel. More
over, the consumption of prohibited substances (e.g., pork and
alcohol) in cases of dire necessity was also permitted.
“But if anyone is forced by hunger, with no
inclination to transgression, Allaah is indeed
Oft-forgiving, Most Merciful.”31
The Prophet (s.w.), who was the prime example of
how Islamic law was to be implemented, was himself
described as always choosing the easier path whenever a
choice was given to him between two possible paths, as long
as the easier path was not sinful.32
He was also reported to
27
28
29
Soorah al-Hajj (22): 78.
30
Soorah an-Nisaa (4): 28.
31
Soorah al-Maa’idah (5): 4.
32
Reported by ‘Aa’eshah ans collected by al-Bukhaaree (Sahih Al-Bukhari
(Arabic-English), vol.4, p.491, no.760), Muslim (Sahih Muslim (English
Trans.), vol. 4, p. 1246, no. 5752) and Abu Daawood (Sunan Abu Dawud
(English Trans.), vol. 3, p. 1341, no. 4767).

- 27 -
have said to some of his followers on the occasion of their
dispatchment/ departure as governors of Yemen, “Make things
easy (for the people) and do not make them difficult.”33
Islamic legal scholars unanimously consider this
concept an indisputable fundamental principle followed by
God in the enactment of laws. Consequently, in their
implementation of the divine laws, they have deduced many
secondary laws on this basis.34
2. The Reduction of Religious Obligations.
A number consequence of the previous principle is that
the total number of legal obligations should be relatively few.
Accordingly, the prohibited acts and substances in Islamic
legislation are quite few in comparison to those which are
allowed by direct command or by the absence of any
command of prohibition. This principle can be clearly seen in
the method by which the Qur’aan deals with prohibitions and
permissions. In the case of prohibitions, the sub-categories are
named and listed, while in the case of permissions, a general
allowance is given due to the great number of categories
included in it. For example, with regard to women with whom
marriage is forbidden, Allaah states,
“Prohibited to you are your mothers, your
daughters, your sisters and your aunts…”35
After completing the prohibited categories, Allaah says,
33
Reported by Abu Burdah and collected by al-Bukhaaree (Sahis Muslim
(Arabic-English), vol. 5, pp. 441-3, no. 630), and Muslim (Sahih Muslim
(English Trans.), vol. 3, p. 944, no 4298). Muslim also collected it from
Abu Moosaa (no.4297) and Anas ibn Maalik (no. 4300).
34
Taareekh at-Tashree’ al-Islaamee, pp. 19-20 and al-Madkhal, pp. 85-89.
35
Soorah an-Nissaa (4): 23.

- 28 -
“Except for these, all others are lawful,
provided you seek them in marriage with a
dowry and not for fornication.”36
As for foods, the forbidden categories are also listed in detail.
The Qur’aan states,
“Forbidden to you (for food) are: animals
which die of themselves, blood, pork, animals
slaughtered in the name of others besides
Allaah, animals killed by strangulation, or a
blow, or a fall, or by being gored…”37
On the other hand, in regard to the permissible foods, Allaah
states,
“On this day all good things are made lawful
for you. The food of the people of the Book is
lawful to you and your food is lawful to
them…”38
Furthermore, in spite of the fact that the things which have
been forbidden are quite few in comparison to those which
have been permitted, the sin of one who is forced to take
forbidden substances has also been lifted, as was mentioned
previously. Allaah states this concession in a number of places
in the Qur’aan. For example:
“But if anyone is forced by necessity, without
willful disobedience, nor transgressing due
limits, there is no sin on him. For Allaah is
oft-forgiving, Most Merciful.”39
36
37
38
39

- 29 -
It is also worth nothing that the laws, on the whole, do not
contain so many details as to create difficulty for those who
wish to strictly follow the teachings of the Qur’aan. Among the
verses of the Qur’aan which indicate the existence this
principle is the following:
“Oh you who believe, do not ask about things
which, if made plain for you, will cause you
trouble. But if you ask about them plain to
you. Allaah has exempted them. And Allaah
is oft-Forgiving, Most Gentle.”40
The prohibited questions concern issues about which
Allaah has chosen to enact prohibitions due to their questions.
And, if they did not ask about them, they would have been left
with a choice between doing them and not doing them.
Included in this category is the Prophet’s (s.w.) response to
repeated question concerning whether Hajj was compulsory
every year.41
He said, “If I sad yes, it would have become
compulsory. Leave me alone concerning things which I have
left up to you, for certainly those before you were destroyed
because of their many unnecessary questions and their
arguments and disagreements with their prophets.”42
In another
narration, he was reported to have said, “If I have prohibited
you from doing something, avoid it totally. But, if I command
you to do something, do as much of it as you can.”43
He was
also reported to have said, “The Muslims who have committed
40
41
Taareekh at-Tashree’ al-Islaamee, pp. 20-1.
42
Reported by Abu Hurayrah and collected by Muslim (Sahih Muslim
(English Trans.), vol.2, p. 675, no. 3095).
43
Reported by Abu Hurayrah and collected by Muslim (Sahih Muslim
(English. Trans.), vol. 4, pp. 1256, no. 5821).

- 30 -
the gravest offense against Muslims are those who asked about
things which were not prohibited, because of their questions.”44
A good Example of limitation of details can be found in
the Qur’anic treatment of business transactions. The laws in
this regard have not at all been detailed. Instead, general
precepts suitable for all circumstances have been legislated.
For example, Allaah states:
“Oh you who believe, fulfil your contracts.”45
“Allah has made trade lawful and prohibited
interest.”46
“Oh you who believe, do not eat up you
properties amongst yourselves unfairly. But
there should be trade by mutual good-will.”47
3. Realization of Public Welfare
Because the laws of Islaam were primarily enacted for the
general good of all mankind, the Prophet (s.w.) was a universal
prophet sent to all people till the end of time . Allaah stated that in
the Qur’aan in no uncertain terms:
“We have not sent you but as a universal
messenger to mankind, giving them glad tidings
and warning them (against sin), but most people
do not realize it.”48
44
Reported by ‘Aamir ibn Sa’d and collected by Muslim (Sahih Muslim
(English Trans.), vol. 4, p. 1257, no. 5821).
45
46
47
48

- 31 -
“Say, ‘Oh mankind, I an the messenger of Allaah
to all of you.’”49
Naskh (Abrogation)
The existence of abrogation within Islamic legislation is
among the manifestations of human welfare considerations in
Islamic legislation. God may prescribe a law suitable to people at the
time of its enactment, or it may serve a particular limited purpose.
However, its suitability may later disappear or its unique purpose
may have been achieved. In such circumstances, the need for the law
ceases to exist and its validity becomes cancelled. The following are
only a few of many such examples which may be found recorded in
both the Qur’aan and the Sunnah.50
Bequest (Waseeyah): In pre-Islamic Arab culture, his children
inherited the property of the decease, and parents would only inherit
if a bequest were made.51
Thus, in the early stages of Islaam, Allaah
made the writing of a bequest for parents and relatives compulsory,
in order to teach the new community of Muslims the importance of
family rights with regard to their wealth.
“It is prescribed that when death approaches any
of you, if he leaves behind any goods. That he
make a bequest to parents and next of kin,
according to what is reasonable. This is due from
the pious.”52
However, after the community willingly accepted this law and they
began to strictly put it into practice, Allaah replaced it by revealing
in the Qur’aan a clearly defined system of inheritance laws. And the
Prophet (s.w.) further confirmed the abrogation of the old laws by
49
Soorah al-A’raaf (7): 158.
50
al-Madhkal, p.89-90.
51
See Sahih Al-Bukhari (Arabic-English), vol. 4, p.6, no. 10.
52
Soorah al-Baqarah (2)”

- 32 -
stating, “Surely Allaah has given everyone with a right (to
inheritance) his right, so there should be no bequest for inheritors.”53
Mourning Period: The widow’s mourning period was originally a
full year, and it was compulsory for her husband to leave in his will
provision for maintenance and housing during that whole period the
Qur’aan states:
“If any of you die and leave widows behind, a
bequest of a year’s maintenance and residence
should be made for their widows. But it they
leave the residence, there is no blame on you for
what they do with themselves, provided it is
reasonable. And Allaah is exalted in power,
wise.”54
Then the waiting period was reduced to four months and ten days.
“If any of you die and leave widows behind, they
shall wait concerning themselves four months
and ten days. When they have fulfilled their term,
there is no blame on you if they dispose of
themselves in a just and reasonable manner. And
Allaah is well acquainted with all that you do.”55
And the bequest was cancelled by the verses on inheritance
which stipulated a specific portion for widows: one quarter of all the
inheritance if she did not have any children, and one eight if she had
children.
Fornication: Originally, the punishment for the crime of fornication
and adultery, as well as other sex crimes like homosexuality, was the
53
Reported by Abu Umaamah and collected by abu Daawood (Sunan abu
Dawud (English Trans.), vol.2, p. 808, no. 2864), at-Tirmidhee, an-
Nasaa’ee, Ibn Maajah and Ahmad, and authenticated (Saheeh) by al-
Albaanee in Saheeh Sunan Abee Daawood, vol. 2, p. 218, no. 1721.
54
55

- 33 -
confinement and punishment of offenders in their homes until they
became repentant and sought to reform themselves.
“If any of your women are guilty of sex crimes,
take the evidence of four witness from amongst
you against them. And if they testify, confine
them to houses until death claim them, or Allaah
ordain for them another way. If two men among
you are guilty of sex crimes, punish them both;
but if they repent and make amends, leave them
alone. For Allaah is Oft-returning, Most
Merciful.”56
This law was later abrogated in the Qur’aan by the setting of a
particular exemplary punishment.
“Flog the woman and man guilty of fornication
one hundred lashes. And, if you believe in Allaah
and the Last Day, do not let compassion move
you in their case for it is a matter decided by
Allaah. And let a group of the believers witness
the punishment.”57
Furthermore, the Prophet (s.w.) applied the punishment of stoning to
death for those who committed adultery58
and set the death penalty
for homosexuals without specifying the method.59
A review of the abrogated verses indicates that the early law
may be replaced by a more severe law, as in the case of the law for
fornication which changed from confinement and punishment to
56
Soorah an-Nisaa (4): 15&16.
57
Soorah an-Noor (24): 2.
58
Reported by ‘Ubaadah ibn as-Saamit and Ibn ‘Abbaas and collected by
Muslim (Sahih Muslim (English Trans.), vol. 3, p. 911, no, 4192 and p. 912
no. 4194).
59
Reported by Ibn ‘Abbaas and collected by Abu Daawood (Sunan Abu
Dawud (English Trans.), vol, 3, p. 1245, no. 447) and authenticated in
Saheeh Sunan Abee Daawood, vol, 3, p.844, no, 3745.

- 34 -
lashes or stoning to death; or it may be replaced by a less severe law
as in the case of the mourning period for widows; or it may be
replaced by a similar but more suitable law. At any rate, in all cases,
the abrogated law was suitable for the time and circumstances under
which it was revealed. When the situation changed, a new law was
enacted in order to realize Allaah’s intent in the earlier legislation.
Were it not for the situation of the Muslim community earlier, the
abrogating law would have been enacted from the beginning. For
Example, in the case of the widow who was at first required to wait
in her deceased husband’s house in mourning for the period of one
year during which she could not get married, it was the custom of the
Arabs to confine widows and prevent them from marriage for
indefinite periods, lasting from a year to the remainder of their lives.
And, during the period of confinement, they were obliged to wear
their worst clothes.60
If the waiting period were reduced to four
months and ten days along with the permission for them to leave
their houses if they wished, the early Muslims would have had great
difficulty in accepting it. Consequently, a year of mourning was set
along with the cancellation of the confinement and the obligation of
maintenance. Shortly after they had accepted the change and
adjusted to it, the new law was revealed reducing the period of
mourning.
Thus, abrogation contained in it consideration for human
conditions and their welfare during the era of the prophet hood which
ended with the death of the Prophet (s.w.), for there can be no
abrogation after his time.61
Legislative consideration of human welfare after the era of
prophet hood can be found in the fact that Islamic laws were enacted
for reasons, many of which were clearly mentioned.
The following verses of portions of verses from the Qur’aan
are among the many cases where the purposes for the enactment of
laws were explained:
60
Reported by Zaynab bint Salamah and collected by al-Bukhaaree (Sahis
Al-Bukhari (Arabic-English), vol. 7, pp. 190-2, no. 251).
61

- 35 -
“Oh you who believe, fasting has been prescribed
for you as it was prescribed for those before you
in order that you may be conscious of God.”62
“Take some charity from their wealth to purify
them and make them grow (spiritually)…”63
“Satan’s plan is to incite enmity and hatred
between you, with intoxicants and gambling, and
prevent you from the remembrance of Allaah and
from prayer. Will you not then give it up?”64
The Prophet (s.w.) often made mention of the rationale
behind his legal pronouncements. For example, in the case of the
abrogation of the prohibition of visiting graveyards, he was reported
to have said, “I had forbidden you from visiting the graveyards,
however, permission has been given to me to visit the grave of my
mother. So, visit them, for they do remind one of the next life.”65
The explanation of the reasons for laws indicates that the
presence of absence of laws depends on the existence or non-
existence of their causes. If the benefit for which the law was enacted
continuous, then the law is continuous; but if it has changed due to a
change in circumstances, the law must also change; otherwise there
would not be any benefit in its continued existence. On the basis of
this principle, ‘Umar ibn al-Khattaab cancelled the distribution of the
portion of Zakaah assigned for the encouragement of non-Muslims to
accept Islaam which the Prophet (s.w.) used to give out. As he
explained, the need for their encouragement existed during the time
when Islaam was on the rise and in need of support, however, in his
time the Islamic state was already firmly established.
62
63
Soorah a t-Tawbah (9): 103.
64
65
Reported by Abu Hurayrah and Buraydah and collected by Muslim
(Sahih Muslim (English Trans.), vol. 2, pp. 463-4, no. 2130 & 2131) and at-
Tirmidhee.

- 36 -
Legislative consideration of human needs can also be found
in the methodology of legislation. In the case of laws wherein human
benefit will not change with time or conditions, Allaah has spelled
out the details very clearly. For example, in the case of religious
rites, family laws of marriage, divorce and inheritance, laws against
crimes whose harm will not change with the passage of time, like
murder, fornication and adultery, theft, and slander. As for things
whose benefit or harm may vary from place to place, Allaah has
legislated general laws of universal benefit, which may be
implemented by those in authority according to human needs.
Examples of this category can be found in the laws concerning
business transactions and the structuring of the society. For example,
Allaah said,
“Oh you who believe, obey Allaah and obey the
Messenger, and those in authority among you.”66
The Prophet (s.w.) himself was reported to have said, “If a
maimed Abyssinian slave is appointed over you and he conducts
your affairs according to the Book of Allaah, you should listen to
him and obey (his orders).”67
Legislative consideration can also be found in the giving of
precedence to the general welfare over individual benefit, and to the
prevention of a greater harm over a similar one.68
A good example of
such a principle can be found in Islaam’s confirmation of the almost
universal practice of plural marriage (polygyny). Islaam limited the
maximum number of wives to four and outlined the responsibilities
of those involved. Although sharing a husband may be painful to
most women, the need for plural marriage in most societies
evidenced by the corruption which results from its official
prohibition demand its legislation. Therefore, for the general welfare
of both men and women, Islaam recognized limited polygyny
66
67
Reported by Yahyaa ibn al-Husayn and collected by Muslim (Sahih
Muslim (English Trans.), vol. 3, p. 1, no. 1021).
68
al-Madhkal, pp. 93-5.

- 37 -
thereby giving precedence to the good of society over that of the
individual woman.69
3. The Realization of Universal Justice.
Islamic legislation considers all humans the same with
regards to their obligation to submit to the divine laws and in their
responsibility for breaking them. The laws mentioned in the Qur’aan
are all general, making no distinction between one group or another.
“Allaah has enjoined justice and righteousness.”70
“Allaah commands you to return your trusts to
whom they are due, and when you judge between
one man and another, that you judge justly.”71
“Oh you who believe, stand out firmly for Allaah
as witnesses to fair dealing. And do not let the
hatred of a people cause you not to be just. Be
just: for it is closer to piety, and fear Allaah for
verily Allaah is well aware of whatever you do.”72
During the era of the prophet hood, a woman from the
powerful tribe of Makhzoom stole some jewelry and confessed to the
crime when the case was brought before the Prophet (s.w.). Her
tribesman wanted to avoid the shame of having the Qur’anic
punishment applied to her, so they asked Usaamah ibn Zayd who
was close to the Prophet (s.w.) to intercede on her behalf. When
Usaamah approached the Prophet (s.w.), he became very angry with
him and said, “Do you dare to intercede in one of Allaah’s fixed
punishment?” He then called the people together and delivered a
sermon in which he said, “The people before you were destroyed
because they let the nobles go when they stole, but applied Allaah’s
69
See plural Marriage in Islaam, (Riyadh: International Islamic Publishing
House, 2nd
ed., 1987), pp. 1-9, for a more detailed exposition of this point.
70
Soorah an-Nahl (16): 90.
71
72

- 38 -
fixed punishment on the weak when they stole. By Allaah, if my own
daughter, Faatimah, stole I would cut off her hand.”73
Islamic law during the stage of foundation was derived from
revelation, either in the form of the Qur’aan or the Sunnah. The term
Sunnah refers to the statements and actions of Prophet Muhammad
(s.w.), as well as the statements and actions of others done in his
presence which did not meet his disapproval. The Sunnah is
considered the second source of revelation based on Allaah’s
statement in the Qur’aan,
“He does not speak from his desires. Verily it is
inspiration which has been revealed.”74
The Prophet (s.w.) was given the job of conveying the final
message of God to mankind.
“Oh messenger, convey what has been revealed to
you from your Lord.”75
And he was also given the responsibility of clarifying for mankind
God’s intent in the message.
“We have revealed the Reminder (Qur’aan) to
you, in order that you explain to mankind what
was revealed to them, that perhaps they may
reflect.”76
Sometimes the Prophet (s.w.) would explain the intent of the
Qur’anic texts by making a statement, at other times he would do so
73
Reported by ‘Aa’eshah and collected by al-Bukhaaree, Muslim (Sahih
Muslim (English Trans.), vol.3,pp.909-10, no. 4187), and Abu Daawood
(Sunan Abu Dawud (English Trans.), vol. 3. 1218, no. 4360
74
Soorah an-Najm (53): 3 & 4.
75
76
Soorah an-Nahl (16): 44.

- 39 -
by an act, and yet other times he would do so by both. For example,
the Qur’aan commanded the believers to establish regular Salaah
(formal prayer) without describing how Salaah should be performed,
so the Prophet (s.w.) prayed among his followers then told them,
‘Pray as you have seen me pray.”77
On another occasion, while he
was praying a man came and greeted him, so he raised his right hand
in response.78
His wife ‘Aa’eshah reported that when he made
Sujood (prostration) in Salaah, he would keep his heels together.79
On yet another occasion, he passed by Ibn Mas’oud praying with his
left hand on his right, so he removed it and placed his right hand on
his left.80
He was also reported to have said, “if any of you makes
Sujood, he should not kneel as the camel does. Let him place his
hands (on the ground) before his knees.”81
Thus, the Sunnah was an exposition of the Qur’aan by which
its generalities were clarified and its intended meanings specified.
Consequently, everything in the Sunnah is addressed in the Qur’aan,
either by inference or by direct reference. The address may be so
general as to include the whole Sunnah as in the case of the verse:
77
Collected by al-Bukhaaree (Sahih Al-Bukhari (Arabic-English), vol. 1, p.
345, no. 604).
78
Collected by Abu Daawood (Sunan Abu Dawud (English Trans.), vol. 1.
P. 236, no. 927) and authenticated in Saheeh Sunan Abee Daawood, vol. 1,
p. 174 no. 820.
79
Collected by al-Bayhaqee, al-Haakim and Ibn khuzaymah and
authenticated by Mustafa al-A’dHamee in Saheeh Ibn Khuzaymah (Beirut:
al-Maktab al-Islaamee, 1st
ed., 1978), vol. 1,p. 328, no. 654, and by al-
Albaanee in Sifah Salaah an-Nabee, (Beirut: al-Maktab al-Islaamee, 14th
ed., 1987), p. 109.
80
p. 144 no. 686.
81
p. 158 no. 746.

- 40 -
“Whatever the messenger gives you, take it; and
whatever he forbids you, leave it.”82
Or the address may indicate generally defined laws, the
details of which are left to the Sunnah. Hence, the Sunnah may
explain may explain the methodology, reasons, requirements and
location, or it may explain the inclusions, which could not be
logically deduced. An example of such inclusions may be found in
the case of forbidden foods beyond those mentioned in the Qur’aan.
Allaah does state in reference to the Prophet (s.w.):
“He made lawful for them the good (and pure)
things and forbade them the bad (and impure).”83
Anas ibn Maalik said, “on the day of the Battle of khaybar, a
visitor came and said, ‘Oh messenger of Allaah, the donkeys have
been eaten’ Then another came and said, ‘Oh messenger of Allaah,
the donkeys are being destroyed.’ Allaah’s messenger (s.w.) then
sent Abu Talhah to Make an announcement: Allaah and His
Messenger have prohibited you from eating the flesh of domesticated
donkeys, for it is bad (and impure).”84
Or the address may indicate general principles from which
the Prophet (s.w.) may deduce rulings. Such rulings may be
confirmed by Allaah if correct, or corrected by Allaah if incorrect.
Among what appears to be confirmed deduced rulings is the case of
marriage to a woman and her maternal or paternal aunt. The Qur’aan
forbids marrying a woman and her daughter or the simultaneous
marriage of two sisters, then says,
“Except for these, all others are lawful…”85
82
Soorah al-Hashr (59): 7.
83
Soorah al-A’raaf (7): 157.
84
Collected by Muslim (Sahih Muslim (English Trans.), vol. 3, p.1072, no.
4778).
85

- 41 -
However, Abu Hurayrah reported that Allaah’s Messenger (s.w.)
said, “One should not combine a woman and her father’s sister in
marriage, or a woman and her mother’s sister.”86
This ruling may
have been deduced because the reason for prohibiting the
combination of a woman and her daughter or two sisters, is present
in the combination of a woman and her aunt. For, among the
narration’s of this statement of the Prophet (s.w.) is the explanatory
addition, “If you do that, you will break family ties.” That is, in the
same way that the sanctity of the relationship between sisters, or a
mother and her daughter, would be destroyed by the spirit of rivalry
found between co-wives, it would also be destroyed between a
woman and her aunt.
Among the examples of deduced rulings which were not
confirmed is that of the Dhihaar divorce. Khawlah bint Tha’labah
said, “My husband, Aws ibn as-Saamit, pronounced the words: You
are to me like my mother’s back. So I came to Allaah’s messenger to
complain against my husband. However, the messenger of Allaah
disagreed with me and said, ‘Fear Allaah. He is your cousin.’ I
continued complaining until the verse was revealed:
“Allaah has indeed heard the statement of the
woman who disputed with you concerning her
husband and carried her complaint to Allaah,
and Allaah hears your discussion. Surely Allaah
hears and sees all things. If any men among you
declare their wives like their mothers (Dhihaar),
they cannot be their mothers. None can be their
mothers except those who gave birth to them.
They use bad words and falsehood…”87
86
Collected by al-Bukhaaree (Sahih Al-Bukhari (Arabic-English), vol.
7,p.p.34, no. 45), Muslim (Sahih Muslim (English Trans.), Vol. 2, pp. 79-
10, no. 3268) and Abu Daawood (Sunan Abu Dawud, (English Trans.),
vol.2, p.551, no.2061).
3
Soorah al-Mujaadalah (58): 1-3
87
pp. 417-8.

- 42 -
The Prophet (s.w.) had accepted Dhihaar as being a valid form of
divorce and had told khawlah to accept it, however Allaah declared it
invalid.
There also exists another category of unconfirmed deduced
rulings which demonstrate that the Sunnah is limited to confirmed
religious rulings and exclude personal habits and customs of the
Prophet (s.w.) which he did not instruct his followers to follow.
Raafi’ ibn Khadeej reported that Allaah’s Messenger (s.w.) came to
Madeenah and found the people grafting their date-palm trees. He
asked them what they were doing and they informed him that they
were artificially pollinating the trees. He then said, “Perhaps it would
be better if you did not do that.” When they abandoned the practice,
the yield of the date palms becomes less. So they informed him and
he said, “I am a human being. So when I tell you to do something
pertaining to the religion accept it, but when I tell you something
from my personal opinion, keep in mind that I an a human being.”
Anas reported that he added, “you have better knowledge (of
technical skills) in the affairs of this world.”88
The Prophet (s.w.) further informed his followers that even
in the case of legal judgements with regard to disputes brought
before him, he could unintentionally rule incorrectly, as some of
such decisions were based on his own opinion. Umm Salamah
reported that Allaah’s Messenger (s.w.) said, “I am only a human
being, and you bring your disputes to me. Perhaps some of you are
more eloquent in their plea than others, and I judge in their favor
according to what I hear from them. So, whatever I rule in anyone’s
favor which belongs to his brother, he should not take any of it,
because I have only granted him a piece of Hell.”89
Such decisions
based on personal reasoning represented training for the companions
of the Prophet (s.w.) in the methodology of application of the
Sharee’ah. It taught them that a judge is not held responsible if he
88
Reported by Raafi’ ibn Khadeej and Anas, and collected by Muslim
(Sahih Muslim (English Trans.), vol. 4, p. 1259, no. 5831 &5832).
89
P. 1016, no. 3576) and authenticated in Saheeh Sunan Abee Daawood, vol.
2, p. 684 no. 3058.

- 43 -
makes a mistake in judgement due to factors beyond his control.
And, in order to further emplasize this important point, the Prophet
(s.w.) also said, “whoever makes a reasoned decision (Ijtihaad) and
is correct will receive two rewards, while he who does so and is
incorrect will receive one reward.”90
However, such decisions have
to be based on knowledge, for the messenger of Allaah (s.w.) also
said, “There are three types of judges; one who will go to paradise
and two who will go to Hell. The one in paradise is the man who
knows the truth and judges according to it. The man who knows the
truth and is unjust in his judgement will be in Hell. And the man
without knowledge who makes judgement for people will also go to
Hell.91
The Prophet (s.w.) also encouraged his companions to make
legal rulings in order to prepare them to carry on the application of
the Sharee’ah after he left them.
‘Alee ibn Abee Taalib said, “Allaah’s messenger (s.w.) sent me to
Yemen as a judge, so I asked, ‘Oh messenger of Allaah! You are
sending me and I am young, and I have no knowledge of giving
judgement?’ He replied, ‘Allaah will guide your heart and keep your
tongue firmly (attached to the truth). When two litigants sit before
you, do not decide until you have heard what the other has to say the
way you heard the first, for it is more suitable for the correct
judgement to become clear to you.’ ”92
Abu Sa’eed al-Khudree was reported to have said, “The
QuraydHah tribe surrendered on the condition that it would be Sa’d
ibn Mu’aadh who would pass judgement on them, so the Messenger
of Allaah (s.w.) sent for him. When Sa’d approached the Masjid
riding on a donkey, Allaah’s messenger (s.w.) said to the Ansaar
90
Reported by ‘Amr ibn al-‘Aas and collected by al-Bukhaaree (Sahih Al-
Bukhari (Arabic-English), vol. 9.p. 330, no.450) and Abu Daawood (Sunan
Abu Dawud (English Trans.), vol. 3. pp. 1013-4, no. 3567).
91
Reported by Buraydah and collected by Abu Daawood (Sunan Abu
Dawud (English Trans.), vol.3, p. 1013, no. 3566) and authenticated in
Saheeh Sunan Abee Daawood, vol, p. 682, no. 3051.
92
P. 1016, no. 3576) and authenticated in Saheeh Sunan Abee Daawood, vol.
2, p. 684 no. 3057.

- 44 -
(Muslims of Madeenah), ‘Stand up to receive you chief.’ And he said
to Sa’d, ‘These people have surrendered accepting your decision.’
Sa’d said, ‘Execute their warriors and take their women and children
as prisoners.’ On hearing that the Prophet (s.w.) said, ‘You have
judged according to Allaah’s judgement.’ ”93
The process of arriving at reasoned decisions to suit new
circumstances and the decisions themselves are referred to as
Ijtihaad. As has been seen, both the Prophet (s.w.) and his
companions practiced Ijtihaad during this stage in the development
of Islamic law. However, it should be noted that the Ijtihaads of the
Prophet (s.w.) which occurred during this period are not considered
an independent source of law, because their validity depended on
divine revelation for confirmation. Thus, the Ijtihaads of the Prophet
(s.w.) were essentially a means of giving the companions lessons in
the methods of Ijtihaad, and the Ijtihaads of the Sahaabah, at its early
stage, were basically for practice.
Section Summary
1. Islamic law in this early period consisted of the laws of
Sharee’ah which were revealed and recorded in the Qur’aan
and the Sunnah. They relate mainly to the ideological
foundation of Islaam, Eemaan, and the socio-economic laws
necessary for the organization of the fledgling Muslim state.
2. The basis of legislation in the Qur’aan was that of human
reformation, as such, beneficial human customs and
practices were recognized and incorporated into the body of
divine legislation.
3. In order to achieve the goal of reformation, Qur’anic
legislation incorporated the principles of:
a) Removal of difficulty
b) Reduction of religious obligations
c) Realization of public welfare
d) Realization of universal justice.
93
Collected by Muslim (Sahih Muslim (English Trans.), vol. 3, p. 966, no.
4368.

- 45 -
4. This period marked the beginning of the evolution of Fiqh
and it was during this period that the foundations for the
science of deducing laws from the Qur’aan and the Sunnah
were laid by the Prophet (s.w.).
5. It might be said that in this period the first Madh-hab (school
of legal thought) took shape as the Prophet (s.w.) guided and
trained the Sahaabah in Ijtihaad.

- 46 -
2 THE SECOND STATE: ESTABLISHMENT
This stage represents the era of the Righteous Caliphs94
and the
major Sahaabah (companions of the Prophet (s.w.). It extends from
the caliphate of Abu Bakr (632-634CE) to the Islamic state were
rapidly expanded during the first twenty years of this stage to include
Syria, Jordan, Egypt, Iraq, and Persia. Thus, Muslims were suddenly
brought into contact with totally new systems, cultures, and patterns
of behavior for which specific provision was not to be found in the
laws of Sharee’ah. To deal with the numerous new problems, the
Righteous Caliphs relied heavily on decisions by consensus (Ijmaa’)
as well as Ijtihaad, in which they had been trained by the Prophet
(s.w.) while they were with him after his migration to Madeenah. In
the course of their extensive use of Ijmaa’ and Ijtihaad, these caliphs
established procedures which later became the basis for legislation in
Islaam, that is Fiqh.
In this section we shall examine, in some detail, the
problem-solving procedures developed by the Righteous Caliphs and
the general approach used by individual Sahaabah in making
deductions. We shall also attempt to show why this period was
comparatively free of that factionalism which marked later periods,
and we shall note certain characteristics of Fiqh during this period,
some of which are in strong contrast with later developments.
Problem-solving Procedures of the Righteous Caliphs
Faced with a new problem, the caliph of this period would
generally take the following steps in order to solve it:
(1) He would first search for a specific ruling on the problem in the
Qur’aan.
94
The Righteous Caliphs Abu Bakr, ‘Umar, ‘Uthmaan and ‘Alee, were four
of the closest companions of the Prophet (s.w.), who presided over the
Muslim state after the Prophet’s (s.w.) death.

- 47 -
(2) If he did not find the answer there, he would then search for a
ruling on it in the Sunnah, the sayings and actions of Prophet
(s.w.).
(3) If he still did not find the answer, he would then call a meeting
of the major Sahaabah and try to get unanimous agreement on a
solution to the problem. (This unanimity was referred to as
Ijma’.)
(4) If unanimity could not be arrived at, he would then take the
position of the majority.
(5) If however, differences were so great that on over-whelming
majority opinion could be determined, the caliph would make his
own Ijtihaad, which would then become law. It should also be
noted that the caliph had the right to over-rule the consensus.95
The Approach of Individual Sahaabah to Ijtihaad
In addition to formal meetings of the major Sahaabah which
were called by the caliphs for decision-making, there arose many
day-to-day situations where individual Sahaabah were asked to make
rulings. In such cases they tended to follow three general courses of
action.
In the first place, Sahaabah who were in decision-making
positions made it clear that their deductions were not necessarily as
Allaah intended. For example, when Ibn Mas’ood was questioned
about the inheritance rights of a woman who had been married
without a defined Mahr (dowry), he said, “I am giving my opinion
about her. If it is correct, then it is from Allaah, but if it is incorrect,
then it is from me and Satan.”96
95
al-Madkhal, pp. 107.
96
Collected by at-Tirmidhee, an-Nassaa’ee and Abu Daawood (Sunan Abu
Dawud (English Trans.), vol. 2, p. 567, no. 2111) and authenticated by al-
Albaanee in Saheeh Sunan Abu Daawood, vol. 2, pp. 397-8, no. 1858.
Sa’eed reported that ‘Umar used to say that the Deyah (compensation for
accidental murder) is given male paternal relatives of the husband and the
woman does not inherit anything from the Deyah of her husband, until
adDahhaak ibn Sufyaan said to him, “Allaah’s messenger (s.w.) wrote to
me to give Ashyam ad-Dibaabee’s wife from her husband’s Deyah.” So

- 48 -
Secondly, if they made different rulings on a problem in
their individual capacities and were later informed of an authentic
(Hadeeth) saying or action of the Prophet (s.w.) on the subject, they
would immediately accept it dropping all differences. For example,
after the Prophet’s (s.w.) death, the Sahaabah held different opinions
as to where he should be buried. When Abu Bakr related to them that
he had heard the Prophet (s.w.) say that prophets are buried in the
spot where they die, they dropped their differences and dug his grave
beneath his wife ‘Aa’eshah’s house.
Finally, when neither authentic proof nor unanimity could be
arrived at, the companions of the Prophet (s.w.) used to respect the
opinions of each other and would not force other Sahaabah to follow
any individual opinion. The only exception to this rule was if they
found people following practices, which though formerly acceptable
later became prohibited. For example, Mut’ah, a pre-Islamic form of
temporary marriage which had been allowed in the early stages of
Islaam, was forbidden by the time of the Prophet’s (s.w.) death.
Some of the Sahaabah were unaware of the prohibition and thus
continued to practice temporary marriage during Abu Bakr’s
caliphate and the first half of ‘Umar’s caliphate. When ‘Umar
became aware of the practice of Mut’ah, he forbade it and prescribed
a severe punishment for the offence.97
The Absence of Factionalism
Although the Sahaabah debated and differed on various
points of law, their differences rarely reached the level of disunity
and factionalism, which characterized later periods. This was mainly
due to the following factors, which tended to preserve their unity:
‘Umar withdrew his opinion. (collected by Abu Daawood (Sunan Abu
Dawud, (English Trans.) vol. 2, p. 826, no. 2921) and authenticated by al-
Albaanee in Saheeh Sunan Abu Daawood, (Beirut: al-Maktab al-Islaamee,
1989), vol. 2, p. 565, no. 2540).
97
Abdul Hamid Siddiqi, Sahih Muslim, (Lahore: SH. Muhammad Ashraf,
1976) vol. 2, pp. 610-1.

- 49 -
(1) The Caliphs’ reliance on mutual consultation (Shooraa) to arrive
at a ruling.
(2) The ease with which a consensus could be arrived at. It was easy
to hold consultative meetings since the early caliphs did not
allow the Sahaabah to move far from the capital of the Islamic
State, Madeenah.
(3) The general reluctance of individual Sahaabah to make legal
rulings (Fatwaas). Instead, they tended to re-direct puzzling
questions to other Sahaabah who were better qualified to answer
them.
(4) The infrequent quotation of Hadeeth, which they tended to
confine to specific and actual problems. This was due to:
(a) Their fear of misquoting the Prophet (s.w.) who had said,
“Whoever tells a lie in my name will find in my name find
his seat in the fire.”98
(b) The fact that Caliph ‘Umar ibn al-Khattab forbade excessive
quotation of Hadeeth and ordered the Sahaabah to
concentrate on the narration and study of the Qur’aan.
Characteristics of Fiqh During This Period
As we trace the historical development of Fiqh showed
different characteristic trends during different periods of political
and socio-economic development. First, we can discern that the
outstanding characteristic of Fiqh during the period of the Righteous
Caliphs was its realism; that is, it was based on actual problems
rather than on hypothetical or imaginary ones. This realistic form of
Fiqh was later referred to in Arabic as al-Fiqh al-Waqi’ee (realistic
Fiqh) to distinguish it from the hypothetical Fiqh advocated by the
“Reasoning People” (Ahl ar-Ra’i) who came to prominence in
Kufah, Iraq, during the time of the Umayyads.
Secondly, although the Righteous Caliphs tended, as we
have noted above, to follow certain procedures to achieve legal
rulings, neither they nor the Sahaabah as a whole prescribed set
procedures to be followed throughout the Islamic nation (the
98
Collected by al-Bukharee (Sahih Al-Bukhari (Arabic-English), vol.4,
p.442, no.667) and Abu Daawood (Sunan Abu Dawud (English Trans.), vol.
3, p. 1036, no. 3643).

- 50 -
Ummah); nor did they make a record of the laws resulting from their
legal rulings. This open mindedness in areas not clearly defined by
Sharee’ah reflects, in the first place, the Sahaabah’s respect for
freedom of opinion in such matters. Such an attitude contrasts
strongly with the appearance of rigidity on the part of certain later
scholars. In the second place, it was in keeping with the Sahaabah’s
policy of recommending for the masses the careful study of the
Qur’aan without the distraction of legal rulings on matters not
defined therein.
A third characteristics of Fiqh in this period relate to the use
of personal opinion in making legal rulings. The majority of the
Sahaabah preferred to stick closely to the literal meanings of texts of
the Qur’aan and the Sunnah. As a general practice, they avoided
giving personal interpretations. Ibn ‘Umar, one of the leading jurists
among the Sahaabah who remained in Madeenah all his life,
followed this practice. On the other hand there were other Sahaabah
who favored the wide use of personal opinion in areas undefined by
either the Qur’aan or the Sunnah. However, they were careful to
attribute resulting errors entirely to themselves, so as not to bring
discredit to Islamic law. ‘Abdullaah ibn Mas’ood (who later settled
in Iraq) represented this school of thought.
The fourth characteristic of Fiqh in the period of the
Righteous Caliphs concerns the modification of some laws of
Sharee’ah, owing to one or another of two factors: the disappearance
of the reason for the laws existence, or a change in social conditions.
An example of the first is the prohibition by Caliph ‘Umar of the
practice of giving cash gifts from the central treasury (Bayt al-Maal)
to newly converted Muslims and to those leaning towards the
acceptance of Islaam. ‘Umar reasoned that the practice had been
followed by the Prophet (s.w.) in the early stages of Islaam, when
there was urgent need for all possible support, but that there was no
longer any need to canvass for supporters. The second factor
mentioned above (changing social conditions) prompted a change in
the divorce law. Owing to the tremendous influx of wealth from
newly acquired territories, marriage (both single and multiple)
became easier to contract and, consequently, divorce became
alarmingly more frequent. To discourage abuse of divorce, Caliph
‘Umar altered and aspect of the law. In the time of the Prophet (s.w.)

- 51 -
the pronouncement of three divorce statements at any one time was
considered to be merely one divorce statement and it was reversible.
Caliph ‘Umar declared such multiple pronouncements to be binding
and therefore irreversible.
Fifthly, the Madh-hab during the period of the Righteous
Caliphs was unified and directly linked to the state as in the time of
the Prophet (s.w.). The Madh-hab under each of the caliphs was that
of the caliph himself since the caliph in each case had the final say in
all legal decisions involving Ijtihaad of Ijmaa’. Consequently,
deduced rulings made by a caliph were never openly opposed by his
successors during his lifetime. However, when the succeeding caliph
came to power, his Madh-hab would then be given precedence over
that of his predecessor and the deduced rulings of his predecessor
would be changed to conform to his opinion.
Section Summary
1. The basis of the deductive Fiqh principles, Ijmaa’ and Qiyaas
(Ijtihaad)(, was laid during the time of thje Righteous Caliphs.
2. The sudden addition of vast new territories brought Muslims into
sudden contact with many different cultures, and this produced a
host of new problems which were not specifically covered by the
laws of Sharee’ah.
3. Legal rulings became increasingly necessary, and the Righteous
Caliphs gradually developed certain procedures for arriving at
Ijtihaad with minimum of disagreement.
4. The Sahaabah in general also followed decision-making
procedures which helped them to avoid hard and fast rulings.
5. The combined approval of the Righteous Caliphs and the
Sahaabah in the matter of legal rulings tended to promote unity
and to provide little of no occasion for factionalism within the
Islamic nation.
6. Only one Madh-hab existed during the period of the Righreous
Caliphs. This unified approach to Fiqh prevented the rise of
Madh-habs not linked to the state until the end of the period.
7. Particular emphasis was placed on the study of the Qur’aan by
the masses, while excessive quotation of Hadeeths was
discouraged.

- 52 -
8. Although there was some difference of approach among the
Sahaabah in the matter of the use of personal opinion, this
difference did not in fact result in any factionalism during the
period under review.
9. So far as Fiqh was concerned, there continued to be one general
approach, that is one Madh-hab. However, the different practices
of such Sahaabah as Ibn ‘Umar in Madeenah and ‘Abdullah ibn
Mas’ood in Kufah (Iraq) in the use of personal opinion could be
seen as the early beginnings, or the foreshadowing of a division
of Islamic scholars into different Madh-habs.
4. 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

- 53 -
caliphs and in fact fled to outlying areas to avoid conflict and
confusion.99
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 clear-
cut schools of thought, establishing various Madh-habs which in
later periods were reduced to four major ones.
Factors Affecting Fiqh
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,100
the
Shee’ah,101
and ‘Abdullaah ibn az-Zubayr and his followers.102
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
99
2
See the glossary for a more detailed treatment.
101
102

- 54 -
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 lost. 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

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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.103
Characteristics of Fiqh in the Umayyad Period
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
103
al-Mdkhal, pp. 121-126.

- 56 -
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.”104
The laws whose purposes were identified by Allaah or His Prophet
(s.w.) were used in analogical deductions105
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 nick-
named the What-Iffers.” It should be noted that these two trends
104
Soorah al-Israa, (17): 36.
105
Arriving at an answer by logical reasoning based on similarities.

- 57 -
were merely extensions of trends which first appeared among the
Sahaabah.
Reasons for Differences
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 Hijaaz106
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.).107
Compilation of Fiqh
106
Western coast of the Arabian peninsula including Makkah and
Madeenah.
107

- 58 -
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.108
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.
Section Summary
108
The third wife of the Prophet (s.w.).

- 59 -
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.

- 60 -
4. THE FOURTH STATGE: THE FLOWERING
This stage extends from approximately 750 CE to 950 CE,
and covers the rise of the ‘Abbaasid Dynasty founded by Caliph
Abul-‘Abbaas (reign 750-754)109
, its consolidation and the beginning
of its decline. It was during this period that Fiqh took shape as an
independent Islamic science; Islamic scholarship was actively
supported by the caliph and it flourished as discussion and debate on
controversial issues became widespread; Madh-habs multiplied’
various compilations of Hadeeth and Fiqh were made; and Arabic
translations of scientific, philosophical and theological works exerted
influence on Islamic thought. By the end of the period, Fiqh was
clearly divided into two sections; Fundamental principles (Usool)
and secondary principles of scientific, philosophical and theological
works (Furoo’); sources of Islamic law were identified and
deferences developed between the major Madh-habs separating them
from each other.110
In the development of Fiqh during this period, there were
two major trends relating to the evolution of the Madh-habs. The
first occurred during the period of the Great Imaams, founders of the
major Madh-habs, and their major students. Although these Madh-
habs were fast becoming distinct entities, they continued the tradition
of flexibility in making and accepting legal rulings which had
characterized the earlier periods. The second trend covered the
period following the death of the major scholars of the Madh-habs. It
represents the beginning of that rigidity in making and accepting
109
The ‘Abbaasids were descendants of al-‘Abbaas, the uncle of the
Prophet Muhammad (s.w.).
110
al-Madkhal, p. 128.

- 61 -
legal rulings which is the main characteristic of Madh-habs, and
consequently of Fiqh, in succeeding generations.
Period of The Great Imaams
The development of Fiqh in the period of the Great Imaams (750-850
CE) and their major students was affected by the following factors.
A. State Support for Scholars
The early ‘Abbaasid Caliphs made a show of great respect
for Islamic law and its scholars. The reason for this lay in the fact
that they owed their office to their claim that they were seeking a
return to a caliphate based on Sharee’ah and its legitimate
interpretation. Consequently, the ‘Abbaasid caliphs of this period all
took pride in sending their children to study under the major scholars
of the time, and, what is more, some of the caliphs became scholars
of Islamic law in their own right; for example, Caliph Haroon ar-
Rasheed (rule 786-809 CE). Furthermore, these caliphs made a
practice of consulting the outstanding Islamic scholars on most
matters of Fiqh. A classical example is that of Imaam Maalik whom
Caliph al-Mansoor commissioned to compile an authoritative book
of the Sunnah of the Prophet (s.w.). On its completion, the Caliph
consulted Maalik about allowing him to make it the state
constitution, which would have made the Madh-hab of Imaam
Maalik binding on all Muslims. However, the Imaam refused to have
it done, since he was aware that his compilation including only those
Hadeeths of the Prophet (s.w.) that were available in Hijaaz where
Imaam Maalik had taught and founded his Madh-hab. He felt
strongly that no single Madh-hab should be binding on all Muslims
in view of the fact that any single Madh-hab would exclude the many
other Hadeeths narrated by Sahaabah who had traveled to other parts
of the state.111
This is a clear example of that flexibility which
characterized the founders of the Madh-habs. The factor of state
support and patronization of Fiqh scholars contributed largely to the
111
Muhammad Rahimuddin, Translation of Muwatta Imam Malik, (New
Delhi: Kitab Bhavan first ed. 1981), preface p.v.

- 62 -
flourishing of the many Madh-habs which had arisen in the latter part
of the Umayyad period.
However, it should be noted that although scholars and
judges were allowed a greater measure of freedom of opinion, they
were often subjected to severe punishment if their rulings ran counter
to political policy. For example, Imaam Malik was jailed, beaten and
tortured for giving a Fatwaa that challenged an official policy of the
‘Abbaasid Caliph. According to this policy, the people were made to
swear that if they broke their oath of allegiance to the caliphs they
would be automatically divorced from their wives. Imaam Maalik’s
Fatwaa ruled that divorce under compulsion was null and void.
B. Increase in Centers of Learning
Though the states of North Africa and Spain112
had split off
from the ‘Abbaasid Empire, the territories of the ‘Abbaasid state
were expanded to include all of Persia, India and Southern Russia,
and the capital was not moved to Baghdad. Consequently, the centers
of learning and Madh-habs multiplied.
Scholars and students from the various centers of learning
began journeying back and forth in search of further knowledge
about the conclusions reached by their contemporaries in other parts
of the Muslim State. A good example of this is the journey of
Muhammad ibn al-Hasan, a prominent student Abu Haneefah
(founder of the Hanafee Madh-hab), from Iraq to Madeenah in order
to study under Imaam Maalik, founder of the Maalikee Madh-hab,
and to memorize his book of Hadeeths, al-Muwatta’. Likewise,
Imaam ash-Shaafi’ee, founder of Shaafi’ee Madh-hab, journeyed
first to Hijaaz113
to study under Imaam Maalik, then to Iraq in order
to study under Muhammad ibn al-Hasan, and finally to Egypt to
112
An Umayyad Prince, ‘Abdur-Rahmaan ibn Mu’aawiyah, dramatically
escaping death at the hands of the Abbaasids, succeeded in reaching Spain
where he laid the foundations of the Umayyad Dynasty of Cordova in 756
CE.
113
The western coast of the Arabian peninsula shich includes the cities of
Makkah and Madeenah.

- 63 -
study under Imaam al-Layth ibn Sa’d, founder of the Laythee Madh-
hab. These journeys resulted firstly in the reconciliation of some of
the major differences which had arisen among scholars and
ultimately in the combination of some of the schools of Islamic legal
thought. For example, Imaam ash-Shaari’ee combined the Fiqh of
Hijaaz with that of Iraq and Egypt and formed a new school of law,
the Shaafi’ee Madh-hab. Here again are noteworthy examples of the
flexibility of the early Imaams in their approach to Fiqh.
C. The Spread of Debate and Discussion
Whenever scholars or their students met, they would
exchange thoughts on various Islamic issues which had arisen in
their particular areas. If there was a major difference of opinion
about a particular solution, they would debate back and forth until a
common conclusion was reached or various options were accepted.
These legal debates also took place by mail, as in the case of the
debate between Imaam Maalik and Imaam al-Layth about Madeenite
customs.114
The huge increase in the number of debating sessions,
whether by mail or in face to face meetings between founders and
students of various Madh-habs resulted in the clarification of certain
important issues and the seeding out of mistaken rulings or
judgements among scholars of Islamic law.
In this early stage in the development of Madh-habs there
was a marked lack of rigidity or dogmatism on the part of scholars
and their students. That is, issues were objectively analyzed and
conclusions arrived at on the basis of the validity of the proofs
presented. In fact Imaam Abu Haneefah and Imaam Shafi’ee were on
record as stating that if a Hadeeth was known to be accurate, then
that should be considered their Madh-hab. A noteworthy example
concerns the law relating to the drinking of Khamr and other
intoxicants. Imaam Abu Haneefah, founder of the Hanafee Madh-
hab, had ruled that the Islamic prohibition of Khamr covered only
114
Imaam al-Layth opposed Imaam Maalik’s inclusion of the opinion of
Madeenitees as a source of Islamic legal rulings.

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the product of fermented grape juice (the literal meaning of Khamr)
and did not extend to intoxicants in general. According to this ruling,
intoxicating drinks made from other sources were allowable so long
as the consumer did not become drunk.115
However, Abu Haneefah’s
three main students (Abu Yoosuf, Muhammad ibn al-Hasan and
Zufar) later rejected the ruling of their teacher, since they
encountered reliable Hadeeths of the Prophet (s.w.) clearly indicating
that all intoxicants were to be included in the meaning of Khamr.
This free exchange of ideas and willingness to change even
the rulings of the founding fathers of the Madh-habs vividly
illustrates the absence of that rigidity and sectarianism which
characterized the methodology of later scholars of the Madh-habs.
Period of the Minor Scholars
The development of Fiqh during the period of the minor
scholars of the Madh-habs (850-950 CE) that is, the second
generation of students, was affected by the following factors.
A. Comopilation of Fiqh
In order to make legal rulings and establish principles, previous
scholars were obliged to spend a great deal of time and effort hunting
in various parts of the Islamic State for Hadeeths and Athars
(Sayings and acts of the Sahaabah and their students). In this period,
the Sunnah of the Prophet (s.w.) was systematically collected and
compiled in books of Hadeeth, thereby leaving scholars free to
concentrate on the comprehension and application of Hadeeth.
Fiqh was also compiled on a wide scale and in a systematic
fashion during this period. Some scholars personally compiled their
own rulings, while others, such as Imaam Abu Haneefah and Imaam
Ahmad ibn Hambal, dictated various problems and their solutioins to
115
Muhammad ibn Ahmad ibn Rushd, Bidaayah al-Mujahid, (Egypt: al-
Maktabah at-Tajaareeyah al-Kubraa, n.d.), vol. 1, p. 405. See also as-Sayyid
Saabiq, Fiqh as-Sunnah, (Beirut: Daar al-Kitaab al-Arabee, 3rd
. ed. 1977),
vol.2.p.378.

- 65 -
their students, who subsequently compiled them. Imaam Maalik’s al-
Muwatta’ is a collection of Hadeethss and opinions of the Sahaabah
along with his personal ruolingl, and Imaam ash-Shaafi’ee’s book of
Fiqh entitled al-Umm contains his legal rulings supported by their
proofs.
Types of Compilation:
1. The early books of Fiqh were usually a mixture of legal rulings,
Hadeeths, opinions of the Sahaabah and of students of the
Sahaabah. Al-Muwatta’ of Imaam Maalik is a classical example
of this stage.
2. Some books of Fiqh were written about the basic principles of
Fiqh, Hadeeths being mentioned only in order to prove the
correctness of the authors’ deductions. Kitaab al-Kharaaj by
Imaam Abu Yoosuf116
and al-umm by Imaam ash-Shaafi’ee are
both good examples of this type of writing.
3. Other books of Fiqh concentrated of the application of Fiqh
principles with but little reference to Hadeeths. These books
were arranged in chapters according to the issues under
discussion. The six books of Imaam Muhammad ibn al-Hasan117
and al-Mudawwanah by Imaam Ibn al-Qaasim118
are examples
of this type of writing.
At first, the compilation of proofs for each legal ruling on
various issues included the texts of Hadeeths along with their chains
of narrators. Gradually concern for the chains of narration decreased,
and scholars merely quoted the text of the appropriate Hadeeth along
with a reference to the books of Hadeeth in which it could be found.
With the de-emphasizing of the importance of Hadeeth, or
by neglecting to mention their sources and their levels of
authenticity, the stand of the Madh-habs became the most important
consideration. Thus, the opinions of the Madh-habs were gradually
given precedence over one of the primary sources of Islamic law,
116
The main student of Imaam Abu Haneefah.
117
One of the main students of Imaam Abu Haneefah.
118
The main student of Imaam Maalik.

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namely the Sunnah. In these developments lay the beginnings of that
rigidity which later became the hallmark of the Madh-habs.
However, later in this period, some prominent scholars reversed this
trend, somewhat, by reintroducing the practice of quoting the sources
and commenting on the accuracy of the Hadeeths.
B. Court Debates
There were also court debates during this period which were
held for the interest and amusement of the caliphs and members of
the royal court. Some scholars like magicians, singers, dancers and
jesters, had become a permanent fixture of the royal court.119
They
competed among themselves for the favors of the caliphs, and they
invented issues solely for the purpose of debate. As a result,
hypothetical Fiqh took on new dimensions as it evolved from
sublime origins in the era of the Sahaabah and the early scholars, to
the ridiculous product of court debates.
Court debates also spawned competitiveness and dogmatism,
since the loser of a debate not only lost monetary reward from the
caliph but also personal prestige. Furthermore, because loss of
personal prestige also entailed loss of prestige on the part of one’s
Madh-hab, the principle of defending one’s Madh-hab, right or
wrong, came to be considered virtue. As a result, Madh-hab
sectarianism became rampant among the court scholars.
C. Compilation of Hadeeths
However, there arose an opposing trend among specialists in
Hadeeth compilation and criticism, where by issues of Fiqh were
tackled without dependence on the traditional rulings of existing the
earlier scholars by basing their positions on authentic Hadeeths
wherever available, rather than slavishly following earlier rulings
merely because they had been made by prominent scholars. Focusing
on Hadeeth to resolve the problems of Fiqh, great scholars of
Hadeeth like Imaam al-Bukhaaree (810-870 CE) and Imaam Muslim
119
Hassan Ibrahim Hassan, Islam: A Religious, Political, Social and
Economic Study, (Iraq: University of Baghdad, 1967) pp. 356-378.

- 67 -
(817-875 CE) went to great pains to collect from all possible sources
authentic Hadeeths of the Prophet (s.w.) and Athars of the Sahaabah.
These, they arranged in chapters according to the format established
by the Fiqh scholars. The initiator of this trend was the last of the
major Imaams, Ahmad ibn Hambal, who compiled the most
extensive work of Hadeeth called al-Musnad.120
Both Imaam al-
Bukhaaree and Imaam Muslim were among his students.121
C. The Organization of Fiqh
Through translations of the great books of science and
philosophy from Greece, Rome, Persia, and India,122
Islamic scholars
gained insight into new systems of reasoning, deduction and
inference. This new knowledge influenced their approach to Fiqh
which they proceeded to organize into fundamentals (Usool) and
secondary principles (Furoo’). In time, Tafseer (explanation of the
Qur’aan), Hadeeth and Nahw (grammer) developed under these
influences into specialized branches of learning.
The positions of major scholars of Fiqh were recorded and
the primary sources of Islamic law were identified and classified in
order of their importance.123
The Sources of Islamic Law
By the end of this period, the following sources of Islamic
law in the order stated became widely accepted by most scholars:
1. The Qur’aan
The Qur’aan was the first source of law and its passages
were accepted unanimously as being authentic. However, there were
some differences of opinion in interpretation of some of its passages.
120
The Hadeeths in his work were arranged alphabetically according to the
names of the narrators among the Sahaabah.
121
Al-Madkhal, p. 133.
122
Most of the translation occurred during the first half of this period (750-
830 CE) but its effect was mostly felt in the latter half of the period.
123

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2. The Sunnah
Hadeeths of the Prophet (s.w.) wee next in importance.
However, scholars for their acceptance and application set various
conditions.
3. Opinion of the Sahaabah
The opinion of the Sahaabah either as a group or
individually was considered the third most important source of law.
This source was divided into two parts according to the positions
taken by the Sahaabah.
(a) If they were united on an opinion it was referred to as
Ijmaa’.
(b) If they had different opinions on a single issue, each opinion
was referred to as a Ra’i (personal opinion)
4. Qiyaas
Ijtihaad based on evidence found either in the Qur’aan, the
Sunnah or Ijmaa’ was next in order of importance. The method of
reasoning used was a form of analogical deduction called Qiyaas. An
example of Qiyaas is the prohibition of marijuana based on the
Prophet’s statement: “Every intoxicant is Khamr and every form of
Khamr is Haraam.”124
Since Marijuana has as intoxicating effect it
can be classified as Khamr and thus Haraam (prohibited).
5. Istihsaan (Legal Preference)
This principle involves the preference of an opinion based on
a circumstantial need over an opinion based on Qiyaas. This
principle, referred to by various names, scholars of most schools of
thought used (e.g. Istislaah). An application of Istihsaan is seen in
the treatment of a contract for the manufacture and salw of as item.
According to Qiyaas, based on the Prophet’s statement, “Whoever
sells food should not do so until he has in his own possession”,125
contracts of this type are invalid, since the item is nonexistent at the
time of the contract. However, since such contracts have been
universally accepted by people and the need for such contracts is
124
Collected by Muslim (Sahih Muslim (English Trans.), vol. 3, p. 1108,
no. 4963) and Abu Daawood (Sunan Abu Dawud (English Trans.), vol.3. p.
1043, no. 3672).
125
Reported by Ibn ‘Umar and collected by Maalik (Muwatta Imam Malik
(English Trans.),p. 296, no. 1324).

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obvious, the ruling by Qiyaas was dropped and the contracts were
allowed, based on the principle of preference (Istihsaan).
6. ‘Urf (Custom)
Local customs were accepted as a source of law in a given
region as long as they did not contradict any of the principles of
Islamic law; for example local marriage customs concerning dowry’
payment. The dowry (Mahr) according to Islamic law, must be
agreed upon as part of the marriage contract but it has no set time to
be paid. It is the custom of Egyptians as well as others that a portion
of it called the Muqaddam must be paid before the marriage
ceremony while the reminder called the Mu’akhkhar is only required
to be paid in the case of death or divorce, according to whichever
occurs first.126
Another example of ‘Urf can be seen in rental customs.
Islamic law does not require the payment of a price until the thing
being sold has been delivered completely. However, it is the
accepted custom that rent is paid before the rented place or object
has been used for the agreed time period.
Although this process of organization and classification
was, for the most part, positive development; nevertheless, when
coupled with the prevailing trends toward factionalism, it served to
further widen the gaps between the Madh-habs. Thus, we find slight
variations in the terminology given to the same principle become
sources of friction and opposition. For example, the Maalikee Madh-
hab considered the Hanafee principle of Istihsaan unacceptable
yetapplied the same principle under the name Masaalih Mursalah.
While the Shaafi’ee Madh-hab rejected both these terms and applied
a similar principle calling it Istis-haab.
Section Summary
1. Fiqh took on a definite shape as an independent Islamic science
during this period.
126
Muhammad Mustafa Shalabee, Usool al-Fiqh al-Islaamee (Beirut,
Lebanon: Daar al-Nahdah al-Arabeeyah, second edition. 1978) vol.p.314.

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2. The many Madh-habs which had appeared in the latter part of
the Umayyad period flourished and the centers of learning
increased throughout the ‘Abbaasid state due to state patronage.
3. For the first time the Fiqh of the various Madh-habs was
successfully compiled on a large and systematic scale.
4. Fiqh became organized and divided into two main segments:
Usool (fundamental principles) and Furoo’ (secondary
principles) and the main sources of Islamic law were clearly
defined and graded.
5. The Sunnah in its entirety was also collected and tecorded in
books of Hadeeth by the end of this stage.
6. During the first half of this period, the Madh-habs under the
guidance of their founders continued to experience a great deal
of mutual exchange of ideas. However, under the second
generation of students, there was a trend toward rigidity and a
breaking down of flexibility which characterized the period of
the great Imaams and the scholars before them.
5 THE MADH-HABS: SCHOOLS OF ISLAMIC LEGAL
THOUGHT

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In the previous chapters we have seen the evolution of the
Madh-hab127
within the historical context of the overall development
of Fiqh. During the era of prophethood, the foundations of Fiqh were
laid down in the Prophet Mohammed’s Ijtihaads (reasoned rulings)
as well as those of his Sahaabah (followers). During that stage,
divine revelation in the form of the Qur’aan and the Sunnah (the life
style of the Prophet (s.w.) constituted the only source of Islamic law.
In other words, there was only one school of thought (Madh-hab):
that of the Prophet (s.w.).
In the following stage, that of the Righteous Caliphs, the
Fiqh principle of Ijmaa’ (decisions by unanimity) evolved and
Ijtihaad became an independent principle of Fiqh under the name
Qiyaas. The Madh-hab during theis period was, in rality, that of each
of the Righteous Caliphs, since the final say in legal matters rested
with them. However, all legal decisions were subject to alteration on
the basis of recorded statements or practices of the Prophet (s.w.):
that is, Hadeeth. Therefore there was no room for rigidity of
factionalism.
The early period of the Umayyad dynasty saw the division of
Fiqh scholars into two main Madh-habs with respect to Ijtihaad: Ahl
ar-Ra’i and Ahl al-Hadeeth. These two Madh-habs evolved into a
number of new Madh-habs during the shift from caliphate to
monarchy when the caliph/King was no longer the head of the Madh-
hab. Since scholars and their students were dispersed throughout the
Umayyad state, their personal Ijtihaad increased in order to solve
local issues. It should be noted, however, that during both the period
of the Umayyads and that of the early ‘Abbaasids, students of Fiqh
freely and frequently changed teachers and exchanged legal
opinions. In effect, therefore, the flexibility of the previous was
maintained.
As will be shown in chapters seven and eight, during the
latter part of the ‘Abbaasid dynasty, Fiqh was formalized and
systematized. The number of Madh-habs decreased and the
127
The sum total of the scholars legal rulings as well as the rulings of his
students and that of all the scholars who adhered to their approach.

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differences between them became emphasized due to the state’s
preference for some Madh-habs over others and the rise of inter
Madh-habs rivalry promoted by court debates. And after the
destruction of the ‘Abbaasid Caliphate and the decline of Ijtihaad
culminating in its disappearance, the number of Madh-habs
decreased to four which evolved into completely distinct and often
times antagonistic entities. The differences between them became
insurmountable in the minds of their adherents and Madh-hab
fanaticism and sectarianism was rife. Since the applicability of
Sharee’ah to all times and places depended largely upon the principle
of Ijtihaad, the loss of this vital principle spelled the inevitable
stagnation and decline of Fiqh.
In the following two chapters we will examine more closely
the madh-habs chronologically with respect to their founders,
formation and fundamental principles. Then we will have a look at
the main reasons for the differences which arose between them.
THE HANAFEE MADH-HAB
The founder: Imaam Abu Haneefah (703-767CE)
This Madh-hab is named after its founding scholar, Abu
Haneefah, whose actual name was Nu’maan ibn Thaabit. He was
born in the year 702 CE. Kufah, (Iraq). His father was a silk merchan
of Persian origin, who accepted Islaam during the reign of the
Khulafaa Raashidoon (Righteous Caliphs). Abu Haneefah began his
earlier studies in the field of philosophy and dialectics known as ‘Ilm
al-Kalaam, but after mastering its various disciplines, he left it and
went into an indepth study of Fiqh and Hadeeth. He chose as his
main teacherk, Hammaad ibn Zayd, who was among the greatest
scholars of Hadeeth of his time. Abu Haneefah studied under him for
eighteen years. During this time he became qualified to teach, but
instead remained Hammad’s student until the latter died in the year
742 CE. After Hammaad’s death Abu Haneefah took up the position
of teacher at the age of forty and became the most outstanding
scholar in Kufah. As such, he appeared to bea valuable prize to the
Umayyad caliphs of that time. They offered him the position of
Qaadee (judge) of Kufah, but he refused the post in spite of being
physically beaten for his refusal by the Ameer of Kufah, Yazeed ibn
‘Umar. Similarly, during the rule of the ‘Abbaasids, he also refused
royal appointment, and was consequently imprisoned in Baghdad by

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the Caliph Abu Ja’far al-Mansoor (754-775 CE). He remained
imprisoned until his death in 767 CE. Abu Haneefah was considered
among the minor Taabi’oon (students of the Sahaabah), because he
had met a few of the Sahaabah and had related some Hadeeths from
them.128
Formation of the Hanafee Madh-hab
Imaam Abu Haneefah base his teaching method on the
principle of Shoorah (group discussion). He would present a legal
problem to his students for debate and discussion and tell them to
record its solution whenever they arrived at a unified position.
Because of this interactive approach to making legal rulings, we
could say that the Hanafee Madh-hab was as much a product of Abu
Haneeafh’s students’ efforts as it was a product of his own efforts.
They would also debate on hypothetical problems and work out
solutions, based on the principle of preparing for a problem before its
occurrence. Because of their leaning towards hypothetical Fiqh
which often introduced an issue with the question, “what if so and so
happened?”, they became known as the what-iffers or Ahl ar-Ra’i
(the opinion people).
Sources of Law used by the Hanafee Madh-hab
The early jurists of this Madh-hab deduced Islamic laws
from the following sources, which are listed in the order of their
importance:
1. The Qur’aan
They considered the Qur’aan to be the primary unquestionable
source of Islamic law. In fact it was used to determine the
accuracy of the other sources. Accordingly any other source that
contradicted the Qur’aan was considered inaccurate.
2. The Sunnah
The Sunnah was consulted as the second most important source
of Islamic law, but with some qualification as to its use. They
128

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stipulated that it was not suffcient that a Hadeeth be accurate
(Saheeh), but it had to be also widely known (Mash-hoor), if it
was to be used as a legal proof. This condition was laid down as
a safeguard against false Hadeeths which were cropping up
frequently in that region where only a few notable Sahaabah had
settled (‘Alee and Ibn Mas’ood).
3. Ijmaa’ of the Sahaabah
Third in importance as a source of Islamic law was the
unanimous opinion of the Sahaabah on any point of law not
specified in the Qur’aan or the Sunnah. That is, Ijmaa’ of the
Sahaabah on any point of law not specified in the Qur’aan or the
Sunnah. That is, Ijmaa’ of the Sahaabah was given precedence
over the personal opinions of Abu Haneefah and his students in
their deduction of Islamic law. The Hanafee Madh-hab also
recognized the Ijmaa’ of Muslim scholars in any age as valid and
binding on Muslims.
4. Individual opinion of the Sahaabah
If there were different opinions among the Sahaabah on a
particular point of law and no Ijmaa’ was subsequently formed,
Abu Haneefah would choose the opinion which appeared most
appropriate to the case in question. In establishing this as a vital
principle of his Madh-hab, Abu Haneefah again gave more
weight to the opinions of the Sahaabah than to his own.129
However, he did apply his own reasoning in a limited sense by
choosing one of their various opinions.
5. Qiyaas (Analogical deduction)
Abu Haneefah felt no obligation to accept the deductions of the
students of the Sahaabah (Taabi’oon) in areas where no clear
proof was available from any of the above mentioned sources.
He considered himself the equal of the Taabi’oon and would
make his own Ijtihaad based on the principles of Qiyaas which
he and his students established.
129
Muhammad Yoosuf Moosaa, Taareekh al-Fiqh al-Islaamee, (Cairo: Daar
al-Kitaab al-Arabee, 1955), vol. 3, p. 62.

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6. Istihsaan (Preference)
Istihsaan, in short, is the preference of one proof over another
proof because it appears more suitable, even though the preferred
proof may be technically weaker than the one it is preferred to.
This may involve the preference of a Hadeeth which is specific
over a general one, or it may even involve the preference of a
more suitable law over the one deduced by Qiyaas.
7. ‘Urf (Locar Custom)
Local customs were given legal weight in areas where there were
no binding Islamic customs available. It was through the
application of this principle that various customs found in the
multiplicity of cultures within the Islamic world entered the legal
system and became mistakenly classified as Islamic.130
Main students of the Hanafee Madh-hab
The most famous of Abu Haneefah’s students were Zufar ibn
al-Hudhayl, Abu Yoosuf and Muhammad ibn al-Hasan.
Zufar ibn al-Hudhayl (732-774 CE)
Zufar was one of those who followed Abu Haneefah’s
example and refused to accept appointment as Qaadee even though
many attractive offers were made to him. He preferred to teach,
which he did until he died at the early age of 42 in Basrah.
Abu Yoosuf Ya’qoob ibn Ibraaheem (735-795 CE)
Abu Yoosuf was born into a poor family in Kufah. He
studied Hadeeth extensively until he became a noteworthy Hadeeth
scholar then studied Fiqh in Kufah for nine years under Imaam Ibn
Abee Lailaa (died 765 CE) whose father was a famous Sahaabee
from Madeenah. Abu Yoosuf later studied under Abu Haneefah for
nine years, and when Abu Haneefah died, he went to Madeenah and
studied for a short period under Imaam Maalik.
130

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Abu Yoosuf was appointed chief judge of the state by the
‘Abbaasid caliphs, al-Mahdee (775-785 CE), al-Haadee (785-786
CE) and Haroon ar-Rasheed (786-809 CE). In his capacity as chief
judge, he used to appoint judges for the various cities and all his
appointees were followers of the Hanafee Madh-hab. Thus, he was
instrumental in the spread of this school of thought throughout the
Muslim empire.131
Muhammad ibn al-Hasan, ash-Shaybaanee (749-805 CE)
Imaam Muhammad was born in WSasit, but grew up in
Kufah. Like Abu Yoosuf, his early studies were also in Hadeeth. He
studied briefly under Abu Yoosuf and later travelled to Madeenah
where he studied under Imaam Maalik for three years. During this
period he became one of the main narrators of Maalik’s Hadeeth
book al-Muwatta’ Imaam Shaafi’ee was among the many scholars
who later studied uner Muhammad ibn al-Hasan in Baghdad.
Muhammad ibn al-Hasan also accepted appointment as
Qadee during the reign of Caliph Haroon ar-Rasheed, but soon gave
it up because of the many compromises which it demanded, and
returned to his teaching post in Baghdad.
Followers of the Hanafee Madh-hab
Those who now follow the Hanafee Madh-hab are found
mostly in India, Afghanistan, Pakistan, Iraq, Syria, Turkey, Guyana,
Trinidad, and Surinam and to some extent Egypt. When the ottoman
rulers codified Islamic law according to the Hanafee Madh-hab in
the nineteenth century CE and made it state law, any scholar who
aspired to be a judge was obliged to learn it. As a result, the Madh-
hab spread throughout the Ottoman Islamic State during the last Part
of the nineteenth century.
THE AWZAA’EE MADH-HAB
The founder: Imaam al-Awzaa’ee (708-774 CE)
131
Waleeallaah ad-Dahlawee, al-Insaaf fee Bayaan Asbaab al-Ikhtilaaf,
(Beirut, Lebanon: Daar an-Nafaais, 2nd
ed. 1978), p. 39.

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This Madh-hab is named after the Syrian scholar ‘Abdur-
Rahman ibn al-Awzaa’ee who was born in Ba’labek in the year 708
CE. He became known as one of the major scholars of Hadeeth of
the eighth century CE and was opposed to the excessive use of
Qiyaas and other forms of reasoning in cases where clear texts from
the Qur’aan and or Sunnah were available. Imaam Awzaa’ee spent
most of his life in Beirut, eventually dying there in the year 774 CE,
but his Madh-hab became widespread in Syria, Jordan, Palestine and
Lebanon as well as in Spain.
Reasons For The Madh-hab’s Disappearance
His Madh-hab remained the main school of thought in Syria
until the tenth century CE, when Abu Zar’ah Muhammad ibn
‘Uthmaan of the Shaafi’ee Madh-hab was appointed judhe of
Damascus. Abu Zar’ah began the practice of giving a prize of one
hundred dinars to any student who memorized the book, Mukhtasr
al-Muzanee, ( a basic book of Shaafi’ee Fiqh). Naturally, this
practice caused the Shaafi’ee Madh-hab to spread rapidly in Syria
and the number of Awzaa’ee’s followers continued to dwindle until
the eleventh century when none were to be found.132
However, his
contributions to the science of Fiqh were recorded and remain to this
day in most of the books of comparative Fiqh.
THE MAALIKEE MADH-HAB
The Founder: Imaam Maalik (717-801 CE)
The founding scholar of this Madh-hab, Maalik ibn Anas ibn
‘Aamir, was born in Madeenah in the year 717 CE. His grandfather,
‘Aamir, was among the major Sahaabah of Madeenah. Maalik
studied Hadeeth under az-Zuhree who was the greatest Hadeeth
scholar of his time as well as under the great Hadeeth narrator,
Naari’, the freed slave of the Sahaabee ‘Abdullah ibn ‘Umar.
Maalik’s only journeys outside of Madeenah were for Hajj, and thus
he largely limited himself to the knowledge available in Madeenah.
132
al-Madkhal, p. 205-6. See also ‘Abdullaah Muhammad al-Jabooree,
Fiqh al-Imaam al-Awzaa’ee, (Iraq: Matba’ah al-Irshaad, 1977).

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He was severely beaten in the year 764 CE by the order of the Ameer
of Madeenah, because he made a legal ruling that forced divorce was
invalid. This ruling opposed the ‘Abbaasid rulers’ practice of adding
in the oath of allegiance given to them by the masses the clause that
whoever broke the oath was automatically divorced. Maalik was tied
and beaten until his arms became severely damaged to such a degree
that he became unable to clasp them on his chest in Salaah and thus
he began the practice of praying with his hands at his sides according
to some reports.
Imaam Maalik continued to teach Hadeeth in Madeenah over
a period of forty years and he managed to compile a book containing
Hadeeths of the Prophet (s.w.) and Athars of the Sahaabah and their
successors which he named al-Muwatta’ (the Beaten Path). He began
his compilation of Hadeeths at the request of the ‘Abbaasid caliph,
Abu Ja’far al-Mansoor, (754-775 CE) who wanted a comprehensive
code of law based on the Prophet’s (s.w.) Sunnah which could be
applied uniformly throughout his realm. But, on its completion,
Maalik refused to have it forced on the people pointing out that the
Sahaabah had scattered throughout the Islamic empire and had taken
with them other parts of the Sunnah which also had to be considered
in any laws imposed throughout the state. Caliph Haaroon ar-
Rasheed (768-809 CE) also made the same request of the Imaam, but
he was also turned down. Imaam Maalik died in the city of his birth
in the year 801 CE at the venerable age of 83.133
Formation of the Maalikee Madh-hab
Imaam Maalik’s method of teaching was based on the
narration of Hadeeths and the discussion of their meanings in the
context of problems of that day. He would either narrate to his
students Hadeeths and Athars (statements of the Sahaabah) on
various topics of Islamic law then discuss their implications, or he
would inquire about problems which had arisen in the areas from
whence his students came, then narrate appropriate Hadeeths or
Athars which could be used to solve them.
133

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After Maalik completed al-Muwatta’, he used to narrate it to
his students as the sum total of his Madh-hab, but would add or
subtract from it slightly, whenever new information reached him. He
used to strictly avoid speculation and hypothetical Fiqh and thus his
school and its followers were reffered to as the people of Hadeeth
(Ahl al-Hadeeth).
Sources of Law Used by the Maalikee Madh-hab
Imaam Maalik deduced Islamic law from the following
sources which are listed in the order of their importance.
1. The Qur’aan
Like all the other Iaams, Maalik considered the Qur’aan to be the
primary source of Islamic law and utlized it without laying any
pre-conditions for its applications.
2. The Sunnah
The Sunnah was used by Imaam Maalik as the second most
important source of Islamic law, but, like Abu Haneefah, he put
some restrictions on its use. If a Hadeeth were contradicted by
the customary practice of the Madeenites, he rejected it. He did
not, however, insist that a Hadeeth be Mash-hoor (well-known)
before it could be applied as Abu Haneefah did. Instead he used
any Hadeeth that was narrated to him as long as none of the
narrators were known liars or extremely weak memorizers.
3. ‘Amal (practices) of the Madeenites
Imaam Maalik reasoned that since many of the Madeenites were
direct descendants of the Sahaabah and Madeenah was where the
Prophet (s.w.) spent the last ten years of his life, practices
common to all Madeenites must have been allowed, if not
encouraged by the Prophet (s.w.) himself. Thus, Imaam Maalik
regarded common Madeenite practices as a form of highly
authentic Sunnah narrated in deeds rather than words.134
134
Muhammad Abu Zahrah, Taareekh al-Madhaahib al-Islaameeyah,
(Cairo: Daar al-Fikr al-‘Arabee,n.d.) vol. 2, pp. 216, 217.

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Maalik like Abu Haneefah considered the Ijmaa’ of the
Sahaabah, as well as that of later scholars, as the third most
important source of Islamic law.
5. Individual Opinion of the Sahaabah
Imaam Maalik gave full weight to the opinions of the Sahaabha,
whether they were conflicting or in agreement, and included
them in his book of Hadeeth, al-Muwatta’. However, the
consensus of the Sahaabah was given precedence over individual
opinions of the Sahaabah. Where there was no consensus, their
individual opinions were given precedence over his own opinion.
6. Qiyaas
Maalik used to apply his own deductive reasoning on matters not
covered by the previously mentioned sources. However, he was
very cautious about doing so because of the subectivity of such
forms of reasoning.
7. Customs of the Madeenites
Imaam Maalik also gave some weight to isolated practices found
among a few people of Madeenah so long as they were not in
contradiction to known Hadeeths. He reasoned that such
customs, though occurring only in isolated instances, must also
have been handed down from earlier generations and sanctioned
by the Sahaabah or even the prophet (s.w.) himself.
8. Istislaah (Welfare)
The principle of Istihsaan developed by Abu Haneefah was also
applied by Maalik and his students except that they called it by
the name Istislaah which means seeking that which is more
suitable. It deals with things which are for human welfare but
have not been specifically considered by the Sharee’ah. An
exaple of Istislaah is found in Caliph ‘Alee’s ruling that a whole
group of people who took part in a murder were guilty even
though only one of the group had actually committed the act of
murder. Another example is the right of a Muslim leader to
collect taxes from the rich other than Zakaah if the interest of the
state demands it, whereas in Sharee’ah only Zakaah has been
specified. Imaam Maalik also applied the principle of Istislaah to
deduce laws more in keeping with needs which arose from
current situations than those deduced by Qiyaas.
9. ‘Urf (Custom)
Like Abu Haneefah, Maalik considered the various customs and
social havits of people throughout the Muslim world as possible

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sources of secondary laws as long as they did not contradict
either the letter or the spirit of the Sharee’ah.135
According to custom in Syria, for example, the word Daabbah
means a horse, whereas its general meaning in Arabic is four
legged animal. Hence, a contract made in Syria requiring
payment in the form of a Daabbah would legally mean a horse
whereas elsewhere in the Arab world it would have to be more
clearly defined as a horse.
Main students of the Maalikee Madh-hab
The most notable of Maalik’s students who did not later
form their own Madh-habs were al-Qaasim and Ibn Wahb.
Abu ‘Abdur-Rahmaan ibn al-Qaasim (745-813 CE)
Al-Qaasim was born in Egypt but travelled to Madeenah
where he studied under his teacher and mentor for a period of more
than twenty years. He wrote an extensive book on the Fiqh of the
Madh-hab, eclipsing even al-Muwatta’ of Maalik himself and called
it al-Mudawwanah.
Abu ‘Abdillaah ibn Wahb (742-819 CE)
Ibn Wahb also travelled from Egypt to Madeenah in order to
study under Imaam Maalik. He distinguished himself in th deduction
of laws to such a degree that Maalik gave him the title of al-Muftee,
which means the official expounderof Islamic law.
Ibn Wahb was offered an appointment as judge of Egypt, but
turned it down in order to maintain his integrity as an independent
scholar.136
Maalik had other famous students from other madh-habs.
Some of them modified their own Madh-habs based on what they
135
136

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learnt from Maalik, for example, Muhammad ash-Shaybaanee who
was among the foremost students of Abu Haneefah. There were
others who developed their own Madh-habs by combining Maalik’s
teachings with that of others, for example Muhammad ibn Idrees
ash-Shaafi’ee who studied for many years under Imaam Maalik as
well as under Abu Haneefah’s student Muhammad as-Shaybaanee.
Followers of the Maalikee Madh-hab
Today, the followers of this Madh-hab are found mostly in
Upper Egypt, Sudan, North Africa (Tunisia, Algeria and Morocco),
West Africa (Mali, Nigeria, Chad, etc) and the Arabian Gulf states
(Kuwait, Qatar, and Bahrain).
THE ZAYDEE MADH-HAB
The Founder: Imaam Zayd (700-740 CE)
This Madh-hab traces its origin to one of ‘Alee ibn Abee
Taalib’s great grandsons through his son al-Husayn. Imaam Zayd’s
father, ‘Alee Zayn al-‘Aabideen, was well known for his great legal
knowledge and his narration of Hadeeths. Born in al-Madeenah in
the year 700 CE, Zayd ibn ‘Alee soon became one of the foremost
scholars of the ‘Alawee family. He narrated Hadeeths from all of his
relatives including his older brother, Muhammad al-Baaqir.137
Zayd
expanded his knowledge by travelling to the other major centers of
learning in Iraq, Kufah, Basrah and wasit, where he sat and
exchanged views with his contemporaries like Abu Haneefah and
Sufyaan ath-Thawree.
The Umayyad caliph, Hishaam ibn ‘Abdul-Malik (reign 724-
743 CE) never missed an opportunity to degrade and humiliate the
‘Alawee family and Zayd ibn ‘Alee was often singled out for abuse.
He was not allowed to leave the city of Madeenah without the
permission of its governor and his repuests for permission were often
turned down repeatedly. Eventually, Zayd became the first of ‘Alee’s
descendants to try to wrest the caliphate from the Umayyads after the
catstrophe at Karbalaa. He travelled sectetly to Kufah where he was
137
The fifth of the twelve Imaams odolized by the Shi’ite Twelver sect.

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joined by the Shi’ites of Iraq, Wasit and other places, and made
preparation to do battle with the Umayyads. A number of his
relatives warned him against depending on the Kufans, as it was their
betrayal of Imaam Husayn which led to his untimely death, but he
did not heed their warnings. Before his preparations were complete,
disputes arose among his new followers when they found out that he
did not consider the first caliphs, Abu Bakr and ‘Umar, to be
apostates who stole the caliphate from his grandfather. The majority
of his followers broke away from him and declared his nephew,
Ja’far as-Sadiq, to be the Imaam of the time instead of Zayd.
Hishaam’s army took advantage of the confusion and made a
surprise attack on Kufah. Only a little more than four hundred
followers rallied to Imaam Zayd’s side and he was killed during the
fighting which ensued.138
Formation of the Zaydee Madh-hab
Imaam Zayd was a scholar concerned mainly with the
narration of Hadeeths and recitation of the Qur’aan. He taught in
circles of learning in the cities of Madeenah, Basrah, Kufah and
Wasit, and thus had a large number of students. The method used by
Zayd was that of narrating Hadeeths and teaching the art of Qur’anic
recitation. If legal questions were raised, he would solve them or
choose an opinion of one of his contemporaries like the jurist
‘Abdur-Rahman ibn Abee Laylaa. The rulings of the Madh-hab were
not dictated nor recorded by Zayd himself; but by his students.
Sources of Law used by the Zaydee Madh-hab
The jurists of the Madh-hab evolved the following Sources from
Imaam Zayd’s rulings as the basis from which they deduced Islamic
laws.
1. The Qur’aan
The Qur’aan was considered the primary source of Islamic law.
The existing cop0y of the Qur’aan was considered to be
138
Taareekh al-Madhaahib al-Islaameeyah, vol. 2 pp. 749-793.

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complete without any of the deletions claimed by many
extremist Shi’ite sects.
2. The Sunnah
The sayings, actions and approvals of the Prophet (s.w.) were
considered the second most important source of Islamic law. The
Sunnah was not restricted to narrations of the ‘Alawee family or
their followers, but included all reliable narration.
3. Aqwaal ‘Alee
Rulings and statements of ‘Alee ibn Abee Taalib which were not
merely his personal opinions were considered by Imaam Zayd to
be a part of the Sunnah. That is, If ‘Alee did not say or imply
that it was his opinion, then Zayd assumed that it was from the
Prophet (s.w.). However, Zayd did not accept everything
attributed to ‘Alee and somethimes made rulings contrary to
what were claimed to be ‘Alee’s rulings. For example, it is
reported that ‘Alee ruled that Zakaah could be collected from
orphans while Zayd ruled that it could not.
Zayd recognized the Ijmaa’ of the Sahaabah as a source of
Islamic law. Hence, although he felt that his grandfather was
better suited for leadership than Caliphs Abu Bakr, ‘Umar, and
‘Uthmaan, the unanimous acceptance of their caliphate by the
Sahaabah made it, in his opinion, legally binding.
5. Qiyaas
According to the jurists of this Madh-hab, both the principles of
Istihsaan and that of Istislaah involved a form of analogical
deduction. Consequently, they considered them a part of what
was known a Qiyaan in the other Madh-hab
6. ‘Aql
Human intellect was considered as a source of Islamic law in ce
where none o the previous sources was applicable. As a youth,
Imaan Zayd had met and studied under Waasil ibn ‘Ataa,
founder of the Mu’tazilite school of thought. The Mu’tazilites
were the first to propound the principle of ‘Aql; whatever, the
intellect considered good was good and whatever it consedered
bad was bad. However, according to the Mu’taziah, ‘Aql came
directly after the Qur’aan and Sunnah, and thus they rejected

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Qiyaas, as well as the opinions of the Sahaabah,139
whereas
Imaam Zayd placed the principle of ‘Aql last and recognized
Qiyaas.
Main Students of the Zaydee Madh-hab
Imaam Zayd’s students recorded the Madh-hab. However,
they also included the rulings of others scholars form the ‘Alawee
family as well as Zayd’s contemporaries.
Abu Khaalid, ‘Amr ibn Khaalid al-waasitee (d.889 CE)
‘Amr ibn hai was perhaps the most famous of Imaam Zayd’s
students. He spent a long time with him in Madeenah and
accompanied him on most of his journeys. ‘Amr compiled Imaam
Zayd’s teaching in two major works entitled Majmoo’ al-Hadeeth
and Mjmoo’ al-Fiqh. Together they are called al-Majmoo’ al-
Kabeer. Although all of the Hadeeth narrations in Majmoo’ al-
Hadeeth are from the ‘Alawee family they all have corresponding
narrations in the famous six books of Hadeeth.
Al-Haadee elaa al-Haqq, Yahyaa ibn al-Husayn (860-911 CE)
The Zaydees did not restrict themselves to the rulings of the
Husaynee side of the ‘Alawee family. Hence, the opinions of al-
Qaasim ibn Ibraaheem al-Hasanee (787-857 CE), who became
renowned for his scholarship, were also included in the rulings of the
Zaydee Madh-hab. However, al-Qaasim’s grandson, al-Haadee elaa
al-Haqq, who was made the Imaam of Yemen, made an even greater
impact on the Madh-hab. An Islamic state was set up in Yemen
according to the Zaydee Madh-hab which gave it a firm footing and
ensured its survival till today.
Al-Hasan ibn ‘Alee al-Husaynee (845-917 CE)
139
Tareekh al-Mdhaahib al-Islaameeyah, vol. 2, p. 516.

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Al-Hasan, known as an-Naasir al-Kabeer, was a contemporaryof al-
Haadee. He taught the Zaydee Madh-hab in Dailam and Jeelan. He
was a great scholar and its considered by his successors as the
reviver of the Madh-hab.140
Followers of the Zaydee Madh-hab
Today, the followers of this Madh-hab are mostly found in
Yemen where it is the Madh-hab of the Majority of its inhabitans.
THE LAYTHEE MADH-HAB
The founder: Imaam al-Layth (716-791 CE)
This Madh-hab was named after al-Layth ibn Sa’d who was
born in Egypt of Persian parentage in the year 716 CE. After an
extensive study of all the then known areas of Islamic learning, al-
Layth became the major scholar of Egypt. He was contemporary of
both Imaam Abu Haneeah and Imm Maalik. In fact he carried on a
debate with Imaam Maalik by mail on various points of Islamic law,
one of which was Maalik’s inclusion of Madeenite custom as an
independent source of Islamic law.
Reasons for the Madh-hab’s Disappearance
Imaam al-Layth’s Madh-hab disappeared shortly after his
death in 791 CE for the following reasons:
(a) He neither, compiled, dictated, nor instructed his followers to
record his legal opinions and their proofs according to his
interpretations of the Qur’aan, Sunnah and legal positions of the
Sahaabah. Thus, very little remains of his Mdh-hab beyond a few
references in the early books of comparative Fiqh.
(b) The number of students under al-Layth was small and since
none of them became outstanding jurists, they were not in an
influential position to popularize his Madh-hab.
140
Taareekh al-Madhaahib al-Islaameeyah, vol. 2,pp. 525.

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(c) Ash-Shaafi’ee, one of the most outstanding Fiqh scholars, settled
in Egypt Immediately after al-Layth’s death and his Madh-hab
quickly displaced of al-Layth.
It is interesting to note that Imaam ash-Shaafi’ee who had
studied extensively under Maalik and under al-Layth’s students was
reported to have observed that al-Layth was a greater jurist than
Maalik, but his students neglected him.141
THE THAWREE MADH-HAB
The founder: Imaam ath-thawree (719-777 CE)
Imaam Sufyaan ath-Thawree was born in Kufah in the year
719 CE, and after an extensive study of Hadeeth and Fiqh became
the main Fiqh scholar of the Hadeeth school in Kufah. He held
similar views to those of his contemporary, Abu Haneefah, however
he opposed the latter’s use of Qiyaas and Istihsaan.
There occurred between Imaam Sufyaan and officials of the
‘Abbaasid state a series of confrontations due to his outspoken nature
and his refusal to support state policies which contradicted the
Sharee’ah. Caliph al-Mansoor (rule 759-744 CE) Sent a letter to
Imaam ath-Thawree requesting him to accept the post of Qaadee of
Kufah on condition that he not make any judgement or ruling in
opposition to the state policy. On receipt of the letter, Sufyaan tore it
up and threw it into the Tigris river in disgust, but, as a result, he was
forced to give up his teaching and flee for his life. He remained in
hiding until he died in the year 777 CE.
Reasons For The Madh-hab’s Disappearance
The two main factors are as follows:
(a) The Imaam spent the greater part of his life in hiding and thus
was unable to attract a large number of students who might
subsequently spread his opinions in the circles of learning.
141
al-Madkhal, p. 205.

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(b) Although he did carry out some fairly extensive compilation of
Hadeeths and their interpretations, he requested in his will that
his main student, ‘Ammaar ibn Sayf, erase all his writings and
burn whatever could not be erased. ‘Ammaar dutifully destroyed
his teacher’s writings, but many of the Imaam’s ideas were
recorded by students of other Imaas, so they have survived till
today but not in an organized form.142
THE SHAAFI’EE MADH-HAB
The founder: Imaam Ash-Shaafi’ee (769-820 CE)
The full name of the scholar after whom this school of legal
thought has been named was Muhammad ibn Idrees ash-Shaafi’ee.
He was born in the town Ghazzah on the Mediterranean coast of
what was then known as Shaam in the year 796 CE, but travelled to
Madeenah in his youth to study Fiqh and Hadeeth under Imaam
Maalik. He succeeded in memorizing the whole of Maalik’s book,
al-Muwatta’, and recited it to him from memory, word perfect.
Ash-Shaafi’ee remained under Maalik until the latter died in
801 CE. Then he went to Yemen and taught there. He remained there
until he was accused of Shi’ite leanings in the year 805 CE and
brought as a prisoner before the ‘Abbaasid Caliph, Haroon ar-
Rasheed (rule 786-809 CE) in Iraq. Fortunately, he was able to prove
the correctnes of his beliefs and was subsequently released. Ash-
Shaafi’ee remained in Iraq and studied for a while under Imaam
Muhammad ibn al-Hasan, the famous student of Abu Haneefah.
Later he traveled to Egypt in order to study under Imaam
Muhammad ibn al-Hasan, the famous student of Abu Haneefah.
Later he travelled to Egypt in order to study under Imaam al-Layth,
but by the time he reached there the Imaam had passed away.
However, he was able to study the Madh-hab of al-Layth from al-
Layth’s students. Ash-Shaafi’ee remained in Egypt until his death in
142
al-MaMadkhal, pp. 206-7.

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the year 820 CE during the rule of the Caliph al-Mamoon (rule 813-
832 CE).143
Formation of the Shaafi’ee Madh-hab
Imaam ash-Shaafi’ee combined the Fiqh of Hijaaz (Maalikee
thought) with that of Iraq, (Hanafee thought) and created a new
Madh-hab which he dictated to his students in the form of a book
called al-Hujjah (The Evidence). This dictation took place in Iraq in
the year 810 CE and a number of his students memorised his book
and narrated it to others. This book and period of his scholarship are
usually referred to as al-Madh-hab al-Qadeem (the old school of
thought) to differentiate it from the second period to his scholarship
which occurred after he reached Egypt. In Egypt he absorbed the
Fiqh of Imaam al-Layth ibn Sa’d and dictated al-Madh-hab al-
Jadeed (the new school of thought) to his students in the form of
another book which he named al-Umm (he Essence). Because of his
exposure to a completely new set of Hadeeths and legal reasoning, in
al-Madh-hab al-Jadeed, he reversed many of the legal positions
which he had held while in Iraq. Imaam ash-Shafi’ee holds the
distinction of being the first Imaam to systematize the fundamental
principles of Fiqh which he recorded in his book called ar-Risaalah.
Sources of Law Used by the Shaafi’ee Madh-hab
1. The Qur’aan
Ash-Shaafi’ee did not differ from the previously mentione
Imaams, in their uncompromising stand in relation to the
primacy of the Qur’aan among the sources of Islamic law. He
frlied on it as heavily as those before him adding only the new
insights which he gained from a deep study of its meaning.
2. The Sunnah
143
Among these students were Ahmed ibn Hambal, founder of the
Hambalee Madh-hab and Abu Thawr founder of the Abu Thawr Madh-hab.

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Imaam ash-Shaafi’ee laid down only one condition for the
acceptance of Hadeeths, namely that they be authentic (Saheeh).
He rejected all the other conditions set by Imaams Abu Haneefah
and Maalik. He was also noted for his great contributions to the
science of Hadeeth criticism.
3. Ijmaa’
Although ash-Shaari’ee had serious doubts about the possibility
of the Ijmaa’ in a number of cases, he conceded that in the few
cases where it was known to have occurred, it should be
regarded as the third most important source of Islamic law.
4. Individual Opinions of the Sahaabah
Credence was given by Imaam ash-Shaafi’ee to the individual
opinions of the Sahaabah on condition that they were not at
variace with each other. If there were conflicting opinions among
the Sahaabah on a legal point, he like Abu Haneefah, would
choose whichever opinion was the closest to the source and leave
the rest.
5. Qiyaas
Qiyaas was, in the Imaam’s opinion, a valid method for deducing
further laws from the previous sources. However, he placed it
last in order of importance, considering his personal opinions
inferior to proofs based on the opinions of the companions.
6. Istis-haab (Linking)
Both the principle Istihsaan used by Abu Haneefah and Istislaah
used by Maalik were rejected by ash-Shaafi’ee and considered a
form of Bid’ah (innovation), since, in his opinion, they were
based nostly on human reasoning in areas where revealed laws
already existed. However, in dealing with similar issues ash-
Shaafi’ee was obliged to use a principle similar to Istihsaan and

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Istislaah which he called istis-haab.144
Istis-haab literally means
seeking a link, but legally it refers to the process of deducing
Fiqh laws by linking a later set of circumstances with an earlier
set. It is based on the assumption that the Fiqh laws applicable to
certain conditions remain valid so long as it is not certain that
these conditions have altered. If, for example, on account of the
long absence of someone, it is doubtful whether he is alive or
dead, then by Istis-haab all rules must remain in force that would
hold if one knew for certain that he was still alive.
Main students of Shaafi’ee Madh-hab
The most important of Imaam ash-Shaafi’ee’s students who
contunued to follow his school of thought were: al-Muzanee, ar-
Rabee’ and Yoosuf ibn Yahyaa.
Al-Muzanee (791-876 CE)
Al-Muzanee’s full name was Imaa’eel ibn Yahyaa al-
Muzanee. He was the constant companion of Imaam ash-Shaafi’ee
throughtout his stay in Egypt. Al-Muzanee was noted for writning a
book which comprehensively gathered the Fiqh of ash-Shaafi’ee.
Later condensed under the title Mukhtasal al-Muzanee, it became
the most widely read Fiqh book of the Shaafi’ee Madh-hab.
Ar-Rabee’ Al-Maraadee (790-873 CE)
Ar-Rabee’ was noted as the main narrator of ash-Shaafi’ee’s
book al-Umm. He wrote it down during Imaam ash-Shaafi’ee’s
lifetime along with ar-Rasaalah and other books.
Yoosuf ibn Yahyaa al-Buwaytee
Yoosuf ibn Yahyaa succeeded ash-Shaafi’ee as the main
teacher of the Madh-hab. He was imprisoned and tortured to death in
144
Al-Madkhal, pp

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Baghdad because he rejected the officially sanctioned Mu’tazilite
philosophy on the creation of the Qur’aan.145
Followers of the Shafafi’ee Madh-hab
The majority of the followers of the Shaafi’ee Madh-hab are
now to be found in Egypt, Southern Arabia, (Yemen, Hadramout),
Sri Lanka, Indonesia, Malaysia, and East Africa (Kenya, Tanzania)
and Surinam in South America.
The Hambalee MADH-HAB
The Founder: Imaam Ahmad (778-855 CE)
The scholar to whom this Madh-hab is attributed is Ahmad
ibn Hambal ash-Shaybaanee, who was born in Baghdad in the year
778 CE. He became one of the greatest memorizers and narrators of
Hadeeth of his time. Concentrating on the study of Hadeeth, Ahmad
studied Fiqh and Hadeeth science under Imaam Abu Yoosuf, the
famous student of Abu Haneefah, as well as under Imaam ash-
Shaafi’ee himself. Imaam Ahmad went through a series of
persecutions under the caliphs of his time due to their adoption of
Mu’tazilite philosophy. He was jailed and beaten for two years by
order of Caliph al-Ma’moon (rule 813-842 CE), because of his
rejection of the philosophical concept that the Qur’aan was created.
Later set free, he continued teaching in Baghdad until al-Waathiq
became caliph (rule 842-846 CE) and renewed the persecution.
Thereupon, Imaam Ahmad stopped teaching and went into hiding for
five years until Caliph al-Mutawakkil (847-862 CE) took over.
Caliph al-Mutawakkil ended the inquisition permanently by
expelling the Mu’tazilite scholars and officially rejecting their
philosophy. Ahmad continued to teach in Baghdad until he died in
the year 855 CE.
Formation of the Hamblee Madh-hab
145
Bozena Gajanee Strzyzewska, Taareekh at-Tashree’ al-Islaamee, (Beirut,
Lebanon: Daar al-Aafaaq al-Jadeedah, 1st
ed. 1980), pp. 175, 176.

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Imaam Ahmad’s greatest concern was the collection,
narration, and interpretation of Hadeeth. His teaching method
consisted of dictating Hadeeths from his vast collection known as al-
Musnad, which contained over 30,000 Hadeeths, as well as the
various opinions of the Sahaabah concerning their interpretation. He
would then apply the Hadeeths or rulings to various existing
problems. If he could not find a suitable Hadeeth or opinion to solve
a problem, he would offer his own opinion while forbidding his
students to record any of his own solutions. As a result, his Madh-
hab was recorded, not by his students but by their students.
Sources of Law Used by the Hambalee Madh-hab
1. The Qur’aan
There was no difference between the way Ahmad ibn Hambal
approached Qur’aan and that of those who preceded him. In
other words, the Qur’aan was given precedence over all else
under all circumstances.
2. The Sunnah
LIkewise, the Sunnah of the Prophet (s.w.) occupied the number
two position among the fundamental principles used by the
foiunder of this school in the deduction of laws. His only
stipulation was that it be Marfoo’, i.e. attributed directly to the
Prophet (s.w.).
Imaam Ahmad recognized the consensus of opinion of the
Sahaabah, and placed it in the third position among the
fundamental principles. However, he discredited the claims of
Ijmaa’ out side the era of the Sahaabah as being inaccurate, due
to the vast number of scholars and their wide diffusion
throughout the Muslim empire. In his opinion Ijmaa’ after the
era of the Sahaabah was impossible.
4. Individual Opinions of the Sahaabah

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If a problem arose in an area where the Shaabah had expressed
conflicting opinions, Ahmad, like Maalik, would give credence
to all the various individual opinions. Because of that, there
developed within the Madh-hab many instances of multiple
rulings for individual issues.
5. Hadeeth Da’eef (Weak Hadeeth)
For a ruling on a case where none of the previous four principes
offered a ready solution, the Imaam used to prefer to use a weak
Hadeeth rather than applying his own deductive reasoning
(Qiyaas). However, this was on condition that the weakness of
the Hadeeth was not due to the fact that one of its narrators was
classified as a Faasiq (degenerate), as a Kadh-dhaab (liar).
6. Qiyaas
As a last resort, that is when no other major principle could be
directly applied, Ahmad would reluctantly apply the principle of
Qiyaas and deduce a solution based on one or more of the
previous principles.146
Main Students of the Hambalee Madh-hab
Imaam Ahmad’s main students were his own two sons,
Saalih (died 873 CE) and ‘Abdullaah (died 903 CE). Imaam
Bukhaaree and Muslim, compilers of the most outstanding
collections of Hadeeth, were among the great scholars of Hadeeth
who studied under Imaam Ahmad.147
Followers of the Hambalee Madh-hab
The majority of the followers of this Madh-hab can now be
found in Paledtine and Saudi Arabia. Its suvival in Saudi Arabia,
after almost completely dying out elsewhere in the Muslim world, is
due to the fact that the founder of the so called Wahhab, had studied
146
147
Taareekh al-Madhaahib al-Islaameeyah, vol. 2, pp. 339-340.

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under scholars of the Hambalee Madh-hab, and thus it unofficially
became the Fiqh Madh-hab of the movement. When ‘abdul- ‘Azeez
ibn Sa’oud captured most of the Arabian peninsula and established
the Saudi dynasty, he made the Hambalee Madh-hab the basis of the
kingdom’s legal system.
THE DHAAHIREE MADH-HAB
The Founder: Imaam Daawood (815-883 CE)
The founder of this school of thought, Daawood ibn ‘Alee,
was born in Kufah in the year 815 CE. His early Fiqh studies were
under Imaam ash-Shaafi’ee’s students, but he later inclined towards
the study of Hadeeth and joined the Hadeeth circle of Imaam Ahmad
ibn Hambal. He continued to study under Ahmad until he was
expelled from Ahmad’s classes because he voiced the opinion that
the Quraan was Muhdath (newly existent) and therefore created.
After his expulsion, he took and independent path of reasoning based
on the obvious and literal meanings (DHaahir) of the texts of the
Qur’aan and the Sunnah. Because of this approach, his Madh-hab
was called the DHaahiree Madh-hab and he became known as
Daawood adH-DHaahiree.148
The Qur’aan and the Sunnah
Like all of the other Imaams, Daawood considered the
Qur’aan to be the foremost source of Islamic law follwed by the
Sunnah. However, only literal interpretations of their texts were
insidered by him to be valid . that is, they were only to be applied in
the particular circumstances which they described.
Ijmaa’ of the Sunnah
148
Taareekh at-Tashree’ al-Islaamee, pp. 181, 182.

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Imaam Daawood gave credence to the Ijmaa’ of the
Sahaabah, He reasoned that their unanimity would only have been on
points of law revealed to the Prophet (s.w.) and known to the
Sahaabah, but not narrated as Hadeeths for some reason or other.
There fore, the Ijmaa’ of the Sahaabah were not considered by himas
resulting from reasoning (Qiyaas).
Qiyaas
Since Imaam Daawood limited the application of the
Qur’aan and the Sunnah to their literal meaning, he automatically
denied the validity of rulings based on any form of reasoned opinion,
including Qiyaas.149
However, the principle of Mafhoom (understood
meaning) which he applied to the Qur’aan and Sunnah in place of
Qiyaas turned out to be virtually indistinguishable from Qiyaas
(analogical deduction)150
Main Students of the DHaahiree Madh-hab
Due to the limited scope of the DHaahiree Madh-hab and the absense
of outstanding scholars to pass on its principles and rulings, it did not
last very long. In fact, it did not get a foothold in any area of the
Muslim empire during Imaam Daawood’s lifetime, nor in the century
and a half which followed his death.
In later times, all scholars who denied the validity of Qiyaas
were labelled as DHaahirees, even though they had not actually
studied under Daawood or his students, or even read their works.
The most noted student of the DHaahiree Madh-hab was a
brilliant 11th
century CE Spanish scholar named ‘Alee ibn Ahmad
ibn Hazm al-Andaloosee (died 1070 CE). Ibn Hazm revived this
1
al-Madkhal, p. 206.
150
J.H. Kramers and H.A.R. Gibb, Shorter Encycopedia of Islam, (Cornell
University Press,Ithaca, New York, 1953) p. 266.

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Madh-hab and defended it in the numerous outstanding works which
he wrote in various fields of Islamic study; for example, Ihkaam al-
Ahkaam in the field of Usool al-Fiqh, al-Fisal in theology and al-
Muhallaa in Fiqh. Due to Ibn Hazm’s tireless efforts, the Madh-hab
took hold in Islamic Spain where it flourished, and from there it
spread to some areas of North Africa and elsewhere. It remained
prevalent in Spain until the Islamic State began to crumble there in
the early 1400’s. Whith the disappearance of the Muslim state of
Andalus, the Madh-hab also disappeared, leaving behind only a
number of scholarly writings, most of which were done by Ibn Hazm
himself.151
THE JAREEREE MADH-HAB
The founder: Imaam at-Tabaree (839-923 CE)
This Madh-hab was founded by Muhammad ibn Jareer ibn
Yazeed at-Tabaree who was born in the province of Tabaristan in the
year 839 CE. He acquired a high degree of proficiency in the fields
of Hadeeth, Fiqh, and history. As a travelling jurist, he studied the
systems of Imaam Abu Haneefah, Imaam Maalik, Imaam ash-
Shafi’ee and others. For the first ten years after his return from Egypt
he strictly followed the Shaafi’ee Madh-hab. At the end of that
period he founded a school of his own, whose followers called
themselves Jareerites after his father’s name. But his Madh-hab and
fell comparatively quickly into oblivion.
Ibn Jareer was most noted for his outstanding Tafseer of the
Qur’aan which he called Jaami’al-Bayaan, but which became
known as Tafseer at-Tabaree. Of equal importance and fame was
his history of the world called Taareekh ar-Rusul wal-Mulook,
commonly known as Taareekh at-Tabaree.152
Section Summary
151
Taareekh al-Madhaahib al-Islaameeyah, vol. 2, pp. 375-409.
152
Tareekh at-Tshree’ al-Islaamee, pp. 182, 183.

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1. The major Madh-habs were : the Hanafee Madh-hab, the
Maalikee Madh-hab, the Shaafi’ee Madh-hab, the Hambalee
Madh-hab, and the Zaydee Madh-hab. These survived largely
because of state support and a body of outstanding first
generation students.
2. The most important of the minor Madh-habs were: the Awzaa’ee
Madh-hab, the Laythee Madh-hab, the Thawree Madh-hab, the
DHaahiree Madh-hab and the Jareeree Madh-hab. These went
out of existence either because of political factors or because
their students failed to record the rulings of the founders for
posterity.
3. The principal sources of Islamic law agreed upon by all the
major Madh-habs were: the Qur’aan, the Sunnah, Ijmaa’ of the
Sahaabah and Qiyaas.
4. All of the major Madh-habs set conditions for the acceptance of
the Sunnah as a primary source of Islamic law:
(a) The Hanafee Madh-hab stipulated that the Hadeeth be
widely known (Mash-hoor).
(b) The Maalikee Madh-hab required that the Hadeeth not
contradict the Ijmaa’ of the Madeenites.
(c) The Shaafi’ee Madh-hab insisted that the Hadeeth be
authentic (Saheeh)
(d) The Hambalee Madh-hab only required that the Hadeeth be
attributed to the prophet (s.w.) and not fabricated. Thus,
Hadeeths of doubtful authenticity were considered a part of
the Sunnah.
5. The contoversial sources of Islamic were:
(a) Istihsaan and Ijmaa’ of scholars, held by the Hanafee Madh-
hab.
(b) Istislaah, Ijmaa’ of the Madeenites and their customs, held
by the Maalikee Madh-hab.
(c) ‘Urf, held by both the Hanafee and Maalikee Madh-hab.
(d) Weak Hadeeth held by the Hambaleee Madh-hab.
(e) Aqwaal ‘Alee (rulings and statements of the fourth righteous
caliph, ‘Alee), held by the Zaydee Madh-hab.

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6. MAIN REASONS FOR CONFLICTING RULINGS
We have seen that although the Imaams of the four major
Madh-habs were all agreed on the primacy of the four fundamental
priciples of Islamic law (the Qur’aan, the Sunnah, Ijmaa’and
Qiyaas), certain differences have occurred and still exist among the
rulings of their Madh-habs. These differences arose for various
reasons, the chief ones being related to the following aspects:
interpretation of ward meanings and grammatical constructions;
Hadeeth narrations (availability, authenticity, conditions for
acceptance, and interpretation of textual conflict); admissibility of
certain principles (Ijmaa’, customs of the Madeenites, Istihsaan, and
opinions of the Sahaabah); and methods of Qiyaas. Mention will be
made of the positions of the four existing Madh-habs where relevant.
1. WORD MEANINGS
The interpretational differences, which occurred over the
meanings of words, took three basic forms:
a) Shared Literal Meanings
There are a few words which occur in both the Qur’aan and
the Sunnah with more than one literal meanings; for
example, the word Qur (plural Quroo’ or Aqraa’), which
means menses as well as the time of purity between menses.
Thus, scholars of Fiqh were divided into two camps
concerning the interpretation of the Qur’anic verse,
“Divorced women should wait three Quroo’.”153
The particular interpretation chosen makes an important
difference when considering the case of a divorced woman
who has started her third menses. According to those who
considered Qur’ to be the period of purity, the divorce
becomes finalized as soon as her menses have started , while
according to those who viewed Qur’ as the actual menses, it
is not finalized until her third menses have ended.
153

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(i) Maalik, Ash-Shaafi’ee and Ahmad ruled that Qur’ meant
the period of purity.
(ii) Abu Haneefa, ruled that Qur’ meant the actual
menses.154
Note:
‘Aa’eshah said, “Umm Habeebah had irregualr menses
and she asked the Prophet (s.w.) about it. He told her to
stop praying during the days of her Qur’s.”155
‘Aa’eshah
was also reported to have said, “I told Bareerah to
observe a waiting period (‘Iddah) of three menses.”156
These narrations clearly indicate that the intended
meaning of Qur’ is the menses itself.
b) Literal and Figurative Meanings
There are also some words in the Qur’aan and the Sunnah
which have both literal and figurative meanings. For
example to word Lams (touch) is literally used to indicate
touching by the hand or the coming in contact of two
objects, and figuratively to indicate sexual intercourse. Thus,
the jurists were of three different opinions concernign the
meaning of the Qur’anic verse:
“… or you touched (Laamastum) women and can
not find water, then make Tayammum157
from
clean earth.”158
154
Abdullaah ‘abdul-Muhsin at-Tarki, Asbaab Ikhtilaaf al-Fuqahaa,
(Riyadh: Matba’ah as-Sa’aadah, 1st
ed. 1974), p. 190.
155
Collected by an-Nasaa’ee and Abu Daawood. See Ahmad Hasan, Sunan
Abu Dawud (English Trans.), (Lahore: SH. Muhammad Ashraf, 1984), vol.
1, p. 71. No. 285 this Hadeeth is also collected by Mulim (Sahih Muslim
(English Trans.), vol. 1, pp. 188-9, no. 652) with a variation in wording.
Abu Daawood and an-Nasaa’ee’s narrations are authenticated by al-
Albaanee in Irwaa al-Ghaleel (Beirut: al-Maktab al-Islaamee, 1st
ed., 1979),
vol. 7, p. 199, no. 2118.
156
Collected by Ibn Maajah and authenticated by al-Albaanee in Irwaa al-
Ghaleel, vol.7, p. 200, no. 2120.
157
Purificationwith dust in the absence of water.
158
Soorah an-Nisaa (4): 43 and Sorrah a-Maaidah (5): 6.

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This verse occurs in the context of the factors which
break the state of Wudoo.159
(i) Ash-Shaafi’ee and most of his students ruled that Lams
meant the touch of the hand or body contact. Therefore,
if a man intentionally of accidentally touche a woman or
vice versa, skin, then both of them would lose their state
of Wudoo.
(ii) Imaam Maalik and most of his students also ruled that
Lams meant touching by the hand. However, he
stupulated that Wudoo would only be broken if the touch
were pleasurable, whether the touch were intended or
unintended, skin on skin or otherwise. This was also the
most well known position of Imaam Ahmad. They took
the position that the dciding factor was the occurrence of
pleasure due to the existance of accurate Hadeeths
stating that the Prophet (s.w.) used to touch his wife
‘Aa’eshah’s foot in order to move it out of the way when
he was making Sujood (prostration during prayer).160
(iii)Imaam Abu Haneefah ruled that Lams in the verse under
consideration meant sexual intercourse and therefore,
touching a woman did not break Wudoo, whether it was
accompanied by a pleasurable feeling of not.161
This
position was based on the previously mentioned Hadeeth
of ‘Aa’eshah as well as another from her reported by the
Sahaabee, ‘Urwah, that the prophet (s.w.) kissed some of
his wives then left for Salaah without performing
Wudoo.162
159
A ritual state of purity stipulated as a precondition for certain acts of
worship.
160
Collected by al-Bukhaaree (Sahih Al-Bukhari (Arabic-English Trans.),
vol. 1, pp. 294-5, no. 498) and Abu Daawood (Sunan Abu Dawud, (English
Trans.), vol. 1, pp. 183-4, no. 712).
161
Biddayah al-Mujtahid, vol. 1, pp. 33-34.
162
Collected by Abu Daawood (Sunan Abu Dawud (English Trans.), vol. 1,
p. 43, no. 179), at-Tirmidhee, an-Nasaa’ee and Ibn Maajah, and
authenticated by al-Albaanee in Saheeh Sunan Abee Daawood (Beirut: at-
Maktab al-Islaamee, 1989;, vol. 1, p. 36, no. 165, as well as by Ahmad

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c) Gramatical Meanings
There were also certain grammatical constructions in Arabic,
which were ambiguous. For example, the word elaa (to)
could simply mean “up to but not including”, as in the case
of the Qur’anic verse,
“And complete the fast up to (elaa) the night.”163
The fast is continued up to Maghrib (sunset), the beginning
of the night, but does not include the night itself. There is no
dispute about this interpretation. However, elaa also means
“up to and including” as in the Qur’anic verse,
“And We will drive the guilty up to (elaa) Hell
like a weary herd.”164
Thus, Fiqh scholars held two opinions concerning the
meaning of the following Qur’anic verse describing an
aspect of the performance of Wudoo:
“… then wash your faces and your hands up to
(elaa) your elbows.”165
(i) Abu Hane4efah’s student Zufar, Ibn Daawood adh-
Dhaahiree166
and some of Maalik’s students
Shaakir in Jaami’ as-Saheeh, (Beirut: Daar al-Kutub al-‘Ilmeeyah, 1987),
vol. 1, pp. 133-134.
163
164
Soorah Maryam (19): 86.
165
166
Abu Bakr Muhammad (869-910 CE), the son of Imaam Daawood adH-
Dhaahiree.

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interpreted this verse to mean “up to but not
including the elbows.”167
(ii) The four Imaams all ruled that the verse meant “up
to and including the elbows.”168
This position is
supported by the description found in authentic
Hadeeths of the Prophet’s (s.w.) method of
performing Wudoo.169
2. NARRATIONS OF HADEETHS
The causes of legal differences, which developed among jurists
over the narration and application of Hadeeths may be
subdivided as follows:
a) Availability of Hadeeths
There were numerous cases where certain narrations of
Hadeeths, did not reach some of the scholars, due to the fact
that the Sahaabah who narrated them had settled in various
regions throughout the Islamic empire, and the major Madh-
habs were founded in different parts of the empire before the
comprehensive compilations of Hadeeths were made. To be
more specific, the Madh-hab of Abu Haneefah (702-767
CE), Maalik (717-855 CE), Ash-Shaafi’ee and Ahmad (778-
855 CE) were founded between the middle of the eighth
century CE and the early part of the ninth, whereas the most
authentic and comprehensive compilations of Hadeeth (the
167
Muhammad ibn ‘Alee ash-Shawkaanee, Nayl al-Awtar, (Egypt: al-
Halabee Press, last ed., n.d.), vol. 1, p. 168. See also Ibn Qudaamah’s, al-
Mughnee, (Cairo: Maktabah al-Qaahirah, 1968), vol. 1, p. 90.
168
al-Insaaf fee Bayaan Asbaab al-Ikhtilaaf, pp. 42, 43.
169
Nu’aym ib Abdullah al-Mujmir said, “I saw Abu Hurayrah performing
ablution. He washed his face completely, then he washed his right arm
including a portion of his upper arm…then he said: This is how I saw
Allaah’s Messenger (s.w.) make Wudoo” (collected by Muslim (English
Trans.), vol. 1, p. 156, no. 477).

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Sound Six170
) were not available until the latter5 part of the
ninth century and the early decades of the tenth.
(i) Abu Haneefah ruled that Istisqaa (prayer for rain) did not
include formal congregational prayer (Salaah). His
position was based on the narration of Anas ibn Maalik
in which the Prophet (s.w.), on an occasion, made a
spontaneous Du’aa (supplication) for rain without
making Salaah.171
(ii) However, his students Abu Yousuf and Muhammad and
the other Imaams all agreed that Salaah for Istisqaa was
correct.172
Their position was based on the narration of
‘Abbaad ibn Tameem and others in which the Prophet
(s.w.)was reported to have gone out to the prayer area,
made Du’aa for rain facing the Qiblah (direction of
Makkah), reversed his cloak and led the people in two
units of Salaah.173
b) Weak Narrations of Hadeeths
There were cases where some jurists based their rulings on
Hadeeths which were in fact Da’eef (weak and unreliable),
because they were unaware of the unreliability of those
Hadeeths or because they took the position that a weak
Hadeeth was to be preferred to their Qiyaas (analogical
deduction)174
. For example,
(i) Imaam Abu Haneefah, his companions and Imaam
Ahmad ibn Hambal all held that the state of Wudoo
is broken by vomiting basing their ruling on a
Hadeeth attributed to ‘Aa’eshah in which she
170
The Hadeeth books of Bukhaaree, Muslim, Abu Daawood, at-Tirmidhee,
an-Nasaaee and Ibn Maajah.
171
Collected by Muslim (Sahih Muslim (English Trans.), vol. 1, pp. 423-4,
no. 1956).
172
al-Mughnee, vol. 2, p. 320. See also Bidaayah al-Mujtahid, vol. 1, p.
182.
173
Collected by Muslim (Sahih Muslim (English Trans.), vol. 1, p. 422, no.
1948).
174
al-Madkhal, p. 210.

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reportedly claimed that the Prophet (s.w.) had said,
“Whoever is afflicted by Qay, Ru’aaf or Qals
(different forms of vomiting) should leave (the
Salaah), make Wudoo, then continue where he left
off without speaking during it.”175
(ii) Imaam ash-Shaafi’ee and Imaam Maalik ruled for
two reasons that Qay’ (vomit) did not break Wudoo:
First, the above mentioned Hadeeth was not
authentic and second , Qay’is not specifically
mentioned in other sources of Islamic law as an act
which breaks Wudoo.
c) Conditions for the Acceptance of Hadeeths
Other differences among jurists in the area of the Sunnah
arose from various conditions they placed on its
acceptability. For example, Imaam Abu Haneefah stipulated
that a Hadeeth had to be Mash-hoor (well known) before
being regarded as admisible evidence, whereas Imaam
Maalik stipulated that a Hadeeth must not contradict the
customs of the Madeenites in order to be admissible. On the
other had, Imaam Ahmad considered Mursal176
Hadeeths
acceptable as proof, while Imaam ash-Shaafi’ee accepted
only the Mursal Hadeeths of Sa’eed ibn al-Mussayib which
most Hadeeth scholars felt were highly authentic.177
d) Resolutions of Textual conflict in Hadeeths
The faounders of the Madh-habs and their students took two
main approaches in resolving apparent contradictions
between the literal meanings of some of the recorded
narrations of Hadeeth. Some jurists chose the path of
175
Collected by Ibn Maajah from ‘Aa’eshah and rated Da’eef (inaccurate)
by al-Albaanee in Da’eef al-Jaami’ as-Sagheer (Beirut: al-Maktab al-
Islaamee, 1079), vol. 5, p. 167, no. 5434.
176
Hadeeth reported byone of the Students of the Sahaabah without
mentioning the name of the sahabee from whom he had heard it.
177
Ibn Taymeeyah, Raf’ul-Malaam ‘an al-A’immah al-A’laam, (Beirut: al-
Maktab al-Islaamee, 3rd
. ed. , 1970), p. 31.

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“Tarjeeh” which meant giving preference to some Hadeeths
while rejecting others on the same topic. On the other hand,
some of the other jurists chose the path of Jama’, which
involved combining such Hadeeths using one in one in
general sense. For example, there is an authentic Hadeeth in
which the Prophet (s.w.) forbade Salaah at certain times
saying; “No Salaah (is allowed) after fajr prayer until the
sun has rised and after ‘Asr prayer until the sun has set.”178
At the same time there are other equally authentic Hadeeths
in which certain Salaahs were recommended without time
restriction. For example, “If any of you enters a masjid, he
should pray two Raka’aat (units of prayer) before sitting
down.”179
(i) Imaam Abu Haneefah gave preference to the first
Hadeeth and ruled that all forms of Salaah were
forbidden during the forbidden times.
(ii) Imaam Malik, Imaam ash-Shaafi’ee and Imaam Ahmad
combined the two Hadeeths, ruling that the first Hadeeth
was general and referred to voluntary Salaah (Nafl),
whereas the second Hadeeth was specific, allowing
highly recommended Salaah (Mustahabb) even during
the generally frobidden times.180
3. ADMISSIBILITY OF CERTAIN PRINCIPLES
178
Reported by ‘Umar and abu Sa’eed al-Khudree and colected by all-
Bukhaaree (Sahih Al-Bukhari (Arabic-English.), vol.1. p. 322, no 555),
Muslim (Sahih Muslim (English Trans.), vol. 1, pp. 335-6, no. 1271).
179
Reported by Abu Qataadah and collected by al-Bukharee (Sahih Al-
Bukhari, (Arabic-English), vol. 1, pp. 259-60, no. 435), Muslim (Sahih
Muslim (English Trans.), vol. 1, p. 347, no. 1540) and Abu Dawood (Sunan
Abu Dawud (English Trans.), vol, 1, p. 120, no 467).
180
The latter position is supported by the Prophet’s (s.w.) practise of
praying missed voluntary prayers of Dhuhur after the compulsory prayers of
‘Asr which was reported by Umm Salamah and collected by al-Bukhaaree
(Sahih Al-Bukhari (Arabic-English) vo. 1, p. 325, chapter 33) and Muslim
(Sahih Muslim (English Trans.), vol. 2, pp. 398-8, no1815). Seen also
Bidaayah al-Mujtahid, vol. 1, pp. 66-91.

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There were among the Imaams some who developed a number of
controversial principles on which they based some of their
rulings. As a result, both the rulings and the principles became
source of differences among jurists. For example, the majority of
jurists recognized the validity of Ijmaa’ among the generations
after the Sahaabah, but Imaam ash-Shaafi’ee questioned its
occurrence while Imaam Ahmad rejected it outright. Similarly
the majority of jurists rejected Imaam Maalikreliance on the
customs of the Madeenites as a source of legislation. And Imaam
Abu Haneefah’s principle of Istihsaan and Maalik’s Istislaah
were both disallowed by Imaam ash-Shaafi’ee as being too
independent of the Qur’aan, the Sunnah, and Ijmaa’. That is to
say, they relied too much, in his opinion, on human reasoning.
On the other hand, Imaam ash-Shaafi’ee felt that the opinion of
the Sahaabah had to be accepted on legal matters, while others
felt that it was only reasoning on their part which was not
binding later generations.181
4. METHODS OF QIYAAS
The various approaches which jurists took in their
application of Qiyaas were perhaps the largest source of defferences
among them. Some narrowed down the scope of Qiyaas by setting a
number of preconditions for its use, while others expanded its scope.
Because this principle was based on opinion to a greater extent than
any of the others, there were no hard and fast rules with which to
contain it, and thus a wide range of differences developed.182
Section Summary
1. Varying rulings arose from differences in interpretation which
were themselves attributable to variations in word meanings
(shared, literal and figurative) and grammatical constructions
(e.g. Qur’, Lams and elaa).
181
Asbaab Ikhtilaaf al-Fuqahaa, pp. 126-138. See also Raf ‘ul-Malaam
‘anil-A’immah al-A’laam, pp. 11-49
182

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2. In the application of Hadeeths, a variation of legal rulings
occurred depending on the degree of availability of the Hadeeths,
their authenticity, the conditions imposed for their acceptance
and the methods of resolving textual conflicts.
3. Some Imaams evolved certain secondary legal principles and
made rulings based on them. Both the priciples and the rulings
were rejected by other Imaams (e.g. Istihsaan and Ijmaa’ of the
Madeenates).
4. The secondary principle of Qiyaas was generally accepted, but
the rules governing its deductive procedures varied among
Imaams, resulting in a variation in their rulings on similar issues.

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7. THE FIFTH STAGE : CONSOLIDATION
This stage covers the period between the year 950 CE and
the sacking of Baghdad (1259 CE) and represents the decline of the
‘Abbaasid dynasty until its eventual collapse. Competitive debates
called MunaadHaraat continued to flourish under the patronage of
the ‘Abbaasid caliphs and some of these debates were actually
recorded in books. In time, the spirit of rivalry largely generated by
these debates spread to the masses, and Madh-hab factionalism
became widespread. There was a drastic reduction in the number of
Madh-habs, and the structure and operatin of the four that survived
became highly systematized. Scholars within a Madh-hab were
obliged to base their Ijtihaads solely on the fundamental principles
(Usool) of their particular Madh-hab. During this period the
compilation of Fiqh was further fomalized and used to further Madh-
hab rivalry.
Four Madh-habs
During this stage, the number of major Madh-habs (schools
of Islamic law) dwindled to four; three major and one minor. In order
words , the Madh-habs of great Imaams like al-Awzaa’ee, Sufyaan
ath-Thawree, Ibn Abee Laylaa, Abu Thawr and al-Layth ibn Sa’d
had all disappeared leaving only the Madh-habs of Abu Haneefah,
Maalik, ash-Shaafi’ee and Ahmad ibn Hambal. In time, these schools
of Islamic legal thought became so predominant that the common
people soon forgot that any other schools, even existed. Each of
these schools soon took on a dynamism of its own and their
followers started the practice of naming themselves after their
respective Madh-habs. For example, al-Husayn ibn Mas’oud al-
Baghawee, author of the Fiqh classic, Sharh as-Sunnah, was
Shaafi’ee after the Shaafi’ee Madh-hab.
During this stage the scholars of each Madh-hab analysed all
the rulings of their Madh-habs’ founding scholars, deduced the

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fundamental principles behind their rulings and codified them. They
also made limited Ijtihaads on issues which the founders had not
come across. However, this area soon became exhausted due to the
widespread use of hypothetical Fiqh, in and outside of court debates.
Ultimately independent Ijtihaad was discarded in favor of Ijtihaad
based upon the established principles of a particular Madh-hab.
Ijtihaad Madh-habee, as this new form of reasoning came to be
known, was based on the deduction of laws for new issues according
to the scholars of this period sometimes differed with the founders of
their Madh-habs with respect to the Furoo’ (secondary principles),
but rarely with regard to the Usool (fundamental principles).
The scholars of the Madh-habs also made use of the
principle of Tarjeeh which involved the favoring of certain opinions
held by scholars within a given Madh-hab over other opinions of that
Madh-hab on the same topic: Difference of opinion on one issue
within a school had arisen when the founding scholars, as well as
their students, changed their earlier opinions. Both versions (the
previous and the altered) were recorded and passed on to later
generations as different opinions of the Madh-hab. Differences of
opinion had also arised from differen interpretations of statements
made by earlier scholars of the Madh-hab. In each Madh-hab, the
scholars during this period of consolidation sifted out weak and
fabricated statements which had been attributed to the founders of
their respective Madh-hab. They also classified the narrations of
opinions of the founders according to their accuracy. This process of
authentication and classification was referred to as Tas-heeh.
This detailed systematic treatment of Fiqh within each of the
Madh-habs greatly facilitated the process of arriving at legal rulings
within a Madh-hab. However, as in the case of the systematic
treatment of the sources of Islamic law in the previous stage, the very
fine distinctions elaborated on by the scholars of this period further
contributed to Madh-hab factionalism.
Compilation of Fiqh
During this segment of the ‘Abbaasid rule, a format for
writing Fiqh books evolved. This format became a standard, which
has remained in practice until today. The various issues were

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grouped under main headings and the main headings under chapters,
each of which represented a major topic from Sharee’ah. Even thr
door of the chapters became standardised. The authors would begin
with the four pillars after Eemaan (faith), since Eemaan was dealt
with in books of Islamic theology. After treating the laws and issues
concerning Tahaarah (hygiene) and Salaah (prayer), Sawm (fasting),
Zakaah (poor tax) and Hajj (pilgrimage), they would proceed on to
Nikaah (marriage) and Talaaq (divorce), then Bay’ (business
transactions) and then Aadaab (etiquette). In dealing with any of
these issues, and author from any one Madh-hab would mention the
different proofs used by all of the Madh-hab’s position, while
refuting the arguments of the other Madh-habs.
Section Summary
1. The majority of the Madh-habs, which flourished during the
earlier periods, disappeared and only four remained.
2. The Madh-habs reached their final form of systemization and
organization.
3. Ijtihaad beyond the structure of the Madh-hab was dropped and
Ijtihaad Madh-habee took its place.
4. Comparative Fiqh arose, but was used essentially to advance
sectarian ideas.

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8 THE SIXTH STAGE: STAGNATION AND DECLINE
This stage covers approximately six centuries starting with
the sacking of Baghdad in 1258 CE and the execution of the last
‘Abbaasid caliph, al-Musta’sim, and ending around the middle of the
nineteenth century of the Christian era. This period also represents
the rise of the Ottoman Empire, founded in 1299 CE by the Turkish
leader ‘Uthmaan I, until its decline under the attacks of European
colonialism.
The prevailing characteristic of this period was that of
Taqleed (the blind following of a Madh-hab) and factionalism. This
degenerative trend resulted in the dropping of all forms of Ijtihaad
and the evolution of the Madh-habs into totally separate entities
closely resembling sects. The compilation of Fiqh during this period
was limited to commenting on previous works and was directed
toward the promotion of individual Madh-habs. Thus, the dynamism
of Fiqh was lost and many of the laws became increasingly
outmoded and inapplicable in their existing forms. In order to fill this
legislative gap, European law codes were gradually introduced in
place of some of the Islamic laws, which had fallen into disuse.
Eventually with the advance of European colonialism and the
breaking up of the Muslim Empire, European laws supplanted
Islamic law. Certain reformers sought to stem the tide of stagnation
and decline, calling for a return to the original purity of Islaam and
its laws. However, factionalism has continued to the present day, in
spite of an increase in institutional teaching of comparative Fiqh.
Emergence of Taqleed183
183
The blind following of a Madh-hab.

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The scholars of this period left all forms of Ijtihaad and
unanimously issued a legal ruling, which was intended to close the
door of Ijtihaad permanently. They reasoned that all possible issues
had already been raised and addressed, and there was therefore no
need for further Ijtihaad.184
With that step, a new concept of Madh-
hab arose, namely that one of the four Madh-habs had to be followed
for one’s Islaam to be valid. In time this concept became firmly
embedded among the masses as well as the scholars of Fiqh. Thus,
the religion of Islaam itself became restricted within the confines of
the four existing Madh-habs; Hanafee, Maalikee, Shaafi’ee and
Hamblee. These schools of law came to be considered divinely
ordained manifestations of Islaam. All of them were supposed to be
completely correct, equal and representative of true Islaam, yet there
were innumerable differences among them. In fact there were
scholars in this period who interpreted some Hadeeths in such a way
as to prove that the Prophet (s.w.) him-self had predicted the
appearance of the Imaams and their Madh-habs. Consequently, any
attempt to go beyond these canonical Madh-habs was considered
heretical and anyone who refused to follow one of these Madh-hab
was classified an apostle. The hyper conservative scholars of this
stage even went so far as to rule that whoever was caught
transferring from one Madh-hab to another was liable to punishment
at he discretion of the local judge. A ruling was also made in the
Hanafee Madh-hab prohibiting the marriage of a Hanafee to a
Shaafi’ee.185
And even the second most important pillar of Islaam,
Salaah, was not spared the effects of Madh-hab fanaticism. The
followers of the various Madh-habs began to refuse to pray behind
the Imaams from other Madh-habs. This resulted in the building of
separate prayer niches in the masjid186
communities where more than
one Madh-hab existed. Masjids of this type can still be seen in places
like Syria, where Sunni Muslims follow either the Hanafee or
Shaafi’ee Madh-hab. Even the most holy masjid, al-Masjid al-
Haraam of Makkah, which represents the unity of Muslims and the
184
Muhammad Husein adh-Dhahabee, ash-Sharee’ah al-Islaameeyah,
(Egypt: Daar al-Kutub al Hadeeth, 2nd
ed. 1968), p. 12.
185
Muhammad Naasir ad-Deen al-Albaanee, Sifah Salaah an-Nabee,
(Beirut: al-Maktab al-Islaamee ninth ed.1972), p. 51.
186
Masjid (plural Masaajid) , the Muslim house of worship.

- 114 -
religion of Islaam, was affected. Separate prayer niches were set up
around the Ka’bah: one for an Imaam from each of the schools. And
when the time for Salaah came, an Imaam from one of the Madh-
habs would lead a congregation of followers from his Madh-hab in
prayer; then another Imaam from one of the other Madh-habs would
lead his congregation of followers and so on. It is interesting to note
that separate places of prayer for each of the Madh-habs remained
around the Ka’bah until the first quarter of the twentieth century
when ‘Abdul-‘Azeez ibn Sa’oud and his army conquered Makkah
(October of 1924) and united all worshippers behind a single Imaam
regardless of his or their Madh-habs.
Reasons for Taqleed
Taqleed (blind following) has to be distinguished from Ittibaa’
(reasoned following). The principle of following the rulings of our
predecessors is normal and natural. In fact, it is by closely following
earlier interpretations of Islaam that the message of Islaam remains
uncorrupted through time. For, those early interpretations were
founded on the Prophet’s (s.w.) divine inspiration and his divinely
guided life style. The Prophet (s.w.) himself said that the best
generation was his generation, then the generation following his, and
then the generation following that.187
However, since Muslims of
earlier generation, with the exeption of the Prophet (s.w.), were not
infallible, even those earlier interpretations should not be followed
blindly without without regard to certain basic principles of reason
which enable us to distinguish between right and wrong. In this book
the term Taqleed (blind following) is used to refer to the actions to
those who slavishly follow a single Madh-hab regardless of errors
that they see. As for the common people who do not have the
knowledge to make independent decisions in doubtful situations, it is
for them to follow whatever knowledge is available to them, keep
their minds open and rely on open-minded scholars as much as
possible.
187
Reported by Ibn Mas’oud, Abu Hurayrah, ‘Imaam ibn Husayn and
‘Aaeshah and collected by Muslim (Sahih Muslim (English Trans.), vol. 4,
p. 1346, no. 6153 & 6154 and p. 1347, no. 6156 & 6159).

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Taqleed was the result of a number of factors, internal and
external to the Madh-habs, which affected the development of Fiqh
and the attitude of scholars. No one cause can be singled out as the
main cause nor can all of the factors be identified. The following
only a few of the more obvious factors which led to this stage of
stagnation.
1. The schools of Fiqh were completely formed and the minutest of
details worked out. The laws for what had occurred, as well as
what might occur, were already deduced and recorded due to the
extensive development of speculative Fiqh. This left little room
for Ijtihaad and originality. As a result, they’re developed and
over dependence on the works of earlier scholars of the Madh-
habs.
2. The ‘Abbaasid caliphate, which had come to power under the
banner of restoring Islamic law to its former place , lost its
power to the King’s ministers (wazeers), many of whom were
shi’ites, and the empire eventually broke up into mini-stages.
The new rules-by-proxy were more interested in private power
struggles than in either religious scholarship or government
according to Islamic laws.
3. The crumbling of the ‘Abbaasid empire into mini-states was
accompanied by each state following the Madh-hab, Spain the
Maalikee Madh-hab, and Turkey and India the Hanafee. Each
state began the practice of choosing its governors, administrators
and judges only from those who followed its official Madh-hab.
Consequently, scholars who wanted to become Qaadees (judges)
in the courts of these states had to follow the official Madh-hab
of the state.
4. Some unqualified individuals began to claim the right to make
ijtihaad in order to twist the religion to suit their wishes.
Consequently, many incompetent scholars began making rulings,
which misguided the masses on a number of issues. In the
ensuring confusion, the reputable scholars of the day tried to
close the door of Ijtihaad in order to protect the Sharee’ah from
being tampered with.188
188

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Compilation of Fiqh
The same factors which led to Taqleed also caused scholars
to confine their creative activity to merely editing and revising
previous works. The Fiqh books of earlier scholars were condensed
and abridgements of them were made. These abridgements were later
shortened in order to make them easy to memorize, and many of
them were actually put to rhyme. This process of condensing
continued until the summaries, which resulted, became virtual ridles
to the students of the day. The following generation of scholars
began to write explanations of the summaries and poems. Later
scholars wrote commentaries on the explanations and others added
footnotes to the commentaries.
During this period some books on the fundamentals of Fiqh
(Usool al-Fiqh) were written. In these works, the correct method of
making Ijtihaad was outlined and the conditions which were laid
down by these scholars were so strict that they excluded not only the
scholars of their time but also many of the earlier scholars who had
made Ijtihaad.
There were also a few books, which were written, on
comparative Fiqh during this period. As in the previous period, the
opinions of the Madh-habs and their proofs were collected and
criticized in these books. The authors then defined as most accurate
those opinions, which were held by their particular Madh-hab.
Toward the end of this period, an attempt was made to
codify Islamic law under the auspices of the ottoman caliphs. A
panel of seven top ranking scholars of Fiqh was formed and
entrusted with the job. It was completed in 1876 CE and enforced as
law by the Sultan throughout the Ottoman Empire under the title
Majallah al-Ahkaam al-‘Aadilah (The Just Codes)189
. However, even
this seemingly noble attempt was affected by Madh-hab fanaticism.
All of the scholars on the committee were appointed from the
189
Anwar Ahmed Qadri, Islamic Jurisprudence in the Modern World,
(Lahore, Pakistan: Ashraf, First edition 1963) p. 65.

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Hanafee Madh-hab. Consequently, the resulting code totally ignored
the contributions of the other Madh-habs to Fiqh.
With the expeditions of Columbus and Vasco de Gama,
Western European states began to capture the routes and sources of
international trade. Subsequently, European imperialism beginning
with Java, which fell to the Dutch in 1684, absorbed Muslim East
Asian states. After Transyvania and Hungary fell from ottoman
hands to Austria in 1699 and the defeat of the Ottomans by Russia in
the Russo-Turkish war of 1768-74, the European territories of the
Ottoman Empire were soon lost, one after another.190
This process
culminated in the total dissolution the Ottoman Empire during the
First World War and its division into colonies and protectorates.
Consequently, European law codes replaced Islamic laws throughout
the Muslim world.
Although European colonialism was officially ended some
years ago, Islamic law has remained in disuse in all Muslim
countries with the exception of Saudi Arabia which has codified
Islamic law according to the Hambalee Madh-hab, Pakistan to a
large degree according to the Hanafee Madh-hab and Iran which has
recently done so according to the Ja’faree Madh-hab.191
Reformers
In spite of the general decay described above, there existed
from time to time throughout this period a few outstanding scholars
who opposed Taqleed and dared to raise the banner of Ijtihaad. They
called for a return to the roots of the religion, to the true sources of
Islamic law and to reliance on these foundations above all else.
Some of these reformers and their contributions are described
hereafter.
Ahmad ibn Taymeeyah (1263-1328 CE) was not foremost
among the reformers of this period. Because of his challenge of the
190
Islamic Jurisprudence in the Modern World, p. 85.
191
The Fiqh Madh-hab of the Ithnaa ‘Ashreeyah (Twelver) Shi’ite sect
falsely attributed to Imaam Ja’far as-Saadiq (d.765 CE).

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status quo, many of his contemporaries declared him an apostate and
had the authorities jail him repeatedly. Ibn Taymeeyah was,
however, one of the greatest scholars of his time. Initially, he had
studied Fiqh according to the Hambalee Madh-hab, but did not
restrict himself to it. He studied the sources of Islamic law in depth
and mastered all the Islamic sciences which were known at that time.
Furthermore, he examined the writings of various sects which had
broken off from islaam, studied the religious books of the Christians,
the Jews and their various sects and wrote extensive critiques on all
of them. Ibn Taymeeyah also took part in the Jihaad against the
Mongols who had occupied the eastern and northern provinces of the
former ‘Abbaasid state and were at that were among the greatest
Islamic scholars of their time and carried on to the next generation
the banner of Ijtihaad and a return to the pure sources of Islaam
which he had raised. Among them was Ibn Qayyim, a great scholar
in the fields of Fiqh and Hadeeth criticism and Ibn Katheer, a master
in Tafseer, History and Hadeeth.
Muhammad ibn ‘Alee ash-Shawkaanee (1757-1835 CE)
born near the town of Shawkaan in Yemen, was also among the
reformers to this Period. Ash-Shawkaanee studied Fiqh according to
the Zaydee Madh-hab192
and became one of its outstanding scholars.
He then went into an in-depth study of the Hadeeth of his time. At
this point he freed him self of the Madh-hab and began making
independent Ijtihaad. He wrote a number of works in Fiqh and its
fundamentals in which issues studied from the points of view of all
the Madh-habs were concluded with solutions based solely on the
most accurate proofs and the most convincing arguments. Imaam
ash-Shawkaanee took the position that Taqleed was Haraam and
wrote a number of books on the topic, for example, Al-Qawl al-
Mufeed fee Hukm at-Taqleed. Consequently, he also came under
attack from most of the scholars of his time.193
Another noteworthy reformer was the great schoar Ahmad
ibn ‘Abdur-Raheem better known as Shah Walee Allaah Dihlawee
(1703-1762 CE). He was born in the Indian sub-continent where
192
One of the major Shi’ite Madh-habs of Fiqh (see pp. 60-65).
193
Muhammad ibn ‘Alee ash-Shawkaanee, Nayl al-Awtaar, vol. 1, pp. 3-6.

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Taqleed was, perhaps, most rampant. After he had mastered the
various Islamic sciences, he called for the re-opening of the door of
Ijtihaad and the re-unification of the schools of Fiqh. In this efforts to
re-examine Islamic principles and to find out on what authority the
legal schools based their regulations, Shah Walee Allaah rejuvenated
the study of Hadeeth. Although he did not go so far as to reject the
existing Fiqh schools, nevertheless he tought that everyone was free
to choose a particular decision different from that taken by the school
to which he belonged himself, if he was convinced that the case was
better confirmed by Hadeeth.194
However the over all state of degeneration and stagnation
has continued until today, despite the efforts of modern thinkers like
Jamaal ad-Deen al-Afghaanee (1839-1897 CE) who traveled
throughout the Muslim world calling for reform. Jamaal ad-Deen
traveled to India, Makkah, and Constantinople, settling finally in
Egypt. He called for free political, religious and scientific thought
and denounced Taqleed and state corruption. Jamaal ad-Deen
thought these ideas at the University of Jamaal ad-Deen’s ideas were
extremist. For example, he elevated the human mind and its logical
deductions to a level equal to that of Divine Revelation. His
intentions also became suspect due to his involvement with the
Masonic movement which was at that time establishing new
branches in the Middle-East.195
Muhammad ‘Abduh (1849-1905 CE) was among
Afghaanee’s most famous students. Under the influence of
Afghaanee and Ibn Muhammad ‘Abduh, and Taqleed and its
supporters were systematically attacked. But, due to Muhammad
‘Abduh’s leaning toward extreme modernism, he eventually deviated
in some of his interpretations and legal rulings. For example, in his
Tafseer of the Qur’aan he Prophets of directly performed by God
through the forces of nature. To him the flocks of birds which
194
A.J. Arberry, Religion in the Middle East (Cambridge University Press,
1969-reprinted 1981) vol. 2, pp. 128-9.
195
The oldest and most famous Islamic University in the Muslim world. It
was first established in Egypt by the Faatimid Shi’ite state in the year 361
AH/972 CE.

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dropped clay pebbles on the army of Abrahah and his elephant
during their attack on the Ka’bah were simply airborne microbes
which spread disease among them. Likewise, he made a Fatwaa
allowing Muslims to be involved in business transactions involving
interest. He based this ruling on the Fiqh principle that dire necessity
makes the forbidden allowable. The fallacy of his ruling lay in the
fact that Fiqh specifically defines dire necessity as involving matters
of life and death or loss of limb, and this was simply not the case
where business transactions are concerned. Muhammad ‘Abduh’s
main student, Muhammad Rashed Ridaa (d. 1935), carried on his
mentor’s attack on Taqleed, but rejected most of his teacher’s
excesses. However, other students of Muhammad ‘Abduh became
the nucleus of the extreme modernist movement and deviated in
many areas even more than their teacher. For example, his student
Qaasim Ameen (died 1908) was the first to make a vehement attack
on polygamy, the simplicity of Islamic divorce and the use of the
veil.
Other scholars of the twentieth century, such as Hassan al-
Bannaa (d.1949), founder of the Ikhwaan Muslimoon movement
Sayyid, Abul-A’laa Mawdudi (1903-1979), founder of the Jama’at
Islami movement, and more recently the great Hadeeth scholar of our
era, Naasir ad-Deen al-Albaanee have picked up the banner of
Islamic Revival and have called for the unfication of the Madh-
habs.196
But, to this day, the majority of scholars remain firmly
bound to sectarian Islaam in the form of one of the four Madh-habs.
In doing so, they unknowingly perpetuate division among the ranks
of the Muslim nation. Nor does there appear to be much hope for an
end to this process in the near future; for, with very few exceptions,
present day Islamic institutions of learning throughout the Muslim
world actively propagate a sectarian view of Islaam.
It is true that comparative Fiqh is now being given a
prominent place in the syllabuses of these institutions, and the study
of Hadeeth has become more popular than it was only a century ago.
But, the reality is that these two potentially dynamic and regenerative
196
The book, Fiqh as-Sunnah, by as-Sayyid Saabiq, one of al-Bannaa’s
followers, represents a serious attempt to answer that call.

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subjects have been defused by the sectarian system of Islamic
education. Each university adheres to the official Madh-hab of the
country in which it is situated and thus all the core Fiqh courses of
the Islamic law Syllabus (called Sharee’ah or Usool al-Deen) are
taught according to the state Madh-hab197
. This is done to fulfill the
local government’s need for judges who conform to the Madh-hab
used in the civil law system of the state. For example, the University
of al-Azhar in Egypt, the most venerated institution in the Muslim
world, is the only university in which all of the major Madh-habs are
taught. However, students entering the university are required to
indicate their Madh-hab are placed in the same class. From the
beginning of their studies until they graduate, all of their professors
will be from their own Madh-hab. Accordingly, the positions of the
other Madh-habs are studied merely as oddities, and the great books
of Hadeeth are read more for the blessing than for the revelation of
truth. Whenever a conflicting opinion is encountered in the course of
these studies, the teacher in the sectarian institution examines it
superficially and rejects it in the light of the compelling arguments,
which he develops to support the position of his particular Madh-
hab. Thus, although other positions may be supported by very strong
proofs, the sectarian teacher’s treatment denies them the
consideration they deserve. Similarly, if a strong Hadeeth which
appears contrary to the position taken by the Madh-hab is met while
reading the books of Hadeeth, the teacher either re-interprets it to
support his Madh-hab or he deftly explains it away. And if neither of
the two is possible, a series of weak Hadeeths are quoted in support
of the Madh-hab’s position without the slightest mention that they
are weak. In that way, it appears that there is a greater number of
Hadeeths supporting the Madh-hab’s position, and the students are
convinced of the correctness of their Madh-hab.
Section Summary
197
One of the few exceptions to this rule at the present time is the Islamic
University of Madeenah, Saudi Arabia. Over 80% of the student body
comes from various parts of the Musim world and no Madh-hab is given
preference over the other in the study of Fiqh. At the college level.

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1. Ijtihaad in all its forms was put aside, and the blind following
(Taqleed) of one of the four Madh-habs was made compulsory
on all Muslims.
2. The four Madh-habs became totally incompatible and the
Muslim Ummah was virtually split into four religeous sects.
3. Scholarly activity was restricted to writing commentaries on
previous works and promoting the position of the author’s
particular Madh-hab as in the period of consolidation.
4. There were commendable attepts by certain reformers to revive
the original and dynamic nature of Fiqh, but their efforts proved
unequal to the task of eradicating Madh-hab fanaticism which
had became so deeply ingrained.
5. Attempts at the codification of Islamic law were made, but the
results suffered from sectarian views, and with the advent of
European colonialism they were supplanted by European law
codes.
6. There has been some lessening of Madh-hab fanaticism in recent
years as a result of the reformist movements and the wide-spread
teaching of comparative Fiqh in modern institutions of learning.
7. The state of stagnation and decline of Fiqh and the existence of
Madh-hab factionalism have continued until the present day.

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8. THE IMAAMS AND TAQLEED
In the preceding chapters we have traced the historical
development of Fiqh and the Madh-habs, showing their
interrelationship and their contribution to a general, as well as
specific, understanding of Islaam as revealed in the Qur’aan and the
Sunnah. It should be noted that both Fiqh (Islamic law) and the
Madh-habs (schools of Islamic thought) were and are necessary
additions complementing the divine revelations which define the
basic principles giverning man’s rights and responsibilities in his
relationships with Allaah and his fellow man. It is through specific
applications of the interpretations of the Qur’aan and the Sunnah that
Allaah’s divine will can be made manifest to man over time and
through space. With God-given intellectual powers man (specifically
Islamic scholars) can provide relevant interpretations of the general
to meet the particular: thence relevance of the Madh-hab (the circle
of Islamic scholars) and Fiqh (the body of Islamic laws together with
principles for deducing these laws). Herein lies the true importance
of Fiqh and the Madh-hab in Islaam.
Now since Islaam is a religion divinely ordained for all men
at all times and in all climes, it was given to scholars in different
regions and times to evolve principles of Fiqh as well as specific
laws of Fiqh in order to resolve various new issues as they arose. The
correctness of their interpretations was proportional to their innate
capabilities and to the type and quantity of evidence available to
them at the time of making rulings. Some were faced with the
additional factor of cultural differences, and many were deprived of
the assistance to be gained from mural consultation, owing to their
distance from their colleagues and the consequent difficulties of
communication. Hence the differences of opinion that arose from
region to region. Despite various handicaps, the early scholars
discharged their duties to Islaam and to their fellowmen by using
their God-given powers of intellect to interpret Allaah’s purposes for
men. Situated in different parts of the Muslim state, they became the
founders of different schools of Islamic thought, hence the

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multiplication of Madh-habs at one stage in the evolution of the
Islamic law and the Muslim state. Historically, therefore, the
appearance of more than one Madh-hab was inevitable. Furthermore,
as the numbers of Madh-habs increased and communication and
other factors exercised their influence, difference and contradictions,
too, were a natural outcome. However, so long as scholars managed
to keep the goal to truth foremost in mind and were not led astray by
sectarianism, fanaticism, or a desire for personal glory and reward,
the essential spirit of Islaam was preserved in their Madh-habs. In
such circumstances, scholars were in no way reluctant to abandon
their individual opinions in favor of rulings by others which were
clearly shown to be nearer the intended meaning deducible from the
Qur’aan and the Sunnah. In others words, there was a continuing
search for truth up until such time as the negative factors previously
mentioned (sectarianism and desire for personal glory) became
dominant in the lives of some of the scholars. Then, indeed, blind
following of Madh-hab (Taqleed) coupled with the ban on Ijtihaad
led to the widespread promotion of sectarianism among the masses
and the general decline in the search for truth among many scholars.
Thereafter, the four survining Madh-habs, with their different and
sometimes contradictory rulings, assumed the character of
infallibility, and spurious Hadeeths arose to bolster this anti-Islamic
trait. As a counter to this decline, various reform movements through
the ages have called for a unification of the Madh-habs or, in some
cases, rejection of the need for any Madh-hab. The former position is
a legitimate one, as we have shown; the latter is an extremist one,
possibly heretical since it overlooks the importance of a unified
school of Islamic thought as a necessary complement to the Qur’aan
and the Sunnah, for a better understanding and appreciation of
Allaah’s divine laws.
From the historical development of Fiqh and the evolution of
the Madh-habs described in the preceding chapters, we have seen
that there was a period during which natural differences among the
various Madh-habs became extremely exaggerated to the point of
sectarianism, so much so that scholars of that time discarded Ijtihaad
and imposed upon the generality of Muslims the blind following
(Taqleed) of one of the four major Madh-habs. However, the Imaams
to whom the four schools are attributed were themselves totally
against the enthronement of these differences and fought vehemently

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against Taqleed either among their own followers or among the
masses in general. Yet, till today, many people feel that if an
authentic Hadeeth should be discarded because, accepting it would
mean declaring that the Imaam of one’s Madh-hab was mistaken in
his ruling which, in their opinion is an act of disrespect akin to
blasphemy. Little do they realize that their preference of their
Imaam’s opinion over the Prophet’s (s.w.) statement is itself in total
opposition to the stand taken by their own Imaam, and is in fact
bordering on a form of Shirk198
known as “Shirk fee Tawheed al-
Ittibaa‘”, that is sharing the unquestioned following which belongs
only to the Prophet (s.w.). For in the declaration of one’s Islaam
(there is no god but Allaah and Muhammad is the messenger of
Allaah), the Prophet (s.w.) is accepted as being the only person who
should be followed unquestioningly, since following him is
equivalent to following Allaah.
As most Muslims today are unaware of the contradiction
between the position of the early Imaams hand that of their Madh-
hab is it exists today, it is appropriate there to take a closer look at
the stand taken by the early Imaams and their students towards
Taqleed as revealed in their actual statements.
Imaam Abu Haneefah Nu’maan ibn Thaabit (702-767 CE)
Abu Haneefah used to discourage his students from
recording his opinions, since they were often based on Qiyaas
(analogical deduction). However, he made an exception of those
opinions which were thoroughly debated and agreed upon by all his
students. His student, Abu Yoosuf, reported that the Imaam once told
him, “woe be on you, Ya’qoob. Do not write down all you hear from
me, for surely I may hold an opinion today and leave it tomorrow,
hold another tomorrow and leave it the day after.”199
This attitude of
the Imaam kept his students from blind imitation of his views, and
helped to develop in them a respect for their own opinions as well as
that of others.
198
Association of other gods with Allaah (i.e. idolatry).
199
Reported by ‘Abbaas and AD-Dooree in at-Taareekh by Ibn Mu’een
(Makkah: King’Abdul Aziz University, 1979), vol. 6, p. 88.

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Imaam Abu Haneefah also made many strong statements
concerning the blind following of his opinions and those of his
students. In fact he strictly forbade anyone from following their
opinions or making legal rulings based on them unless such a person
was familiar with the proofs which he and his students had used and
the sources from whence they had deduced them. The Imaam was
reported by his student Zufar to have said, “It is forbidden for anyone
who does not know my proofs to make a ruling according to my
statements, for verily we are only humans we may say something’s
today and reject it tomorrow.”200
Abu Haneefah was always aware of his limitations.
Accordingly, he defined for his students and all who would benefit
from his deep understanding of Islaam that the ultimate criterion for
right and wrong was the Qur’aan and the Sunnah; what was in
accordance with them was right and what was not was wrong. His
student, Muhammad ibn al-Hasan, reported that he said, “If I have
made a ruling which contradicts Allaah’s book or the messenger’s
(s.w.) Hadeeth, reject my ruling.”201
It is also recorded that the
pointed out the fact that the principle to follow, if one wanted to
follow his Madh-hab as he intended it to be followed, is the
acceptance of sound Hadeeth. Imaam Ibn’ Abdul-Barr reported that
Imaam Abu Haneefah said, “If a Hadeeth is found to be Saheeh
(authentic), it is my Madh-hab.”202
Imaam Maalik Ibn Anas (717-801 CE)
Imaam Maalik never hesitated to change his rulings, even if
he had already uttered them in public, if proof to the contrary came
to him from a reliable source. One of his main students, Ibn Wahb
confirmed this attitude of the Imaam saying, “I once heard some one
ask Maalik about washing between the toes during Wudoo, to which
200
Ibn ‘Abdul-Barr, al-Intiqaa fee Fadaa’il ath-Thalaathah al-A’immah al-
Fuqahaa, (Cairo: Maktab al-Qudsee, 1931), p. 145.
201
Al-Fulaanee, Eeqaadh al-Himam, (Cairo: al-Muneereeyah, 1935), p. 50.
202
Ibn ‘Aabideen, al-Haashiyah, (Cairo: al-Muneereeyah, 1833-1900), vol.
1, p. 63.

- 127 -
he replied, People do not have to do it.’ I waited until most of the
people left the study circle and informed him that there is a Hadeeth
concerning it. He asked what it was, so I said, that al-Layth ibn Sa’d,
Ibn Luhay’ah and “Amr ibn Al-Haarith all related from al-Mustawrid
Ibn Shidaad al-Qurashee that he saw Allaah’s Messenger (s.w.) rub
between his toes with his little finger, Maalik said, ‘Surely that is a
good Hadeeth which I have never heard before.’ Later when I heard
people ask Maalik about washing between the toes, the toes, he used
to insist that it must be washed.”203
This narration is clear proof that
Maalik’s Madh-hab, like Abu Haneefah’s was that of the sound
Hadeeth, even though we do not have a specific statement by him to
that effect, as in the case of Abu Haneefah.
Maalik also emphasized the fact that he was subject to error
and that the only rulings of his which should be used were those
which did not come in conflict with the Qur’aan and Hadeeth. Ibn
‘Abdul-Barr reported that Maalik once said, “Verily I am only a
man, I err and am at times correct; so thoroughly investigate my
opinions, them take whatever agrees with the Book and the Sunnah,
and reject whatever contradicts them.”204
This statement clearly
proves that the Qur’aan and the Hadeeth were given preference over
all else by this great scholar who never intended that his opinions be
rigidly followed. In fact, when the ‘Abbaasid Caliph Abu Ja’far al-
Mansoor (reign 759-755 CE) and Haroon ar-Rasheed (reign 786-809
CE) requested that Maalik allow them to make this collection of
Hadeeths, called al-Muwatta’, the official authority in the state on
the Sunnah, he refused on both occasions, pointing out that the
Sahaabah had scattered throughout the land and had left behind
many Hadeeths not found in his collection. Thus, Maalik turned
down the opportunity to have his Madh-hab made the official Madh-
hab of the Islamic state and in so doing, he set an example that others
might have been wise to follow.
Imaam ash-Shaafi’ee (767-820 CE)
203
Ibn Abee Haatim, al-Jarh wat-Ta’deel, (Hyderabad, India: Majlis
Daa’irah al-Ma’aarif al-‘Uthmaaneeyah, 1952), foreword pp. 31-33.
204
Ibn ‘Abdul-Barr, Jaami’ Bayaan al-Ilm, (Cairo: al-Muneereeyah, 1927),
vol. 2, p. 32.

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Imaam ash-Shaafi’ee, like his teacher Maalik, pointed out in
no uncertain terms that it was not possible for anyone at that time205
to be aware of all the Hadeeths which were narrated from the
Prophet (s.w.) or to remember all Hadeeths which he had
encountered, therefore, they were bound to make some wrong
judgements. That meant that the only firm and reliable method,
which could be utilized under all circumstances to decide what was
correct and what was not, was the Sunnah of the Prophet (s.w.). The
Hadeeth scholar al-Haakim collected a statement of ash-Shaafi’ee in
which he said, “There is no one among us who has not had a Sunnah
of Allaah’s Messenger (s.w.) elude him or have one slip his mind; so
no matter what rulings I have made or fundamental principles I have
proposed, there will be in them things contrary to rulings of Allaah’s
messenger (s.w.). Therefore, the correct ruling is according to what
Allaah’s messenger (s.w.) said, and that is my ruling.”206
The Imaam also stressed a very important point concerning
personal opinion versus the Sunnah. He said, “The Muslims (of my
time) were of a unanimous opinion that one who comes across an
authentic Sunnah of Allaah’s messenger (s.w.) is not allowed to
disregard it in favor of someone else’s opinion.”207
This point strikes
at the very heart of Taqleed which has as one of its pillars the
rejection of the Sunnah for the opinion of the Madh-hab.
Al-Haakim also collected from Imaam ash-Shaafi’ee the
same statement made by Imaam Abu Haneefah concerning the
relationship between his Madh-hab and authentic Hadeeths, “If a
Hadeeth is found to be Saheeh (authentic) it is my Madh-hab.”208
Such was the uncompromising stand of this great Imaam who, while
205
The main collections of Hadeeth like that of al-Bukhaaree, Muslim and
the others belong to the latter half of the 9th
century CE.
206
Ibn ‘Asaakir, Taareekh Dimishq al-Kabeer, (Damascus: Rawdah ash-
Shaam, 1911-1932), vol. 15, part 1, p.3.
207
Ibn al-Qayyim, I’laam al-Mooqi’een, (Beirut: Daar al-Jeel n.d.), vol. 2,
p. 361.
208
Yahyaa ibn Sharaf ad-Deen an-Nawawee, al-Majmoo’ (Cairo: Idaarah
at-Tabaa’ah al-Muneerah, 1925), vol. 1, p. 63.

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in Baghdad, wrote a book called al-Hujjah as a summary of his
Madh-hab, only to turn around and write a new book called al-Umm,
representing the new Madh-hab which he formed after journeying to
Egypt and acquiring new knowledge from the Madh-hab of Imaam
al-Layth ibn Sa’d.
Imaam Ahmad ibn Hambal (778-855 CE)
Imaam Ahmad carried on the tradition of his teacher, Imaam
ash-Shaafi’ee as well as that of the earlier Imaams by trying to instill
in his students a high respect for the sources of Islaam and a disdain
for rigid imitation of scholars’ opinions. But, because Taqleed had
begun to take root among some of the followers of the earlier
Imaams, Ahmad took even more drastic action. Whereas Abu
Haneefah discouraged his students from recording all of his
opinions, Imaam Ahmad forbade them from recording any of his
opinions at all. Thus, his Madh-hab was not compiled in written form
until the era of his students.
Ahmad was very explicit in his warnings against Taqleed, as
is evident in the following saying of his recorded by Ibn Qayyim:
“Do not blindly follow my rulings, those of Maalik, ash-Shaafi’ee,
al-Awzaa’ee or ath-Thawree, Take (your rulings) from whence they
took theirs.”209
Similarly, in another of his statements recorded by
Ibn ‘Abdul-Barr. He said, “The opinions of al-Awzaa’ee, Maalik and
Abu Haneefah are simply opinions and to me they are all equal, but
the real criterion for right or wrong is in the Hadeeths.”210
The Imaam’s preference for Hadeeths over opinions was so
great that he used to prefer a weak Hadeeth over a deduced ruling.
His respect for the Sunnah of the Prophet (s.w.), which he himself
collected in a major work of over 30,000 Hadeeths called al-Musnad
Al-Kabeer, was so great that he also gave severe warnings to those
who would dare disregard a Hadeeth of the Prophet (s.w.). Ibn al-
Jawzee reported that Imaam Ahmad said, “Whoever rejects an
authentic Hadeeth of Allaah’s messenger (s.w.) is on the verge of
209
Eeqaadh al-Himam, p. 113.
210
Jaami Bayaan al-‘Ilm, vol.2, p. 149.

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destruction.”211
The Prophet (s.w.) had given the following order to
his companions and Muslims in general: “Convey what you have
heard from me, even if it is only a verse (from the Qur’aan),”212
in
order that divine guidance would be available to all generations of
Muslims until the Last Day. Because of that, Imaam Ahmad fought
vigilantly against anything which could possibly interfere with the
conveyance of divine guidance to his generation as well as those to
come.
Students of the Imaams
Because of the care which the great Imaams took in warning
their Students away from blind initation, those early scholars never
hesitated to reject what the Imaams taught when new Hadeeths
became available. Abu Yoosuf and Muhammad ibn al-Hasan
differed from their teacher Abu Haneefah in about one third of the
rulings of their Madh-hab,213
and similarly, al-Muzanee and the
others differed from their teacher rash-Shaafi’ee on many rulings.
Comment
The above mentioned quotations were only a few of the
many sayings of the Four Imaams and their students in which they
demanded strict adherence to the Hadeeths and prohibited the blind
imitation of their opinions, may Allaah be pleased with them. Their
statements are perfectly clear and leave no room for
misinterpretation or apologetic explanations. Therefore, whoever
adheres to the Sunnah, even if he finds himself in conflict with some
of the opinions of the Imaam of his Madh-hab will not be opposed to
the spirit of that Madh-habs simultaneously with a firm grip “on the
rope of Allaah”. Conversely, to discard certain reliable Hadeeths
simply because they contradict some of the opinions of the Imaams,
is to be in total opposition to the position taken by the Imaams
211
Ibn al-Jawzee, al-Manaaqib, (Beirut: Daar al-Aafaaq al-Jadeedah, 2nd
ed., 1977), p. 182
212
Narrated by ‘Abdullaah ibn ‘Amr ibn al-‘Aas and collected by al-
Bukhaaree (Sahih Al-Bukhari, (Arabic-English), vol. 4, p. 442, no. 667).
213
Al-Haashiyah, vol. 1, p.62.

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themselves. Moreover, the rejection of reliable Hadeeths is in
opposition to Allaah and His messenger214
as is evident in Allaah’s
statement in the Qur’aan to His Prophet (s.w.),
“No, by your Lord, they do not believe until they
make you the judge between them in their
disputes without being distressed over your
judgement; nay, accepting it wholeheartedly.”215
For example, Imaam Muhammad ibn al-Hasan in his
narration of Imaam Maalik’s book, al-Muwatta, contradicted his
teacher Imaam Abu Haneefah in about 20 different rulings. Among
them was the following case in which Imaam Muhammad said, “Abu
Haneefah did not feel that there was any ordained Salaah (prayer) for
Istisqaa,216
but in my opinion, the Imaam should lead the people in
two units of Salaah, (for Istisqaa) make a Du’aa217
and reverse his
cloak,”218
Another example is that of the inheritance of the
grandfather if the father of the dead person is also dead. Abu Yoosuf
and Muhammad both rejected Abu Haneefah’s position and joined
the position of the other three Imaams, giving the grandfather a sixth
of the inheritance which would have gone to the father were he alive.
‘Isaam Ibn Yoosuf al-Balakhee, who was a student of Imaam
Muhammad ibn al-Hasan and a close follower of Abu Yoosuf, used
to make a lot of rulings which differed from those of Abu Haneefah
and his two companions, because the latter were not aware of certain
evidence which later became available to him.219
For example, he
used to raise his hands before and after Rukoo’ (bowing in
214
Muhammad Naasir ad-Deen al-Albaanee, Sifah Salaah an-Nabee,
foreword pp. 34-35.
215
Soorah an-Nisaa (4):65.
216
Prayer for rain in times of drought.
217
Informal prayer
218
Muhammad ibn al-Hasan, at-Ta’leeq al-Mumajjid ‘Alaa Muwatta’
Muhammad, p. 158, quoted in Sifah Salaah an-Nabee, p. 38.
219
Ibn ‘Aabideen, Rasm al-Muftee, vol. 1, p. 27, quoted in Sifah Salaah an-
Nabee, p. 37.

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Salaah),220
as described in authentic Hadeeths by host of Sahaabah,
even though the three main Imaams of his Madh-hab ruled
otherwise.
Allaah also went on to warn those who reject the Sunnah of His
Prophet (s.w.), saying,
“Let those who contradict your order be warned
that they will be afflicted with trials and a painful
punishment.”221
Nevertheless, the prohibition of Taqleed does not mean that
everyone must return to the sources before doing anything and it
does not mean that all the work of the earlier scholars should be
rejected or neglected, for that would be impractical and in most cases
impossible. It does, however, mean that those who have sufficient
knowledge of the various branches of Islamic sciences should not
hesitate to took at the sources as well as the opinions of all the
scholars, regardless of their Madh-hab. A scholar should be open-
minded in his search for knowledge otherwise his rulings are likely
to be biased and sectarian. Let us not forget that even in searching
through the sources he is obliged to rely on the great works of the
earlier scholars in one way or another. In Fiqh, totally independent
thought is impossible and efforts to achieve it undesirable, as it tends
to lead to deviation and heresy. On any particular issue the true
scholar is likely to either follow a ruling of one or another of the
early scholars, or deduce his ruling from one of their deductions. In
so dong, he will be following one of the early Imaams directly or
indirectly. However, this form of following is not to be considered
Taqleed, (blind rigid imitation), which we have shown was forbidden
categorically by the Imaams. This form is called Ittibaa’ wherein
reliable Hadeeths take precedence over all opinions, or as both Abu
Haneefah and ash-Shaafi’ee said, “If the Hadeeth is found to be
Saheeh, it is my Madh-hab”.
It is obvious that the great majority of Muslims will not be
able to return to the sources, due to their lack of knowledge, and they
220
Al-Fawaa’id al-Baahiyah fee Taraajim al-Hanafiyah, p. 116, quoted in
Sifah Salaah an-Nabee, foreword,p. 39.
221
Soorah an-Noor (24):63.

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will therefore be obliged to apply Ittibaa’ to the degree of their
ability. Many can achieve an awareness of the relevant Hadeeths by
asking questions concerning the basis for rulings given to them and
reading the books of Hadeeth. No true scholar should be offended by
such questions if politely worded. Similarly, if the masses are forced
to seek answers from books, they should try to choose books, which
mention explanations and proofs along with the various rulings, and
books, which are not biased, or sectarian. If such books are not
readily available, then they may still avoid Taqleed by not restricting
themselves to the books of one Madh-hab. As long as they are
prepared to follow the Sunnah, whenever it is presented to them,
regardless of which Madh-hab it may be found in, they are in effect
practicing Ittibaa’, not Taqleed.
Section Summary
1. Most Muslims are unaware of the fact that blind following of a
Madh-hab (Taqleed is diametrically opposed to the position and
teachings of the founders of the Madh-habs.
2. All of the Imaams and their students were on record as being
opposed to the blind following of their opinions. Instead they
repeatedly emphasized the importance of referring to the primary
sources, the Qur’aan and the Sunnah, as the basis of legal
rulings.
3. The Imaams and their students continuously emphasized the fact
that their rulings were subject to error.
4. Authentic Hadeeths were given precedence by the Imaams over
their own opinions. On the basis of authentic Hadeeths not
available to the Imaams, their students later overruled several
rulings previously made by the Imaams.
5. Giving preference to the opinion of a Madh-hab over an
authentic Hadeeth borders on Shirk since preference contravenes
the allegiance owed to Allaah and His chosed messenger.
6. All Muslims are repaired to follow with reason (Ittibaa’) the
rulings of the early scholars in order to preserve the pristine
purity of Islaam as revealed to the Prophet (s.w.) and conveyed
to his companions.

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10. DIFFERENCES AMONG THE UMMAH
In the preceding chapters the writer has endeavored to trace and
account for the historical development of Madh-habs, schools of
Islamic legal thought, and to show their overall contributions to the
progressive enrichment and unifying character of Fiqh within the
Muslim world. It has been amply demonstrated that the liberal
thinking which characterized the early Imaams and their Madh-habs,
from the time of the Prophet (s.w.) down through the ages, has been
staidly replaced by a certain rigidity and dogmatism. Since the late
thirteenth century, not only have the madh-habs become spawning
grounds of sectarianism, but Fiqh has lost its original vitality which
was enshrined in the principle of Ijtihaad and thus it has not been
able to keep pace with changing circumstances. As a result of Madh-
hab sectarianism and Fiqh inflexibility, the traditional purity, unity
and dynamism of Islaam have been threatened throughout the
Muslim world.
In this final chapter the writer will examine the phenomenon
of differences and disagreement (Ikhtilaaf) in the light of the
positions of early scholars and their students. He will also endeavor
to reinforce the fact that while differences of opinion are inevitable,
unreasoning disagreement and sectarianism have no place in the
religion of Islaam which Allaah in His wisdom revealed to His
Prophet (s.w.).
In treating the historical development (and evolution) of the
Madh-habs and the concurrent growth of Fiqh into a full-fledged
Islamic science, we have seen that the great Imaams and founders of
the Madh-habs generally adopted the stand that:

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(a) Madh-habs singly or in their totality were not infallible and
(b) The following of any one Madh-hab was not obligatory for
Muslims.
Yet the pervasive influence of Taqleed has resulted, among other
things, in a complete turnabout, so much so, that for centuries now
the position taken by the generality of Muslims is that the four
Madh-habs are divinely ordained the therefore infallible; the legal
rulings of each of those Madh-habs are all sound and correct;
everyone must follow one of the four Madh-habs; a Muslim should
not change his or her Madh-hab; and it is wrong to pick and choose
rulings across Madh-habs. As a corollary to these beliefs, it has been
state that anyone who dares openly to deny the infallibility of all four
Madh-habs or the obligation to follow one to these Madh-habs is
considered an accursed innovator and apostate.
In the 20th
century the most commonly used epithet for
describing such an apostate has been the label Wahhabi (pronounced
Wahhaabee). Another similarly abusive term, which is used mostly
in India and Pakistan, is Ahl-i-Hadeeth, Incidentally, both of these
terms are in reality misnomers, as the following explanatory
comments will reveal.
In the years 1924-25 the followers of Muhammad ibn
‘Abdul-Wahhab (1703-1787) zealously all structures built over
graves of the Sahaabah and other revered persons in the cemeteries
of the holy cities of Makkah and Madeenah. The so called Wahhabis
were also opposed to Tawassul (seeking intercession from the dead),
which had become a widespread practice among the masses of
Muslims as well as among many scholars. Since Tawassul and the
attachment to monuments and shrines had long been ingrained in the
Muslim world, the destructive act of the Wahhabis in 1924-25
appeared to be innovative and extremist; hence the application of the
epithet Wahhabi to “accursed innovators” and “apostate”. It should
be noted, however, that ibn ‘Abdul-Wahhaab, founder of the
Wahhabi movement, followed the Fiqh of the Hambalee Madh-hab
and that his present-day followers continue to do so.
Furthermore, in opposing Tawassul and destroying
monuments and shrines to the dead, the twentieth-century
descendants and followers of Ibn ‘Abdul-Wahhaab were attacking
anti-Islamic practices. The prophet (s.w.) had ordered the demolition

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of all idols and statues, and the leveling of all tombs with the
surrounding earth, according to and authentic Hadeeth reported by
‘Alee ib Abee Taalib and collected by the great Hadeeth scholar
Muslim ibn Hajjaj.222
From the above it should now be clear that the
word Wahhabi applied to mean “accursed innovator” and “apostate”
is in fact a mislabel.
Similarly, the term Ahl-i-Hadeeth (Ar. Ahl al-Hadeeth) was
a title of respect and praise given to scholars in the past who like
Imaam Maalik, devoted much time and effort to the specialized study
of Hadeeth. Towards the end of the nineteenth century this title was
adopted by a reform movement in India and Pakistan which called
for a return to the Qur’aan and the Hadeeth as the basis of Fiqh and
which opposed the dogmatic adherence to Madh-habs. However,
present day Madh-hab fanaticism and sectarianism have distorted the
meaning of the term Ahl-i-Hadeeth to apply to one who fanatically
opposes the following of any of the Madh-habs.
The irony is that, in light of our insight into the historical
evolution of the Madh-habs and concurrent development of Fiqh, the
true deviants from the teachings of Islaam are not the so-called
Wahhabi and Ahl-i-Hadeeth, but those people who would rigidly
insist on every Muslim following one or another of the four Madh-
habs and on their believing blindly in the infallibility of all four
Madh-habs, despite certain glaring contradictions in their rulings on
points of Islamic law. Yet it must be acknowledged that those who
advocate blind following (Taqleed), are often very sincere in their
belief in the infallibility of all four Madh-habs. Futhermore many
scholars are included in their ranks.223
222
Sahih Muslim (English-Trans.), vol.2, p. 459, no. 2115. See also Sunan
Abu Dawud (English Trans.), vol.2, pp. 914-5, no. 3212. The next of the
Hadeeth is narrated by Abu al-Hayyaj al-Asadee who reported that ‘Alee
ibn Abee Taalib said to him “Shall I send you as the Messenger of Allaah
sent me? To deface evry statue of picture in houses and level all elevated
graves.”
223
Under the heading Taqleed Restricted to the Four Matha-hib, the
author of Taqleed and Ijtihad writes: “It was realized from the exposition of
the Wujub of Taqleed that adoption of different verdicts leads to anarchy. It

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How then do those who insist on Taqleed reconcile the
known differnces and contradictions from Madh-hab to Madh-hab
with their belief in the infallibility of all four Madh-habs? Some of
them claim that the Madh-habs were divinely ordained and the
Prophet (s.w.) himself prophesied their coming. Most often,
however, they rest their case, mainly on the evidence of the
following Hadeeths:
(a) “Disagreement among my nation is mercy.”
(b) “Differences among my Sahaabah are a mercy for you.”224
(c) “My Sahaabah are like stars. You will be guided by whichever of
them you follow.”225
(d) “Verily my Sahaabah are like stars. You will be guided by any
statement of theirs you adopt.”226
(e) “I asked my Lord about the things in which my companions will
differ after my death and Allaah revealed to me: ‘Oh
Muhammad, verily to Me, your companions are like stars in the
sky, some brighter than others. Sohe who follwos anything over
is therefore, imperative to make Taqleed of Madh-hab which has been so
formulated and arranged in regard to principles (Usul) and details (Furu)
that answers to all questions could be obtained....thereby obviating the need
to refer to an to external source. This all-embracing quality, by an act of
Allaah Ta’ala, is found existing in only the four Matha-hib. It is therefore,
imerative to adopt one of four Matha-habs.” Maulana Muhammad
Maseehullah Khan Sherwani’s Taqleed and Ijtihad (Port Elizabeth, South
Africa: The Majlis, 1980), published by Majlisul Ulama of South Africa.p.
13.
224
Allegedly reported by Jaabir and collected by al-Bayhaqee.
225
Allegedly reported by Ibn ‘Umar and collected by Ibn Battah in al-
Ibaanah, Ibn ‘Asaakir, and NidHaam al-Mulk in al-Amaalee, quoted in
Silsilah al- Ahaadeeth ad-Da’eefah wa al-Mawdoo’ah, (Beirut: al-Maktab
al-Islaamee, 3rd
ed., 1972), vol. 1, p. 82.
226
Allegedly reported by Ibn ‘Abbaas and collected by al-Khateeb al-
Baghdaadee in al-Kifaaayah fee ‘Ilm ar-Rawaayah, (Cairo: Daar al-Kutub
al-Hadeethah, 2nd
. ed. , 1972).

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which they (the Sahaabah) have differed, as far as I am
concerned, he will be following guidance’.”227
However, before these Hadeeths can be accepted as evidence for
sectarianism, they must be clearly shown to be authentic. An
examination of these Hadeeths has indeed been made by eminent
scholars and their conclusions are recorded hereafter.
As for the Hadeeths in which the Prophet (s.w.) was
supposed to have foretold the coming of the Imaams and their Madh-
habs, the authentic ones are all generally worded with no specific
mention of either the names of the Imaams or their Madh-habs, while
those Hadeeths that are specifically worded are all fabricated.228
With regard to “Hadeeth” (a) above, it has no chain of
narration connecting it to anyone, much less to the Prophet (s.w.);
nor is it to be found in any of the books of Hadeeth.229
It is therefore
incorrect ot even refer to is as a Hadeeth, as it is fabricated. With
regard to “Hadeeths” (b) to (e) above, although they can be found in
227
Allegedly reported by Ibn ‘Umar and collected by Ibn Battah in al-
Ibaanah, Ibn ‘Asaakir, and NidHaam al-Mulk in al-Amaalee and quoted in
Silsilah al-Ahaadeeth ad-Da’eefah, vol.1, pp. 80-81.
228
For example al-Khateeb collected a Hadeeth arrtibuted to the Prophet
(s.w.) through Abu Hurayrah in which he was supposed to have said,
“There will be among my Ummah a man called Abu Haneefah, he will be
the lamp of my Ummah.” Al-Khateebs himself and al-Haakim declared it
Mawdoo’ (forged), among the fabrications of Muhammad ibn Sa’eed al-
Marwazee (Muhammad ibn ‘Alee ash-Shawkaanee, al-Fawaa’id al-
Majmoo’ah, (Beirut: al-Maktab al-Islaamee,2nd
ed., 1972), p. 320, no.
1226). Al-Khateeb collected another report through Anas in which the
Prophet (s.w.) was quoted as saying, “There will come after me a man
called an-Nu’maan ibn Thaabit, pet-named Abu Haneefah. Allaah’s religion
and my Sunnah will be revived by him.” It has in its chain of narrators
Ahmad al-Juwaybaaree, a known fabricator of Hadeeths and Muhammad
ibn Yazeed as-Salamee, whose narrationsa are classified unacceptable
(Matrouk) by Hadeeth scholars. (‘Alee ibn ‘Iraaq, Tanzeeh ash-Sharee’ah
al-Marfoo’ah (Beirut: Daar al-Kutub al-‘Ilmeeyah, 1979), vol2, p.30,no.10).
229
Narraded by al-Manaawee from the great Hadeeth scholar as-Subkee.

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books of Hadeeth or about Hadeeth, they have all proven to be
unauthentic. The first is classified by Hadeeth scholars as Waahin
(extremely weak)230
, the second and third as Mawdoo’ (fabricated)231
and the fourth as Baatil (false).232
Thus, the Hadeeth evidence for the
glorification and perpetuation of differences among Madh-habs, is
totally unacceptable from the point of view of authenticity.
Not only are these so-called Hadeeths unauthentic, but their very
meanings are in obvious conflict with the Qur’aan itself. Throughout
the Qur’aan’s one hundred and fourteen chapters, Allaah has clearly
cursed and forbidden religious desagreement and has ordered unity
and agreement. Disagreement has been explicity forbidden in verses
such as:
“Do not dispute among yourselves and cause your
own failure and loss of power”233
and
“Do not be like those among the idolaters who
split up their religion into sects, each group
happy with what they had”.234
Implicitly, too, Allaah has forbidden it, for example,
“If your Lord had so willed, He could have made
mankind one people; but they will not cease to
dispute, except those on whom your Lord has
bestowed His mercy.”235
If Allaah’s mercy puts an end to dispute among men as is implied in
the above, how then could disagreement and dispute be a mercy? In
230
Silsilah al-Ahaadeeth ad-Da’eefah was al-Mawdoo’ah, vol.1, p.80.
231
Ibid., pp.78-79 and 82-83.
232
Ibid., p..81.
233
Soorah al-Anfaal (8):46.
234
Soorah ar-Room (30): 31-32.
235
Soorah Hood (11): 118-119.

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the unmistakable terms of the following verse and others like it,
Allaah has ordered unity and agreement:
“Hold fast to the rope of Allaah together and do
not split up. And remember Allaah’s mercy on
you when you were enemies, then He put love in
your hearts and with His blessing you all became
brothers.”236
Differences Among the Sahaabah
In view of these clear Qur’anic condemnations, how then do
we account for the disagreement which occured at times among the
Prophet’s (s.w.) companions (SahaabahO and the early scholars of
Fiqh?
The differences of opinion which occured among the
Sahaabah were for the most part natural and unavoidable. A large
portion of it was due to their different reasoning abilities which
showed up in their various interpretations of Qur’anic verses and
Hadeeths. There were other causes which led to differences during
their time which later disappeared; for example, the wide distribution
of Hadeeths made it impossible for any individual Sahabee to be
aware of them all, and thus wrong dicisions were bound to be made
where information was lacking. Obviously, they cannot be blamed
for these and similar mistakes, which were not intentional.
Furthermore, it is clear that they readily corrected their wrong
decisions when authentic information or more relevant evidence
indicated that this should be done. It is this willingness to cast aside
wrong decisions in the search for truth which excludes these
conflicting rulings from the category of accursed disagreements. In
this connection, the messenger of Allaah (s.w.) had said, “If a judge
strives his utmost and makes a correct ruling, he receives two
rewards, but if he strives and errs he still receives one.”237
Based on
236
Soorah Aal ‘Imraan (3): 103.
237
Narrated by ‘Abdullah ibn ‘Amr ibn al’Aas and collected by al-Bkhaaree
(Sahih Al-Bukhari, (Arabic English), vol. 4, p.442, no.667) and Muslim
(Sahih Muslim (English Trans.), vol.3, p. 930, no. 4261).

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this Hadeeth, the Sahaabah are considered absolved from blame for
conflicting rulings. However, any discrepencies apparent in their
differnt rulings are not to be glorified and perpetuated. In fact they
themselves disliked disagreements, as is shown in the following
narration quoted by ash-Shaafi’ee’s student, al-Muzanee: ‘Umar ibn
al-Khattaab, the second Righteous Caliph, got angry because of a
dispute between the Sahaabee, ubayy ibn Ka’b, and another
Sahaabee, Ibn Mas’ood, wver the performance of Salaah in a single
piece of cloth. Ubayy considered in quite alright while Ibn Mas’ood
felt that was so only when cloth was scarce. ‘Umar angrily left his
residence and declared, “Have two of Allaah’s messenger’s
companions disagreed and they are among those whom the masses
watch closely and imitate? Ubayy is correct and Ibn Mas’ood should
desist! If I hear of anyone disputing about this matter after this point,
I will deal with him.”238
Indeed, the early scholars well aware of the causes of
differences among the Sahaabah and the tendency for people to want
to perpetuate them. Accordingly, they made definitive statements on
the matter in an effort to stave off dogmatism and sectarianism based
on conflicting rulings of the Sahaabah. The following are a few
examples of their statements on this vital subject. Ibn al-Qaasim,
who was among the main students of Imaam Maalik, said, “I heard
Maalik and al-Layth both say the following concerning the
differences among the Sahaabah: ‘People say there is leeway for
them in it, but it is not so; it was a case of wrong and right
rulings’”.239
Ash-hab, another of Imaam maalik’s students, said, “Maalik
was once asked whether one was safe to follow a ruling related to
him by reliable narrators who had heard it from companions of the
Prophet (s.w.). He replied, ‘No, by Allaah, not unless it is correct:
the truth is only one. Can two opposing ominions be simultaneously
correct? The opinion which is correct can be only one.’”240
238
Jaami’ Bayaan al-‘Ilm, vol. 2, pp. 83-4.
239
Jaami’ Bayaan al-‘Ilm, vol. 2, pp. 81-82.
240
Ibid., vol.2, pp. 82, 88, 89.

- 142 -
Imaam ash-Shaafi’ee’s student, al-Muzanee, put it this way,
“The companions of Allaah’s Messenger (s.w.) disagreed from time
to time and declared each other mistaken. Some of them examined
the statements of others and researched them thoroughly. Therefore,
if all of them felt that whatever they said was correct, they would
never have investigated each other’s statements or declared each
other mistaken.” Al-Muzanee also said, “The following question
should be put to the one who allows disagreement, claiming that if
two scholars strive to strive at a decision concerningthe same
incident on eruling that it is “Halaal” and the other that it is
“Haraam”, both are correct. ‘Are you basing that judgement on a
fundamental text (the Qur’aan or the Sunnah) or on Qiyaas
(analogical deduction)?’ If the claims that it is by Qiyaas, he should
be asked, ‘How could the fundamental text reject dispute and you in
turn deduce from it that ispute is allowded?’ No common person
capable of reason would allow that, much less a scholar.”241
Although the Sahaabah differed in the application of some
principles, they used to go to extremes to preserve an appearance of
unity and avoid things which would divide their ranks. But, among
later scholars and followers who blindly and dogmatically clung to
the inherited Madh-habs, we find the complete opposite. As was
previously mentioned, their differenes at one point led to the splitting
of their rands over Salaah (formal prayer), the greatest pillar of
Islaam after the two testimonies of belief.
Conservative sectarians among later scholars at times carried
their differnces even beyond that extreme, making rulings which
struck at the very heart of the brotherhood and unity of Islaam. For
example, Imaam Abu Haneefah alone among the early Imaams felt
that Eemaan (belief) neither decreased nor increased; one eiter
believed or he disbelieved.242
On the basis of Abu Haneefah’s
241
Jaami’Bayaan al-‘Ilm, vol. 2, p. 89.
242
The position is at variance with both Qur’aan and Hadeeth. Allaah
described true believers as “Those whose Eemaan increases when people
tell them to beware the (enemy) which has gathered to attack them”
(3:173). Elsewhere we find, “And if His signs are read to them, their
Eemaan increases.” (8:2) The prophet (s.w.) also said, “None of you
believes until I become more beloved to him than his offspring, father, and

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opinion, a ruling was made by later scholars of the Madh-hab stating
that if one is asked the question, “Are you a believer?” It is Haraam
to reply, “I am a believer, if Allaah so wills it,” as it implied that one
is in doubt about the existence of his belief.243
According to the
Ijmaa’ of the scholars, doubt about one’s belief is equivalent to
disbelief (Kufr). Therefore, one should reply, “I am truly a
believer”.244
The implied but unstated meaning of this ruling was that
the followers of the other schools of thought were in doubt about
their Eemaan and thus in disbelief. This was never state dby early
Hanafee school, but some later scholars deduced from it the ruling
that followers of the Hanafee Madh-hab were prohibited from
marrying followers of the Shaafi’ee Madh-hab Which was the
second most prominent Madh-hab at that time. This deductin was
later over-ruled by scholars of the Hannafee Madh-hab,245
but stands
as historical evidence documenting the dangers of sectarianism.
all mankind.” The negation here is taken to be a negation of perfection and
not a negation of existence; otherwise, none of us could be considered
Muslims. The Hadeeth is collected by al-Bukhaaree and Muslim. See Sahih
Al-Bukhari (Arabic-English), vol. 1,p. 20, no. 14 and Sahih Muslim
(English Trans.), vol. 1, p. 31, no. 71.
243
This line of reasoning is clearly contradicted by the following Hadeeth in
which the Prophet (s.w.) taught us to make the following prayer at
graveyards: “Peace be on the believing and submitting people of these
abodes, may Allaah have mercy on our predecessors and our Successors.
And Allaah willing, we will be joining you all” (Reported by ‘Aa’eshah
and collected by Muslim and Abu Daawood. See Sahih Muslim (English
Trans.), vol. 2, pp. 461-2, no. 2127 and Sunn Abu Dawud (English Trans.),
vol. 2, pp. 919-20, no. 3231). The Prophet (s.w.) was not in doubt about
dying.
244
Ibn Abee al-‘Izz, Sharh al-‘Aqeedah at-Tahaaweeyah, (Beirut: al-Maktab
al-Islaamee, first edition , 1972), pp. 395-397.
245
The new ruling was made by the famous Hanafee scholar titled, “Muftee
ath-Thaqalayn”, who allowd the marriage of Shaafi’ite women on the basis
of the allowance of marriage to christian and Jewish women (Zayn ad-Deen
Nujaym, quoted by the 16th
century Egyptian Hanafee scholar in his eight
volume work entitled al-Bahr ar-Raa’iq. However, this ruling implied that
Hanafite women were still not allowed to marry Shaafi’ite men just as they
cannot marry chiristian and Jewish men!

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Section Summary
1. The position of the generality of Muslims is that the four Madh-
habs are infallible, everyone must follow one of them and
followers must not change Madh-habs or pick rulings from other
Madh-habs.246
2. One who does not subscribe to the infallibility of the Madh-habs
or does not follow any of the four Madh-habs is commonly, but
mistakenly classified as a heretic and mislabelled either
“Wahhabi” or “Ahl-i-Hadeeth”.
3. The Hadeeths used to defend Madh-hab sectarianism are either
misinterpreted or unauthentic.
4. The Qur’aan explicity and implicity condemns conflict and
dispute among Muslims.
5. Differences among the Sahaabah were due to varying
interpretational abilities and the extent to which they were
exposed to Hadeeths of the Prophet (s.w.). Their different rulings
were not rigidly clung to in the face of evedence to the contrary.
6. Early scholars emphasized the fact that only those rulings of the
Sahaabah, which were proven to be correct in the long run were
to be followed as correct.
7. Disagreements among the Sahaabah never led to disunity and
division amongst them, whereas, among later scholars of the
Madh-hab, differences evolved into disharmony among
Muslims.
246
Under the heading Math-bah of the Convert the author of Taqleed and
Ijtihad writes: “If such a person lives in a place where a particular Math-hab
is happens to be in a place where several Matha-hib are in 0peration on a
more or less equivalent basis, then the will be free to choose any Math-hab
acceptable to him. However, once the choice is made, he will be obliged to
remain steadfast on the Math-hab of his choice.” (p.13)

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11 CONCLUSION
From the preceding chapters we have seen that the Madh-
hab has gone through four basic stages as a result of the effects of the
following factors: conditions of the Muslim state (unity, disunity),
status of religious leadership (unified and orthodox, or fragmented
and unorthodox) and communication among scholars. When the state
was a single body, the leadership was unified and orthodox, and
Muslim scholars were close to each other thereby facilitating
communication. At that time there was only one Madh-hab, whether
that of the Prophet (s.w.) or tha tof each of the Righteous Caliphs.
There followed a breakdown of political and religious leadership
within the relatively unified state (under Umayyad and ‘Abbaasid
rule), and the dispersion of the leading scholars throughout the
empire. Consequently, a large number of Madh-habs arose as
scholars in various parts of the state were obliged to make rulings
without benefit of that close consultation which had existed when
communication was not a problem. Characteristically, these scholars
managed to retain the flexibility of former times, readily discarding
their individual rulings in favor of the rulings of others which were
based on more authentic or comprehensive Hadeeths. Subsequently,
in the latter part of the ‘Abbaasid dynasty, scholars were caught up in
the political rivalry resulting from the splintering of state leadership.
The situation was futher aggravated by the official promotion of
court debates which brought special rayal favors to individual
winners and their Madh-habs. Thereafter, it was but a step to
fanatical sectarianism for which many of the followers of the four
surviving Madh-habs became noted.
Dynamic Fiqh
The Situation today is a mixture of the preceding stages.
Mass communication has brought Muslim scholars into close contact
once again, but religious leadership at the state level disappeared

- 146 -
long ago when the Muslim world became divided into nationalist
evtities each with its own politico-economic governmental system.
The vastly increased Muslim population of today (variously
estimated between 800 million and a billion) has been held together
by their belief in Allaah and His Prophet (s.w.) and by their
commitment to the Qur’aan and the Sunnah. Religious leadership
such as there is tends to be exercised in separate stated through one
of the four Madh-habs, which though less fanatic than formerly,
unfortuantely continue to be sectarian and hence divisive
However, there have ben encouraging signs, especially since the
middle of this century, that the drive towards unity divinely built into
Islaam is propelling Muslims the world over towards a revival of
their religion as the decisive factor in their lives at the personal,
communal and national levels. Given the multiplicity of cultures
represented in the Muslim population and the uncreasing diversity of
issues and problems arising from daily living in this rapidly changing
world, many Muslims scholars have long felt that the goal of re-
establishing Islaam at the supreme guide in the daily lives of
Muslims, anywhere in the world, is-chievable only by a revival of a
dynamic Fiqh such as was practised in what we previously described
as the “Stage of flowering”. This implies a reunification of the
Madh-habs with all traces of fanaticism and sectarianism removed,
and the revival of Ijtihaad to make Fiqh once more a dynamic,
objectively deduced body of laws so that individual Muslim scholars
and jurists may effectively and uniformly apply the Sharee’ah in all
parts of the Muslim world, no matter what the socio-political-
economic conditions.
No less important is the possible impact of such a
reformation, not only on new converts to Islsaam, but also on the
new generation of Muslims born into the faith. In the case of the
former, they would be spared the perplexing effects of conflicting
rulings from Madh-hab to Madh-hab, while in the case of the latter,
they would be spared the frustration of the sectarianism generated by
Madh-hab contradictions and avoid the tendency towards total
rejection of the Madh-habs and the outstanding contributions of early
scholars.
Proposed Steps

- 147 -
Finally, a unified Madh-hab and a dynamic body of Fiqh
envisioned above are felt to be needed in order to evolve vibrant
Islamic communities and unite such communites throughout the
world in the types of co-operative endeavors that would protect the
common interest of mankind and project Islaam on a global scale.
Assuming the desirability and validity of the twin goals of unifying
the Madh-habs and re-establishing a dynamic Fiqh, what are the
steps that might be taken towards achieving these goals? In the first
place, concerted efforts will have to be made to resolve in a truly
objective way the differences between the existing Madh-habs and
their predecessors, using the methodology of the early scholars as
defined by their statements and practices quoted in the previous
chapters.
The mechanics of initiating appropriate action calls for
enlightened leadership springing from the ranks of progressive and
influential scholars of high calibre, that is, some person or persons
imbued with the zeal to effect changes along the lines proposed will
have to take the initiative to communicate with other interested
parties with a view to planning nad organizing the procedural details.
Drawing on modern day systems approaches to problem solving,
these steps would include: objective definition of the real obstacles
to solution; selection of the nost appropriate solution; determination
of possible methods of implementation; selection of the most
appropriate method; then putting the solution into effect. At each
stage in this type of planning, the steps chosen would have to be
continuously evalutad with regard to the problems and the goals.
Obviously, the task of unifying the Madh-habs, and restoring
dynamic Fiqh are not susceptible to simplistic solutions, but with
Allaah’s blessings they are within the realm of possibility.
On a theoretical level, it is comparatively easy to make
sugestions for the resolutions of interpretational and application
differences among Madh-habs. The following framework, based on
the methodology of the early Imaams, has been recommended at
various times by progressive-minded Islamic scholars.
Contradictory and Variational Differences

- 148 -
Differenes among Madh-hab’s rulings fall into two main
cetegories; firstly, conradictory differences (Ikhtilaaf Tadaadd),
totally opposite rulings which can not logically be simultaneously
correct, for example rulings in which one Madh-hab defines
something as Halaal and another difines it as Haraam, and secondly,
variational differences (Ikhtilaaf Tanawwu’), conflicting rulings
which are logically acceptable variations which can co-exist, for
example, various sitting positions used by the Prophet (s.w.) in
Salaah some of which have been preferred over others by the
different Madh-habs. In many cases of differences arising from
meanings (literal and figurative) of words and grammatical
constructions, there are authentic Hadeeths which specify the
meanings intended and these specified meanings should be given
preference over all other interpretations. Similarly, legal rulings
which were made according to conditions which eliminated authentic
narrations, should be regarded as invalid and should be replaced by
the rulings of other jurists which were made on the basis of authentic
Hadeeths. As for rulings based on controversial principles or
unrestricted Qiyaas, these should be objectively examined in the
lighte of the fundamental principles of the Qur’aan, the Sunnah and
the Ijmaa’ of the Sahaabah; rulings agreeing with these fundamentals
should then be accepted and those contradicting them should then be
rejected. Outside the scope of the foregoing suggested solutions,
there remain a number of issues on which there is more than one
ruling equally supported by the Qur’aan, the Hadeeth, the Ijmaa’ of
the Shaabah or Qiyaas. The different rulings in such cases should be
treated as viable options to be applied according to circumstances
and these are a part of the logically acceptable variations mentioned
as the second category of differences in Madh-hab rulings.
This framework for the resolution of differences among the
Madh-habs could best be effected within institutions devoted to the
objective study of Fiqh; that is, institutions devoted to the objective
study of Fiqh’ that is, institutions of learning in which no Madh-hab
is given preference over another. Islamic law could then be studied
from its primary sources, and the positions of the various Madh-habs
could then be analyzed rationally and objectively as outlined
previously. If the standard of scholarship in such centers of learning
were high, the enormous task of re-unifying the madh-habs could
then be undertaken with excellent prospects for eventual success. A

- 149 -
single Madh-hab completely free from sectarianism and firmly based
on sound scholarship, could provide not only trustworthy and
continuing leadership for the Muslim world in general, but also
concrete guidence to various reformist movements aimed at re-
establishim divine law as the only valid basis for geverning Muslim
countries. With success in the area of the Madh-hab reunification and
the establishment of divine law, we could then look towards the
reunification to the Ummah, the Muslim nation, and the re-
establishment of the Khilaafah, the true caliphate. This would
provide the necessary foundation for the execution of Allaah’s law
throughout the earth, if Allaah so wills it.

En Evolution of_Fiqh

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