Islamic Legal Jurisprudence: Week 2 - Rashidun Caliphates

Islamic Legal Jurisprudence Fiqh 3 @ Darul Arqam Week 2 Friday 25 November 2011 By Ust Saif-ur-Rahman

Foundation Stage - Revision Basis of Legislation in the Qur’an Removal of Unnecessary Difficulty Reduction of Religious Obligations Realization of Public Welfare Realization of Universal Justice

Foundation Stage – Sources of Law Qur’an Sunnah Statements of the Prophet (saw) Actions of the Prophet (saw) Affirmations by the Prophet (saw) “ He does not speak from his desires. Verily, it is inspiration which has been revealed” [ an-Najm 53:3-4 ] “ Oh messenger, convey what has been revealed to you from your Lord” [ al-Ma’idah 5:67 ]

Sunnah How? Explained by clarifying through statements or by an act Eg: prayers: “Pray as you have seen me pray” [ Bukhari ] Sunnah was an exposition of the Qur’an by which its generalities were clarified and its intended meanings specified Everything in the Sunnah is addressed in the Qur’an – either by inference or by direct reference

General vs Specific General verses – general authorization “ Whatever the messenger gives you, take it; and whatever he forbids you, leave it” [ al-Hashr 59:7 ] Specific verses – details/deduction from it “ He made lawful for them the good (and pure) things and forbade them the bad (and impure)” [ al-A’raf 7:157 ] “ The Prophet sent Abu Talhah to make an announcement: Allah and His Messenger have prohibited you from eating the flesh of domesticated donkeys, for it is bad (and impure). [ Muslim ]

Exceptions? Personal habits and customs People grafting their date-palm trees (artificial pollination) “ 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 am a human being. You have better knowledge (of technical skills) in the affairs of this world” [ Muslim ] Legal judgments may be ruled incorrectly 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 Hellfire” [ Abu Dawood ]

Lessons Such decisions based on personal reasoning represented training for the companions of the Prophet ( saw ) in the methodology of application of the laws of Syari’ah.

Encouragement to make legal rulings Sayidina Ali (kw) : “Allah’s Messenger sent me to Yemen as a judge, so I asked, ‘O messenger of Allah! You are sending me and I am young, and I have no knowledge of giving judgment?’ He replied, ‘Allah 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 judgment to become clear to you” [ Abu Dawood ] Another example: Sa’d ibn Mu’aadh (ra) : Quraydhah tribe surrendering to his judgment [ Muslim ]

Lessons The process of arriving at reasoned decisions to suit new circumstances and the decisions themselves are referred to as “ Ijtihad ” Both the Prophet (saw) and the companions practiced Ijtihad during this stage in the development of Islamic law Thus, the Ijtihads of the Prophet (saw) were essentially a means of giving the companions lessons in the methods of Ijtihad , and the Ijtihads of the companions at this early stage, were basically for practice

Summary: Foundation Stage Islamic law in this early stage consisted of the laws of Syari’ah which were revealed and recorded in the Qur’an and the Sunnah. They relate mainly to the ideological foundation of Islam, Iman and the socio-economic laws necessary for the organization of a fledging Muslim state The basis of legislation in the Qur’an was that of human reformation, as such, beneficial human customs and practices were recognized and incorporated into the body of divine legislation In order to achieve the goal of reformation, Qur’anic legislation incorporated the principles of: Removal of unnecessary difficulties Reduction of religious obligations Realization of public welfare Realization of universal justice

Summary: Foundation Stage This period marked the beginning of the evolution of Fiqh and it was during this period that the foundation for the science of deducing laws from the Qur’an and the Sunnah were laid by the Prophet (saw) It might be said that in this period the first Mazhab (school of legal thought) took shape as the Prophet (saw) guided and trained the Companions in Ijtihad

Establishment Stage Era of the Righteous Caliphs By then, the borders of Islamic state were rapidly expanded to include Jordan, Syria, Egypt, Iraq and Persia Muslims were suddenly brought into contact with totally new systems, cultures and patterns of behaviors for which specific provisions were not found in the law of Syari’ah To deal with these new circumstances, the Righteous Caliphs relied heavily on decisions by consensus ( Ijma ’) as well as Ijtihad In the course of these extensive use of Ijma ’ and Ijtihad, these caliphs established procedures which later became the basis for legislation in Islam, that is Fiqh This period was comparatively free from factionalism which marked the later periods

Problem-Solving Procedures of the Righteous Caliphs He would first search for a specific ruling on the problem in the Qur’an If he did not find them, he would then search for a ruling in the Sunnah If he still cannot find them, he would then call a meeting of he major Sahabah and try to get a unanimous agreement ( Ijma ’) If unanimity could not be reached, he would then take the position of the majority If, however, differences were so great that there is no over-whelming majority, the caliph would make his own Ijtihad . It should also be noted that the caliph had the right to over-rule the consensus

The Approach of Individual Sahabah on Ijtihad They made it clear that their deductions were not necessarily as Allah intended. Eg: “I am giving my opinion about her. If it is correct, then it is from Allah, but if it is incorrect, then it is from me and Syaitan” If they made different rulings on a problem in their individual capacities and were later informed of an authentic hadith on the subject, they would immediately accept it, dropping all differences Eg: Abu Bakar on prophet’s place of burial When neither authentic proof nor unanimity could be arrived at, the companions of the Prophet used to respect the opinions of each other and would not force other Sahabah to follow any individual opinion. Exception: practices which were formerly acceptable and later became prohibited Eg: Marriage by mut’ah

Characteristics of Fiqh During this Period Fiqh was based on a real problem rather than on a hypothetical or imaginary ones Neither procedures nor records were made – open-mindedness Avoid giving personal opinions – rely heavily on literal meanings of Qur’an and Sunnah Modifications on Syar’iah due to only on 2 factors: disappearance of reason for the law’s existence or a change in social conditions Caliph has final say

Summary Basis of deductive Fiqh, Ijma ’ and Ijtihad was laid during the time of the Righteous Caliphs Sudden addition of vast new territories brought Muslims into sudden contact with many different cultures, and this present a host of new problems not specifically covered by the Syari’ah Legal rulings became increasingly necessary, and righteous Caliphs developed certain procedures fore arriving at Ijtihad

Summary Sahabah followed decision-making procedures which helped them to avoid hard and fast rulings Combined approval of the righteous Caliphs and the Sahabah tended to promote unity and to provide little or no occasion for factionalism Caliph has final say in disputes Particular emphasis was placed on the study of the Qur’an

Islamic Legal Jurisprudence: Week 2 - Rashidun Caliphates

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Islamic Legal Jurisprudence: Week 2 - Rashidun Caliphates