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The Evolution of Fiqh - part 1

This is a large topic that has been discussed in detail by the scholars known as Taarikh at Tashree'

Fiqh has developed through several atwaar (stages) and there is no clear boundary between them other then the first and second tawr.

The first is clearly distinct as this is the era of the prophethood of the prophet sallallahu 'alayhi wa sallam from when he was 40 years old till his death at 63 years.

The first stage - the era of the prophet:

1. There were two parts to this stage:

In Makkah, there was not much in terms of fiqh and the majority of revelation concerned 'aqaa'id (beliefs). However, some fiqhi issues were raised including the slaughter and the prayer, although the scholars said these issues were connected with the 'aqaa'id.
In Madinah, the revelation of the majority of the fiqhi rules occured.

2. In this stage, everything was dependant upon revelation.

There was no room for ijtihaad other than the inspired ijtihaad of the prophet sallallahu 'alayhi wa sallam and the supervised ijtihaad of the companions.

An example lies in the incident of the companion who used al faatiha as a cure for a person who had been bitten by a snake. When the companion returned to Madinah, there prophet sallallahu 'alayhi wa sallam approved, thus making this something acceptable in Islamic Fiqh.

3. Islamic Fiqh was not influenced by any form of foreign thinking or philosophies due to the continuation of revelation.

The Arab customs that were present were either approved or disapproved by Islam.
For example, there were 4 types of recognised marriage in arab society as was narrated by 'Aaishah. All of these were abolished by Islam other than the form we know now.

4. In this time, it was generally forbidden to write anything other than the Qur'aan to avoid mixing it with the hadith or anything else.

Some specific companions were permitted to write the hadith such as 'Abdullah ibn 'Amr ibn ul 'Aas, who wrote as Saheefah as Saadiqah, and 'Ali who wrote some narrations regarding blood money and other issues.

This period lasted for 23 years and everything was clarified for the people before the death of the prophet sallallahu 'alayhi wa sallam.

The second stage - the era of the older sahaabah (companions):

1. Due to the many conquests and expansion of the Islamic state, many foreign cultures came into contact with Islam. Due to this many new issues arose that had to be ruled on.

2. In this era, the older and most knowledgeable companions (the kibaar) were present.

The companions in this era can be divided into 3 categories based on the number of rulings they gave:

Al Mukhsirun - those who gave many rulings. These were around 13 companions including 'Umar, 'Ali, Zaid ibn Thaabit, 'Aaishah, Abdullah ibn 'Umar, Abdullah ibn 'Abbaas and 'Abdullah ibn Mas'ud, may Allah be pleased with them all.
Al Mutawassitun - those who gave a small number of rulings. These included Abu Bakr, who only gave a few rulings as he died a few years after the prophet sallallahu 'alayhi wa sallam, 'Uthmaan and Abu Musa al Ash'ari, may Allah be pleased with the all.
- those from whom only a few rulings are narrated.

The scholars are agreed that the Imaam of the companions in this issue was 'Umar as he devised many rulings and decisions and matured the fiqh. For example, he was the one who moved the Maqaam Ibrahim.

Some were literalists and took everything exactly as it was whilst others were not. For example, ibn 'Umar was like this whilst ibn Abbaas and ibn Mas'ud would look at the intent or reasoning behind the statements. However, these differences were all within the bounds given by Allah and His messenger.

3. Ijmaa' (concensus), the third source of legislation in Islam, also appeared in this era.

For example, during the riddah wars, there were those who refused to pay the Zakaah as the prophet sallallahu 'alayhi wa sallam had died. Abu Bakr decided to wage Jihad against them and after some initial disagreement from 'Umar (who was convinced of the validity by Abu Bakr), all the companions fought. This shows that refusing to pay Zakaah is kufr by Ijmaa'

Some (ignorant people) said there is no ijmaa' in Islam and we can only take from the Qur'aan and sunnah. The evidence against this can be found when the Qur'aan was collected in the time of Abu Bakr and all the companions were in favour of it. There was no basis for this in the Qur'aan or Sunnah, showing that Ijmaa' was valid.
Some scholars including Imaam Ahmad said that after the time of Abu Bakr and 'Umar, Ijmaa' is no longer valid due to the spread of the jurists amongst the companions unless it can be clearly and explicitly proven. For this reason, they said that one should say 'I am not aware of any dispute upon this' rather than 'there is concensus on this'. From this we can say that it was still valid and possible but one should be careful with this.

4. Again, in this era, generally only the Qur'aan was written down. The hadith and rulings were mainly conveyed verbally.

5. The fitnah that began in the time of 'Uthmaan and worsened in the time of 'Ali and in this time, people (not from the companions) began fabricating hadith to support their deviant ideas.

6. Fiqh remained free of outside influences. Any other culture was again accepted or rejected. Some examples were taken from other nations but this did not affect the principles and rules of Islam.

The third era - the era of the younger sahaabah and the older taabi'een (successors):

The Taabi'een and those after them are divided into three categories:

Kibaar - The older ones, who would have met many of the generation above, lived amongst them and learnt much from them.
Wusta - The middle ones, who met some of the generation above and learnt from them as well as from the kibaar of their own generation.
Sighaar - The younger ones, who met one or two of the generation above and are mainly learnt from the kibaar and wusta of their own generation.
Note, the companions are divided into Kibaar and Sighaar only.

1. The most important feature of this era was the establishment of two schools of Fiqh, one in Ijaz (modern day Saudi Arabia) and another in Iraq.

In Ijaz, there was a section in Makkah and a section in Madinah.

These were not actual buildings but it was well known and recognised that teaching was going in.
The school of Ijaz had more basis in ijtihaad due to the closer proximity to the sunnah and the shorter chains to the prophet sallallahu 'alayhi wa sallam.
The school of Iraq made the criteria for accepting hadith very strict due to the widespread fitnah and fabrication of hadith. Due to this, opinion based fiqh with its root in the evidence was used more than ijtihaad.

2. The majority of those who carried the 'ilm including fiqh in this era were all freed slaves.

Naafi' was the freed slave of ibn 'Umar and was the scholar of Madinah. Ibn Umar used to say Allah has favoured us with Naafi'
Ikrimah was the freed slave of ibn 'Abbaas and was the scholar of Makkah. He was manumitted by 'Ali ibn Abullah ibn Abbaas after ibn Abbaas's death. He was ready to sell him to Mu'awiyyah but freed him instead after someone said 'you sold the 'ilm of this ummah for 4,000 dinar!'.
Sa'eed ibn Jubayr was the freed slave of Bani Waalibah (one of the tribes of Kufa) and was the scholar of Kufa (Iraq)
Al Hasan al Basri and Ibn Sirin were the scholars in Basra. Al Hasan al Basri was considered the Imam of the taabi'een (successors) and was brought up in the house of Umm Salamah (one of the wives of the prophet).
Maqhul was the teacher of Imam al Awzaa'i. He was present in Shaam (modern day Syria).
Yazeed ibn Abi Khubaib was the teacher of Al Layth ibn S'ad who was the Imaam of Egypt.

3. Again, generally nothing was written except the Qur'aan.

4. Despite the fitnah, fabrication of hadith and more corrupt rulers, the scholars of the time would still communicate and discuss issues and even change their opinions based on this. The latter scholars said this is because of the hadith "The best of my ummah are my generation, than those after them and than those after them"

The fourth era - the era of the younger taabi'een and the older tab'a taabi'een (successors of the successors)

1. This was the era when they started to write then the sunnah on a large scale on the order of the Muslim leader, 'Umar ibn Abdil 'Azeez.

The Sunnah, fataawa of the companions and fataawa of the successors was all written without seperation.
There was no question of the Qur'aan being mixed with the sunnah. It had been memorised by thousands and was available in the form of a book.
The Sunnah is essential for the religion as it is the second source of legislation.

2. In this era, scholars began to specialise in a particular Islamic Science.

This led to the advancement and specialisation of the different sciences.
The fuqahaa (jurists) in this time had a high status as they had to specialise in several fields to actually specialise in Fiqh.

3. Towards the end of this era, the well- known madhaahib began appearing.

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