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Hajj and Umrah

The Evolution of Fiqh - part 2

The previous stages, up to the beginning of the formation of the madhaahib, were discussed in the previous lesson

The Fifth Stage (the era of ijtihaad):

This stage began towards the end of the 4th century of the Hijri calendar, although, it has no clear distinction as is the case with the other eras.

This was the stage of the great Imams of the Muslims and those who followed in their ways in relation to usul (principles) and ijtihaad.

1. Some new Islamic ulum (sciences) appeared including usul ul fiqh.

This appeared first in the second century and was mentioned by Imam ash Shaafi' in Ar Risaalah.
It was first composed in an organised way by Abu Yusuf, the student of Imam Abu Haneefah.

Usul are essentially rules derived from aayaat and hadith from which fiqhi rules could be based.

Some argued that fiqh should come before the usul and the usul should be derived from them. However, this does not account for the fact that the usul themselves are based on the revelation.
For example, several rules in Fiqh are based on the following ayah as well as other aayaat and hadith:

"Allah burdens not a person beyond his scope..." [2:286]

Thus, whenever a person is completely unable to do something, this rule is applied. For example, the one who cannot stand may sit in the prayer even though it is from the pillars of the prayer.
Similarly, the principle of ignorance being an excuse for breaking the rules other than those major issues due to the following ayah as well as other evidences:

"Messengers as bearers of good news as well as of warning in order that mankind should have no plea against Allah after the Messengers. And Allah is Ever All-Powerful, All-Wise." [4:165]

This ayah shows the plea of ignorance due to the message not having reached someone is valid. So, for example, if a new muslim is not aware of the rules of the fast and eats during his fast, his fast is not broken.

The usul, therefore, were present before the fiqh was devised by the scholars but was composed as sets of rules only after. Thus there is no problem with this.

It is like the formation of arabic grammar in the time of 'Ali.
They had been speaking arabic with the correct grammar but had not named it and composed a set of rules until then.

2. Al Fiqh ul Iftiraadi (hypthetical fiqh) matured in this stage in Iraq.

It was very common with Imam Abu Haneefah and his students. They would come up with a possible situation and then devise the rules that would apply given the situation.
The scholars were divided upon this. With those opposed, saying that the issues should have occurred before it is discussed. This opinion had its basis in some of the sayings of the companions.
It is for this reason that the scholars of Iraq became known as Ashaab ur Ra'y (the people of opinion) due to the non-existence of these situations.

The balanced view is that it is not completely rejected but we should not delve into such hypothetical situations without need.

3. The Mujtahidun (those who can do ijtihaad) or Fuqahaa could be divided into levels:

Al Mujtahidun al Kibaar - The great mujtahidun, like the four Imams, Al Awzaa'i, Al Layth, Ath Thawri.
Al Mujtahidun Al Muntasibun - The associates and students of the Kibaar. For example, the students of Imam Abu Haneefah, Abu Yusuf and Muhammad Ash Shaybaani, the students of Imam Maalik, 'Abdur Rahmaan ibn ul Qaasim and 'Abdullah ibn Wahab, the student of Imam Ash Shaafi', Al Muzni'. They are considered from the muntasibun and not the kibaar as they followed the same usul but differed in some secondary issues.
The students of Imam Ahmad were mainly muhaddithun (narrators of hadith), like Imam Bukhari and Imam Muslim and did not really disagree with him in Fiqh.
Al Mujtahidun Al Madhaahib - These scholars had the ability to do ijtihaad but did not really differ in either the usul or the secondary issues. Rather they deducted the rulings for new issues based on the previous rulings of the Kibaar. Thus they devised new rulings based on their madhab.
Al Mujtahidun Al Murajjihun - These scholars did ijtihaad to give preference to one opinion of their Imam over another based on which opinion has a stronger chain.
Al Mujtahidun Al Mustadilleen - These scholars would use the evidences to give the ruling rather than relying on the rulings of the Kibaar. Thus they do not fall under the above 3 categories.

Note that many scholars would fall under more than one level as they would sometimes make new rulings based on the previous rulings and sometimes gave the ruling based on the evidences directly. Examples include:

Al Jassaas Ar Raazi, Al Qarkhee, Abu Zaid ad Dabusi, Al Halwani and As Sarakhsi from the Hanafis,
Al Baaji, Ibn Rushd and Ibn ul Haajib from the Maalikis,
Faqqaal al Kabir and Abu Sa'eed al Istakhri from the Shaafi's
Abu Bakr al Khallaa and al Qaadhi abu Ya'la from the Hanbalis.

4. There were also those scholars categorised as Muqallidun (the followers).

These were scholars who completely followed the rulings of the scholars of their madhab. They are futher categorised into two:

Al Huffaadh - The Memorisers, they would memorise everything about the madhab and know all the intricate details about the usul and rulings as well as other details, such as which opinion of the madhab is stronger.
Al Ittibaa' ul Mujarrad - The Simple Followers, they would know of the sayings and rulings of the madhab on most issues but would not know all the intricate details. These were not able to distinguish the stonger opinion of the madhab so some weak and rejected opinions would be mixed in their knowledge. They would simply say 'this is the rule of the madhab'.
Can the second category be relied on? They can be relied on to judge in terms of law as these rulings are always based on the strongest ruling of the madhab. They cannot be relied on for other issues as he does not have knowledge of the evidences and usul.

5. Some of the madhaahib from this era did not persist such as those of Al Layth and Al Awzaa'i.

Some said that this was due to the strength of the rulers who implemented them. This does not logically hold if one looks at the spread of the madhaahib today.

The reality relates to the power of the deductions of the Imam and the number of students to convey the rulings.
Also, in some cases, the teachings were assimilated into another madhhab as was the case with Imam Ash Shaafi' studying under the students of Al Layth.
In the case of the madhhab of Sufyan ath Thawri, he ordered his student to burn all of his writings.

Further Issues

Is Taqleed (following) of a Madhhab an obligation?

It is neither an obligation, nor is it haram to follow a madhhab. If taqleed was not valid, all the sahaabah would have been mujtahidun, but, as was mentioned in the previous lesson, there were those few who were considered scholars and were asked from amongst the sahaabah.

Is blind following permissible?

If there is a difference of opinion, the matter should be returned to the strongest evidence (i.e. the Qur'aan and Sunnah). Thus such blind following can be blamesworthy.

"O you who believe! Obey Allah and obey the Messenger (Muhammad SAW), and those of you (Muslims) who are in authority. (And) if you differ in anything amongst yourselves, refer it to Allah and His Messenger (SAW), if you believe in Allah and in the Last Day. That is better and more suitable for final determination." [4:59]

Is there no more room for Ijtihaad in the religion?

The religion is much more spacious then that and as long as one fulflls the conditions of the mujtahid, there are several new issues which appear that need to be ruled on as time goes on.

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