AN INTRODUCTION

TO
ISLAMIC LAW

DR. SOWED JUMA MAYANJA

MARCH 2013

1
 ACKNOWLEDGEMENT

All thanks and appreciations are due to The Al-Mighty Allah, who gave me life and
bestowed on me His favours, which enabled me to accomplish this work.

I am indebted to Professor Mustafa Roshash, the Vice-Chancellor of Zanzibar University,

who encouraged me to write this book and publish it.

I am also indebted to Dr. Bilaal Philips, whose work, “The Evolution of Fiqh”, has helped
me so much in enhancing the quality of the present work.

I am very grateful to the Colleagues; Dr. Haroonah Nsubuga, Dr. Hassan Nandwa and
Dr. Jamil Serwanga, who reviewed the manuscript.

My sincere thanks and gratitude should also be registered to my family; my wives and
my children for their patience and perseverance while I was preparing this book.

May Allah reward all abundantly.

2
 TABLE OF CONTENTS
Preface --------------------------------------------------------------------------------

Introduction -----------------------------------------------------------------------------
1) Definition of Shariah and Fiqh -------------------------------------------------
2) Objectives of Shariah -----------------------------------------------------------
3) The Development of Islamic Law ----------------------------------------------

Chapter one: The First Stage in the development of Islamic Law ---------------
Sources of legislation during this stage -----------------------------------------
1. The Qur’an ------------------------------------------------------------------
Method of legislation of the Qur’an ----------------------------------------
The first and last verses to be revealed in the Qur’an -------------------
Preservation of the Qur’an ----------------------------------------------------
Al- Makki wa Al- Madani and their characteristics ---------------------
The Meccan period ---------------------------------------------------------------
The Medina Period ---------------------------------------------------------------
Legal content of the Qur’an ------------------------------------------------------
The basis of legislation in Shariah -----------------------------------------------
a) The removal of hardship and unnecessary burden ----
b) The reduction of religious obligations ---------------------
c) The realization of public welfare ---------------------------
d) Gradation in legislation ---------------------------------------
e) The realization of universal justice ------------------------

2. The Sunnah --------------------------------------------------------------------

Definition of Sunnah--------------------------------------------------------------
Difference between Sunnah and Hadith--------------------------------------
Status of the Sunnah under Islamic Legislation----------------------------
Method of legislation of the Sunnah------------------------------------------
Preservation of the Sunnah-----------------------------------------------------
Types of Sunnah in relation to the Qur’an----------------------------------
Categorization of human acts [af’al- mukalafiina] in Shariah---------

3. Ijtihaad during this period----------------------------------------

Definition of Ijtihaad----------------------------------------------------------------
Ijtihaad from the Prophet (S.A.W) ----------------------------------------------
Ijtihaad from the companions-----------------------------------------------------

3
Chapter Two: The Second stage in the development of Islamic Law----------------

Problem solving procedure of the Righteous Caliphs---------------------------------

Sources of Islamic law during this stage---------------------------------------------------
1) The Qur’an--------------------------------------------------------------------------
Compilation of the Qur’an during this period----------------------------------

2) The Sunnah of the prophet (S.A.W) ---------------------------------

Compilation of the Sunnah during this period---------------------------------

3) Ijmaa-----------------------------------------------------------------------------------
Definition of Ijmaa--------------------------------------------------------------------
Types of Ijmaa--------------------------------------------------------------------------
Examples of Ijmaa during this period------------------------------------------------

4) Ijtihaad--------------------------------------------------------------------------------
Caliph Umar’s letter to his judge Abu-Musa Al-Ashari-----------------------
Examples of Ijtihaad during this period--------------------------------------------

Chapter Three: The Third stage in the development of Islamic Law------------------

Factors which affected Islamic law during this stage-------------------------------------
a) Division of the Ummah------------------------------------------------------------------
b) Deviation of the Umayyad Caliphs---------------------------------------------------
c) Dispersion of the Ulamaas (Muslim Scholars) -------------------------------------
d) Increase in the narration of Hadith --------------------------------------------------
e) Fabrication of Hadith -------------------------------------------------------------------

Efforts of Muslim Scholars to purify and authenticate the Sunnah----------

Classification of Hadith------------------------------------------------------------------
Characteristics of Islamic Law in the Umayyad period-----------------------------------
Sources of Islamic law during this period----------------------------------------------------

Chapter Four: The Fourth stage in the development of Islamic Law------------------

Factors which affected the development of Islamic law during this period----------

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 a) State support for scholars---------------------------------------------------------------
b) Increase in centers of Learning--------------------------------------------------------
c) Freedom of opinion and expression---------------------------------------------------
d) Translation of Foreign Books into Arabic-------------------------------------------
e) Compilation and documentation of Hadith-------------------------------------------

Sources of Islamic Law during this period-----------------------------------------------------

1- The Qur’an
2- The Sunnah
3- Ijmaa
4- Ijtihaad
a) Qiyaas (analogical reasoning) -------------------------------------------------------
b) Opinion of the Companion------------------------------------------------------------
c) Istihsaan (Juristic Preference)--------------------------------------------------------
d) Istislaah or Maswaaleh mursalah (Public Interest)-------------------------------
e) Istishaab (presumption)----------------------------------------------------------------
f) Saddu Zhariah (prevention of the means)------------------------------------------
g) Uruf (Local Custom) -------------------------------------------------------------------

Chapter Five: The foundation of the Islamic Legal Schools of thought (Mazh-habs)
1) The Hanafee Mazh-hab---------------------------------------------------------------------
2) The Maalikee Mazh-hab-------------------------------------------------------------------
3) The Shaafi’e mazh-hab---------------------------------------------------------------------
4) The Hambalee mazh-hab-------------------------------------------------------------------

Main reasons for conflicting rulings------------------------------------------------------------

a) Word meanings-------------------------------------------------------------------------------
b) Narration of hadiths-------------------------------------------------------------------------
c) Admissibility of certain principles--------------------------------------------------------
d) Methods of qiyaas----------------------------------------------------------------------------

Chapter Six: The Fifth and the Sixth stage in the development of Islamic Law-------
The Fifth stage --------------------------------------------------------------------------------
Work of scholars during this stage----------------------------------------------------------
Compilation of Islamic laws-----------------------------------------------------------------

The Sixth stage ------------------------------------------------------------------------------------

Emergence of Taqleed-------------------------------------------------------------------------------
Reasons for Taqleed----------------------------------------------------------------------------------

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Chapter Seven: The Seventh stage in the development of Islamic Law------------------

1) Establishment of a number of Islamic Universities teaching comparative Islamic

law-------------------------------------------------------------------------------------
2) Formation of Islamic Fiqh Councils, Academies and Centres----------------------
3) Muslim majority states have integrated Islamic law in their Legal systems-----
4) Some minority Muslim states have introduced Qadhi courts in their Legal systems

Conclusion --------------------------------------------------------------------------------------------

Bibliography --------------------------------------------------------------------------------------------------

Appendix 1----------------------------------------------------------------------------------------------------

Appendix 2---------------------------------------------------------------------------------------------------

6
 PREFACE

IN THE NAME OF ALLAH, MOST GRACIOUS, MOST MERCIFUL

All praises are due to Allah the Cherisher and Sustainer of the worlds.
May the blessings of Allah and His peace be showered upon His beloved Prophet,
Muhammad Bin Abdillah, and upon his relatives and companions, and all those who
follow his guidance until the Day of Judgment.

The emergence in recent years of Universities and Institutions in Africa, which teach
comparative law in English language, has created a need for English textbooks on Islamic
Law.

The field of Islamic law has been misconceived by majority of Muslims and non-
Muslims; thereby creating a need for handy simplified textbooks for easy understanding
of the subject matter.

The present book is the second of a series of textbooks by the Author, in an attempt to
provide reasonably manageable textbooks on the subject.

Although the book was originally written for students of law who undertake a
comparative study between common law and Islamic law, it has been written in such a
way that it can benefit any average reader, Muslim and non-Muslim, with little or no
prior knowledge of the subject.

The book contains an Introduction and seven Chapters dealing with the different stages
through which Islamic Law underwent in its development from the beginning to the
present day.

I pray to The Al-Mighty Allah to bless this humble effort, make it beneficial to whoever
reads it and add it to my scale of good deeds on the Day of Judgment.
Ameen.

Dr. Sowed Juma Mayanja

Zanzibar
2013

7
 INTRODUCTION

1. Definition of Shariah and Fiqh

Shariah has been loosely translated into English as ISLAMIC LAW, and so has Fiqh,
but these two terms are not synonymous.

Shariah is an Arabic word which literally means “The straight path to be followed” 1. It
also means “The way to a watering place”2.

It can also literally be extracted from the root word “Tashri’e” which means: To
introduce, to enact, or to prescribe3

Legally, however, Shariah refers to the total sum of laws revealed by Allah to Prophet
Muhammad (S.A.W) for the guidance of humankind to their welfare and wellbeing in
this world and here after4.

These laws are contained in the Qur’an, thus, the Qur’an is the primary source of Shariah.

The Qur’anic laws are explained and translated into practice by the Sunnah5 of the
Prophet (S.A.W). Therefore the Sunnah is the secondary source of Shariah.

Shariah, therefore, is a comprehensive system of divine laws contained in the Qur ’an and
translated into practice by the Sunnah of the Prophet (S.A.W).

Allah The All-Knower revealed these laws and therefore they are authentic, straight and
free from mistakes.

Fiqh on the other hand is an Arabic word, which literally means intelligence, or the true
understanding of what is intended6.

In the language of law, however, Fiqh refers to the science of deducing Islamic laws from
Shariah7.

1
Al-Qawnaawi, Q. Aniis Al-Fuqahah, Jeddah, Daar Al-Wafaa, 1 st Edn.(1457 H), Vol.1, pg.309.
2
Ibn Manzhur, M. Lisaan Al-Arab, Beirut, Daar Swadir, 1 st Edn.Vol.1, pg.347,
3
Ar-Raazi, M. Mukhtaaru As-Sihaah, Beirut, Maktabat Lubnaan, (1995), Vol.1, pg.354
4
Assayis, Taarikhil- Fiqhil – Islami, Al-Azhar University, pg.5
5
Sunnah refers to acts, deeds and approvals of the Prophet (S.A.W). See details on page ……..
6
Al-Fairuzi-Abaadi, M. Al-Qamuusi Al-Muhiit, Vol.1, pg.1614.
7
Al-Jurjaani, A. At-Taariifaat, Beirut, Daarul- Kitaabi Al-Arabi, 1 st Edn. (1405), Vol.1, pg.216.

8
It is the intellectual systematical endeavour to interpret and apply the principles of
Shariah to meet the problems of the day by Jurists8.

It is the science of deriving Islamic Laws from Shariah through the exercise of reasoning.

It is the combination of Shariah and Fiqh which makes up Islamic law.

Distinction between Shariah and Fiqh

From the previous definitions, the following three differences may be deduced9:

1) Shariah is the body of revealed laws found both in the Qur’an and in Sunnah,
while Fiqh is a body of laws deduced from Shariah to cover specific situations
not directly treated in Shariah.

2) Shariah is fixed and unchangeable, whereas Fiqh changes according to the

circumstances under which it is applied.

3) The laws of Shariah 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 Shariah should be applied in given circumstances.

It should be noted however, that the word Shariah is sometimes used interchangeably
with Islamic Law.

2. Objectives of Shariah

Shariah has two types of objectives namely; General objective and specific
objective.

a) General objective:

Like any other legal system, the general objective of Shariah is to secure and
safeguard the welfare and well-being of human beings.
Thus, Shariah laws were not revealed to benefit The Creator Allah, but to benefit
human beings.

b) Specific objective:
8
Ajijola, A.D., what is Sharia, New Delhi, Adam Publishers, (2002), pg.15.
9
See:Bilaal, P., The evolution of fiqh, Riyadh, Tawheed Publications, (1990), pg 2.

9
 The specific objective of Shariah is to safeguard the five essentials of human
existence, namely; Religion, Life, Progeny (Off spring), Intellect and Property 10.

How does Shariah safeguard these essentials?

Shariah has got two major ways in safeguarding these essentials, namely;
1) By prescribing, ordaining, promoting, encouraging some acts and promising
rewards thereof.

2) By prohibiting or discouraging some acts and prescribing punishments for those

who commit them.

a) Safeguard of Religion:

Shariah safeguards Religion by:

 Ordaining the five pillars of Islam, that is to say confessing of the oneness
of Allah and Muhammad (S.A.W) as his messenger, establishing the five
daily prayers, paying zakah, fasting the month of Ramadhan and
performing of pilgrimage to Mecca
 Ordaining Jihaad for defense purposes and clearing way from all obstacles
which hinder its progress
 Prohibiting disbelief and apostasy
 Prescribing punishments upon those who do not observe the five pillars of
Islam

b) Safeguard of life:

Shariah safeguards life by:

 Ordaining to eat lawful food which is not harmful to life.
 Ordaining the protection of oneself from harmful things which endanger
one’s life.
 Promoting brotherhood among its followers and prohibiting enmity which
sometimes leads to killing of one another.
 Prohibiting killing oneself or committing suicide and destroying an
innocent life
 Prohibiting acts which endanger life like abortion, prostitution, fornication
and adultery.
 Prescribing punishment to whoever destroys life unlawfully

10
Al- Yubi, M., Maqaasid Ashariatil- Islamiyyah, Riyadh, Darul- Hijrah, (1998), pg 182

10
  Encouraging procreation of children as this promotes the continuity of life
in this world.

c) Safeguard of progeny (off spring).

Shariah safeguards progeny by:

 Encouraging marriage and discouraging celibacy.
 Prohibiting fornication, adultery, defilement and homosexuality
 Prohibiting abortion
 Prescribing harsh punishments for such criminal acts
 Prohibiting free mixing, shaking hands with opposite sex and all acts which
may lead to fornication or adultery.

d) Safeguard of the intellect.

Shariah safeguards the Intellect by:

 Ordaining the search for useful knowledge, since it is food for the intellect
 Prohibiting intoxicants and all sorts of drinks that upset the mind
 Prescribing punishments upon those found consuming those drinks.

e) Safeguard of property.

Shariah safeguards property by:

 Encouraging people to work and acquire property lawfully.
 Promoting brotherhood through Zakah (alms giving) and charity, there by
reducing envy and jealousy which may lead to destruction of property.
 Prohibiting all illegal means of acquiring wealth like stealing, robbery,
interest and gambling
 Prohibiting extravagancy and misuse of property
 Discouraging laziness among its followers

The following are some of the texts of Qur’an and Sunnah which confirm the
safeguard of the five essentials by Shariah:

1- Allah said:
(Say o Muhammad: come I will recite what your Lord has prohibited you from;
Join not anything in worship with Him, be good and dutiful to your parents, kill
not your children because of poverty, for we provide sustenance for you and for
them, come not near illegal sexual intercourse whether openly or secretly, kill not
any one whom Allah has forbidden except for a just cause. This He has
commanded you that you may understand. And come not near to the orphan ’s

11
 property, except to improve it until he/she attains the age of full strength, and give
full measure and full weight with justice. We burden not any person but that which
he can bear, and whenever you judge between men or give evidence say the truth
even if a near relative is concerned, and fulfill the covenant of Allah, This He
commands you that you may remember)11.

2- Allah said:
(And your Lord has decreed that you worship non but Him, and that you be dutiful
to your parents. If one of them or both of them attain old age in your life, say not
to them a word of disrespect, nor shout at them but address them in terms of
honour. And lower to them the wing of submission and humility through mercy
and say: My Lord! Bestow on them Your mercy as they did bring me up when I
was young. Your Lord knows best what is in your inner selves, if you are
righteous, then verily He is Ever most Forgiving to those who turn to Him again
and again in obedience and in repentance. And give to the kinsman his due and to
the needy and to the wayfarer, but spend not wastefully your wealth in the manner
of a spendthrift, for verily the spendthrift are brothers of devils and the devil is
ever un grateful to his Lord……. And kill not your children for fear of poverty, for
we shall provide for them and you, surely the killing of them is a great sin. And
come not near to unlawful sex, verily it is a great sin and an evil way. And do not
kill anyone whose killing Allah has forbidden except for a just cause……. And
come not near to the orphan’s property except to improve it until he/she attains the
age of full strength, and fulfill every covenant; for verily every covenant will be
questioned about. And give full measure when you measure and weigh with a
balance that is straight that is good and better in the end. And follow not or say not
that of which you have no knowledge, for verily, the sight, and the heart will be
questioned about)12.

3- Allah said:
(O Prophet! When believing women come to you to give you the pledge, that they
will not associate anything in worship with Allah, that they will not steal, that they
will not commit illegal sexual intercourse, that they will not kill their children, that
they will not utter slander intentionally forging falsehood, and that they will not
disobey you in all that which Islam ordains, then accept their pledge and ask Allah
to forgive them. Verily Allah is Oft-Forgiving, Most Merciful)13.

4- The prophet (S.A.W) said:

“Do not envy one another, do not overbid one another, do not hate one another, do
not desert one another, do not sell on top of the sale of another, be oh servants of
Allah brothers. A Muslim is a brother of his fellow Muslim; he does not cheat
11
Surat Al-An’am (6: 151-152)
12
Surat Al-Isra (17:23-36)
13
Surat Al-Mumtahanah (60:12)

12
 him, he does not disappoint him, he does not scorn him. It is enough to be an evil
for a Muslim to scorn his fellow Muslim. The whole of a Muslim to his fellow
Muslim is sacred; his blood, his property and his honour”14.

3. The development of Islamic Law

Islamic law underwent a number of stages in its development and these stages are
majorly seven, and they occurred respectively in the following historical periods15:

a) The first stage: This covers the era of the Prophet, that is to say, from the time
he became a Prophet to the time of his death (610 – 633 A.D).

b) The second stage: This covers the era of the righteous Caliphs, that is to say, from
the death of the Prophet (S.A.W) to the middle of the seventh century (633 –
661A.D).

c) The third stage: This covers the period of Ummayyads, that is to say, from the
founding of the Umayyad Dynasty (663 A.D) until its decline in the middle of the
8th century.

d) The fourth stage: This stage starts from the rise of the Abbaasid dynasty, in the
middle of the 8th century, to the beginning of its decline in the middle of 10 th
century.

e) The fifth stage: This stage starts from the decline of the Abbaasid dynasty, from
about 960 A.D to the murder of the last Abbaasid Caliph at the hands of the
Mongolians, in the middle of the 13th century A.D.

f) The sixth stage: This stage starts from the falling of Baghdad in 1258 A.D to the
middle of the 20th century (1960 A.D).

g) The seventh and the last stage: This stage starts from the middle of the 20 th
century (1960 A.D) and continues up to the present day.

14
Muslim, Swahiih, Vol.4, pg.1986, Hadith No.2564
15
Many writers have mentioned six stages. See, for example, Assayis, M., Taarikhil- Fiqhil – Islami, Cairo, Al-Azhar
University, pg 11. see also: Bilaal, P., The evolution of Fiqh, pg 3. However, I feel that a number of things have
taken place since the middle of the 20th century to the present day which qualify this stage to be independent from
the sixth stage. In this book therefore, I have made the stages to be seven.

13
 CHAPTER ONE

THE FIRST STAGE IN THE DEVELOPMENT OF ISLAMIC LAW

The first stage in the development of Islamic law covers the era of Prophet Muhammad ’s
Prophet-hood. This period started in the year 610 A.D, when the prophet received the
first revelation, and extends until his death in 633 A.D, a period of 23 years.

Sources of legislation during this stage:

During this period, the only source of Islamic legislation was divine revelation in the
form of either the Qur’an or the Sunnah of the Prophet (S.A.W).

1. The Qur’an

The Qur’an was the primary source of legislation during this period.

Definition of the Qur’an

The Qur’an is the word of Allah revealed in Arabic language to prophet Muhammad
(S.A.W) through the Angel Jibril , for the guidance of mankind. It starts with Surat AL-
Fatiha and ends with Surat An-Nas, and its recitation is worship16.
Allah says: (And truly this Qur’an is a revelation from The Lord of all that exists, which
the Trustworthy [Jibril ] has brought down upon your heart [O Muhammad] that you may
be one of the warners, in the plain Arabic language)17.

The Qur’an is composed of 114 Suraas (chapters), the first one is Surat Al- Fatihah
(Chapter 1), and the last one is Surat Annas(Chapter 114). The longest is Surat Al-
Baqarah (Chapter 2) and the shortest is Surat Al-Kauthar (Chapter 108).

Method of legislation of the Qur’an

The Qur’an, which was the primary source of legislation, was not revealed in a lump
some, but was revealed in sections according to the need of the time.

Sections of the Qur’an were continuously revealed to the Prophet Muhammad (S.A.W)
from the beginning of his prophet hood in the year 609 A.D until shortly before his death
(633 A.D), a period of approximately twenty-three years.

16
Khallaaf, A., Ilm Usuul-lfiqhi, Cairo, Maktabat Adaawa Al-Islamiyyah, pg 23.
17
Surat Asshu’ara (26: 192- 195).

14
The various sections of the Qur’an were generally revealed to solve the problems which
confronted the Prophet (S.A.W) and his followers in both Mecca and Medina, and to
formulate rules regulating actions of the Muslim community.

A number of Qur’anic verses were 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….”
Examples of such verses are as follows:

1- (They ask you about the new moons, say: These are signs to mark fixed periods of
time and for the pilgrimage)18.

2- (They ask you about fighting in the forbidden months, say; fighting in them is a
grave offense, but blocking Allah’s path and denying Him is even greater in
Allah’s sight)19.

3- (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)20.

4- (They ask you about menses, say: It is harm, so stay away from sexual relations
with women during their menses)21.

5- (They ask your legal instruction concerning women, say: Allah instructs about
them, and about what is recited unto you in the book concerning the orphan girls
whom you give not the prescribed portions [as regards mahar and inheritance] and
yet whom you desire to marry, and concerning the children who are weak and
oppressed, and that you stand firm for justice to orphans. And whatever you do,
Allah is ever All- Aware of it)22.

6- (They ask you for a legal verdict, say: Allah directs about Al-Kalaalah (Those who
leave neither descendants nor ascendants as heirs]. If it is a man that dies leaving a
sister, but no child, she shall have half the inheritance. If such a deceased was a
woman, who left no child, her brother takes her inheritance. If there are two
sisters, they shall have two thirds of the inheritance, if there are brothers and
sisters, the male shall have twice the share of the female) 23.

18
Surat Al- Baqarah (2:189).
19
Surat Al-Baqarah (2:217).
20
Surat Al- Baqarah (2:219).
21
Surat Al- Baqarah (2: 222).
22
Surat An- Nisaa (4: 127).
23
Surat An-Nisaa (4:176)

15
 7- (They ask you what is lawful for them, say: Lawful unto you are At-Tayyibaat,
foods which Allah has made lawful)24.

8- (They ask you about the day of resurrection when will its appointed time be? Say:
The knowledge thereof is with my Lord alone. None can reveal its time but Him.
Heavy is its burden through the heavens and earth. It shall not come upon you
except all of a sudden. They ask you as if you have a good knowledge of it, say:
The knowledge thereof is with Allah Alone, but most of mankind know not)25.

9- (They ask you about Dhul-Qarnain, say: I shall recite to you something of his
story)26.

10- (And they ask you concerning the mountains, say: My Lord will blast them and
scatter them as particles of dust)27.

A number of other verses were revealed as solutions to particular incidents which took
place during the era of the Prophet (S.A.W).
Examples of this type include the following:

1- Hilaal Bin Umayyah came before the Prophet and accused his wife of adultery.
The Prophet (S.A.W) said: “Either you bring proof (that is to say, three other
witnesses) or you will receive the fixed punishment (of eighty lashes) on your
back”. Hilaal said: Oh messenger of Allah! If any of us saw a man on top of his
wife, would he go looking for witness? However the Prophet repeated his
demand for proof28, until the angel Jibril came and revealed to the Prophet the
following verses:
(As for those who accuse their wives and have no evidence but their own, their
witness can be four declaration with oaths by Allah that they are truthful and a
fifth invoking Allah’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 Allah
that he is lying and a fifth oath invoking Allah’s curse on herself if he is telling the
truth)29.

2- Al-Baraa Bin Aazib narrated that: When fasting Ramadhan had just been
prescribed, It was not permissible for someone to sleep before breaking the fast,
but if he slept before breaking the fast, he would not eat that night and the
following day till sunset.
24
Surat Al- Maidah (5:4).
25
Surat Al- A’raf (7:187).
26
Surat Al- Kahaf (18: 83).
27
Surat Twahah (20: 105).
28
Bukhari, Swahiih, Beirut, Daru Ibn Kathiir, (1987), Vol. 2, pg 949, Hadith No. 2526.
29
Surat An-Nuur (24: 6-9).

16
 Qais Bin Swirmat was fasting and came to his wife at the time of breaking the
fast and asked her whether she had anything to eat. She replied: “No, but I will go
and bring some for you”. He used to do hard work during the day, so he was
overwhelmed by sleep and slept. When his wife came back she found her asleep.
At midday the following day, he fainted. The Prophet was informed about the
whole matter and the following verses were revealed 30: (You are permitted to go
to your wives for sexual relations at the night of fasting). So they were overjoyed
by it, and then Allah revealed (And eat and drink until the white thread of dawn
appears to you distinct from the black thread of the night)31.

3- Al-Baraa Bin Aazib narrated that: When the order of compulsory fasting of
Ramadhan was revealed, it was unlawful for one to have sexual relations with his
wife for the whole month of Ramadhan. Some men cheated themselves by
violating that restriction, so Allah revealed the following32: (Allah knows that you
used to deceive yourselves, so He turned to you and forgave you, so now have
sexual relations with them and seek that which Allah has ordained for you)33.

4- Aisha, wife of the Prophet said that: whenever the Prophet intended to go on a
journey, he used to draw lots among his wives and take with him the one on
whom the lot fell. In one of his battles, the lot fell on me and so I proceeded with
him. I was carried on the back of a camel in my Haudaj34 till the battle was over.

When the announcement for departure was made, I got up and went far from the
Army camp to respond to a call of nature. I came back to my riding animal only to
realize that my necklace was missing, so I went to look for it where I had been. In
the meantime, people who used to carry me on my camel came and took my
Haudaj and put it on the back of the camel not knowing that I was not inside it. I
was still a young girl by then and had not put on weight. When I came back I
found the Army had left. I sat down hoping that they would realize my absence in
the Haudaj and come back but in vein. As I kept waiting, I was overwhelmed by
sleep and slept.

Swafwan Bin Al-Muattal was behind the Army trying to look for whatever had
been lost by the Army. When he reached where I was, he saw the figure of a
sleeping person and recognized me on seeing me as he had seen me before the
order of compulsory veiling was prescribed. I woke up when he said “Inna li
Llahi Wa Inna Ilaihi Raajioun” as soon as he recognized me. I veiled my face
with my head cover at once, and by Allah we did not speak a single word, and I
30
Bukhari, Swahiih, Vol.2, pg 676, Hadith No. 1816.
31
Surat Al- Baqarah (2: 187).
32
Bukhari, Swahiih, Vol. 4, pg 1634, Hadith No. 4238.
33
Surat Al- Baqarah (2: 187).
34
Haudaj is a wooden room carried by a camel.

17
 did not hear him say any word besides “Inna li Llahi Wa Inna Ilaihi Raajioun”.
He dismounted from his camel and made it kneel down. I got up and mounted it,
then he set out leading the camel till we reached the Army.

When Abdullah Bin Salool, the hypocrite, saw Swafwan leading the camel on
which I was riding, he said: By God she has not escaped from him neither has he
escaped from her. He was then joined by some other people in the slander, until
Allah revealed the ten verses in Surat An- Noor in my innocence35.

Thus Allah said: (Verily those who brought forth the slander are a group among
you. Consider it not a bad thing for you. Nay it is good for you. Unto every one of
them will be paid that which he had earned of the sin, and as for him among them
who had the greatest share therein, his will be a great torment. Why then did not
the believers, men and women, when you heard the slander think good of
themselves and say: This is an obvious lie?” Why did they not produce four
witnesses? Since they have not produced witnesses then before Allah they are the
liars. Had it not been for the grace of Allah and his mercy unto you in this world
and the hereafter, a great torment would have touched you for that whereof you
had spoken............................)36.

Other verses were revealed to abolish some bad practices which were deeply rooted in the
society. Examples of such verses were those revealed to abolish the habit of Adoption in
Islam.

At first, Allah revealed a verse in which he made it clear that adopted sons can never
become real sons of the adopter and that much as a person can never have two hearts
inside his body, likewise a person can never have two real fathers. Thus Allah said:
(Allah has not made for any person two hearts inside his body, Neither has He made your
wives whom you declare to be like your mother’s backs your real mothers, nor has He
made your adopted sons your real sons, that is but your saying with your mouths, but
Allah says the truth and He guides to the right way)37.

Then Allah revealed another verse in which He commanded the Muslims to stop
ascribing the adopted sons to the adopters, but should ascribe them to their real fathers.
Thus Allah said: (Call them by the names of their fathers that is more just with Allah, but
if you know not their fathers’ names, then call them your brothers in faith)38.

The practice of adoption was practically terminated with a non-forgettable precedent in

which the prophet himself was a key player. It happened in the 5 th year after Hijra, when
35
Bukhari, Swahiih, Vol. 4, pg 1517, Hadith No. 3910
36
Surat An- Nuur (24: 11- 20).
37
Surat Al Ahzab (33:4).
38
Surat Al- Ahzab (33: 5).

18
the prophet was commanded to marry Zainab Bint Jahsh who was the wife of his adopted
son Zaid.

Zainab had accepted to marry Zaid through a proposal made by the Prophet himself on
behalf of Zaid. However life did not go well for the married couple, and whenever Zaid
complained to the prophet that his marriage was going from bad to worse, the prophet
always told him to keep his wife and fear Allah.

Allah inspired in the heart of the prophet that Zainab would be divorced and that he (the
Prophet) would marry her, something that was so hard for the prophet to face people
with.

The Prophet was very much distressed as it was against the accepted norm of behaviour
for one to marry the former wife of his adopted son. He feared social blame and was very
much ashamed and embarrassed at its implications 39. But the decision had already been
made by Allah.

Eventually Zaid divorced Zainab and the Prophet was commanded to marry her. Allah
says: ( And remember when you said to him [ Zaid Bin Harith] on whom Allah Has
bestowed grace [by guiding him to Islam] and you have done favour to him: “ Keep your
wife to yourself and fear Allah”. But you did hide to yourself [what Allah had already
made known to you that you would marry her] that which Allah will make manifest. You
did fear the people [their saying that Muhammad married the divorced wife of his
adopted son] whereas Allah had a better right that you should fear him. So when Zaid had
accomplished his desire from her [divorced her] We married her to you so that in future
there may be no difficulty to the believers in respect of the marriage of the wives of their
adopted sons when the latter have no desire to keep them [have divorced them]. And
Allah’s command must be fulfilled)40.

The logic behind the marriage was stated in no uncertain terms when Allah said: (When
Zaid had accomplished his desire from her, We married her to you so that there may be
no difficulty to the believers in respect of the marriage of the wives of their adopted sons
when the latter have divorced them).

Allah confirmed the abolishment of adoption in more clear terms when he said:
(Muhammad has never been a father of any of your men, but he is the messenger of Allah
and the last of the prophets, and Allah is ever All- Aware of everything)41.

When the marriage occurred some disbelievers and hypocrites started creating stories
about the Prophet (S.A.W) and Allah defended him and said: (There is no blame on the
39
Ghadanfar, M., Great women of Islam, 1st Edn, Riyadh, Darussalam, ( 2001), pg 98.
40
Surat Al – Ahzaab (33: 37).
41
Surat Al – Ahzaab (33: 40).

19
Prophet in that which Allah Has commanded him. That has been Allah ’s way with those
who have passed away of the prophets of old, and the command of Allah is a decree
determined. Those who convey the message of Allah and fear Him and fear none save
Allah. And sufficient is Allah as a reckoner)42.
With those verses, the practice of adoption was completely abolished under Islamic law.

Other verses were revealed as consolation to the prophet and his companions for the
difficulties and persecutions they were undergoing for the cause of Islam. Such verses
narrate stories of foregone nations with their prophets and who the winner was at the end.
Examples of these verses include:

1- Verses which relate the story of prophet Ibrahiim and his people.
Allah said (And indeed we bestowed aforetime on Ibrahim his guidance, and
we were well acquainted with him. When he said to his father and his people:
“what are these things to which you are devoted?” They said: “We found our
fathers worshiping them.” He said: “Indeed, you and your fathers have been in
manifest error.” They said: “Have you brought us the truth or are you one of
those who play about?” He said: “Nay your Lord is the Lord of the heavens
and the earth, Who created them and to that I am one of the witnesses. And by
Allah, I shall plot a plan to destroy your idols after you have gone away and
turned your backs.” So he broke them to pieces except the biggest of them that
they may turn to it. They said: who has done this to our gods? He must indeed
be one of the wrong doers. They said: we heard a young man talking against
them, who is called Ibrahiim. They said: bring him before the eyes of the
people that they may testify. They asked: Are you the one who has done this to
our gods o Ibrahiim? He said: nay, this one, the biggest of them (idols) did it.
Ask them if they can speak. So they turned to themselves and said: verily you
are the wrong doers. Then they turned to Ibrahiim and said: indeed you
Ibrahiim know well that these idols speak not. Ibrahiim said to them: Do you
then worship besides Allah things that can neither profit you nor harm you?
Fie upon you and upon that which you worship besides Allah, have you then
no sense? They said: burn him and save your gods if you but do. Allah said:
“O fire, be you cool and safe for Ibrahiim”. They wanted to harm him but
Allah made them the worst loosers)43.

2- Verses which relate the story of the King and his helpers who tortured the
believers by throwing them into ditches of fire.
Thus Allah said: (Cursed were the people of the Ditches of fire fed with fuel,
when they sat by it [fire] and they witnessed what they were doing against the
believers [i.e. burning them]. And they [the believers] had no fault except that
they believed in Allah, the All-Mighty, the Worthy of all Praises, to whom
42
Surat Al – Ahzaab (33: 38- 39).
43
Surat Al- Anbiyaa (21: 51-70).

20
 belongs the dominion of the heavens and the earth! And Allah is witness over
everything. Verily those who put into trial the believing men and the believing
women [by torturing them and burning them], and then do not turn in
repentance to Allah, then they will have the torment of Hell, and they will
have the punishment of burning fire. Verily those who believe and do
righteous good deeds, for them will be Gardens under which rivers flow
[Paradise]. That is the great success)44.

Yet other verses were revealed with no particular incidents, but as general solutions
and rules regulating the conduct of Muslim society as regards to their Creator and
their fellow men. Examples of this category include:

1- Surat Al- Fatiha. Allah says: (In the name of Allah, The most Gracious, The
most Merciful. All the praises and thanks be to Allah, The Lord of the worlds.
The most Gracious, The most Merciful. The King of the Day of Judgment.
You alone do we worship, and you alone do we ask for assistance. Guide us to
the straight path. The path of those on whom you have bestowed your Grace,
nor the path of those who earned your Anger, nor of those who went astray)45.

2- The first verses of Surat Al- Baqarah. Allah says: (Alif – Laam – Miim. This
is the Book [ the Qur’an] whereof there is no doubt, a guidance to those who
are pious. Those who believe in the unseen and establish regular prayers and
spend out of what we have provided for them. And those who believe in that
which was revealed to you and in that which was revealed before you and
believe with certainty in the hereafter. Those are on true guidance from their
Lord, and they are the successful)46.

3- Ayatul- Kursiyyi. Allah says: (Allah, non has the right to be worshiped but He,
The ever living, The one who sustains and protects all that exists. Neither
slumber nor sleep overtakes Him. To Him belongs whatever is in the heavens
and whatever is on the earth. Who is he that can intercede with Him except
with His permission? He knows whatever happens to them [His creatures] in
this world and what will happen to them in the hereafter. And they will never
compass anything of His knowledge except that which He wills. His Kursi
extends over the heavens and the earth, and He feels no fatigue in guarding
and preserving them. He is The most High, The most Great)47.

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
44
Surat Al- Buruuj (85: 4-11).
45
Surat Al- Fatihah (1: 1- 7).
46
Surat Al- Baqarah (2: 1- 5).
47
Surat Al- Baqarah (2: 255).

21
freedom. Thus, Allah said (And a Qur’an which we have divided into parts in order that
you [O Muhammad] might recite it to men at intervals, and we have revealed it by
stages)48.

The method also made it easy for them to learn and understand the laws since they would
know the reason and context of the legislation49.

It was also intended to strengthen the heart of the prophet (S.A.W). Thus, Allah says:
(and those who disbelieve say: “why is not the Qur’an revealed to him all at once? ” Thus,
it is sent down in parts, that we may strengthen your heart thereby)50.

It was also intended to prove the truthfulness of the Prophet (S.A.W). This was so
because, the Idolaters and people of the Book used to ask the prophet questions in order
to defeat him, but every time Allah would reply their queries. Thus, Allah says: (And no
example or similitude do they bring to oppose or to find fault in you or in this Qur ’an but
we reveal to you the truth against that similitude or example and the better explanation
thereof)51.

The first and last verses to be revealed in the Qur’an

The beginning of the revelation of the Qur’an was in Ramadhan in the year 610 A.D,
when the prophet was in the cave of Hira. The Angel Jibril came to him and told him to
read. The prophet replied that he did not know how to read. The Angel pressed him hard
and again told him to read. The prophet’s reply was the same as the first. This process
was continued for three times, and on the third time the Angle recited to him the
following verses: (Read in the name of your Lord who has created [all that exists]. He has
created man from a clot of blood. Read and your Lord is the Most Generous. Who has
taught [the writing] by the pen. He has taught man that which he knew not)52.

There is a consensus among Muslim Scholars that these were the first verses of the
Qur’an to be revealed to Prophet Muhammad (S.A.W)53.

However, there is a difference of opinion among Muslim scholars as regards to the last
verse to be revealed to the prophet (S.A.W)54;

48
Surat Al-Isra (17:106)
49
Philips, B. The evolution of Fiqh, pg 7.
50
Surat Al- Furqaan (25: 32)
51
Surat Al-Furqaan (25: 33)
52
Surat Al- Alaq (96: 1- 5)
53
Bukhari, Swahiih, Vol 4, pg 1894, Hadith 4670.
54
See: Assais, Tariikh Al- Fiqhi Al- Islami, pg 20.

22
Some Scholars are of the view that verse (This day have I completed your religion for
you and completed my favours unto you and have chosen Islam as a religion for you) 55
was the last verse to be revealed.

Others are of the view that verses of Surat Annasr (When there comes the Help of Allah
[ to you O Muhammad against your enemies] and the conquest [ of Makkah]. And you
see people enter Allah’s religion in crowds. So glorify the praises of your Lord and ask
His forgiveness. Verily He is the One who Ever accepts the repentance and Who
forgives)56 were the last verses to be revealed.

Yet others are of the view that verse: (And be afraid of the day when you shall be brought
back to Allah, then every person shall be paid what he earned and they shall not be dealt
with unjustly)57 was the last to be revealed.

The most sound opinion is the last one which states that verse ( And be afraid of the day
when you shall be brought back to Allah) was the last to be revealed; because after its
revelation the Prophet (S.A.W) lived between seven and twenty one days only 58. The
meaning of the verse also strengthens this opinion as it refers to death and the day of
resurrection.

As for Surat Annasr; it was revealed to the prophet in the days of Tashrik after he had
finished his farewell Hajj, And verse ( This day have I perfected you religion for you)
was revealed on the day of Arafah when the prophet was still in his farewell Hajj59.

Preservation of the Qur’an

During this period, the Qur’an was preserved in two ways:

a) By memorization.
b) By compilation.

Memorization:

The prophet (S.A.W) was the first memorizer of the Qur’an.

At the beginning of the revelation, the prophet used to move his lips and tongue trying to
memorize it before even Jibril had finished reciting it to him; for fear of forgetting it,
until Allah told him to stop doing so and promised him to collect the Qur ’an in his heart
such that he memorizes it with ease. Thus Allah said (Move not your tongue concerning
the Qur’an [oh Muhammad] to make haste therewith. It is upon us to collect it and give
55
Surat Al-Ma’idah (5: 3)
56
Surat Annasr (110: 1- 3)
57
Surat Al- Baqra (2: 281).
58
Assais, Tariikh Al- Fiqhi Al- Islami, pg 20.
59
Ibid.

23
you the ability to recite it and memorize it. And when we have recited it to you [through
Jibril] then follow its recitation. It is then upon us to make it clear to you)60.

The Qur’an was revealed in a period of twenty-three years. Sometimes one verse could be
revealed at a time. Sometimes a number of verses could be revealed at once, yet at other
times a complete Surat (chapter) could be revealed, depending upon the need of the time.

Whenever a verse or verses were revealed, the prophet would memorize it instantly, and
then the companions would follow the prophet in its memorization61.

The Arabs had a very strong memory since most of them could not read or write. They
relied so much on their memory for the conservation of their history, their lineage and
their poetry.

Due to that background, therefore, very many companions were able to memorize the
Qur’an and the most prominent ones in this regard were62:

The four righteous Caliphs, Talha, Abdullah bin Masoud, Huzhaifat bin Al- yamaan,
Abuhurairat, Abdullah bin Usaib, Abdullah bin Abbas, Abdullah bin Amru, Abdullah bin
Umar, Abdullah bin Azzubair, Aisha, Hafswa, Umu Salamah, Muazh bin Jabal, Ubadat
bin Aswamit, Ubayyi bin Kaab, Zaid bin Thabit, Abu Dardaa, Fudhalat bin Ubaid,
Maslamah bin Makhlad, and Majmaa bin Jariyah.

Compilation:

The prophet (S.A.W) had scribes who used to write for him the revelation. They were
chosen from prominent companions and these included63:

Ali bin Abi Twalib, Muawiyah bin Abi Sufyan, Ubayyi bin Kaab, Zaid bin Thabit,
Almugiira bin Shubah, Azubair bin Al Awam, and Yazid bin Abi Sufyan.

Whenever a verse or verses were revealed to the prophet, he would order and guide them
in what Surat to write it.

The writing materials were not easy to acquire during that time and therefore they used to
write on backs of trees, stones, bones and hides of animals, and all those materials on
which the Qur’an was written were collected in the house of the prophet (S.A.W).

60
Surat Al-Qiyaamah (75: 16- 19).
61
Al Qattan,M., Mabaahith Fi Ulumil- Qur’an, Riyadh, Maktabat Al-Ma ’rif, (1992), pg 120.
62
Assuyuti, A., Al- Itqaan Fi Ulumil- Qur’an, Cairo, Al-Hayiat Al-Massriyah Al-A ’mah Lil-Kitaab, (1974), Vol 1, pg 72.
see also: Al Qattan, Mabaahith Fi Ulumil- Qur ’an, pg 120.
63
Assuyuti, Al- Itkaan fi Ulumil- Qur’an, Vol 1, pg 37. See also: Alqattani, Mabahith Fi Ulumil- Qur ’an, pg 123.

24
In addition to the writing of the scribes, individual companions would also voluntarily
write the verses revealed to the prophet.

The Angel Jibril used to come every year in Ramadhan and revise the Qur ’an with the
prophet in the presence of a number of companions.

In the year preceding the death of the prophet, Jibril revised the whole Qur’an with the
prophet twice in the presence of a number of companions, among whom was Zaid Bin
Thabit, who was latter assigned the job of compiling the Qur’an during the period of the
righteous Caliphs64

It is important to note that, the Qur’an was not written in the order of its revelation. This
can be evidenced by the fact that the first revelation was the first five verses in Surat Al-
Alaq (Chapter 96) and the last revelation was verse 281 in Surat Al-Baqarah (Chapter 2).
Nevertheless, whenever a verse or verses were revealed, the Prophet used to guide them
as to where to write it and in which Surat.

Thus, the Prophet died when the whole Qur’an had been collected both in memory and in
writing, implying that there were two copies of it, one in memory (soft copy) and one in a
written form (hard copy)65.

Al- Makki wa Al- Madani ( the Meccan and Medina Suras) and their characteristics

The Qur’an was revealed in 23 years, and this duration is divided into two periods
namely; the Meccan period and the Medina period.

The Meccan period

This period starts with the beginning of prophet-hood in Mecca and ends with the
prophet’s migration (Hijirah) to Medina. The Suraas (Chapters) revealed during this
period are called Al-Makki66.

The revelation during this period were mainly concerned with building the ideological
foundation of Islam, Eemaan (faith), in order to prepare the early band of converts for the
difficult task of practically establishing the social order of Islam. Consequently, the
following basic topics of the Meccan revelations reflect principles designed to build faith
in Allah67.
a) Tawheed ( Allah’s Unity)
64
See details on pages……………….
65
Alqattan, Mabaahith Fi Uluumil Qur’an, pg 125.
66
Assaia, Tarikh Al- Fiqhi Al- Islami, pg.23.
67
Philips,A., The Evolution of Fiqh, pg 8.

25
 Most of the people of Mecca believed in a Supreme Being known by the name
Allah from the most ancient of times. However, they had added a host of gods
who shared some of Allah’s powers or acted as intermediaries. Accordingly,
Meccan revelations declared Allah’s unique unity and pointed out Allah ’s mighty
and power. Examples of these include:
i- Surat Al-Faatihah (Chapter 1)
ii- Surat An-Naba’ (Chapter 78)
iii- Surat Al-Ikhlaas (Chapter 112)

b) Allah’s Existence
Some of the early verses presented logical arguments proving the existence of
Allah for the few Meccans who denied it. Examples of these include:
i- Surat Ibraahiim ( 14: 32- 34)
ii- Surat An-Naml (27: 60- 64)

c) Authenticity of the Qur’an

Some verses were revealed confirming the authenticity of the Qur’an and that it
was revealed by the Al-Mighty Allah and no falsehood can be attributed to it.
Examples of these include:
i- Surat As-Shu’ara’ (26: 192- 195)
ii- Surat Fusswilat (41: 41- 42)

d) Challenges
In order to prove to the pagan meccans that the Qur’an was from Allah, some of
the Meccan verses challenged the Arabs to imitate the style of the Qur ’an.
Examples of these include:
i- Surat Yunus (10: 38)
ii- Surat Huud (11: 13)
iii- Surat Al-Isra’ (17: 88)

e) Prophet-hood of Muhammad (S.A.W) and his trust

Some of the Maccan verses were revealed to confirm the prophet-hood of
Muhammad and that whatever he was saying was real truth and inspiration from
Allah. Examples of these include:
i- Surat At-Tuur (52: 30- 33)
ii- Surat An-Najm (53: 1- 18)

f) The Next Life

Since there was no way for human beings to know about the next life, the Meccan
revelations vividly described its wonders, its mysteries and its horrors. Examples
of these include:
i- Surat At-Takwiir (Chapter 81)
ii- Surat Al-Ghaashiyah (Chapter 88)

26
 iii- Surat Al- Qaari’ah (Chapter 101)

g) Stories of earlier civilizations

The Meccan verses often mentioned historical examples of earlier civilizations
which were destroyed when they denied their obligation to Allah, like the A’ad and
the Thamood, in order to warn those who rejected the message of Islam and to
teach the believers about the greatness of Allah. Examples of these include:
i- Surat Nuuh (Chapter 71)
ii- Surat Al-Buruuj (Chapter 85)

h) Swalaah (Formal Prayer)

Due to the critical relationship between Swalaah and Tawheed (Faith), Swalaah
was the only other pillar of Islam to be legislated in Mecca besides Tawheed. A
number of verses therefore, were revealed during that period, enjoining Muslims
to establish regular prayers. Examples of these include:
i- Surat Huud (11: 114)
ii- Surat Al- Isr’a (17: 78)
iii- Surat Al-Ankabuut (29: 45)

For the names of all Meccan Suras, see Appendix 1.

The Medina Period

The Hijrah (migration) of the Prophet marks the beginning of this Period and his death
marks the end of the period. All Suras revealed during this period are called Al-
Madani68.

After the prophet’s migration to Medina and the spread of Islam there, the Muslim
community formed a state with the prophet as its leader. Thus, revelations during this
period were concerned primarily with the organization of the Muslim state.

It was also during this period that the majority of the social and economic laws of Shariah
were revealed. Revelations during this period also strengthened the foundations of
Eemaan and Tawheed which were established during the Meccan period. However, most
of the following basic topics of the Medina revelations concentrate on the laws necessary
for the development of an Islamic Nation69.

a) Laws

68
Assais, Tarikh Al-Fiqh Al-Islami, pg 23.
69
Philips, The Evolution of Fiqh, pg. 10,

27
 It was during the medina period that the last three pillars of Islam were legislated,
as well as the prohibition of intoxicants, pork, gambling, and the punishment for
adultery, murder and theft were fixed.

b) Jihaad
During the Meccan period, Muslims were forbidden to take up arms against the
Meccans who were oppressing them, in order to avoid their decimation and to
develop their patience. The right to defend themselves against their enemy, as well
as rules regulating war were legislated in medina. This was after the numbers of
Muslims had drastically increased.

c) People of the Book

In Medina, Muslims came in contact with Jews for the first time and with
Christians on a large scale. Thus a number of Medina verses tackled questions
which were raised by the Jews in order to befuddle the prophet (S.A.W) and
discredit Islam. The verses also outlined laws concerning political alliances with
Christians and Jews.

d) The Munaafiqoon (Hypocrites)

Some people entered the fold of Islam without actually believing in it, but to
destroy it from within, while others entered and exited shortly thereafter; in order
to shake the faith of the believers. Consequently, some Medina verses exposed
their plots and warned against them, for example Surat Al-Munafiquun (Chapter
63).

For the names of all Medina Suras, see Appendix 11

Legal content of the Qur’an

Islamic legislation in the Qur’an is comprised of a variety of acts, which have been
enjoined by Allah onto mankind.

These acts may be grouped into two basic categories with regard to the parties involved 70:

1) Dealings between Allah and man

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 Zakah (compulsory charity) and yet
others are social – physical forms of worship like Hajj (pilgrimage to Makkah).

70
Zaidan, A., Al-Wajiz fi Usulul fiqh, Beirut, Muassassatu Ar-Risaalah, (1987), pg 156, & Philips, The Evolution of
Fiqh, pg 11.

28
 2) Dealings among men or between man and man.
The laws governing these dealings may themselves be divided into six sub-
sections relative to the subject matter of the dealings:

a) Laws ensuring and defending the propagation of Islam. 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) Commercial Laws: These are laws governing business transactions, rental

contracts etc.

d) Criminal Laws: These are laws specifying punishments and or compensations for
various crimes.

e) International laws: These are laws regulating relationship between different

Nations.

f) Administrative laws: These are laws regulating the relationship between rulers
and those ruled.

g) Laws of evidence: These are laws specifying the type of evidence required in both
criminal and civil proceedings.

The basis of legislation in Shariah

In order for Islamic legislation to achieve its goal of reforming individual and social
behaviours of human beings, it enacted a series of legal commandments and prohibitions,
which make up the rules of conduct governing the social system of Islam. However, in
the enactment of laws, the Qur’anic revelations took into consideration the following
basic principles:

1) The removal of hardship and unnecessary burden

The system of Shariah 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 life style within
a just society committed to the service of Allah.

Shariah laws are not meant to be a burden, creating hardship for man in order for
him to grow spiritually. They are designed to facilitate mankind’s individual and
societal needs. As such among the principles on which Shariah is based is the
removal of hardship and unnecessary burden wherever possible. Evidence to

29
 support this can be found throughout the Qur’an. The following verses from the
Qur’an are only a few examples:

a) (Allah does not burden a soul with more than it can bear)71.

b) (Allah intends for you ease and He does not want to make things difficult for
you)72.

c) (Allah wishes to lighten the burden for you for man was created weak)73.

d) (He did not make any difficulty for you in the religion)74.

e) One of the supplications in the Qur’an reads: (Our Lord do not burden us with
what we do not have the strength to bear)75

Due to this principle, Allah has enacted along with the divine laws a variety of
legal concessions. Examples of these can be seen in the following:

1- Allah said: (He has forbidden you dead animals, blood, the flesh of swine, and
that which is slaughtered as a sacrifice for others than Allah, but if one is
forced by dire necessity without willful disobedience nor transgressing due
limits, then there is no sin on him, for truly Allah is Oft-Forgiving, Most
Merciful)76.

2- Allah said ( Forbidden to you are: dead animals, blood, the flesh of swine, any
animal on which Allah’s name has not been mentioned while slaughtering, any
animal that has been killed by strangling, or by violent blow, or by a headlong
fall, or by the goring of horns, and that which has been eaten by a wild animal,
unless you are able to slaughter it before its death, and that which is sacrificed
on idols… but as for him who is forced by severe hunger with no inclination to
sin, then surely Allah is Oft-Forgiving, Most Merciful)77.

3- Allah said: (The month of Ramadhan in which was revealed the Qur’an a
guidance for mankind and clear proofs for the guidance and the criterion
between right and wrong, so whoever of you sights the crescent on the first

71
Surat Al- Baqra (2: 286)
72
Surat Al- Baqra (2: 185)
73
Surat Annisaa (4: 28)
74
Surat Al- Hajj (22: 78)
75
Surat Al- Baqra (2: 286)
76
Surat Al-Baqarah (2:173)
77
Surat Al-Maidah (5:3)

30
 night of the month of Ramadhan must observe fasting that month and whoever
is ill or on a journey should compensate for the days he ate in Ramadhan )78.

Permission to shorten and join prayers when travelling, permission for sitting
during prayer to whomever is unable to stand are all based on this principle.

The Prophet (S.A.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 unlawful79.

He was also reported to have said to some of his followers on the occasion of their
dispatchment as Governors “Make things easy for people and do not make them
difficult80.

At another time, he had wished to make siwaak (brushing of the teeth)

compulsory at every prayer but because of the burden it would create to the
Ummah he said: "if it were not for fear of creating a burden to my Ummah I
would have ordered them to brush their teeth at every prayer"81

2) The reduction of religious obligations

A natural 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. This principle can be clearly seen in the method by which the Qur ’an
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.

For example, with regard to women with whom marriage is forbidden, Allah
states:
(Prohibited to you are your mothers, your daughter, your sisters ……..)82.
After completing the prohibited categories, Allah says:

78
Surat Al-Baqra (2:185)
79
Bukhari, Swahih, Vol 3, pg 1306, Hadith No. 3367, & Muslin, Swahih, Beirut, Daru Ihya ’ Turaathil- Arabi,
pg1813, Hadith No. 2327.
80
Bukhari, Swahih, Vol. 1, pg 36, Hadith No. 69, And Muslim, Swahih, Vol. 3, pg. 1359, Hadith No. 1734
81
Muslim, Swahih, Vol. 1, pg 220, Hadith No. 252.
82
Surat Annisa (4: 23).

31
 (Except for these, all others are lawful, provided you seek them in marriage with a
dowry (Mahar) and not for fornication)83.

Another example, which confirms this principle can be seen in the number of
hours per day man spends while praying to his God (Allah).

Despite the fact that man was purposely created to worship Allah, as Allah says; (I
never created Jin and man but to worship me)84 , but out of 24 hours a day, man is
obliged to pray 5 prayers. If the maximum time a man requires to perform one
prayer is 10 minutes including ablution, then the total amount of time required to
perform the five prayers is only 50 minutes, which is approximately one hour.
This means that out of the 24 hours, man is required to utilize only one hour for
worship and the remaining 23 hours are left for his personal requirements.

Likewise, out of the 12 months, man is obliged to fast only one month, which is
the month of Ramadhan.

Hajj was also prescribed once in one’s life time, however rich one can be, though
when he performs it more than once he is rewarded.

3) The realization of public welfare

Since the laws of Islam were primarily enacted for the good of all mankind,
legislative consideration is found in the giving of precedence to the general
welfare over individual benefit, and to the prevention of a greater harm over a
smaller one. This means that a bigger loss cannot be inflicted to relieve a smaller
loss or a bigger benefit cannot be sacrificed for a smaller one. Conversely, a
smaller harm can be inflicted to avoid a bigger harm or a smaller benefit can be
sacrificed for a larger benefit.

Further still, although “relieving hardship” and “promoting benefit” are both
among the prime objectives of the Shariah, the former takes precedence over the
latter.

A good example of such a principle can be found in Islam’s confirmation of plural

marriage (polygamy). Shariah limited the maximum number of wives a man with
ability can marry to four and outlined the rights and responsibilities of those
involved.

Although sharing a husband is painful to most women, the need for plural
marriage in most societies evidenced by the corruption, cheating and moral
83
Surat Annisa (4: 24).
84
Surat Azhariyat (51: 56).

32
 decadence, which results from its official prohibition, demands its legislation.
Therefore, for the general welfare of both men and women, Shariah recognized
limited polygamy thereby giving precedence to the good of society over that of the
individual woman.

Zakah was also prescribed for public welfare.

4) Gradation in legislation

The legislation of Islamic laws was not revealed as a lump-some. Instead, it was
revealed gradually such that it could be adopted gradually. This is why the Qur ’an
was revealed to the Prophet in a period of 23 years.

A clear example for the principle of gradation in legislation can be seen in the
prohibition of intoxicants. A number of verses were revealed concerning
intoxicants until the last stage of its prohibition.

In the first stage, Allah said: (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)85.

In this verse, wine was not prohibited but some people sensed that it is not good
because of the statement that (the evil in wine is greater than the benefit in it).

In the second stage, another verse was revealed in which Allah said: (O you who
believe approach not salat when you are in a drunken state until you know the
meaning of what you utter)86.

In this verse Allah narrowed the time in which one could drink wine since prayers
like Zhuhuri, Aswir, Magrib and Isha are near each other, whereby a person
intending to perform the next prayer could not drink wine in the duration between
two prayers. The only time left for people to drink was after Isha and after Fajir,
yet the former is time for sleep and the latter is time for work.

In the last phase, all the above verses were abrogated and a final verse prohibiting
all intoxicants was revealed: thus Allah said: (O you who believe! Intoxicants,
gambling, Al-Aanswaab (idols)., Al-Azlaam are abomination of Satan hand witch,
so avoid that abomination in order that you may be successful. Verily Satan’s plan
is to incite enmity and hatred between you with intoxicants and gambling, and

85
Surat Al- Baqarah (2: 219).
86
Surat Annisa (4: 43).

33
 divert you from remembrance of Allah and from prayer, will you not then
abstain)87.

5) 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 Qur’an has emphasized that the primary objective of all the prophets was the
establishment of justice on earth. Thus Allah says: ( Indeed We sent our
Messengers with clear proofs, and revealed with them the book and the scale for
mankind to keep up justice)88.

The justice that the Qur’an commands, means being fair to yourself, by observing
Allah’s limits.

It means being fair to Allah by worshiping Him, seeking His help and not
associating anything with Him.

It means being fair to others and avoiding hatred and favoritism.

It means being fair in word, in bearing witness, and in judgment.

Justice is due to all people regardless of religion, or group, since by its nature
justice is absolute and cannot apply differently to different people89.

That is why the laws mentioned in the Qur’an are all general, making no
distinction between one group and another. Here are a few verses from the many,
which confirm the principle of universal justice:

a) (Allah Has enjoined justice and righteousness)90.

b) (Allah commands you to return your trusts to whom they are due and when you
judge between one man and another, that you judge justly)91.

c) (O you who believe! Stand out firmly for justice as witnesses to Allah, even if it
be against yourselves or your parents or your kin, be he rich or poor, Allah is a
Better protector to both. So follow not the lusts of your heart lest you avoid
87
Surat Al- Maida (5: 90-91).
88
Surat Al- Hadiid (57: 25)
89
Al- Qaradhawi, Islamic law in the modern world, Translated by Khalifa, A., Riyadh, King Fisal Centre for research
and Islamic studies, (1997), pg 5.
90
Surat Annahl (16: 90).
91
Surat Annisa (4: 58).

34
 justice, and if you distort your witness or refuse to give it, verily Allah is Ever
Well Acquainted with what you do)92.

d) (Oh you who believe, stand out firmly for Allah 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 Allah for verily Allah is well aware of whatever you do) 93.

In the Sunnah, it was reported that a woman stole some ornament and confessed to
the crime when the case was brought before the Prophet (S.A.W). Her tribesmen
wanted to avoid the shame of having the Qur’anic punishment applied to her, so
they asked Usaamah Bin Zayd who was close to the Prophet (S.A.W) to intercede
on her behalf.

When Usaamah approached the Prophet (S.A.W), the Prophet became very angry
with him and said: “Do you dare to intercede in one of Allah ’s fixed punishment?
The people before you were destroyed because they let the nobles go when they
stole, but applied Allah’s fixed punishment on the weak when they stole. By
Allah, if my own daughter, Faatimah, stole, I would cut off her hand94.

2. The Sunnah

The Sunnah was the secondary source of legislation during this period.

Definition of Sunnah

Sunnah literally means a way, a practice, or a rule of practice95.

Technically, however, it refers to the exemplary conduct or the model of behaviour of the
prophet in what he said, did or approved96.

In other words, Sunnah refers to all that has been related to the Prophet (S.A.W) in terms
of his speech, action or approval97.

92
Surat Annisa (4:135)
93
Surat Al- Maida (5: 8).
94
Bukhari, Swahih, Vol. 3, pg 1282, Hadith No. 3288, And Muslim, Swahih, Vol. 3, pg 1311, Hadith No. 1688.
95
Al-Fayyumi, A. Al-Misbaah Al-Muniir, Beirut, Al-Maktabat Al-ILmiyyah, Vol.1, pg.292
96
Doi, A., Sharia the Islamic law, pg 7.
97
Assibaee,The Sunnah and its role in Islamic legislation, English Edition, Riyadh, International Islamic publishing
House (2008), pg 73

35
The prophet’s approval refers to any occasion on which he approved of an action which
issued from his companions. He might have demonstrated his approval by silence, by
signal of satisfaction, or by openly praising and supporting the action98.

An example of the prophet’s approval by silence occurred during the battle of Banu-
Quraidha, when the prophet said to an expedition: “Let none of you pray except in Banu-
Quraidha”. Some of the companions applied the prohibition in the literal sense and they
ended up delaying the Aswir prayer until Maghrib prayer. Others understood the prophet
to mean that they should hurry and try to reach Banu-Quraidha before the time of
Maghrib, and so they ended up performing Aswir prayer on time on their way to Banu-
Quraidha. When the prophet heard of what the two groups had done, he implicitly
approved of both groups by blaming neither99.

An example of his spoken approval can be seen when his companion Khalid Bin Waliid
was eating the meat of a lizard that had been presented to the prophet who abstained from
eating it. Some companions asked: Is it haraam, Oh Messenger of Allah? He said: “No,
but it is not common in the land of my people and I find myself repulsed to it”100.

Difference between Sunnah and Hadith

Sunnah and Hadith are often used interchangeably to refer to all that has been related to
the Prophet (S.A.W) in terms of his speech, action or approval. However, the two terms
differ in their significance.

Hadith really means a report representing an account of what happened, whereas Sunnah
means a practice or a custom. In short, therefore, the Sunnah is what was practiced and
Hadith is the record of what was practiced.

Since Sunnah refers to speeches, actions and approvals of the prophet (S.A.W) and
Hadith tells what the Sunnah was, Hadith therefore, enshrines the Sunnah101.

This therefore, technically means that Hadith is a narration of the Sunnah.

Status of the Sunnah under Islamic Legislation

The Qur’an represented the blue print for the Islamic way of life and the Prophet ’s
application of the blue print in his day-to-day life (the Sunnah) acted as a detailed

98
Ibid pg 74.
99
Bukhari, Swahih, Vol. 1, pg 321, Hadith No. 904, And Muslim, Swahih, Vol 3, pg 1391, Hadith No. 1770.
100
Bukhari, Swahih, Vol. 5, pg 2060, Hadith No. 5076, And Muslim, Swahih, Vol. 3, pg 1534, Hadith No. 1946.
101
Qadri, A. Islamic Jurisprudence in the Modern World, Delhi, Taj Company, 1997, pg.190

36
explanation of the general principles outlined in the Qur'an as well as a practical
demonstration of their application.

The Prophet (S.A.W) was assigned the job of conveying the final message of God to
humankind.
Allah said: (Oh messenger, convey what has been revealed to you from your Lord) 102.

Other than conveying the final message of God to humankind, he was also given the
responsibility of clarifying God’s intent in the message.
Allah said: (We have revealed the Qur’an to you in order that you explain to humankind
what was revealed to them)103.

Sometimes the Prophet (S.A.W) would explain the intent of the Qur’anic text by making
a statement. At other times he would do so by an act, and yet other times he would do so
by both.

For example, the Qur’an commanded the believers to establish regular prayers ( Swalah)
without describing how Swalah should be performed, so the Prophet (S.A.W) prayed
before his followers, then told them “Pray as you have seen me pray”104.
He also performed Hajj and told his companions to imitate him in whatever he was doing
as he said: “Take all your hajji rituals from me”105.

Method of legislation of the Sunnah

Like the Qur’an, the method of legislation in the Sunnah of the Prophet (S.A.W) was
according to the need of the time.

Some of the Sunnah were pronounced as answers to questions forwarded to the Prophet
(S.A.W). An example of this was when one of the Prophet’s companions asked him: Oh
messenger of Allah! We sail the seas and if we make Wudhu (ablution) with our fresh
water we will go thirsty, can we make Wudhu with seawater? He replied: “Its water is
pure and its dead (sea creatures) are Halaal (permissible) to eat”106.

Another example was what Aisha, wife of the Prophet, narrated that: I asked the prophet
(S.A.W): “ O Messenger of Allah if I knew what night is the night of Qadr, what should I
say during it?” He said: “Say: O Allah you are Most forgiving, you love to forgive, so I
request you to forgive me”107
102
Surat Al Maidah (5:67).
103
Surat Annahl (16: 44).
104
Bukhari, Swahih, Vol.1, pg 226, Hadith No. 605.
105
Muslim, Swahih, Vol. 2, pg 943, Hadith No. 1297
106
Tirimizhi, Sunan, Beirut, Daaru Ihya’ Turaathil- Arabi, Vol.1, pg 100, Hadith No. 69 [Tirimizhi: Hasan Swahih].
107
Tirimizhi, Sunan, Vol.5, pg 534, Hadith No. 3513 [Albani: Swahih]

37
Others were pronounced as solutions to particular incidents.
An example of this was what Abuhurairah narrated that a man came to the prophet and
said: I am destroyed oh messenger of Allah.
The prophet asked: “What has destroyed you?” He said: I had sexual intercourse with my
wife during day in Ramadhan.
The prophet asked: “Are you able to free a slave?” The man said: No.
The prophet asked: “Can you fast two consecutive months?” The man said: No.
The prophet asked: “Can you feed sixty poor people?” The man replied: No.
A Basket of dates was brought to the prophet and he said to the man: “Give this in
charity”. The man asked: To someone poorer than us? By Allah, there is no one in this
city who is poorer than us (I and my wife). The prophet laughed until his molar teeth
could be seen and said: “Go and feed your family with it”108.

Others were pronounced as consolations to the companions of the prophet.

An example of this type was what Khibaab Bin Aratti narrated that: We complained to
the prophet (S.A.W) who was seated in the shade of the Kaabah, of the persecutions
inflicted on us by the non believers and we said to him: Can ’t you seek help for us? Can ’t
you pray to Allah for us?
The Prophet said: “A believer among the nations before you would be put in a ditch that
was dug for him, and a saw would be put on his head and would be cut into pieces, yet
that torture would not make him give up his religion. His body would be combed with
iron combs which would remove his flesh from the bones and nerves, yet that would not
make him abandon his religion. By Allah, the religion of Islam will prevail till a traveler
from Sanaa to Hadhramout fears non but Allah and a wolf lest it troubles his sheep, but
you people are impatient”109.
Yet others were pronouncements as general solutions and rules regulating the conduct of
the Muslim community with regard to their relationship with their God and with their
fellow Muslims. An example of this kind can be found in what Ibn Umar reported that
the prophet (S.A.W) enjoined Zakaatul-Fitir one Sw’a of dates or one Sw’a of wheat
(barley) upon the free and the slave, male and female, young and old of the Muslim
community, and ordered that it should be paid before people go out for Swalatul Eid110.

Preservation of the Sunnah

The companions spared no effort in conservation of the Sunnah of the prophet and
passing it over to others with at most trust; since it explained the Quran. However, the
prophet never appointed scribes to write down the Sunnah as it was the case with the

108
Bukhari, Swahih, Vol. 2, pg 684, Hadith No. 1834, And Muslim, Swahih, Vol.2, pg 781, Hadith No. 1111
109
Bukari, Swahiih, Vol 3, pg 1322, Hadith No. 3416.
110
Bukhari,Swahih, Vol. 2, pg 547, Hadith No.1432,And Muslim, Swahih, Vol. 2, pg 677, Hadith No. 984

38
Quran. In fact at the beginning of the revelation, he used to prevent the companions from
writing down the Sunnah.

Abu Said Al- Khudriy narrated that the prophet (S.A.W) said: “Do not write any thing
from me except the Quran and whoever had written something not the Quran should rub
it. There is no harm to tell people about me, but whoever attributes any falsehood to me
intentionally let him prepare his seat in hellfire”111.

It should be noted, however, that the prevention was due to the fear that people might mix
up the Sunnah with the Qur’an as they had not differentiated between them at the
beginning of the revelation. However, when there was no more fear of mixing the two the
prophet allowed the companions to write112.

This is based on what Abu Hurairah narrated that: “There was nobody who memorized
more Sunnah than me except Abdullah Bin Amru, because for him he used to write and
for me I never wrote”113.
Abdullah Bin Amru said: “I used to write anything I heard from the prophet until the people of
Quraish discouraged me saying: You write everything you hear from the prophet yet he is also a
human being who speaks both in wrath and pleasure! Hence forth I stopped writing. But when I
narrated the story to the prophet he said: “write whatever you hear from me for I swear by the
ONE my life is in His hands, nothing comes from me except the truth”114.

In conclusion therefore, the Sunnah never got much attention in terms of writing as was
the case with the Qur’an. However there was much attention put on it in terms of
memorization. Thus the prophet died when his Sunnah was memorized but much of it
was not written115.

Types of Sunnah in relation to the Qur’an

Sunnah in relation to the Qur’an is of three types116:

a) A Sunnah that confirms a ruling mentioned in the Qur’an

Example of this type is the Sunnah which confirms the obligatory nature of prayer,
Zakah, Hajj and fasting without going into details of conditions or requisites of
those deeds.

111
Bukhari,Swahih, Vol. 1, pg 52, Hadith No.110, And Muslim, Swahih, Vol. 1, pg 10, Hadith No.3
112
Al-khini, Dirasatun Tariikhiyyah Lil- Fiqhi wa Usulih Damascus, Asharikat Al-Muttadidah, 1 st Edn (1984), pg33.
113
Bukhari, Swahih, Vol.1, pg 54, Hadith No. 113.
114
Abu Dawood, Sunan, Beirut, Daarul- Kitaabil- Arabi, Vol 3, pg 356, Hadith No.3648
115
Al-khini, Dirasatun Tariikhiyyah Lil- Fiqhi wa Usulih pg 34.
116
As- Siba’ee, The Sunnah and its role in Islamic legislation, pg. 450.

39
 Abdullah bin Umar narrated that the Prophet (S.A.W) said: “Islam is built upon
five pillars: to testify that none has the right to be worshiped except Allah and that
Muhammad is a messenger of Allah, to establish regular prayers, to pay Zakaah, to
fast the month of Ramadhan and to perform Hajj for whoever is able to do so”117.
This Sunnah confirms the following Qur’anic verses:
(..And perform Swalah and pay Zakaah)118, (O you who believe! Observing fasting
is prescribed for you as it was prescribed for those before you..) 119, (..And Hajj to
the house [Kaabah] is a duty that mankind owes to Allah, those who can afford the
expenses)120.

b) A Sunnah that clarifies a ruling of the Qur’an

This can be subdivided into the following:

i- A Sunnah that limits the applicability of a comprehensive Qur’anic ruling

An example of this type can be seen when Allah said: (As for the male and female
thief cut off their hands as a recompense for that which they committed..) 121. The
prophet said: “The hand is not cut for less than one quarter of a Dinar”122.

Another example can be seen when Allah said: (O you who believe! Spend of the
good things you have legally earned and of that which we have produced from the
earth for you)123. The prophet said: “There is no Zakaah in what is less than five
Awsuq”124

ii- A Sunnah which mentions the details of a general Qur’anic ruling.

An example of this type can be seen when Allah said: (And pay Zakaah)125. The
Prophet said to Muazh Bin Jabal when he sent him to Yemen: “Take one Tabi or
Tabiah126 from every thirty heads of cattle and one Musinnah127 from every fourty
heads of cattle”128.

iii- A Sunnah which mentions an exception to a general Qur’anic ruling.

117
Bukhari, Swahih, Vol.1, pg 12, Hadith No. 8, And Muslim, Swahih, Vol. 1, pg 45, Hadith No. 16.
118
Surat Al Baqarah (2: 43)
119
Surat Al Baqarah (2: 183)
120
Surat Al Imr’an (3: 97)
121
Surat Al- Maidah(5:38)
122
Muslim, Swahih, Vol. 3, pg 1311, Hadith No. 1684
123
Surat Al-Baqarah (2:267)
124
Bukhari, Swahih, Vol. 2, pg 529, Hadith No. 1390, & Muslim, Vol. 2, pg 673, Hadith No. 979
125
Surat Al-Baqarah (2:43)
126
Tabi is a Bull and Tabiah is a cow, when each one of them is one year old.
127
Musinnah is a cow which is two years old.
128
Tirimizhi, Sunan, Vol. 3, pg 19, Hadith No. 622, & Ibn Maajah, Beirut, Daarul- Fikri, Vol. 1, pg 577, Hadith No.
1804

40
 An example of this type is the Sunnah which prohibits marrying a woman and her
aunt ( whether from the father’s or the mother’s side) at the same time 129. This
Sunnah mentions an exception to a general Qur’anic ruling which allows marriage
with anyone not mentioned in (5: 23-24). Thus Allah says (Forbidden to you for
marriage are your mothers, your daughters, your sisters, your brother’s daughters …
…….) then He says (All others are lawful, provided you seek them in marriage
with Mahar from your property)130. This means that all those not mentioned in
these two verses are allowed to be married. But the Sunnah makes an exception by
prohibiting marrying a woman and her Aunt at the same time.

c) A Sunnah that establishes a ruling which the Qur’an does not talk of.
An example of this is the Sunnah which establishes one-Sixth (1/6) of the estate
of the deceased as the share for the grandmother131.

Categorisation of human acts [Af’al- mukalafiina] in Shariah

From the rulings of the Qur’an and Sunnah, human acts are categorized into five
categories according to majority of scholars132:

a) Wajib (Obligatory)
It is an act which Allah absolutely demands to be performed.
It can also be defined as an act which is rewardable for its performance and
punishable for its omission.

Examples of wajib include: observance of the five daily prayers, payment of

zakah, fasting the month of Ramadhan, obedience to Allah and His prophet,
obedience to one’s parents, maintenance of one’s children and spouse.

b) Mandub (Recommended)
It is an act whose performance is demanded by Allah in a non absolute manner.

It can also be defined as an act the performance of which man is praised and
rewarded, and the negligence of which man is neither blamed nor punished.

Examples of Mandub include: Sunan and nawafil prayers offered in addition to

the five obligatory prayers, Tarawih prayers, fasts in addition to fasting the
month of Ramadhan, reciting the Name of Allah at the beginning of ablution.
129
Bukhari, Swahih, Vol. 5, pg 1965, Hadith No. 4820, & Muslim, Vol. 2, pg 1028, Hadith No. 1408
130
Surat An-Nisaa (5:23-24)
131
Abu Daud, Sunan, Vol. 3, pg 81, Hadith No. 2696, & Ibn Maajah, Vol. 2, pg 909, Hadith No.2724
132
Al- Khudhari, Usulul- Fiqh, Beirut, Daaru Ihya’ Turaath Al- Arabi, 7 th edn, (1985), pg 33, see also: Hassan, A. The
principles of Islamic Jurispruudence, New Delhi, Adam Publishers (2005), pg 34

41
 The difference between wajib and mandub is that if a man omits the former, he is
blamed and becomes a sinner, while if he omits the latter he is not blamed and
does not become a sinner133.

c) Haraam (Forbidden)
It is an act from which, Allah demands absolute abstinence.
It can also be defined as an act which is punishable for its performance and
rewardable for its omission.

Examples of Haraam include: killing of one’s child, marrying of one ’s own mother,
giving false testimony, consuming somebody’s wealth by illegal means,
committing adultery, fornication, theft and suicide.

d) Makruh (Disaproved)
It is an act from which Allah demands to refrain in a non absolute manner.
It can also be defined as one whose neglector is praised and whose performer is
not blamed.

Examples of Makruh include the following: omission of performing the two Rakas
which serve as greetings for the mosque (Tahiyyatul-Masjid), asking so many
questions on a clear issue, too much laughing, too much talk, to use abundant
water while performing ablution, to face the Sun or the Qibla while easing
oneself, to urinate in a crack or hole, to dip one ’s hands in the water for ablution
before washing them.

e) Mubaah (Permissible)
It is an act which Allah has given man an option between performing and omitting
it without any recompense.

Examples of Mubaah include the following:

Eating and drinking; This means that every person has the choice to eat or to
drink anything of the lawful food and drinks he likes, or not to eat or drink a
particular food or drink at a particular time.

Marriage; A person is free to marry or not to marry at a given time.

Having sexual intercourse with his wife; a person is free to have sexual
intercourse with his wife or not to have it at a given time.

133
Hassan, A. The principles of Islamic Jurispruudence pg 79.

42
 It should be noted however, that Mubaah can become Wajib or Mandub or
Makruh or Haraam due to change in circumstances and times 134. For example,
eating is Mubaah in general, but it becomes Makruh or Haraam if it reaches the
degree of extravagance or one becomes over satisfied to the extent of not being
able to perform an obligatory prayer. It can also become Wajib if one refrains
from food to the extent of dying of hunger.

Sexual intercourse with his wife is Mubaah, but it becomes Wajib if one refrains
from it for a period of four months in order to harm his wife

Similarly, abandonment of marriage by the entire community becomes Haraam

as it prevents procreation leading to extinction of human race.

In the like manner, every person has the right of option to choose any law ful
profession to earn a living, but it is not permissible that the entire Ummah
abandons all professions. This therefore means that different kinds of
professions, trade and industry are obligatory on a collective level.

3. Ijtihaad during this period

When we talk about Ijtihaad during this period, there are a number of issues we have to
look at:

a) Definition of Ijtihaad

Ijtihaad literally means an effort to arrive at one’s own conclusion or judgment.

In legal terms however, Ijtihaad is the process of arriving at a reasoned decision to

suit new circumstances which have no express legal provisions neither in the
Qur’an nor in the Sunnah.

b) Ijtihaad from the Prophet (S.A.W)

134
Zaidan, Al-Wajiz Fi Usulul- Fiqh, pg 48.

43
 Although the Quran and Sunnah were the source of legislation during this period,
the prophet (S.A.W) could at times use Ijtihaad to arrive at a legal conclusion, and
at times he would permit his companions to use Ijtihaad to arrive at a legal
conclusion.
Here are some of the examples of Ijtihaad from the prophet:

i- The prophet (S.A.W) had forbidden for himself what was

lawful to him due to a benefit he thought using Ijtihaad. Allah
revealed to him this verse reprimanding him of his action (O
Prophet! Why do you forbid [ for yourself ] that which Allah
has allowed to you, seeking to please your wives? And Allah
is Oft-Forgiving, Most Merciful)135.
ii- The prophet (S.A.W), using Ijtihaad, gave permission to
some people who brought excuses not to attend the battle of
Tabook. Allah revealed to him this verse reprimanding him
for permitting those people ( May Allah forgive you [O
Muhammad] why did you grant them leave [ for remaining
behind; you should have persisted as regards your order to
them to proceed on Jihaad], until those who told the truth
were seen by you in a clear light, and you had known the
liars?)136.

iii- During the battle of Badri, the Prophet (S.A.W) staged his
army in a place where he thought, by use of Ijtihaad, was
strategic for them. Al-Khibaab Bin Munzhir asked him: Is it
by a command of Allah that you have staged us in this place,
or it is your opinion? The Prophet replied: “No, but it was my
personal opinion”. There upon Al- Khibaab suggested a better
place where the Muslim army would be having access to
water while the enemy would not, and the Prophet (S.A.W)
concurred with him137.

c) Ijtihaad from the companions

Here under are some examples of Ijtihaad from the companions:

i) When the Prophet (S.A.W) sent Muazh to Yemen, he asked

him: “What will you do if a matter is referred to you for
judgment?” Muazh said: I will judge according to the book
of Allah. The Prophet asked: “What if you find no solution
in the book of Allah?” Muazh said: Then I will judge by the
135
Surat At- Tahrim ( 66: 1)
136
Surat At- Taubah (9: 43).
137
Assais, Tareekh Al- Fiqh Al- Islami, pg 32.

44
 Sunnah of the Prophet. The Prophet asked: “What if you do
not find it in the Sunnah of the Prophet?” Muazh said: Then
I will make Ijtihaad to formulate my own judgment. The
Prophet patted Muazh’s chest and said: “Praise be to Allah
who has guided the messenger of His Prophet to that which
pleases Him and His Prophet”138.

ii) A group of companions were on a journey and among them

was Umar and Muazh. Each one of the two had a wet dream
and there was no water to perform Gusul before attending
prayer. Muazh, using Ijtihaad, smeared the whole of his body
with sand and prayed. As for Umar, he postponed the prayer.
When they went back to the prophet and told him the story,
he said to Muazh: “It was enough for you to do like this –
explaining how to perform dry ablution (Tayammum). Then
he explained to Umar that Tayammum suffices both ablution
ang Gusl139.

iii) During the battle of Banu-Quraidha, the prophet (S.A.W)

said to an expedition: “Let none of you pray except in Banu-
Quraidha”. Some of the companions applied the prohibition
in the literal sense and they ended up delaying the Aswir
prayer until Maghrib prayer. Others, by use of Ijtihaad
understood the prophet (S.A.W) to mean that they should
hurry and try to reach Banu-Quraidha before the time of
Maghrib, and so they ended up performing Aswir prayer on
time on their way to Banu-Quraidha. When the prophet heard
of what the two groups had done, he implicitly approved of
both groups by censuring neither140.

The question which poses itself now is: was Ijtihaad a source of legislation during this
period?

The correct answer to this question is that Ijtihaad was not a source of legislation during
this period; this is so because all the Ijtihaad made by the Prophet were either confirmed
by the Qur’an, if they were correct, or corrected by the Qur’an, if they were not correct, as
seen in the above examples. This means that the end result of his Ijtihaad goes back to the
Qur’an, which was the primary source of legislation.

138
Abu Daud, Vol.3, pg 330, Hadith No. 3594, & Tirimizhi, Vol.3, pg 616, Hadith No. 1327
139
Bukhari, Swahih, Vol. 1, pg 133, Hadith No. 340, & Muslim, Vol. 1, pg 280, Hadith No. 368
140
See pg…….

45
As for Ijtihaad made by his companions; this was usually in circumstances when they
were far away from him and had no opportunity of seeking from him the solution. Later,
when they met the Prophet (S.A.W), they would explain what happened and tell him
what they had decided. Sometimes The prophet (S.A.W) approved of their Ijtihaad, and
such decisions of theirs, having gained the approval of the prophet, became part of the
Sunnah. If, on the other hand, he disapproved their Ijtihaad, his explanation of the correct
procedure would become the Sunnah141.

Thus, we can rightly conclude that during this period, the only source of legislation was
The Qur’an and The Sunnah of the Prophet (S.A.W).

However, during this period, the Prophet (S.A.W) trained and encouraged his
companions to use Ijtihaad whenever they could not find an express legal ruling in the
Qur’an or Sunnah in order to arrive at a judgment on their own. This was to assist them
carry on the application of Shariah after his death. Examples to support Prophet ’s training
and encouragement of his companions to use Ijtihaad are cited below:

i) The Prophet (S.A.W) said: “When a judge makes Ijtihaad and reaches a correct
conclusion, he receives a double reward and if his conclusion is incorrect he still
receives a reward”142.

ii) Umar bin Al-khatatab came to the Prophet and said: “I have committed a grave
sin, I kissed my wife while I was fasting. The Prophet (S.A.W) asked him: “How
do you see if you rinsed your mouth with water while fasting does it nullify your
fasting?” Umar replied: No it does not. The Prophet (S.A.W) said: “Likewise,
kissing your wife does not nullify your fasting”143.

iii) A lady came to the prophet and asked: My mother died without performing Hajj;
can I perform it on her behalf? The prophet asked her: “How do you see if your
mother left a debt would you clear it on her behalf?” She said: Yes. Then the
prophet said: “Allah’s debt is more deserving to be cleared”144.

141
See: Assais, Tarikh Al- Fiqh Al- Islami, pg 34, & Al- Alwaani, Usul Al- Fiqh Al- Islami, English Edn, Riyadh,
International Islamic Publishing House, pg 6.
142
Bukhari, Swahih, Vol. 6, pg 2676, Hadith No. 6919, & Muslim, Vol. 3, pg 1342, Hadith No. 1716
143
Abu Daud, Vol.2, pg 284, Hadith No. 2367
144
Bukhari, Vol.6, pg 2668, Hadith No. 6885

46
 CHAPTER TWO

THE SECOND STAGE IN THE DEVELOPMENT OF ISLAMIC LAW

This stage represents the era of the four Righteous Caliphs (Successors of the Prophet,
that is to say, Abu-Bakr, Umar Bin Al-Khattaab, Uthmaan Bin Affaan, Ali Bin
Abitwaalib ) and the major companions of the Prophet (S.A.W).

It extends from the Caliphate of Abu-Bakr to the death of the fourth Caliph Ali bin
Abitwaalib (633 – 661 A.D).

Immediately after the death of the Prophet (S.A.W) Muslims were confronted with issues
of which no specific answers were found in the Qur’an or Sunnah, like who was to be the
immediate successor of the Prophet (S.A.W) in order to take over the responsibility of the
state affairs.

In addition to that, the borders of the Islamic state rapidly expanded during the first
twenty years of this stage to include Syria, Jordan, Egypt and Persia. Thus, Muslims
were brought into contact with totally new systems, cultures and patterns of behaviour
for which specific provision was not to be found in the laws of Shariah145.

To deal with the numerous new problems, the Righteous Caliphs established a problem
solving procedure, which later became the foundation for legislation in the Islamic law.

Problem solving procedure of the Righteous Caliphs

Faced with a new problem, the Caliph of the time would generally take the following
steps in order to solve it146:

1) He would first search for a specific ruling of the problem from the Qur ’an. If he
found something according to which he could solve the problem or pass a
judgment, he did so.

2) If he could not find a solution from the Qur’an, but remembered some relevant
aspect of the Prophet’s Sunnah, he would judge or solve the problem according to
that Sunnah which he remembered. A good example is when Fatimah, the
daughter of the Prophet, came to Abubakari after the death of the Prophet (S.A.W)
requesting for her share of inheritance from her father’s estate. Abubakri told her
that he heard the Prophet (S.A.W) saying that: “We [Prophets] are never inherited
and what we leave behind is Swadaqah [Charity]”147
145
Philip, A., The evolution of Fiqh, pg.38
146
Al-Alwaani, Usuul Al-Fiqh Al-Islami, pg.12.
147
Bukhari, Swahih, Vol. 3, pg 1126, Hadith No.2926, & Muslim, Vol. 3, pg 1380, Hadith No. 1759

47
 3) If he could not remember any relevant aspect of the Prophet’s Sunnah concerning
the issue in question, he would go and say to the Muslims: “Such and such a
problem or a dispute has been referred to me. Does any of you know anything in
the Prophet’s Sunnah according to which solution or judgment may be passed? If
someone were able to answer his question and provide relevant information with
evidence to confirm it, he would pass judgment basing on that. This was because
the Prophet’s Sunnah had not been compiled in books but was crammed up and
remembered by different companions.

It should be noted that, there was no single companion who heard and remembered
all the Sunnah of the Prophet (S.A.W). Some heard and remembered a few and
some heard and remembered a tremendous number of them. This was because the
companions of the Prophet (S.A.W) could not all of them attend all the sermons of
the Prophet (S.A.W). Some companions would attend a sermon in which the
Prophet (S.A.W) mention a Sunnah while others fail to attend that sermon for one
reason or another, thus they fail to hear that particular Sunnah.

Further still one companion could hear the Sunnah and forgets it while others
remember it.

Therefore, the Caliph had to take precaution in passing a judgment because his
failure to know or remember a Sunnah concerning a particular issue could not
automatically imply that there was no Sunnah concerning that issue.

An example in this regard can be cited when a grandmother of a deceased man

came to Abu-Bakr seeking her share of inheritance from the property of her
deceased grandson. He said to her: “I do not know anything from the Qur’an
concerning your share, neither do I know anything from the Sunnah but wait until
I inquire from the people if any of them heard anything from the Prophet
concerning your share”. When he inquired from the companions, Mugiira Bin
Shubah stood up and said: “I heard the Prophet (S.A.W) giving her a sixth of the
property”. In order to confirm that, Abu-Bakr asked whether there was any other
person who also heard the same from the Prophet (S.A.W) Muhammad Bin
Maslam stood up and confirmed that he heard the same from the Prophet (S.A.W).
Then Abu-Bakr gave the grandmother her share148.

Another example in that regard was that of Umar Bin Al-Khattaab. He had not
known that the widow has a share from the blood money (Diyah) of her deceased
husband until Adhahaak Bin Sufyaan narrated to him that the prophet (S.A.W)

148
Abu Daud, Sunan, Vol.3, pg 81, Hadith No. 2896, & Ibn Maajah, Sunan, Vol.2, pg 909, Hadith No. 2724.

48
 wrote to him instructing him to give the wife of Ashyam Adhubaabi a share from
the Diyah of her deceased husband149.

4) If the Caliph could not get an answer, he would then call a meeting of the major
companions and try to get a unanimous agreement on a solution to the problem.
This unanimity was referred to as IJMAA.

Ijmaa is the unanimous agreement of Muslim scholars, at a particular time, after

the death of the Prophet (S.A.W) on a point of Islamic Law150.

5) If all the methods mentioned above failed to produce any result, then the Caliph
would make Ijtihaad and form his own opinion.

Sources of Islamic law during this stage

From the problem solving procedure of the Righteous Caliphs, it was noted that
whenever confronted with a novel issue they first made a search of its solution from the
Qur’an, and if they failed, they turned to the Sunnah of the Prophet for the solution.

This therefore, means that the Qur’an was the primary source of Islamic law, followed by
the Sunnah of the Prophet (S.A.W).

1- The Qur’an

Compilation of the Qur’an during this period:

Compilation of the Qur’an during this period underwent through two stages:

1) Compilation during the caliphate of Abu-Bakr

After the death of the prophet, a number of people deserted Islam since the prophet
was dead, yet others refused to pay Zakaah. Abu-Bakr had to fight them to bring
them back under his control. In the process, very many companions who had
memorized the Qur’an were killed in these battles. There was fear that if the
situation continued that way the Qur’an would get lost. Umar suggested to Abu-
Bakr to compile the Qur’an into a book form for its preservation.

It should be remembered that the prophet died when the whole Qur’an was
memorized and written on different materials like bones, hides, backs of trees e.t.c.
but was not arranged into a book form.

149
Abu Daud, Sunan, Vol.3, pg 90, Hadith No. 2929, & Tirimizhi, Sunan, Vol.4, pg 27, Hadith No. 1415.
150
Zaidan, Alwajiiz Fi Usulul- Fiqh, pg 179.

49
 It should also be remembered that when Umar first suggested the idea to Abu-
Bakr, he resisted, arguing that the prophet himself never did it, but later he saw the
wisdom in it and accepted. He ordered Zaid Bin Thabit who was one of the scribes
of the prophet, to re write the Qur’an and arrange it into a book form by comparing
that which was memorized and that which was written on the different materials
which had been kept in the house of the prophet. By the time Abu-Bakr died, a
written copy of the Qur’an arranged into a book form had been compiled and kept
by him.

After Abu-Bakr’s death, the copy was kept by Umar and after his death, it was
kept by his daughter Hafswa, wife of the prophet151.

2) Compilation during the Caliphate of Uthman

During the time of Uthman, people had differences in reciting the Qur’an due to
the different dialects in the Arab tribes and also different companions had
individual copies of the Qur’an written voluntarily during the time of the prophet.
These differences called for a standard copy of the Qur’an to be circulated
throughout the Muslim state.

Uthman set up a committee for standardization of the Qur’an led by Zaid Bin
Thabit. He sent for a copy which was written during the caliphate of Abu-Bakr to
be the basis of the work.

It was agreed that if there was any difference in any word, it should be written in
the Quraish dialect since the Qur’an was revealed in the Quraish dialect as the
prophet was from Quraish.

When the work of standardization of the Qur’an was completed, Uthman sent
copies to different parts of the Muslim state and ordered other versions to be
burned, thereby having one standard version of the Qur’an throughout the Muslim
state152. This is the standard version up to the present day.

2- The Sunnah

Compilation of the Sunnah during this period

The prophet (S.A.W) had urged and encouraged the companions to memorize his Sunnah
and convey it to the Muslim Ummah as reflected in the following Hadiths:

151
Al- Qattaani, Mabaahithu Fi Ulumil Qur’an, pg 126.
152
Ibid pg 129.

50
 a) “May Allah make shine the one who hears my speech, memorizes it, and conveys
it as he heard it; for some times the one to whom it is conveyed comprehends it
better than the conveyer”153.

b) “Let the one present convey [the message and my teaching] to the one who is
absent”154.

However, he warned them of attributing falsehood to him and said: “whoever

attributes any falsehood to me let him prepare his seat in hell fire”155.
The companions therefore were very dutiful and careful in conveying the prophet’s
Sunnah after him to the Tabioon.

However, they differed in the amount of Hadith they related. Some related a few for
fear of misquoting the Prophet’s words, while others related a lot, basing on the
Prophet’s encouragement to convey his Sunnah to the Muslim Ummah. Abu-
Hurairah was like a container or storeroom of Hadith, and he filled the ears and
gatherings of Muslims with the Sunnah of the Prophet (S.A.W)156.

It should be pointed out here, that although some companions related a great deal of
Hadith from the Prophet (S.A.W), they related relatively little during the period of
Abu Bakr and Umar; for their overall plan consisted of two strategies: first, to force
Muslims to be positively coke sure when relating Hadith, and second, to make
Muslims spend the greater part of their energies in preserving and studying the
Qur’an157.

Abu Hurairah was once asked: “Did you relate Hadith during the period of Umar as
you do now?” He said: “Had I related Hadith during the period of Umar as I relate to
you now he would have struck me”158.

It should also be remarked that nothing was done to the compilation and
documentation of the Sunnah during this period, but it remained preserved and
transmitted to other people through memorization.

It is related that Caliph Umar considered the documentation of the Sunnah and
consulted other companions about the same, many of whom supported the idea, but

153
Abu Daud, Sunan, Vol.3, pg 360, Hadith No. 3662, & Tirimizhi, Sunan, Vol.5, pg 33, Hadith No. 2656.
154
Ibn Abdul- Barr,Y., Jaamie’ Bayaanil- Ilm Wa Fadh ’lih, 1 st Edn, Muassassat Ar-Rayyaan (2003), Vol.1, pg 90,
Hadith No. 145.
155
Bukhari, Swahiih, Vol.1, pg 52, Hadith No.110 & Muslim, Swahiih, Vol.1, pg 10, Hadith No.3.
156
As-Siba’ee, The Sunnah and its role in Islamic legislation, pg 97.
157
Ibid.
158
Ibn Abdul- Barr, Jamie bayaanil- Ilm Wa fadhlih, Vol. 2, pg 240.

51
 Umar delayed the matter and thought over it for a month, as he remained
undecided159.

He later addressed the companions and told them that he was apprehensive that this
might distract peoples’ attention from the book of Allah. The caliph eventually
decided not to document the Sunnah, and the situation remained like that during the
period of the righteous caliphs until the advent of the turmoil and fitna which
followed the assassination of the third caliph, Uthman bin Affan160.

It remains to be said here, that the attitude of the companions not to compile and
document the Sunnah resulted into two major issues161:

a) The scholars of Hadith at a later stage were faced with a lot of hardship in
knowing the personalities of the Narrators of Hadith and most especially their
trustworthiness and reliability, and this in turn resulted in the classification of
Hadith into Swahiih (authentic), Hasan (fair) and Dhai’f (weak or non authentic)

b) The Muslim Ummah never united on the Sunnah as they did with regard to the
Qur’an, and this in turn created room for distortions, additions and subtractions by
some narrators either intentionally or by mistake, which in turn resulted in a group
of Muslims rejecting the Sunnah of the prophet as a source of legislation.

3- Ijmaa

As noted earlier, if the Caliph could not find a solution to the problem from the Qur’an
and the Sunnah, he could consult the companions and try to get a unanimous opinion
on the issue. This unanimity resulted into another source of Islamic law called Ijmaa.
Thus, Ijmaa became the third source of Islamic law during this stage.

Definition of Ijmaa
Ijmaa is a unanimous agreement of jurists of the community of a particular age after
the death of the Prophet (S.A.W) on an Islamic issue162.

Ijmaa is normally arrived at through a difference of opinion as a result of exercising

Ijtihad, and out of these diverse opinions an accepted general opinion emerges.

159
Ibid, pg 132.
160
Kamali, M., Hadith Methodology, Selangor, Ilmiah Publishers (2002), pg 40.
161
See: Al-Khinni, Dirasatun Tariikhiyyah Lil- Fiqhi wa Usulih pg 63
162
See pg…….

52
 This means that Ijmaa begins with personal judgment of individuals (Ijtihaad) and
culminates in universal acceptance of a certain opinion by the community in the
end163.

Thus, the healthy consultations practiced by the Righteous Caliphs and the use of
objective Juristic reasoning (Ijtihaad) were normal preliminaries for arriving at a
binding Ijmaa164.

It is significant to note that Ijtihaad and Ijmaa are two instruments interlinked in a
continuous process. During the course of Ijtihaad activity, it happens that the opinion
of some individual in a certain case is so appealing that it is recognized by the
community in general, and eventually culminates into Ijmaa165.

It should be pointed out that Ijmaa is accomplished by only those who are possessed
of the necessary qualifications as Mujtahidoon or learned scholars of Islamic law 166,
and all Muslims possessing the requisite qualifications stand equal in this respect.

The major function of Ijmaa is to unite the divergent opinions on a problem

progressively and to ascertain the truth of Ijtihaad167

It should be noted that the concept of Ijmaa was not available during the life time of
the Prophet (S.A.W), the reason being that the revelation and Prophet’s Sunnah were
the final answer to the problems that cropped up during his days168.

Therefore, no Ijmaa could have been reached except after the Prophet’s death after all
the texts were revealed, since Ijmaa is based always on the interpretations of the
Qur’an and Sunnah169.

It is worthy to note that Ijmaa picks its legitimacy from the Prophet’s Sunnah which
says “My Ummah (community) will never agree on an error or falsehood”170.

It is also important to remark that although Ijmaa, in most cases, is a result of

Ijtihaad, once formed; it becomes stronger and ranked higher than Ijtihaad

Types of Ijmaa

163
Hassan, A., The early development of Islamic Fiqh, Islamabad, Islamic Research Institute (1970) pg 157
164
Doi, A., Sharia, The Islamic law, pg 66
165
Hassan, A., The early development of Islamic Fiqh, pg 160.
166
Qadri, A. Islamic Jurisprudence in the Modern World, pg 200.
167
Hassan, A., The early development of Islamic Fiqh, pg 160.
168
Ibid, pg 156.
169
Doi, A., Sharia, The Islamic law, pg 68.
170
Ibn Maajah, Vol.2, pg 1303, Hadith No. 3950

53
 There are two types of Ijmaa, namely: Swariih (Verbal) and Sukuuti (Silent)171.

a) Ijmaa Swariih (Verbal Ijmaa)

It happens when an issue is raised and all the Muslim jurists air out their views
regarding the issue, then a consensus is reached by all the jurist voicing out
their approval.

b) Ijmaa Sukuuti (Silent Ijmaa)

It happens when some Muslim jurists air out their opinion on a given issue,
then that opinion spreads to other Muslim jurists, but they keep silent without
voicing out their opposition or approval.

Examples of Ijmaa during this period

The first practical example of Ijmaa after the death of the Prophet was the incident
of electing Abu-Bakr as the Caliph172.

Immediately, after the death of the Prophet (S.A.W), the Answar173 gathered at
Saquifat Bani Saeda and proposed to elect a Caliph from among them. When the
Muhajiroon174 heard of it, they went to meet their brothers over the issue of the
Caliphate and they also proposed to elect the Caliph from among themselves.

It should be remembered that the Prophet (S.A.W) never appointed anyone to

succeed him in the affairs of the Islamic state, but when he was too sick to lead
Muslims in prayer, he appointed Abu-Bakr to lead them in prayer175.

Umar bin Al- Khattaab, after seeing the magnitude of the issue of the Caliphate
and its impact on the Ummah, stood up and based his argument on the Prophet’s
appointment of Abu-Bakr to lead Muslims in prayer and said: “If the Prophet
entrusted him to lead us in prayers while the prophet was still alive, why don ’t we
entrust him to lead us in the affairs of the state?”176.

When the Muslims weighed his opinion, they all accepted it and unanimously
agreed to elect Abu-Bakr the first Caliph after the Prophet (S.A.W).
171
Zaidaan, Al-Wajiiz Fi usuulil- Fiqh, pg 183.
172
Hassan, A., The early development of Islamic Fiqh, pg 156.
173
Indigenous of Medina
174
Migrants from Mecca.
175
Bukhari, Swahiih, Vol.1, pg 236, Hadith No.633 & Muslim, Swahiih, Vol.1, pg 311, Hadith No.418.
176
Al- Mushaikhih, K., Al-Akdu Athamiin Fi Sharh Manzhumat Ibn Uthaimiin, Vol.1, pg 143.

54
Another example of Ijmaa during that time was the compilation of the Qur’an into
a book form.

The Prophet (S.A.W) died when the Qur’an was written on sheets, bones, stones
hides and backs of trees but was not compiled into a book form.

In addition to writing, very many companions memorized the Qur’an among

whom where the four Caliphs, Ibn Masuudi and Zaid BinThabit.

During the time of Abu-Bakr, the battle of Yamaamah washed away a number of
Muslims who had memorized the Qur’an. Hence it was feared that unless a
written copy of the Qur’an was prepared, a large part of it would be lost.

The idea was first brought by Umar but Abu-Bakr and the rest of the companions
first hesitated saying that how could they do something which the Prophet
(S.A.W) never did. Eventually they unanimously accepted the idea and
commissioned the work to a group of learned companions and Zaid Bin Thabit
was elected as their leader for that work.

IJTIHAAD

Ijtihaad formed the fourth source of Islamic law.

Ijtihaad is the process of arriving at a reasoned decision to suit new circumstances

which have no express legal provisions neither in the Qur’an nor in the Sunnah.

As mentioned earlier, Muslims, after the death of the Prophet, were confronted
with issues of which no specific answers were found in the Qur’an or Sunnah.

In addition, the borders of the Islamic state rapidly expanded during the first
twenty years of this stage and brought Muslims into contact with totally new
systems, cultures and patterns of behaviour for which specific provision was not to
be found in the laws of Shariah.

As a result, the companions had to resort to Ijtihaad for which they had received
encouragement and training from the prophet (S.A.W) before his death.

The use of Ijtihaad during this period was also confirmed by Caliph Umar’s letter
to his judge Abu Musa Al-Ash’ari when he appointed him to be a judge in Kuufa in
Iraq.

55
 Caliph Umar’s letter to his judge Abu-Musa Al-Ashari

Caliph Umar, the second Caliph after the death of the prophet, appointed Abu-
Musa Al-Ash’ari to be a judge in Kuufa in Iraq. On the eve of his appointment,
Caliph Umar wrote him a memorable letter outlining the functions and
responsibilities of a Muslim Judge177. The letter provides the basic principles upon
which Islamic judicial system is based.

Thus the letter runs:

“The office of a Judge is an obligatory religious duty and a followed practice.

Understand the claim that is brought before you, for it is useless to consider a
claim which is not valid.

Consider all the people equal before you in your court and your attention, so that
the noble will not expect you to be partial and the humble will not despair of
justice from you.

The claimant must produce evidence and from the defendant, an oath may be
taken.

Compromise is permissible among Muslims but not any agreement through which
something forbidden would be permitted or something permitted would be
forbidden.

If you gave judgment yesterday, and today, upon consideration, come to the
correct opinion, you should not feel prevented by your first judgment from
retracting; for justice is primeval and it is better to retract than to continue in error.

Use your brain about matters that perplex you and to which neither the Qur ’an nor
the Sunnah provides a direct answer, study similar cases and evaluate the situation
through analogy with those similar cases.

If a person brings a claim, which he may or may not be able to prove, set a time
limit for him. If he brings proof within the time limit you should allow his claim
otherwise you are permitted to give judgment against him. This is the best way to
forestall or clear up any possible doubt.
177
Ibid.

56
 All Muslims are credible witnesses against each other, except those who have
received punishment earlier provided by the Shariah, and those who are proved to
have given false witness and those who are suspected of partiality on the ground of
client’s status or relationship.

Avoid fatigue, weariness and annoyance at the litigants.

For establishing justice in court, Allah will grant you a great reward and give you
a good reputation.”178

Explanation:

In paragraph one Caliph Umar emphasizes the fact that the office of the Judge is a
religious obligation to whoever undertakes it. The Judge in administering justice must
fear his Creator and should know that he is going to be accountable before his Lord. That
belief makes him exercise justice with atmost care without fear or favour since he is
executing an obligation for which he will account before his Lord. This is the practice
which has been followed from the time of prophet Muhammad (S.A.W).

Paragraph 2 of the letter calls for a critical analysis of the claim put before the Judge in
order to establish its validity least he wastes time in hearing a case which has no validity.

Paragraph 3 of the letter calls for the principles of equity and natural justice to be
exhibited while judgments are made. All people are equal before the law and justice is an
entitlement of every person.

Paragraph 4 denotes the importance of bringing evidence and that the burden of proof lies
on the claimant.

Paragraph 5 indicates that the disputed parties can come to an understanding as long as
they do not make something forbidden permissible or forbidding something that is
permitted.

In paragraph 6 Caliph Umar meant that if a judge made a mistake in his earlier judgment,
he should not be afraid to withdraw it because justice existed long before injustice and
therefore should prevail.

In paragraph 7 the caliph advises the judge to first consult the Qur’an, which is the
primary source of Islamic Law, then the Sunnah, which is the second source, for a legal
provision in deciding the case. If there is no clear provision in either of the two, then he

178
Addarkutni, A., Assunan, Beirut, Daarul-Maarifah (1966), Vol. 4, pg 206.

57
should resort to Ijtihaad by using his brain studying similar cases which had already been
decided and decide the new case accordingly.

The meaning depicted from paragraph 8 is that a judge should put forward a time limit
for the claimant to adduce his evidence. If he fails, the judge is permitted to acquit the
accused.

Paragraph (9) is about witnesses. It talks about who is a competent witness and who is
not a competent one. It states that all Muslims are competent witnesses except for the
groups of people mentioned therein.

In paragraph (10) caliph Umar advises his judge to be calm and sober with unbiased mind
and that he should avoid fatigue weariness and annoyance at the litigants so that he can
be able to pass judgment objectively.

In the last paragraph caliph Umar calls upon his Judge Abu Musa to be committed to
justice with a promise that Allah will reward him greatly and give him a good reputation
in this world and in the hereafter.

Examples of Ijtihaad during this period

1) During his Caliphate, Umar consulted Ali concerning the punishment of

a group of people who jointly conspired and committed a murder case.
Ali said “O leader of the faithful! If a group of people joined together
in stealing, would you not cut one hand off of each of them?” When
Umar replied in affirmative Ali said: “Then the same applied in this
case”. Consequently, Umar uttered his famous saying: “If all the
citizens of Sana’a were to join together in murdering one man, I would
execute the lot of them”179.

2) Once Umar heard of a woman whose husband was away on a military

expedition and was receiving strangers in her home. He therefore
decided to send for her and advise her not receive strangers while her
husband was absent. When the woman heard that the Caliph wanted to
speak to her, she became fearful and as she was pregnant, she
miscarried the child on her way to see Umar. Umar, greatly disturbed
by what had occurred consulted the companions about the matter. Some
of them said to him: “You were merely attempting to advise her, you
have done nothing wrong”. However, Ali had a different opinion. He
said; “I hope that Allah will forgive you for this sin, for He knows that
your intention was good, but by Allah, you should pay compensation for

179
Maalik, Al-Muwatwa’, Muassassat Zaaid Bin Sultaan Al-Nihiyaan, 1 st Edn (2004), Vol.5, pg 1281.

58
 the child or damages”. Umar was pleased with this opinion and
eventually implemented it.

3) The inheritance of a woman who died and left a husband, a mother,

uterine brothers and sisters and full brother and sisters.
At first, Umar’s opinion was to give the shares to those who receive the
stipulated shares and the full brothers get the remainder, that is to say
husband gets ½ since there is no offspring for the deceased, mother gets
1/6 due to the presence of a group of brothers and sisters, the uterine
brothers and sisters get 1/3 since they are more than one, and the full
brothers and sisters get the remainder since they are residuaries180.

In this case, the L.C.M will be 6, the husband gets 3 out 6, the mother
gets 1 out of 6, the uterine brothers and sisters get 2 out of 6, and the full
brothers and sisters get nothing since there is no remainder.
See Table 1.

TABLE 1
Shares LCM 6
Husband ½ 3
Mother 1/6 1
Uterine brothers & sisters 1/3 2
Full brothers & sisters Remainder 0

However, he reasoned that since the uterine brothers & sisters share
their mother with the full brothers and sisters, it is better to divide the
1/3 among the uterine brothers and sisters and the full brothers and
sisters than leaving the full brothers and sisters go with nothing.
See Table 2.

TABLE 2
Shares L.C.M 6
Husband ½ 3
Mother 1/6 1
Uterine brothers and sisters & 1/3 2
Full brothers and sisters

4) The inheritance of a woman who died and left a husband, a mother and
a father. Ibn Abbas was of the opinion that the husband gets ½, the

180
See: Surat Annisaa (4: 11, 12 & 176)

59
 mother gets 1/3, and the father gets the remainder since he is a
residuary181.
See Table 3.

TABLE 3
Shares L.C.M 6
Husband ½ 3
Mother 1/3 2
Father Remainder 1

In this case, the L.C.M is 6, the husband gets 3 out of 6, the mother gets
2 out of 6, and the father gets 1 out of 6.

But according to the normal rule where a female inherits with a male of
the same degree, the share of the male is twice as much as the share of
the female182.

Through Ijtihaad, Umar came up with the opinion that the mother gets
1/3 of the remainder after the husband has taken his share, and the father
gets whatever remains after the two have taken their shares. This
opinion was accepted by majority of the companions. See the
distribution in Table 4

TABLE 4
INHERITOR SHARE (L.C.M) 6
Husband ½ 3
Mother 1/3 of Remainder 1
Father Remainder 2

181
Surat annisaa (4: 11, 12)
182
Surat annisaa (4: 11)

60
 CHAPTER THREE

THE THIRD STAGE IN THE DEVELOPMENT OF ISLAMIC LAW

This stage covers the rise and fall of the Ummayyad dynasty.

The Umayyads were in power for approximately one century, extending from the
ascendancy of the founder of the Ummayyad dynasty, caliph Muawiyah Bin Abi Sufyaan
in 661 A.D until the last of the Ummayyad Caliphs around the middle of eighth
century183, that is to say, 755 A.D.

This period was marked by great social unrest; the Ummah divided into various sects and
factions, the Caliphate was converted into kingship, the scholars refused to sit in the
audiences of the Caliphs and in fact fled to outlying areas to avoid conflict and confusion.
So far as Islamic law is concerned, this period is note worthy 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 difficult due to the dispersal of scholars to outlying
areas of the Caliphate.

Secondly, the narrations of Hadith became wide spread and there was an increasing
tendency towards fabrication of Hadith.

Finally, the period marked the first attempts to compilation of Fiqh, which was aimed at
preserving the Ijtihaads of the companions184.

It was in this period too that scholars of Islamic law first divided into fairly clear-cut
schools of thought, that is to say Ahalul-Hadith and Ahalu-Ra’y, which later evolved into
different schools of Islamic thought.

Factors which affected Islamic law during this stage

A number of factors affected the development of Islamic law, and these were as follow:

1) Division of the Ummah

The origin of the division of the Ummah can be traced back to the time of the 3 rd
Righteous Caliph Uthman Bin Affaan. In his last days an opposition from within
the Muslim territory cropped up accusing the Caliph of nepotism. They claimed

183
Philips, A., The evolution of Fiqh, pg 45
184
Ibid.

61
 that the Caliph was appointing only members of his family to be Governors and
Judges.

In addition, some of the Governors were corrupt, but the caliph, as he was too old,
could not arrest the situation. The opposition movement gained grounds when it
was joined by Munafiqoon (hypocrites) who were internally against the advent of
Islam as they had lost their leadership status by the advent of Islam and among
them was a jew known as Abdullah Bin Sabaa.

Members of this movement gathered in Medina from Iraq and Misri (Egypt) and
surrounded the home of the Caliph and killed him. Ali Bin Abitwaalib was latter
elected the fourth Caliph and was recognized by an overwhelming majority of
Muslims. However, Muawiyah bin Abi Sufyaan, a relative of Caliph Uthman Bin
Affaan refused to recognize Ali Bin Abitwaalib as the Caliph, claiming that Ali Bin
Abitwaalib must first bring the murderers of Uthman Bin Affaan to justice before
he could recognize him as the Caliph. Ali Bin Abitwaalib was of the view that in
order for justice to be put in place, the issue of leadership must first be settled, and
that Muawiyah had to recognize him as the elected Caliph before he demands for
justice.

The difference between the two widened and ended into a battle called Siffain.
This caused the Muslims to be divided into three groups, namely:

a) The Khawaarij: These rejected both Ali and Mua’wiyah and rejected all the
Hadiths narrated by Uthman, Ali, Mua’wiyah and most of the companions. They
later developed into a political group with its leaders and its own Fiqh.

b) The Shia: These exceeded the limits in love of Ali and his family until some of
them lifted him to a status of a prophet. They rejected all the Hadiths narrated by
the companions except those narrated by Ali and his family. They later also
developed into a political group with its own leaders and its own Fiqh.

c) The majority of Muslims who remained moderate in supporting and loving either
Ali or Mua’wiyah.

The fitnah and confusion among Muslims increased and ended in the murder of
Ali Bin Abitwaalib. His son Al-Hassan Bin Ali was elected the Caliph, but he
decided to step down for Mua’wiyah185 in order to preserve the blood of Muslims.

185
For the detailed story see: Al-Hajwi, M., Al-Fikri Assaami Fi Taariikh Al-Fiqh Al-Islaami, Medina, Al-Maktabatul-
Ilmiyyah, Vol.1, pg 224 – 226. See also: Assaais, Taariikh Al-Fiqh Al-Islaami, pg 60- 65.

62
 With this division of the Ummah, the concept of Ijmaa became increasingly
difficult, and Ijtihaad was also affected as each group developed its own principles
of Ijtihaad.

2) Deviation of the Umayyad Caliphs

The Umayyad Caliphs introduced a number of practices, which were in clear

contradiction to the Fiqh of the earlier period. For example; the central treasury,
Baytul-maal was turned into personal property of the Caliphs and their families
and taxes not sanctioned by Islam were introduced to further increase their
fortunes186.

Furthermore, with the forced acceptance of Yazeed Bin Muawiyah as crown Prince
imposed by Caliph Muawiyah in the year 670 A.D, the office of Caliphate was
converted into that of hereditary kingship187

Due to these factors, the Ulamaa (Muslim scholars) of this period avoided sitting
in the audiences of the Caliphs and thus the principle of consultative government
was lost.

With each successive Caliph the government steadily deteriorated 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.

3) Dispersion of the Ulamaas (Muslim Scholars)

The dispersion of the Ulamaa was attributed to majorly two factors:

a) It was caliph Umar’s system during his reign not to allow prominent
Companions to leave Medina in order for them to be within his reach for
consultation and arriving at Ijmaa on a given issue very easily. However
during the reign of Caliph Uthmaan, the territory of the Muslim state increased
tremendously causing the need for the companions to go and teach the newly
converted Muslims and also to participate in the guarding of the frontiers. As a
result, the Caliph allowed them to disperse to the new territories of the state 188.

b) The deviation of the Umayyad caliphs caused many of the Ulamaa of that time
to flee the political centers of the Umayyad state to avoid conflict and
confusion as well as persecution from the various competing factions.

186
Philips, A., The Evolution of Fiqh, pg 46.
187
Al-Hajwi, M., Al-Fikri Assaami Fi Taariikh Al-Fiqh Al-Islaami, Vol.1, pg 269.
188
Assaais, Taariikh Al-Fiqh Al-Islaami, pg 66.

63
 These two factors resulted in a breakdown of the principle of Ijmaa. With
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 the individual Ijtihaad of scholars as they attempted to deal with the
multiplicity of new customs and problems in their own areas189.

Whenever an outstanding scholar came or arose in an area, the students and

scholars in that region would gather around him for knowledge and Fatwaas
(legal verdicts).

Therefore, the people of Medina gathered around the companion Abdullah Bin
Umar and followed his teachings and Fatwaas, those of Mecca gathered
around Abdullah Bin Abbaas, those of Kuufah gathered around Abdullah Bin
Mas’ud, those of Basrah gathered around Abu Muusa Al-Ash ’ari, those of
Shami (Palestine, Syria and Jordan) gathered around Mua’zh Bin Jabal, while
those of Masr (Egypt) gathered around Abdullah Bin Amru Bin Al-A’swi190.

4) Increase in the narration of Hadith

It has been observed that Caliph Abu-Bakr and Caliph Umar were opposed to the
idea of too much narration of Sunnah (Hadith) by the companions for fear of
attributing to the Prophet what he never said, and also for fear of derailing
Muslims from concentrating on the learning of the Qur’an.

However, as the companions dispersed to the different parts of the Muslim state
and new issues arose which required legal rulings (Fatwaas), yet people had no
one to turn to in such situations except the companions, there was need for the
companions to disclose what they had of the Sunnah to the people to solve those
issues. In this way the narration of Sunnah increased as the need for information
grew.

It should be remembered that the companions were not at the same level of
memorization and narration of the Sunnah. There were those who memorized and
narrated a lot and those who memorized and narrated little compared to others.
Among those who memorized and narrated a lot of Sunnah were Abu-Hurairah,
Jaaber Al-Answaari, Abdullahi Bin Umar, Abdullahi Bin Abbaas, Anas Bin
Maalik, and Aisha Bint Abi-Bakr191. This was attributed to a number of factors
some of which were:

189
Philips, A., The Evolution of Fiqh, pg 47.
190
Assaais, Taariikh Al-Fiqh Al-Islaami, pg 67.
191
Ibid pg 68.

64
 a) They lived longer than others.

b) They spent most of their time with the prophet.

c) They were so eager to learn as much as possible from the prophet.

d) They were also eager to learn from their fellow companions what the
Prophet said in their absence.

5) Fabrication of Hadith

The reluctance of documentation of Hadith and relying on memorization by the

companions opened the door for some people to start fabricating Hadith during
this period. There were a number of reasons for fabrication and the most
prominent ones were:

a) Religious enmity; some people entered Islam in order to fight it from within.
They started fabricating Hadith so as to bring about confusion in the Ummah.

b) Religious divisionism; some religious groups like the Shia started fabrication
of Hadith in support of their beliefs so as to canvass as many followers as
possible.

c) Worldly gains; some people fabricated Hadiths to please the leaders of the time
and get from them gifts.

d) Abandonment of the Qur’an; Some people when they saw that many people
had abandoned learning of the Qur’an they fabricated Hadiths so as to
encourage people to recite and learn the Qur’an. It is related that Nuuh Bin Abi
Mariyam fabricated Hadith in the virtues of every Surah (Chapter) of the
Qur’an. When he was asked from where he was getting those Ahadith, he said
that when he saw that people had abandoned learning and reciting the Qur ’an
he fabricated for them Hadiths hoping to get rewards from Allah192.

The act of fabrication of Hadith compelled the Ulama (Muslim scholars) to

address it by recourse to rigorous criticism of the reliability of the narrator of
Hadith and the textual accuracy of his reports. A separate branch of Hadith studies,
known as Al-jarh wa Ta’diil was developed as a result and numerous writers
contributed to its growth. This branch of Hadith sciences is concerned mainly with
the reliability or otherwise of the transmitters of Hadith and compiles information
which either proves them as upright and reliable, or else weak and unreliable 193.
192
Ibid pg 70.
193
Kamali, M., Hadith Methodology, pg 133- 134.

65
 The phenomenon of Hadith fabrication had a very big adverse impact on the
development of Islamic law; in that before the science of Hadith criticism 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 their legal rulings
(Fatwaas). In this way, a body of incorrect legal rulings evolved.

To make matters worse, there were incorrect legal rulings made by some scholars
who had rejected certain authentic Hadiths because they were only known to them
through the Hadith fabricator of their areas194.

The adverse impact of fabrication on Islamic law can also be observed in the
burden the Muslim jurists were faced with in their Ijtihaad as regards to accepting
a given Hadith. Before the phenomenon of fabrication started, it was quite enough
to start working in accordance with a Hadith if one heard it from any narrator.
However when fabrication started, jurists had a big burden to first establish
whether the narrator was reliable or not, hence his narration was authentic or not.
This made their work very difficult and slow195.

Efforts of Muslim Scholars to purify and authenticate the Sunnah

Muslim scholars opened war on fabricators and fabrication and undertook a

tremendous burden to save the Sunnah from the plots of lairs and to cleanse it
from any mud that tried to attach itself to it. They identified and explained in
details the signs of fabrication (forgery) in Hadith from the view points of
transmission of Hadith (Sanad) and Hadith subject matter (Matin)196 which may be
summarized under two headings as follows197:

1) Signs of fabrication in the transmission (Sanad) of Hadith:

Scholars used a number of tools in identifying signs of fabrication in the

transmission (Sanad) of a particular Hadith and the first and foremost was the
reference to the names, reputation and biography of the transmitter. If it was
established from the biography of the transmitter that he was a known liar and his
narration was not related by anyone else who is trustworthy, then that would be an
indication and a sign of fabrication.
194
Philips, A., the evolution of Fiqh pg 48.
195
Assaais, Taariikh Al-Fiqh Al-Islaami, pg 71.
196
Sanad refers to chain of narrators, that is to say all the individuals who transmitted the Hadith from the Prophet
(S.A.W) throughout the ages until it reaches us, while Matin refers to the text or body of the Hadith, that is to say the
real words or actions of the prophet (S.A.W).

197
See: As-Sibaee, the Sunnah and its role in Islamic Legislation, pg 137- 144, Kamali, M., Hadith Methodology, pg
107- 111.

66
 Another useful tool that the scholars used in identifying forgery in the
transmission was to ascertain the time factor and dates in the transmission of the
Hadith. This was done by verifying whether the reporter had actually met the
person he was quoting as his immediate source or not, or whether there was a
possibility of personal contact between them or not. If the transmitter mentioned,
for example that so and so in such and such a place reporting such a Hadith, then
the question of geographical location and verifying the facts as to whether they
lived in the same period or generation would become of vital importance in
ascertaining signs of forgery in the chain of transmission.

Fabrication in the transmission could also be known by the admission of the

fabricator himself. Like the admission of Nooh Bin Abi Maryam that he fabricated
hadiths about virtues of different chapters of the Qur’an.

Signs of fabrication in the transmission could also be detected by reference to

personal interest of the narrator, like the narration that Eggplant is a cure of all
diseases and it turned out that the narrator was a seller of eggplant.

2) Signs of fabrication in the text (Matin) of Hadith:

Signs of fabrication in the text of Hadith could be identified by reference to at least

seven factors as follows:

Firstly, the language of Hadith. The Prophetic language was characteristically

known for its eloquence and style, and therefore any speech of a particular crude
variety and style was taken as a sign of forgery.

Secondly, corruption in the purpose and meaning of a reported Hadith also

provided evidence as to its fabrication. The report, for example, that the ark of
Nooh circumambulated the Kaabah seven times and then prayed two units at the
end is evidently unreasonable and corrupt and cannot be accepted as Hadith.

Thirdly, statements that stand in clear opposition to the Qur’an in such a way that
no reasonable compromise and interpretation can be attempted are usually
rejected. The so called Hadith that “The offspring of zinah shall not enter paradise
down to seven generations” was rejected as it violated the clear text of the Qur ’an
that (No soul shall carry the burden of another soul)198. Similarly, the so called
Hadith that “the life span of the world is 7,000 years” was rejected as it contradicts
the Qur’anic declaration that (Verily, Allah, with Him [alone] is the knowledge of
the hour [of resurrection])199.
198
Surat Al-An’am (6: 164).
199
Surat Lukmaan (31: 34)

67
 Fourthly, a report which is unhistorical and fails to qualify the test of historical
reality. For example, the report that Anas Bin Maalik entered a public bath and
saw the prophet wearing a wrapper, and that the prophet told him that he had
prohibited entry to a public bath without a wrapper. The facts of history show that
the prophet never entered a public bath and that they did not exist in Madinah at
that time.

Fifthly, when the report smacks of scholastic fanaticism, such as the report by
Hibban Bin Juwayn that “I heard Ali saying that I and the Prophet worshiped God
six or seven years before anyone of this Ummah”. It is known that Hibban was a
fanatic Shia and careless in the treatment of Hadith.

Sixth, when the narration consists of absurd and silly matters from which a
reasonable person is protected, e.g. the so called Hadith that the prophet said
“white chickens are beloved to me and beloved to my beloved Jibril”.

Lastly, when the report in question promises a tremendously exaggerated reward

or punishment for a small deed. For example the report that “Anyone who says:
there is no god but Allah, Allah will create for him a bird with 70,000 tongues,
each tongue speaks 70,000 languages and all will be praying for him”.

Classification of Hadith

The process of cleansing the Sunnah of the prophet (S.A.W) from fabrication using the
fore mentioned tools resulted into the classification of Hadith into three major categories,
that is to say, Swahiih, Hasan and Dhai’f.

a) Swahiih Hadith:

It is a Hadith whose chain of narrators is connected, related by upright narrators,

who possess retentive memories, from the beginning of the narration until it
reaches the prophet, while at the same time it is not Shazh200 nor contains any
obvious or hidden defect201

b) Hasan Hadith:

Hasan Hadith is defined as a Hadith that falls between the Swahiih and Dhai’f.

200
A narration is Shazh when it is related by a reliable narrator but contradicts that which other people related.
201
See: As-Sibaee,The Sunnah and its role in Islamic Legislation, pg134, Kamali, M., Hadith Methodology, pg198.

68
 When the transmitters of Hadith have reached the highest degree of reliability on
grounds of accuracy and retentiveness, the Hadith is ranked as Swahiih. Should
there be any point of weakness in the records of the transmitters especially with
reference to retention and accuracy, the Hadith is likely to be classified as
Hasan202.

The transmitters of Hasan, in other words, qualify as reliable and the Hadith is
clear of hidden defects, but there is some doubt on grounds of accuracy and
retentiveness.

c) Dhai’f Hadith:

Dhai’f Hadith is generally defined as one which fails to qualify the conditions of
Swahiih and Hasan.

More specifically, a Hadith is classified as Dhai’f if its narrators include a person

or persons of lower grades than those who are accepted for a Hasan Hadith203 .

The weakness in the Dhai’f Hadith may either be in the chain of narration (Sanad)
or the text of the Hadith (Matin) or in both.

There are many categories of Dhai’f Hadith and each is named according to the
cause of the weakness, whether it stems from the chain of narration or the text of
the Hadith. Below are some of the categories of Dhai’f Hadith204:

i) Mursal: It is a narration that a tabi’e ascribes to the Prophet (S.A.W) without

mentioning the companion that he heard it from.

ii) Munqati’e: It is a narration in which one narrator, who is not a companion, is

missing from its chain of narration.

iii) Mu’dhal: It is a narration whose chain is missing two narrators or more, one after
another; for example, a narration that a third generation Muslim (the generation
after the Tabioon) narrates directly from the Prophet (S.A.W) without mentioning
the Tabi’ee and the companion in the chain.

iv) Shazh: It is a narration related by a reliable narrator but contradicts that which
other people related.

202
Kamali, M., Hadith Methodology, pg 204.
203
Ibid pg 205.
204
See: As-Sibaee,The Sunnah and its role in Islamic Legislation, pg135, Kamali, Hadith Methodology, pg 206.

69
 v) Munkar: It is a narration related by only one narrator who is neither upright nor
has a reliable retentive memory.

vi) Mudraj:It is a narration in which a speech of a companion, or a follower, or a

Hadith transmitter is inserted in the speech of the Prophet.

vii)Mudhitarib: It is a narration the contents of which are inconsistent with a number

of other narrations, none of which can be preferred over the others.

Can a Dha’if Hadith be relied upon or not?

Muslim scholars are of three different views in that regard205:

The first view is that Dha’if Hadith is of no value absolutely and should not be followed
whether in reference to moral virtues or to legal rulings. This is the view of majority of
scholars.

The second view is that Dha’if Hadith is preferred to personal opinion.

The third view is that Dha’if Hadith may be followed in moral virtues but not in legal
injunctions.

Characteristics of Islamic Law 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 other group favoured the extensive use of deductive reasoning
and Ijtihaad206.

The first group avoided making legal rulings on an issue if clearly defined texts from
Hadith or the Qur’an related to the issue were not available.
The Laws whose purposes were identified by Allah or His Prophet were used in
analogical deductions whereas those left undefined were not. Because of this position,
the scholars of this school of thought were called Ahalul – Hadith (Hadith people). The
center of Ahalul – Hadith scholars was Madinah and the Fiqh of the Madinah 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 Allah had
identifiable reasons behind them, whether these reasons were identified by Allah and His
Prophet (S.A.W) or not. In cases where reasons for a given Law had not been
205
See: Kamali, M., Hadith Methodology, pg 213
206
Assaais, Taariikh Al-Fiqh Al-Islaami, pg 72, Philips, The Evolution of Fiqh, pg 48.

70
specifically defined, these scholars used their powers of reasoning to arrive at possible
reasons. Then they applied that law to other circumstances which had similar reasons.
Due to this group’s support of extensive reasoning, they became known as Ahalu-Rrai
(Reasoning people). The center of Ahalu- Rra’i 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.

Reasons for differences

The different approaches of Ahalul-Hadith and Ahalu-Rra’i scholars may be attributed to

certain political factors combined with the differing socio-cultural backgrounds of the
two areas in which their schools of thought flourished207.

From the time of the last Righteous Caliph, Ali Bin Abitwaalib, the capital of the Islamic
state was shifted first to Iraq and then to Syria, thus the Hijaaz (Makkah and Madiinah)
were spared much of the turbulence and influx of foreign cultures and ideas, which took
place at the center of the state. Life in Hijaaz continued to be easy-going and simple due
to its isolation.

The Hijaaz was also the home of the Prophet and the birthplace of the Islamic state.
Consequently, there was an abundance of Hadith in this region as well as a wealth of
legal rulings made by the first three Caliphs; Abu Bakr, Umar and Uthman.

On the other hand, Iraq was a new and strange land for Muslims. When the capital of the
Islamic state was stationed there, it became a virtual melting point 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 companions who settled there was relatively small
compared to the number which remained in Hijaaz, Hadith were not nearly as available
there as in Hijaaz. Indeed, Iraq became the birthplace of fabricated Hadith as well as the
breeding ground for most of the early deviant sects. Not being able to rely on the validity
of quoted Hadith, the scholars of Iraq tended to rely on Hadith, to a lesser extent than did
the scholars of Hijaaz. The few Hadith that 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.A.W).
207
See: Assaais, Taariikh Al-Fiqh Al-Islaami, pg 73, Al-Khini, Diraasatu Taarikhiyyah Lil-Fiqhi Wa Usuulih, pg 76- 84,
Philips, The Evolution of Fiqh, pg 49.

71
Sources of Islamic law during this period

The sources of Islamic law were The Qur’an, the Sunnah, Ijmaa and Ijtihaad. However
under Ijtihaad, there came another source called Opinion of the companions.

The opinion of the companions either as a group or individually was considered a source
of Islamic law. This source was divided into two parts according to the positions taken
by the companions:
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
Ra’i (Personal opinion)

72
 CHAPTER FOUR

THE FOURTH STAGE IN THE DEVELOPMENT OF ISLAMIC LAW

This stage extends from approximately 755 A.D to 950 A.D and covers the rise of the
Abbaasid Dynasty founded by Caliph Abul Abbaas, its consolidation and the beginning
of its decline208.

During this stage, Islamic scholarship was actively supported by the Caliph and it
flourished as discussion and debate on controversial issues became wide spread, schools
of Islamic legal thought appeared, various compilations of Hadith and Fiqh were made;
and Arabic translations of scientific, philosophical and theological works exerted
influence on Islamic thought.

This stage is also remarkable for the tremendous work of compilation and documentation
of Hadith.

By the end of the period, sources of Islamic Law were identified and differences
developed between the major schools of Islamic legal thought separating them from each
other.

Factors which affected the development of Islamic law during this period

The development of Islamic law during this stage was affected by the following
factors209:

1) 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 Shariah and its
legitimate interpretation. Consequently, the Abbaasid Caliphs of this period
exalted the Muslim scholars, they held them in great esteem and looked at them
with awe and respect. They 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.

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 Muhammad (S.A.W). On its compilation, the Caliph
208
Philips, B., The Evolution of Fiqh, pg 52.
209
See: Assaais, Taariikh Al-Fiqh Al-Islaami, pg 82, Philips, B., The Evolution of Fiqh, pg 53

73
 consulted Maalik about allowing him to make it the state constitution, which
would have made the legal school of thought (Mazh-hab) of Imaam Maalik
binding on all Muslim.

However, the Imaam refused to have it done, since he was aware that his
compilation included only those Hadith of the Prophet that were available in
Hijaaz where Imaam Maalik had taught and founded his school of thought. He
felt strongly that no single legal school of thought should be binding on all
Muslims in view of the fact that any single school of thought would exclude many
other Hadiths narrated by companions who had traveled to other parts of the state.
This is a clear example of that flexibility which characterized the founders of the
schools of thought (Mazh-habs).

In conclusion, the fact of state support and patronization of Fiqh scholars

contributed largely to the flourishing of the many legal schools of thought, which
had arisen in the latter part of Umayyad period.

2) Increase in centers of Learning:

Though the states of North Africa and Spain had split off from the Abbaasid
Empire, the territories of the Abbaasid state were expanded to include Persia India
and Southern Russia. Consequently the centers of learning 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-Hassan Ashaibaani, a

prominent student of Abu Haneefah, from Iraq to Medina in order to study under
Imaam Maalik and to memorize his book of Hadith Al-Muwattwa.

Likewise, Imaam Ashafi’e journeyed first to Hijaaz to study under Imaam Maalik,
then to Iraq in order to study under Muhammad Ibn Al-Hassan and finally to
Egypt to study under Imaam Allaith Ibn Saad. These journeys resulted firstly, in
the reconciliation of some of the major differences which had a risen among
scholars and ultimately in the combination of some of the schools of Islamic Legal
Thought. For example, Imaam Ashafi’e combined the Fiqh of Hijaaz with that of
Iraq and Egypt and formed a new school of legal thought, the Shafi’e Mazh-hab.
Here again are noteworthy examples of the flexibility of the early Imaams in their
approach to Fiqh.

74
 3) Freedom of opinion and expression

Among the factors, which led to the flourishing of Islamic Law, was the freedom
of opinion and expression in the scholarly work. Scholars were given freedom to
express their opinions in matters of Ijtihaad without being under influence of the
Caliphs. People were free to seek legal rulings on Islamic issues from any Muslim
scholar without being tied up by any particular legal school of thought.

4) The Spread of Debates and Discussions

Whenever scholars or their students met, they would exchange opinions on various
Islamic issues, which had a risen in their particular areas. If there were any major
difference of opinion about a particular solution, they would debate back and forth
freely until a common conclusion would be reached.

The huge increase in the number of debating sessions, whether by mail or in face-
to-face meetings between founders and students of various schools of thought
resulted in the clarification of certain important issues and the weeding out of
mistaken rulings or judgments.

At this stage in the development of Islamic law, there was a marked lack of
rigidity on the part of scholars and their students, that is to say, issues were
objectively analyzed and conclusions arrived at on the basis of the validity of the
proofs presented.

5) Translation of Foreign Books into Arabic

Through translations of the great books of science and philosophy from Greece,
Rome, Persia and India, Islamic scholars gained insight into new systems of
reasoning, deductions and inference. This new knowledge influenced their
approach to Fiqh especially in terms of Ijtihaad.

6) Compilation and documentation of Hadith

During this stage, scholars felt the need for compilation and documentation of
Hadith210.

It should be remembered that during the time of the Prophet (S.A.W), he used to
prevent the companions from recording Hadith for fear of mixing it with the
Qur’an, however as the companions were in position to differentiate between the
Qur’an and Hadith he allowed them to start recording Hadith.
210
See: Kamali, M., Hadith Methodology, pg 45, Assaais, Taariikh Al-Fiqh Al-Islaami, pg 88

75
 It is significant to note however, that the recording of Hadith at this stage was on
individual basis and for personal use. The prophet, therefore, died when most of
the Hadith were not recorded although all of them were memorized by the
companions.

In the second and third stage, Muslims were too busy with the expansion and
internal arrangement of the Muslim state, in addition to curbing down the
uprisings within the state. Hadith therefore did not get much attention in terms of
recording and documentation.

During the fourth stage, however, when Islamic Fiqh started flourishing and the
phenomenon of fabrication of Hadith started, Muslim scholars felt there was need
to vigorously start compilation and documentation of Hadith. This stage in the
compilation of Hadith contained a mixture of Prophetic Sunnah with the sayings
and opinions of the companions of the Prophet and their successors. Al-muwattwa
of Imaam Maalik is a classical example of this type.

Scholars then felt the need to separate Prophetic Sunnah from others and thus there
arose the second category of compilers. Their works are known as Masaaniid211.
In these works, greater attention was paid to the chain of narration or Sanad which
linked the Hadith of the Prophet through the reports of reliable narrators that
started usually with a companion. All Hadith that were narrated by one
companion, regardless of subject matter, were put under his or her name. The most
important of Masaniid is Musnad Imaam Ahmad bin Hanbal which contains
40,000 Hadith including 10,000 repetitions.

These works however, contained authentic, weak and non authentic Hadith and
were not arranged according to the subject matter of the Hadith and are therefore
not easy to use.

When other scholars examined this work, a new class of learned persons initiated a
selective method of compilation and documentation, that is to say, selecting only
the authentic Hadith and arranging them according to their subject matter. This
work became to be known as Swahiih collection, and this category contains
mainly the works of Al-Bukhari and Muslim, referred to as Aswahiihain, that is to
say, the two authentic collections.

a) Swahiih Al-Bukhari, the first of the two Swahiihain.

211
Masaniid is plural of Musnad

76
 It was compiled by Imaam Muhammad bin Ismail Al-Bukhari,
who travelled widely and devorted sixteen years to its
compilation212. It contains 9,082 Hadith selected from a vast
number of 600,000 Hadith. However, he repeated Hadith which
had more than one chain of narration (Sanad), as the strength and
reliability of Sanad is deemed to increase with the plurity of its
chains of transmission. Discounting all repetitions, Swahiih Al-
Bukhari contains 2,602 Hadith213. It is divided into 106 books and
a total of 3,450 chapters. It is significant to note that the author
while compiling his work made sure that he does not record Hadith
from narrators whose trustworthiness he doubted. This book has
remained to this day as the most authoritative of all Hadith
collections.

b) Swahiih Muslim, the second of the two Swahiihain. It was

compiled by Imaam Muslim bin Al-Hajjaaj Annaisabuuri. It
contains 10,000 Hadith with repetitions, selected from a vast of
300,000 Hadith. However without repetitions it contains 3,030
Hadith214. Imaam Muslim was in many ways a follower of Imaam
Al-Bukhari, a fact which he acknowledged himself, and to a large
extent also used Bukhari’s methods. This may partly explain why
Swahiih Muslim generally ranks second next to Swahiih Al-
Bukhari215. It may be remarked however, that Imaam Muslim
arranged his book according to subject matter, and compiled all
Hadith on the same subject, together with their various chains of
narration under one heading or chapter. Consequently, Swahiih
Muslim is better consolidated and easier to use than Swahiih Al-
Bukhari.

It remains to be said here that Imaam Al-Bukhari and Imaam Muslim have not claimed
their books to contain an exhaustive collection of Swahiih Hadith, as some authentic
Hadith not recorded in their collections have been compiled in the four collections
namely; Sunan Abi Dawood, Sunan Tirimizhi, Sunan Nasa’e and Sunan Ibn Maaja.

The four Sunan

212
Kamali, M., Hadith Methodology, pg 47.
213
Ibid pg 48.
214
Ibid pg 51.
215
Ibid.

77
As mentioned befor, the four Sunan are: Sunan Abi Dawood, Sunan Tirimizhi, Sunan
Nasa’e and Sunan Ibn Maaja.

Works that fall under this classification specialize in Ahaadith Al-Ahkaam that is to say,
the legal Hadiths. The various chapters of Sunan are thus devoted to practical rules that
pertain, for example, to cleanliness, prayers, Zakah, Hajj, marriage, divorce, inheritance,
etc.

a) Sunan Abi Dawood:

It was compiled by Imaam Abu Dawood, Sulaimaan bin Ash’ath, and contains
4,800 legal Hadiths. Abu Dawood did not confine his Sunan to the collection of
Swahiih Hadith alone, but included with it Hassan (fair) and Dha’ef (weak)
Hadiths. However, whenever he included Dha’ef Hadith he identified it as such
and explained the point of weakness in it.

b) Sunan Tirimizhi:
This is the second in this category. It was compiled by Imaam Abu I’sa Attirimizhi.
It also contains Hadiths in all the three categories, that is to say Swahiih, Hassan
and dha’ef. Imaam Tirimizhi included in his collection information concerning
views and opinions of the leading scholars among the companions, the followers
and other scholars. He also specified the authentic from the weak Hadith and
explained the grounds of weakness in the Hadith.

c) Sunan Ibn Maajah:

This is the third collection in this category. It was compiled by Imaam Ibn
Maajah, Muhammad bin Yaziid Al-Qazwiini. It contains 4,341 Hadith of which
3,002 Hadith have been recorded by other authors, thereby remaining 1,329
Hadith which were recorded by Ibn Maajah alone216.

d) Sunan Nasa’e:
This is the fourth collection in this category. It was compiled by Imaam Ahmad
bin Shuaib Annasa’e. it consists of 5,000 legal hadiths of which a great deal had
appeared in the previous collections.

It is significant to note that the two Swahiih, that is to say, Swahiih Al-Bukhari and
Swahiih Muslim, and the four Sunan, that is to say, Sunan Abi Dawood, Sunan Tirimizhi,
Sunan Nasa’e and Sunan Ibn Maaja, are referred to as Al-Kutub Assittah (The six books
of Hadith).
It may be pointed out here that there are other Hadith collections but these six books are
the fundamentals on which Islamic law is based.

216
Ibid pg 56.

78
Sources of Islamic Law during this period

By the end of this period, the following sources of Islamic Law in the order stated below
became widely accepted by most scholars:

1- The Qur’an:
The Qur’an was the first source of Islamic law.

2- The Sunnah:
The Sunnah was next in importance to the Qur’an

3- Ijmaa:
Ijmaa, whether that of the companions or of the followers or of the followers of
the followers formed the third source of Islamic law

4- Ijtihaad:
Ijtihaad was the fourth source of Islamic law. However, it was divided into a
number of branches or subsidiary sources, and these are:

a) Qiyaas (analogical reasoning)

Qiyaas or analogical reasoning was one of the branches of Ijtihaad.

It can be defined as the application of a ruling for something mentioned in the
Qur’an or the Sunnah to something whose ruling was not mentioned in either of
the two sources, due to the presence of a common unifying factor between
them217.

An example of Qiyaas is the application of the penalty of slandering chaste

women mentioned in the Qur’an to slandering chaste men which is not
mentioned in the Qur’an, because of the common unifying factor between the
two, which is defaming a chaste person. Allah says (And for those who slander
chaste women and fail to bring forth four witnesses flog them with eighty
stripes and reject their testimony forever, and they are indeed the wrong
doers)218. Although the punishment mentioned in the verse is for slandering
chaste women, it is also applicable to slandering chaste men by Qiyaas since
the effect is the same.

Another example is the application of the prohibition of trade on Friday after

the second Azhaan mentioned in the Qur’an to all sorts of activities done on
Friday after the second Azhaan; because of the common unifying factor
217
Al-Qardhawi, Y., Islamic law in the Modern world, pg 66.
218
Surat Annoor (24:4)

79
 between them which is hindering them from attending prayers. Allah says (O
you who believe, when the Azhaan for prayer on Friday is made, harry up for
remembrance of Allah and leave off trade)219.

Another example is the prohibition of Beer based on the Prophet’s statement

“Every intoxicant is Khamr and every form of Khamar is Haraam”220. Since
Beer has an intoxicating effect it is classified as Khamr and thus prohibited.

b) Opinion of the Companion

The Opinion of the Companions was divided into two parts according to the
positions taken by the companions:

If they were united on an opinion it became a consensus and was referred to as

Ijmaa. Once it became Ijmaa, it was no longer considered as an opinion but as
a third source of Islamic law and binding on all Muslims.

A good example of this was the election of Abu-Bakr as Caliph after the death
of the Prophet (S.A.W). It started as an opinion from Umar Bin Al-Khattaab
and later it became Ijmaa221.

If they had different opinions on a single issue, each opinion was referred to as
Ra’i (Personal opinion) and this is the one referred to as opinion of the
companion.

A good example is the case of a woman who miscarried when summoned by

Caliph Umar for receiving strangers in her house when her husband was away
on a military expedition. The companions had different opinions in the course
of action to be taken by Umar as regard to the miscarriage222.

At this stage in the development of Islamic law, majority of Muslim Jurists

viewed the opinion of a companion as a source of law which overrules Qiyaas.
This was so because; if his opinion was based on a text, then it was incumbent
upon other people to follow it. However, if it was based on Ijtihaad, then the
Ijtihaad of a companion was stronger than the Ijtihaad of any other person due
to the fact that the companions lived with the Prophet (S.A.W) and observed
the way the Prophet implemented the Qur’anic injunctions.

219
Surat Al-Jum’a (62: 9)
220
Muslim, Swahiih, Vol.3, pg 1587, Hadith No.2003.
221
See details on pg ………
222
See details on pg…….

80
 In addition, the Qur’an and Sunnah have raised the status of the companions
and praised them. Thus Allah says (You are the best of peoples ever raised up
for mankind; you enjoin people to do good and forbid them from doing evil
and believe in Allah)223. This verse was primarily directed to the companions
then to the entire Muslim Ummah. The Prophet (S.A.W) said: “The best
generation is my generation, then that one which follows it, then that one
which follows that one”224.

c) Istihsaan (Juristic Preference)

It is the application of the stronger of the two available proofs225.

It can also be defined as the preference of one proof over another proof
because of its suitability to the prevailing circumstance.

An example of Istihsaan can be seen in the permission to undress for medical

treatment. The Qur’an prohibits Muslims to disclose their private parts except
to their wives or husbands. Allah says (And those who guard their private
parts, except from their wives or husbands or [the slaves] that their right hands
possess, for them they are free from blame. But whoever seeks beyond that,
then those are the transgressors)226. However, due to necessity, a Muslim is
allowed to undress for treatment because Allah says (And do not kill yourself
for Allah is merciful to you)227. Under this circumstance, the latter verse is
preferred over the former due to its suitability to the prevailing circumstance.

Another example is the treatment of a contract for the manufacture and sale of
an item. According to Qiyaas, based on the Prophet’s statement “Whoever
sells food should not do so until he has it in his own possession”228, 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 obvious, the ruling by Qiyaas was dropped and
the contracts were allowed basing on the principle of Istihsaan.
d) Istislaah or Maswaaleh mursalah (Public Interest)

It refers to things done for public human welfare or public interest but have
not been specifically considered by Shariah, that is to say, there is no special
injunction in Shariah which demands them or prohibits them.
223
Surat Al-Imraan (3:110)
224
Bukhari, Swahiih, Vol.2, pg 938, Hadith No.2509 & Muslim, Swahiih, Vol.4, pg 1962, Hadith No.2533
225
Ashatwibi, Al-Muwafakaat Fi Usuulul Fiqh, Beirut, Daarul-Maarifah, Vol.4, pg 207
226
Surat Al-Mu’minuun (23: 5-7)
227
Surat Annasa’(4: 29)
228
Bukhari, Swahiih, Vol.2, pg 748, Hadith No.2019 & Muslim, Swahiih, Vol.3, pg 1159, Hadith No.1525.

81
 It was the public interest that made Abu- Bakr compile a complete written text
of Qur’an although this was not done by the prophet, as this was for the public
good and general interest of Islam.

Umar Bin Al-Khattaab introduced official records, and built prisons for the
interest of the public

Uthman established a standard copy of the Qur’an and burnt all records that
deviated from it for public interest229.

In the modern world today, traffic lights must be respected although there is no
specific injunction in Shariah in that regard as they are installed for the public
good, safety and interest.

e) Istishaab (presumption)

Istishaab refers to the process of deducing laws by linking a later set of

circumstances with an earlier set. It is based on the presumption that the laws
applicable to certain conditions remain valid so long as it is not certain that
these conditions have altered230.

It is the continuity of a legally established fact until the contrary is established.

In other words; it is the presumption in the laws of evidence that a state of

affairs known to exist in the past continues to exist until the contrary is
proved231.

An example of Istishaab is that a person is presumed innocent until the guilt is

established.

Another example is that a debt is presumed to subsist until its discharge is

evidenced.

A marriage is presumed to exist until its dissolution becomes known.

f) Saddu Zhariah (prevention of the means)

It refers to the prevention of something permissible because it is a means to

something which is prohibited232.

229
Al-Qardhaawi, Islamic law in the modern world, pg 71
230
Philips, The evolution of Fiqh, pg 83
231
Assuyuutwi, Al-Ashbaah Wanazha’ir, Beiruth, Daarul-Kitaabul- Ilmiyyah, 1st Edn 1990,pg 51
232
Azzuhaili, Usuulul-Fiqh Al-Islami, Damascus, Daarul-Fiqr, 1 st Edn, 1987, Vol.2, pg.873

82
 In other words, it is the blocking of a lawful means to unlawful end.

A good example of Saddu Zhariah is the prohibition of the sale of grapes,

which is otherwise legal, to a wine merchant as he will use them to ferment
wine which is unlawful.

Another example of Saddu Zhariah is the prohibition of sale of weapons

during the time of Fitnah as it leads to the escalation of the state of turmoil233.

g) Uruf (Local Custom)

Uruf or Local Custom was accepted as a source of Islamic law in matters

which are not directly regulated by Quran or Sunnah provided that the custom
at issue is predominant among people and is not in conflict with the principles
of Shariah.

An example of Uruf can be seen in rental customs. People have universally

accepted a custom that rent is paid a month or a year before the rented place or
object has been used for the agreed time period. Since this custom does not
contradict any of the principles of Islamic Law, it has been accepted lawfully.

Another example is seen in the amount of Mahar a Muslim gives to his wife
during Nikaah. Shariah has made the payment of Mahar to the wife by the
husband as requisite for the validity of marriage. Allah says (And give to the
women their Mahar with a good heart)234. However, no fixed amount has been
determined by both the Qur’an and the Sunnah. It is therefore the Custom
prevailing in a certain tribe, area or family which should determine it.

It may be pointed out here that an Islamic legal maxim states that: “A matter
recognized by custom is regarded as if stipulated by agreement”235, meaning
that when a contract does not expressly regulate a matter and there is a custom
which regulates it, that matter has the same effect as an express term. In other
words, a contract has express terms and implied terms.

A custom has the effect of regulating implied terms and makes them have the
same effect as express terms in the contract. A good example is seen when one
buys a car, a spare tyre and a Jake should be available in the car although they
are not expressly mentioned in the contract, because the custom in buying a car
is that these items should be available in the car. Thus, the spare tyre and the
Jake are under implied terms regulated by the custom.
233
Ibid pg.878
234
Surat An-Nisaa (4: 4)
235
Azzarqah, A., Sharh Al- Kawa’id Al-Fiqhiyyah, Damascus, Daarul-Qalam, 2 nd Edn, 1989, pg.237

83
 CHAPTER FIVE

THE FOUNDATION OF THE ISLAMIC LEGAL SCHOOLS OF THOUGHT

(MAZH-HABS)

During the era of the Prophet Muhammad (S.A.W) there were only two sources of
Islamic law namely, the Qur’an and Sunnah.

In the following stage, that is to say, that of the righteous Caliphs, the principle of Ijmaa
evolved and Ijtihaad became an independent source of law. The Islamic legal school of
thought during this period was one and in reality that of each of the Righteous Caliphs,
since the final say in legal matters rested with them.

The early period of the Ummayad dynasty saw the division of Muslim Jurists into two
main legal schools of thought (Mazh-habs) with respect to Ijtihaad, that is to say Ahalul
–Hadith (the people of Hadith) and Ahalu –Ra’I (The people of reasoning). These two
Legal schools of thought later evolved into a number of schools as a result of the
dispersion of scholars and their students throughout the Islamic state, and the increase in
their personal Ijtihaad in order to solve local issues236.

Freedom of expression and discussion in legal matters, and freedom of movement

enjoyed by the scholars, which were enhanced by the state support for scholars during the
Abbaasid dynasty also contributed to the increase in number of the Legal schools of
thought.

There were a number of schools, which evolved, but the outstanding ones, which
persisted up to the present day, were four, namely:

The Hanafee Mazh-hab

The Maalik Mazh-hab
The Shafi’e Mazh-hab
The Hambali Mazh-hab

It is important to note that these schools of thought were named after their founders.

1) The Hanafee Mazh-hab

The founder of this school was Imaam Abu Haneefah, Nuuuman Bin Thabit Bin
Zuutwa237. He was born in Kufah in Iraq in the year 702 A.D. His father was a
silk merchant of Persian origin who accepted Islam during the reign of the
Righteous Caliphs.
236
Philips, The evolution of Fiqh, pg 63
237
Al-Faasi, M. Al-Fikri As-Saami, Vol.1, pg.339

84
 Abu Haneefah studied Fiqh and Hadith under Hammad Bin Zayd, who was among
the greatest scholars of Hadith of his time for eighteen years. After Hammad’s
death, Abu Haneefah took up the position of his teacher at the age of forty and
became the most outstanding scholar in Kufah.

a) Formation of the Hanafee school

Imaam Abu Haneefah based his teaching method on the principle of 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,
it would be appropriate to say that the Hanafee Mazh-hab was as much a
product of Abu Haneefah’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. In fact Imaam Abu Haneefah took the lead in introducing
hypothetical fiqh238

b) Sources of law used by Hanafee Mazh-hab

i) The Qur’an
ii) The Sunnah
iii) Ijmaa of the companions
iv) Individual opinion of the companions.

If there were different opinions among the companions on a particular point

of law and no Ijmaa was reached, Abu-Haneefah would choose the opinion
which appeared most appropriate to the case in question. In establishing
this as a vital principle of his Mazh-hab, Abu Haneefah gave more weight
to the opinions of the companions than to his own. However, he did apply
his own reasoning in a limited sense by choosing one of their various
opinions239.

v) Qiyaas
vi) Istihsaan
vii) Uruf (Local custom).

c) Prominent students of Imaam Abu Haneefah

The most prominent students of Imaam Abu Haneefah were240:
i) Abu Yusuf Yaquub Bin Ibrahiim Al-Answaari
ii) Muhammad Bin Al-Hasan Ashaibaani
238
Ibid, Vol.1, pg.349
239
Ibid, Vol.1, pg.354
240
As-Saayis, M. Tareekh Al-Fiqh Al-Islaami, pg.94.

85
 d) Followers of the Hanafee Mazh-hab
Those who follow the Hanafee Mazh-Hab are found mostly in India,
Afghanistan, Pakistan, Iraq, Syria, Turkey, Guyana, South Africa and Egypt, to
some extent.

When the Uthman rulers codified Islamic Fiqh according to the Hanaffee
school in the nineteenth century and made it state law, any scholar who aspired
to be a judge was obliged to learn it. As a result, the Mazh-Hab spread
throughout the Uthman Islamic state during the last part of the 19th century241.

2) The Maalikee Mazh-hab

This Mazh-hab was founded by Imaam Maalik Bin Anas Bin Maalik Bin Abi
Aamir, who was born in Madinah in the year 717 A.D242.

His grandfather Abu Aamir was among the major companions of the Prophet
(S.A.W)243.

Imaam Maalik studied under great scholars of the time, among whom were
Abdurahmaan Bin Hurmuz, Ibin Shihaab Azzuhuri, Naafi’e and Rabiat Bin Abdu
Rahmaan244.

Imaam Malik’s only journeys outside Madinah were for Hajj and thus he largely
limited himself to the knowledge available in Madiinah.

Imaam Maalik taught Hadith in Madiinah over a period of 40 years, and managed
to compile a book containing Hadiiths of the Prophet Muhammad (S.A.W) and
opinions of the companions, which he named Al-Muwattwa245.

a) Formation of the Maalikee Mazh-Hab

Imaam Maalik’s method of teaching was based on the narration of Hadith and
the discussion of their meanings in the context of problems of that day. He
would inquire about problems, which had arisen in the areas from when his
students came, then narrate appropriate Hadith, which could be used to solve
them. He used to strictly avoid speculation and hypothetical Fiqh

241
Philips, The evolution of Fiqh, pg.68.
242
As-Saayis, M. Tareekh Al-Fiqh Al-Islaami, pg.97.
243
Ibid.
244
Ibid.
245
Philips, The evolution of Fiqh, pg.70.

86
 b) Sources of law used by the Maalikee Mazh-Hab
Imaam Maalik deduced Islamic law from the following sources listed in the
order of their importance246:
i) The Qur’an
ii) The Sunnah
iii) Amal ahlul- madina (Practices of the Madeenites)
Imaam Maalik reasoned that since many of the Madiinites were direct
descendants of the companions and Madiinah was where the Prophet
Muhammad (S.A.W) spent the last ten years of his life, practices common
to all Madiinites must have been allowed if not encouraged by the Prophet
Muhammad (S.A.W) himself.

Thus, Imaam Maalik regarded common Madiinite practices as a form of

highly authentic sunnah narrated in deeds rather than words247.

iv) Ijmaa of the companions as well as that of later scholars.

v) Individual opinion of the companions
vi) Qiyaas
vii) Istislaah
viii) Uruf
ix) Sadd Azhariah

c) Prominent students of Imaam Maalik

The most prominent students of Imaam Maalik were248:
i) Abdu-Rahmaan Bin Al-Qasim Al-Masri
ii) Abu Muhammad Abdallah Bin Wahhab Al-Masri

d) Followers of the Maalikee Mazh-hab

Today, the followers of this school are found mostly in Upper Sudan, North
Africa (Tunisia, Algeria and Morrocco) West Africa (Mali, Nigeria, Chad etc)
and some Arabia Gulf states (Kuwait, Qatar and Bahrain)249.

246
Al-Faasi, M. Al-Fikri As-Saami, Vol.1, pg.385
247
Ibid pg.388.
248
As-Saayis, M. Tareekh Al-Fiqh Al-Islaami, pg.101
249
Philips, The evolution of Fiqh, pg.74

87
 3) The Shaafi’e Mazh-hab

It was founded by Imaam Muhammad Bin Idriis Bin Al-Abbaas Ashaafi’e. He

was born in the town of Ghazzah in Palestine in 769 A.D after the death of his
father250. When he was two years old, his mother took him to Mecca, the home of
his fathers and he grew from there251. He studied under Muslim Bin Khaalid
Azzanji, the Mufti of Mecca by then, until he gave him permission to issue legal
rulings (Fataawah) when he was fifteen years old. He then traveled to Madinah to
study Fiqh and Hadith under Imaam Maalik. After Imaam Maalik’s death, he went
to Iraq and studied for a while under Muhammad Bin Al-Hassan Ashaibaani, one
of the famous students of Imaam Abu Haneefah.

Later he went to Egypt to study the Fiqh of Imaam Layth Bin Sa’d and stayed there
until his death in 820 A.D
.
a) Formation of Shaafi’e Mazh-hab
Imaam Ashaafi’e combined the Fiqh of Hijaaz (Maalikee thought) with that of
Iraq (Hanafee thought) and formed a new school of thought, which he dictated
to his students in the form of a book called Al- Hujjah (The evidence). This
dictation took place in Iraq and is known as (the old school of thought).

In Egypt, he absorbed the Fiqh of Imaam Layth bin Sa’d and dictated the new
school of thought to his students in the form of another book named: Al-Ummu
(The Essance). This became to be known as (The new school of thought).
Because of his exposure to a completely new set of Hadiths and legal reasoning
in the new school of thought, he reversed many of the legal positions, which he
had held while in Iraq252.

b) Sources of law used by Shaafi’e Mazh-Hab

The sources of Law used by Imaam Ashafi’e were as follows253
i) The Qur’an
ii) The Sunnah
iii) Ijmaa
iv) Individual opinion of the companions.
If there were conflicting opinions among the companions on a legal point,
he would choose whichever opinion was closest to the source and leave the
rest.
v) Qiyaas
vi) Istishaab
250
As-Saayis, M. Tareekh Al-Fiqh Al-Islaami, pg.103
251
Ibid
252
Philips, The evolution of Fiqh, pg.81
253
Al-Faasi, M. Al-Fikri As-Saami, Vol.1, pg.398

88
 It is important to note here that although Istishaab has been widely
mentioned by the Shafi’e school, all legal schools of thought do accept it.

c) Prominent students of Imaam Ashafi’e

The most prominent students of Imaam Ashafi’e were254:
i) Ismail Bin Yahya Al-Muzani
ii) Abu Yaquub Yusuf Bin Yahya Al-Buwaitwi

d) Followers of the Shaafi’e Mazh-hab

The majority of the followers of the Shaafi’e Mazh-hab are now to be found in
Egypt, Yemen, Sri Lanka, Indonesia, Malaysia and East Africa255.

4) The Hambalee Mazh-hab

The founder of this school of thought was Imaam Ahmad Bin Muhammad Bin
Hambal Ashaybaani, who was born in Baghdad in the year 778 A.D. He became
one of the greatest memorizers and narrators of Hadith of his time 256. He studied
Fiqh and Hadith under Abu Yoosuf, one of the famous students of Imaam Abu
Haneefah as well as under Imaam Ashaafi’e257.

a) Formation of Hambalee Mazh-Hab

Imaam Ahmad’s greatest concern was the collection, narration and
interpretation of Hadith. His teaching method consisted of dictating Hadith
from his vast collection known as AL-Musnad, which contained over 30,000
Hadiths. He would then apply the Hadith to various existing problems.

b) Sources of law used by the Hambalee Mazh-Hab

The Sources of Law used by Imaam Ahmad Bin Hambali were as follows 258
i) The Qur’an
ii) The Sunnah
iii) Ijmaa of the companions
iv) Individual opinions of the companions
v) Hadith Dha’ef (Weak Hadith).
For a ruling on a case where none of the previous four sources offered a
ready solution, the Imaam used to prefer to use a weak Hadith rather than
applying his own deductive reasoning259.

254
Assaais, Taariikh Al-Fiqh Al-Islaami, pg.106
255
Philips, The evolution of Fiqh, pg.84
256
Al-Faasi, M. Al-Fikri As-Saami, Vol.2, pg.18
257
Philips, The evolution of Fiqh, pg.84
258
Al-Faasi, M. Al-Fikri As-Saami, Vol.2, pg.23
259
Assaais, Taariikh Al-Fiqh Al-Islaami, pg.109

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 vi) Qiyaas
vii) Sadd Azhariah

c) Prominent students of Imaam Ahmad

The most prominent students of Imaam Ahmad were his two sons260:
i) Abdallah Bin Ahmad Bin Hambali
ii) Swaleh Bin Ahmad Bin Hambali

d) Followers of the Hambalee Mazh-hab

The majority of the followers of this Mazh-hab can now be found in Saudi
Arabia.
Its survival in Saudi Arabia, after almost dying out elsewhere in the Muslim
world, is due to the fact that when King Abdul-Aziz Bin Saudi founded the
Saudi dynasty, he made the Mazh-hab the basis of the Kingdom ’s Legal
System261.

It remains to be said here, that there were many Islamic Legal Schools of Thought which
had been formed in addition to the four mentioned, like the Awza’e, the Layth and the
Jareer. However, all of them went out of existence except the four, either because of
political factors that they did not receive any backing from the state of the time, or
because their students failed to record the rulings of the founders for posterity.

Main reasons for conflicting rulings

It has been seen that although the Imaams of the four major schools of thought were all
agreed on the primacy of the four fundamental sources of Islamic Law, namely; the
Qur’an, the Sunnah, Ijmaa and Qiyaas, certain differences have occurred and still exist
among the rulings of their schools of thought. Here are some of the examples to clarify
this point:

1) Nullification of Wudhuo by touching one’s private parts:

- Imaam Ashafi’e and Imaam Ahmad ruled that touching one ’s private parts by
bare hands nullifies the state of Wudhuo.
- Imaam Abu Haneefah ruled that it does not nullify the state of Wudhuo.
- Imaam Maalik ruled that if the touching is intentional, it nullifies but if it is not
intentional, it does not262.

260
Al-Faasi, M. Al-Fikri As-Saami, Vol.2, pg.19
261
Philips, The evolution of Fiqh, pg.87
262
Ibn Rushid, Bidayatul- Mujtahid Wa Nihaayatul-Muqtasid, (Cairo, Daru-Ssalaam, 1 st Edn, 1995) Vol.1, pg 88

90
 2) Number of Takbiiraat in Idi prayers:
- Imaam Maalik and Imaam Ahmad ruled that they are seven including
Takbiiratul-Ihraam in the first Rak’a, and Six including Takbiiratul-Qiyaam in
the second Rak’a.
- Imaam Ashafi’e ruled that they are eight in the first Rak’a, and six in the second
Rak’a.
- Imaam Abu Haneefah ruled that they are four in the first Rak’a, and four in the
second Rak’a263.

3) Guardianship in marriage:
- Imaam Maalik, Imaam Ashafi’e and Imaam Ahmad ruled that a marriage
contract could not be valid without the consent of a girl’s guardian.
- Imaam Abu Haneefah ruled that the marriage contract is valid even without the
consent of the girl’s guardian264.

4) Admissibility of the witness of an enemy against his enemy:

- Imaam Maalik, Imaam Ashafi’e and Imaam Ahmad ruled that the witness of an
enemy against his enemy is not admissible.
- Imaam Abu Haneefah ruled that the witness of an enemy against his enemy is
admissible265.

These differences arose for various reasons the chief ones being related to the following
aspects266:

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’an and Sunnah with more than
one literal meaning.

For example, the word Qur’ou which means menses as well as the time of purity
between menses.
Muslim scholars were divided into two groups concerning the interpretation of the
Qur’anic verse (Divorced women should wait three Qur’ou)267.

263
Ibid Vol.1, pg 492
264
Ibid, Vol.3, pg 1248
265
Ibid, Vol.4, pg 2299
266
Refer to Ibn Taymiyah, Raf’ul-Malaam An Al-Aimmatul-A ’laam, (Riyadh, AR-ria ’satul-A ’maa Li Idaaratil-Buhuuth
Al-Ilmiyyah, 1983) Vol.1, pg 3, also Philips, The evolution of Fiqh, pg 91
267
Surat Al- Baqarah (2: 228).

91
 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’ou to be the period of purity, the divorce
becomes finalized as soon as her third menses have started, while according to
those who viewed Qur’ou as the actual menses, it is not finalized until her menses
have ended.

b) Literal and Figurative meanings:

There are also some words in the Qur’an and the Sunnah which have both literal
and figurative meanings. For example the word Lams (touch) is literally used to
indicate touching by the hand or coming into contact of two objects and
figuratively to indicate sexual intercourse.

Thus, Muslim jurists were of three different opinions concerning the meaning of
the Qur’anic verse (…. Or you touched ( laamastum) women and cannot find water,
then take Tayamum from clean earth)268.
This verse occurs in the context of the factors, which break the state of wudhuo
(purification).
- Imaam Ashafi’e ruled that lams meant the touch of the hand or body contact.
Therefore, if a man intentionally or accidentally touched a woman and vice
versa, skin on skin, then both of them would lose their state of wudhuo.
- Imaam Maalik ruled that lams meant touching by the hand. However, he
stipulated that wudhuo would only be broken if the touch was pleasurable
whether the touch were intended or unintended skin on skin or otherwise.
- Imaam Abuhaneefah ruled that lams in the verse under consideration meant
sexual intercourse and therefore, touching a woman does not break wudhuo,
whether it is accompanied by a pleasurable feeling or not269.

c) Grammatical meanings:
There are also certain grammatical constructions in Arabic, which have more than
one meaning:

For example the word elaa (to) could mean “up to but not including” as in the case
of the Qur’anic verse (And complete the fast up to (elaa) the night)270.
The fast is continued up to the beginning of the night, but does not include the
night itself.

268
Surat Annisa (4: 43).
269
Ibn Rushid, Bidayatul- Mujtahid Wa Nihaayatul-Muqtasid, Vol.1, pg 85
270
Surat Al- Baqarah (2: 187).

92
 However, Ilaa also means “up to and including” as in the Qur’anic verse (And We
will drive the guilty up to (elaa) Hell)271.

Thus Muslim scholars held two opinions concerning the meaning of the following
Qur’anic verse describing an aspect of the performance of wudhuo (….Then wash
your faces and your hands up to your elbows)272.
- Some scholars interpreted this verse to mean “up to but not including the
elbows”.
- The majority of scholars ruled that the verse meant “up to and including the
elbows”273

2- Narration of hadiths

The causes of legal differences, which developed among jurists over the narration
and application of Hadith may be subdivided as follows:

a) Availability of Hadith:
There were numerous cases where certain narrations of Hadith did not reach
some of the Imaams, due to the fact that the companions who narrated them
had settled in various regions throughout the Islamic empire, and the schools of
thought were founded in different parts of the empire before the comprehensive
compilations of Hadith were made.

Sometimes, a particular Hadith on a given issue could have reached some

Imaams but with a weak Sanad, yet that same Hadith could have reached other
Imaams but with a strong Sanad, that is to say the same Hadith could have
more than one Sanad and one of the Sansds is weak due to unreliability of the
people contained in it or there is a missing link in it. In this case, the same
Hadith will be authentic to some Imaams and weak to others.

In other instances, one Imaam might have heard a Hadith on a particular issue
but he forgot it and therefore he ruled contrary to its ruling. A case in point can
be seen when Umar Bin Al-Khattaab was asked about a man who becomes
Mujnib274 on a journey but he does not find water for a month. He replied that
he should not pray until he gets water. Ammar asked him: Oh leader of the
believers, don’t you remember when you and I were on a journey and became
Mujnib? As for me; I smeared myself with sand and prayed. As for you; you
did not pray. When we narrated the incident the Prophet he said: “It was
271
Surat mariyam (19: 86).
272
Surat Al- Maidah (5: 6).
273
See: Al-Qurtubi, Tafsiir Al-Qurtubi, Beirut, Daar Ihyaa Turaath Al-Arabi, 1985, Vol.6, pg 86
274
This is a state when a person has had sexual intercourse with his wife or had a wet dream but has not yet
washed his whole body.

93
 enough for you to do like this”, then he touched dry sand with his hands and
whipped his face and his palms”275.

This was an incident in which Umar was involved but had forgotten it.
Therefore, it was possible for an Imaam to forget a Hadith he had heard.

b) Weak narrations of Hadiths:

There were cases where some Imaams based their rulings on Hadiths which
were in fact weak and unreliable, either because they were unaware of the
unreliability of these Hadiths or because they took the position that a weak
Hadith was to be preferred to their own analogical deduction.

c) Conditions for the acceptance of Hadiths:

Other differences among Imaams arose from various conditions they placed in
the acceptance of the Sunnah.

For example, Imaam Abu Haneefah stipulated that a Hadith had to be well
known before being regarded as admissible evidence, whereas Imaam Maalik
stipulated that a Hadith must not contradict to the customs of the Madeenites in
order to be admissible.

Therefore, the difference in conditions stipulated by each Imaam for the

acceptance of Hadith had an impact on the rulings of the different schools of
thought.

d) Resolution of outward textual conflict in Hadith:

The founders of schools of thought and their students took two main
approaches in resolving apparent outward contradiction between the meanings
of some of the recorded narrations of Hadith.

- Some jurists chose the path of Tarjeeh, which meant giving preference to some
Hadith while rejecting the others on the same topic depending on their chain
strength.

- Other jurists chose the path of Jam’u, which involved combining such Hadiths
and acting according to both.

For example, the Prophet said: “No Salaah is allowed after Fajri prayer until
the sun has risen, and after Asri prayer until the sun has set”276.

275
Muslim, Swahiih, Vol.1, pg 265, Hadith No.368
276
Bukhari, Swahiih, Vol.1, pg 212, Hadith No.561 & Muslim, Swahiih, Vol.1, pg 567, Hadith No.288

94
 At the same time, there is another Hadith which states: “If any of you enters a
mosque he should pray two Rakahs before sitting down”277.
- Imaam Abu Haniifah gave preference to the first Hadith and ruled that all
forms of salaah were forbidden during the forbidden times.
- Imaam Maalik,Imaam Ashafi’e and Imaam Ahmad combined the two Hadiths,
ruling that the first Hadith was general, whereas the second Hadith was specific
allowing such prayer (greetings of the mosque) even during the generally
forbidden times.

3- Admissibility of certain principles

There were among the Imaams 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 sources of differences among jurists e.g. Imaam
Maalik’s customs of the Madiinites, and Imaam Ahmad’s acceptance of weak
narrations.

4- Methods of qiyaas

The various approaches, which jurists took in their application of Qiyaas were
perhaps the largest source of differences among them.
Some narrowed down the scope of Qiyaas by setting a number of preconditions
for its use, while others expanded its scope.

Since this principle was based more on opinion 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.

Concluding Remarks:
Although the fore mentioned were, during that time, genuine reasons for conflicting
rulings among the different Mazh-habs, they are no longer enough excuses for causing
differences, conflicts and disunity in the Muslim Ummah. This is so because of the
following:

1- The Imaams lived at a time when the Hadiths of the prophet had not been
compiled and documented, and this could have caused some Imaams to miss a
certain Hadith on a given issue and ruled contrary to the Hadith, or the Hadith
could have reached the Imaam through a weak chain and therefore he did not
consider it authentic.

The situation today is different; since all the Hadiths of the prophet have been
compiled and documented into books (soft and hard copies), and all the Authentic
277
Bukhari, Swahiih, Vol.1, pg 391, Hadith No.1110 & Muslim, Swahiih, Vol.1, pg 495, Hadith No.70

95
 and Weak Hadiths have been clearly explained by the Ulamaas, leaving no room
for any doubt of any given Hadith. It therefore becomes incumbent upon a Muslim
to follow the authentic Hadith and leave the ruling of the Imaam which contradicts
the Hadith.

2- Cases in which the differences arose from shared word meanings (literal,
figurative or grammatical); there is usually an authentic Hadith which specifies the
meaning intended by Shariah. This therefore means that whenever there is a
difference in specifying the intended meaning, we should turn to the words and
deeds of the prophet (S.A.W) for explanation.

For example, the word Qur’ou. Although it has a shared meaning between purity
and menses, the Hadith of the prophet (S.A.W) in which he told Ummu Habiibah
Bint Ja’hsh, who had a disease of continous bleeding, “to leave prayer during her
period of Qur’ou and when the period was over she should wash and start
praying”278, specifies the intended meaning. This is so because; a woman can only
leave prayer when she is in her menses. This means therefore that the word Qur’ou
in the verse means period of menses.

Similarly, the word lams, although has a shared meaning between body contact
and sexual intercourse, there are a number of authentic Hadiths which specify the
meaning intended by Shariah in the verse which stipulates the nullifiers of Wudhu.
One of these Hadiths was narrated by A’isha, wife of the prophet. She said: “I used
to sleep [at night] while the prophet was praying and put my legs in his Qiblah.
Whenever he wanted to prostrate, he would touch my legs with the tip of his
fingers and I would fold them for him to prostrate. There were no lights in the
houses during that time”279.

Another one was also narrated by A’isha that “The Prophet (S.A.W) kissed one of
his wives, then went out for prayer without performing another ablution”280.

This therefore means that mere touching or body contact with a person of opposite
sex does not nullify one’s Wudhu; since the prophet (S.A.W) did it with his wife
and continued with his prayer without performing another ablution, and that the
meaning intended in the verse is sexual intercourse.

278
Abu-Dawood, Sunan, Vol.1, pg. 113, Hadith no. 281, & At-Tirmizhi, Sunan, Vol.1, pg.220, Hadith no. 126. The
hadith has been authenticated by Al-Albaani.
279
Bukhari, Swahiih, Vol.1, pg 150, Hadith No.375 & Muslim, Swahiih, Vol.1, pg 366, Hadith No. 512
280
Abu-Dawood, Sunan, Vol.1, pg.70, Hadith no.179, & At-Tirmizhi, Sunan, Vol.1, pg.133, Hadith no. 86. The hadith
has been authenticated by Al-Albaani.

96
 Nevertheless, it should be pointed out here that it is Haraam to touch a person of
opposite sex who is not your wife or husband; since it is one of the acts which
might bring you near to zinah, yet Allah says (and do not come near to zinah)281.
However if the person is your wife or husband, it is advisable not to touch that
person when going for prayer especially when you are over-reactive, as it might
cause you to lose your state of Wudhu through ejaculation.

3- Cases in which conflicting rulings are equally supported by Qur’an or authentic

Sunnah should be treated as viable options applied according to different times
and circumstances. For example, the best deed in Islam. The prophet (S.A.W) was
one time asked about the best deed and he replied: “Believing in Allah and His
Messenger, then Jihaad in the cause of Allah, then Hajj Mabruur”282. At another
time he was asked about the best deed and he replied: “Performing prayer at the
beginning of its prescribed time, then treating the parents well”283.

Both of these Hadiths are authentic. However, the first one rules that the best deed
is Jihaad in the cause of Allah after believing in Allah and His Messenger,
followed by a valid Hajj. The second one rules that the best deed is performing
prayer at the beginning of its prescribed time, after believing in Allah and His
Messenger, as prayer cannot be valid without it, followed by treating the parents
well.

Each of these two Hadiths can be applied according to different times and
circumstances; when it is time for Jihaad or the person asking is strong or has the
ability, the first Hadith can be applied. However, when it is not time for Jihaad, or
the person asking is an old person or has no ability, the second Hadith can be
applied.

281
Surat Al-Isra’(17: 32)
282
Bukhari, Swahiih, Vol.1, pg 18, Hadith No.27
283
Bukhari, Swahiih, Vol.3, pg 1025, Hadith No.2630 & Muslim, Swahiih, Vol.1, pg.89, Hadith No.8 5

97
 CHAPTER SIX

THE FIFITH AND SIXTH STAGE IN THE DEVELOPMENT OF ISLAMIC LAW

The Fifth Stage

This stage starts from the decline of the Abbassid dynasty at around 950 A.D. until its
eventual collapse at around 1258 A.D.

During this period, the Islamic Empire disintegrated into small kingdoms, which were at
enmity with each other. In Basra there was a kingdom ruled by Ibn Ra’ik, in Faaris (Iran)
there was a kingdom ruled by Ibn Bawaih, in Egypt and Shaam (Syria, Jordan, Palestine)
there was a kingdom ruled by Fatimites, in Bahrain there was a kingdom ruled by
Qaramitwa. Baghdad and its surroundings was the only part remaining under the Abbasid
dynasty284.

This disintegration of the Islamic Empire negatively affected Islamic law and its scholars.
The jurist of the time never had time to search for solutions of fresh problems from the
Quran or Sunnah, or use their own Ijtihaad whenever they failed to get a solution from
either source. Instead, they would stick to works of a given Imaam and would not allow
themselves to go beyond the words of that Imaam.

Thus, the dynamism of Islamic law reflected in Ijtihaad came to a standstill and Taqleed
(blind following) became the order of the day285.

Work of scholars during this stage

The work of the scholars during this stage was confined to the following 286:

a) Deducing the fundamental principles behind the rulings of their Imaams:

During this stage, the scholars of each Mazh-hab analyzed all the rulings of their
Imaam, deduced fundamental principles behind their rulings and codified them.
This in turn helped them to make rulings for new issues basing on those principles.

b) Authenticating the opinion of the Imaam of the Mazh-hab:

The scholars of each Mazh-hab also authenticated and favoured certain opinions
attributed to the Imaam or his students over other opinions on the same issue. This
process was called Tarjeeh. Difference of opinion on one issue within the same
school of thought had arisen when the founding Imaams as well as their students

284
Al-Khini, Diraasatu Taarikhiyyah Lil-Fiqhi Wa Usuulih, pg 118
285
Assaais, Taariikh Al-Fiqh Al-Islaami, pg 112, Al-Khini, Diraasatu Taarikhiyyah Lil-Fiqhi Wa Usuulih, pg 114
286
Refer to: Assaais, Taariikh Al-Fiqh Al-Islaami, pg 114, Philips, The evolution of Fiqh, pg 102

98
 changed their earlier opinions. Both versions (the previous and the new) were
recorded and passed on to later generations as different opinions of the Mazh-hab.

Difference of opinion had also arisen from different interpretations of statements

made by earlier scholars of the mazh-hab. In each Mazh-hab, the scholars during
this period sifted out weak and fabricated statements attributed to the founders of
their respective Mazh-hab. They also classified the narrations of opinions of the
founders according to their authenticity.

c) Defending the Mazh-hab:

Scholars of each Mazh-hab started defending their Mazh-hab and its Imaam by all
means possible. They wrote biographies of their Imaams praising them with
piousness, devotions and deep knowledge and understanding. They also conducted
competitive debates in favour of their Mazh-hab. These debates spread to the
masses resulting into Mazh-hab factionalism and the spirit of rivalry became
widespread.

Compilation of Islamic laws

During this stage, a format for writing Islamic law books evolved. This formal became a
standard, which has remained in practice until today. The various issues were grouped
under main headings and the main headings under chapters each of which represented a
major topic of Fiqh.

Even the order of the chapters became standardized. The Author would begin with issues
concerning hygiene and purification, then prayer, fasting, zakah and pilgrimage. He
would then proceed to marriage laws, divorce, inheritance, business transactions and then
crimes and punishments.

The Sixth Stage

This stage starts from the collapse of the Abbassid dynasty at around 1260 A.D and
continues up to the middle of the 20th Century, at around 1960 A.D.

The prevailing characteristic of this period was that of Taqleed (The blind following of
Mazh-habs and rigidity) and factionalism. This degenerative trend resulted in the
dropping of all forms of Ijtihaad and the evolution of Mazh-habs into totally separate
entities closely resembling sects. Thus, the dynamism of Islamic law reflected in Ijtihaad
was lost and stagnation engulfed the Muslim Empire.

99
With the advance of European colonialism and the breaking up of the Muslim Empire
into minor states, European Laws supplanted Islamic Laws287.

Emergence of Taqleed

The scholars of this period left all forms of Ijtihaad and most of them issued a legal
ruling, which was intended to close the doors of Ijtihaad permanently. They reasoned
that all possible issues had already been raised and addressed and there was therefore no
need for further Ijtihaad.

With that step, a new concept of Mazh-habs arose, namely; that one of the four Mazh-
habs had to be followed for one’s Islam to be valid. In time, this concept became firmly
embedded among the masses as well as the scholars of Islamic law.

Thus, the religion of Islam itself became restricted within the confines of the four existing
schools of Legal Thought. These schools of law came to be considered divinely –
ordained manifestation of Islam. All of them were supposed to be completely correct,
equal and representative of true Islam, yet there were innumerable differences among
them.

Consequently any attempt to go beyond these conical Mazh-habs was considered

heretical and anyone who refused to follow one of them was classified an apostate. The
conservative scholars of this stage even went so far as to rule that whoever was caught
transferring from one Mazh-hab to another was liable to punishment at the discretion of a
local judge. A ruling was also made in the Hanafi school of thought prohibiting the
marriage of a Hanafee to a Shafi’e288.

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 Islam that the message of Islam remains
uncorrupted through time. For, those early Interpretations were founded on the Prophet ’s
divine inspiration and his divinely guided life style. The Prophet himself said that the
best generation was his generation, then the generation following his and then the
generation following that.

However, since Muslims of earlier generations, with the exception of the Prophet
(S.A.W), were not infallible, even those earlier interpretations should not be followed

287
Philips, The evolution of Fiqh, pg 105
288
Ibid pg 107

100
blindly without regard to certain basic principles of reason which enable us to distinguish
between right and wrong.

The term Taqleed (Blind following) therefore, refers to the actions of those who blindly
follow a single Mazh-hab regardless of errors that they see in it.

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.

Taqleed was a result of a number of factors some of which were289:

a) The schools of legal thought were completely formed and details worked out.
The rulings 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, there developed an
overdependence on the works of earlier scholars of the schools of legal
thought.

b) The crumbling of the Abbassid Empire into mini states was accompanied by
each state following a school of thought (Mazh-hab) of its choice. For
example, Egypt followed the Shafi’e Mazh-hab, Spain the Maalik Mazh-hab
and Turkey and India the Hanafi Mazh-hab. Each state began the practice of
choosing its Governors, administrators and judges only from those who
followed its official Mazh-hab. Consequently, scholars who wanted to become
(Qadhiis) judges in the courts of these states had to follow the official Mazh-
hab of the state even if blindly.

c) Some unqualified individuals began to claim the right to make Ijtihaad in order
to twist the Law to suit their interests. Consequently, many incompetent
scholars began making rulings which misguided the masses on a number of
issues. In the ensuing confusion, the reputable scholars of the day tried to
close the door of Ijtihaad in order to protect the Shariah from being tampered
with.

289
Refer to: Assaais, Taariikh Al-Fiqh Al-Islaami, pg 120, Philips, The evolution of Fiqh, pg 109

101
 CHAPTER SEVEN

THE SEVENTH STAGE IN THE DEVELOPMENT OF ISLAMIC LAW

This stage starts from the middle of the 20 th century at around 1960 A.D and continues
up to the present day.

During this period, a number of developments have taken place, making the situation
different from that of the sixth stage.

These developments took the following trends:

1) Establishment of a number of Islamic Universities teaching comparative

Islamic law

Under these Institutions, the four Mazh-habs and the basis of each Mazh-hab ’s
ruling on every issue are taught comparatively, then objectively choosing the
ruling which has the strongest proof on the given issue, without rigidly following a
particular Mazh-hab. The most prominent of these Institutions are:

a) Ez-Zitouna University in Tunisia

It started as a Madarasa in 737 A.D. It was transformed into a University on

the 26th of April 1956. The Faculty of Shariah and theology was established on
the 1st of March 1961290.

b) University of Khartoum

It is the largest and oldest University in Sudan. It started as Gordon Memorial

college in 1902. It attained a University status on the 24 th of July 1956 and was
renamed University of Khartoum291

c) Al-Azhar University in Cairo, Egypt

It started as a Madarasa between 970 and 972 A.D. It was transformed into a
University in 1961 A.D292.

290
en. wikpedia.org/wiki/University_of_Ez-Zatouna, accessed on 19/10/2011
291
en.wikpedia.org/wiki/University_of_Khartoum, accessed on 19/10/2011
292
en.wikpedia.org/wiki/Al-Azhar_University, accessed on 18/10/2011

102
 d) Islamic University in Madina, Kingdom of Saudi Arabia

It was established in 1961 as a school for higher Education, specializing in

Islamic studies. It draws students from all over the world293.

e) Al-Imaam Muhammad Ibn Saud Islamic University in Riyadh, Kingdom

of Saudi Arabia

It was founded as a college in 1953 and was accorded a University status in

1974294.

f) Umm Al-Qura University in Mecca, Kingdom of Saudi Arabia

It started in 1949 as a College of Shariah. It attained a University status in

1981295.

These Institutions have assisted in reducing Taqleed and Mazh-hab factionalism,

thereby paving a way to the revival of Ijtihaad and dynamism of Fiqh.

Graduates of these institutions have tried to explain to the Muslim Ummah the true
status of the Imaams and the position of the Mazh-habs in Islam. They have
expounded to the followers of the different Mazh-habs that the Imaams were also
human beings who were not infallible, and that if their word contradicts the word
of the Prophet (S.A.W) it is the word of the Prophet and not the word of the
Imaam which should be taken.

This has had a lot of impact on the Muslim society, especially the youth as they
are easy to change when shown the truth.

2) Formation of Islamic Fiqh Councils, Academies and Centres

In a bid to revive Ijtihaad and unify Islamic legal rulings (Fatwaas), a number of
Islamic Fiqh Councils, Academies and Centres have been established in different
countries to handle new issues and situations which have arisen in the Muslim
Ummah. Some of the most important of these are:

a) Majma Al-Fiqh Al-Islami Ad-Dauli (International Islamic Fiqh Academy)

It is a subsidiary organ of Organisation of Islamic conference (OIC) with its

HeadQuaters in Jeddah, Kingdom of Saudi Arabia.
293
At-Taqreer Al-Mu’jaz An Al-Jamiat Al-Islamiyya, published by Islamic University in Madina, 1422 H, pg.7
294
www.saudinf.com/main/j44.htm, accessed on 15/10/2011
295
uqu.edu.sa, accessed on 15/10/2011

103
 It was established in 1983 by 57 Muslim countries, each one of them being a
member of OIC. Each country is represented by a prominent learned Muslim
capable of doing research and Ijtihaad. Its current secretary General is
Professor Ahmad Khalid Ba-Bakr from Sudan. He was appointed on 1 st August
2011296.

b) Majma Al-Buhuth Al-Islamiyya (Islamic Research Academy)

It was established in 1961 with its Headquaters in Cairo, Egypt.

It is composed of 50 members of outstanding Muslim Sheikhs from all the four

Islamic Legal schools of thought (Al-Mazhaahib Al-Arba’at), 20 of whom must
not be citizens of Egypt. It is headed by Sheikh Al-Azhar297.

c) Majma Al-Fiqh Al-Islami of Muslim World League

It was established in 1967 with its Headquarters in Mecca, Kingdom of Saudi

Arabia. It is concerned with providing solutions to contemporary issues facing
the Muslim Ummah298.

d) The Fiqh Council of North America

This council traces its origin back to the Religious Affairs Committee of the
then Muslim Students Association of the United States and Canada in the
early 1960s. This Religious Affairs Committee evolved into the Fiqh Committee
of the Islamic Society of North America (ISNA) after the founding of ISNA in
1986. As the needs of the Muslim Community and the complexity of the
issues they faced grew, the Fiqh Committee was transformed into the Fiqh
Council of North America in 1986 299. The Council issues Religious Rulings,
resolves disputes and answers questions relating to Islamic Law.

e) Muslim Law (Shariah) Council in United Kingdom

It was established in 1985 and consists of Ulamas, Imaams, Muslim Scholars

and Barristers representing various Schools of Fiqh in Great Britain. It
provides Islamic Opinion and guidelines regarding social, matrimonial,
political and academic issues. It also receives queries from other European
296
www.fiqhacademy.org.sa, accessed on 15th October 2012.
297
www.ar.wikipedia.org/wiki/ , accessed on 15th October 2012.
298
www.muslimworldlegue.org/fiqh_res.asp, accessed on 15th October 2012.
299
www.fiqhcouncil.org, accessed on 12th October 2012.

104
 Countries where no such Islamic Council is available to help the Muslim
Community300.

f) It-Tihaad Ulamaa Afriqiya (Union of African Muslim scholars)

It was established on 8th July 2011 with its Headquarters in Bamako, Republic
of Mali. It was established as an academic and legal body with the aim of
providing Islamic Legal solutions to problems facing Muslims in Africa. It
conducts research and issues Fatwaas to numerous problems in Africa.

The Current president of the Union is Dr. Said Burhaan Abdallah from the
United Republic of Comoro and the Secretary general is Dr. Said Baba Silla
from the United republic of Mali. The union has members from all African
countries south of Sahara301.

3) Muslim majority states have integrated Islamic law in their Legal systems

The legal system in the 21st Century of Muslim majority states can be generally
classified as follows302:

a) Muslim states applying classical Islamic law as their legal system:

Saudi Arabia and some of the Gulf states do not have Constitutions or
Legislatures. Such states have limited authority to change laws since they are
based on Shariah as it is interpreted by their religious scholars. Iran shares
some of these characteristics but also has a parliament that legislates in a
manner consistent with Shia teachings.

b) Muslim states with blended sources of law:

Some Muslim states including Pakistan, Indonesia, Afghanistan, Egypt,
Morocco and Malaysia have legal systems strongly influenced by Shariah, but
also cede their ultimate authority to their constitutions. These states have legal
systems with significant differences when compared to classical Sharia. Some
of these states have Islamic legal system operating alongside with common law
legal system.

c) Secular Muslim states:

Muslim states such as Mali, Kazakhstan and Turkey have declared themselves
to be Secular. Religious interference in state affairs, law and politics is strictly
prohibited. In such states, Shariah is limited to personal and family matters
only.
300
www.shariacouncil.org , accessed on 12th October 2012.
301
www.africanulama.org
302
en.wikipedia.org/wiki/sharia , accessed on 5 th October 2012.

105
 The Nigerian legal system is based on Common law but the constitution
guarantees freedom of religion and separation of religion and state. However,
eleven northern states have adopted Shariah law for those who practice the
religion of Islam.

4) Some minority Muslim states have introduced Qadhi Courts in their Legal
system

The Republic of Kenya, for example, has introduced Qadhi Courts in its legal
system to decide family matters relating to marriage divorce and inheritance for
Muslims. This has been enshrined under section 66(5) of the Kenyan Constitution
which states that:

“The jurisdiction of Qadhi’s Courts shall extend to the determination of questions

of Muslim Law relating to personal status, marriages, divorce or inheritance in
which all parties profess the Muslim religion”.

The same has also been reiterated in the Qadhi’s Courts Act, Cap 11 of the Laws
of Kenya.

Today, there are Kadhi’s Courts spread in various parts of the country including
Mombasa, Kilwa, Malindi, Lamu Districts, Tana-River District at Hola, Nairobi
Province, Central and Eastern provinces at Nyeri, Isolo, Marsabit and Moyale,
Nyanza and Western Provinces at Kisumu and Bungoma, Rift-valley province at
nakuru and North Eastern Province at Garissa, Wajir and Mandera303

Uganda is another example of the same. The 1995 Constitution of the Republic of
Uganda, Article 129 (1) states that:

“The judicial power of Uganda shall be exercised by Courts of judicature which

shall consist of
a) The Supreme Court of Uganda;
b) The Court of Appeal of Uganda;
c) The High Court of Uganda; and
d) Such Subordinate Courts as parliament may by law establish, including Qadhis’
Courts for marriage, divorce, inheritance of property and guardianship, as may
be prescribed by parliament.”
However, these Courts have not yet been operationalized by parliament.
Tanzania is also another example in which Kadhi ’s courts operate alongside
common law in Zanzibar.
303
Abbas, T. B. The Kadhi’s Courts in Kenyan Judiciary, History, Procedure and practice, 1 st Edn 2010, pg.8

106
 Zanzibar is a semi autonomous Island within the United Republic of Tanzania. It
comprises of two Islands; Unguja and Pemba, in addition to a number of smaller
Islets. About 96 percent of its population are Muslims304.

Zanzibar has a dual Court system, that is to say, the state Courts which deal Civil
and Criminal Matters based on Common Law system and Kadhi’s Courts based on
Islamic Law.

The Kadhi’s Courts were Established by The Kadhi Courts Act of 2008 which
states thus:
“In pursuant of Article 100 of the Constitution, there are hereby established
Kadhi’s Court in Zanzibar”305.

The Jurisdiction of Kadhis Court is defined by the same Act under Sec. 8(1) which
states thus:

“Every District Kadhi shall have and exersize jurisdiction in the determination of
matters of Islamic Law relating to:
i- Personal status, marriage, divorce, guardianship and subject to the
provisions of any other Law for the time being in force, the custody
of children in cases all the parties are Muslims.
ii- Wakf or religious Charitable trusts, gift intervolves and inheritance
in cases all parties are Muslims.
iii- Claims of maintenance, where such claim is for a lumpsome of not
exceeding five hundred thousand shillings or for a periodical
payment to be made at a rate not exceeding fifty thousand shillings
per month, in cases all parties are Muslims”306.

There are ten Districts in Zanzibar and each district has a Kadhi Court. Each of
Kadhi Court is a Court subordinate to the high Court of Zanzibar.

Appeals from District Kadhi Courts are directed by the same Act which stipulates:

“The Chief Kadhi’s Court, Deputy Chief Cadhi,s Court shall not have an original
jurisdiction but shall act as an appellate Court for decisions from District Kadhi ’s
Court.

304
Nahoda, J. An Evaluation of the Effectiveness of the Kadhi Courts System in Family conflict Resolution in
Zanzibar, An M.A Dissertation submitted to the Islamic University in Uganda, 2010, pg.1
305
The Kadhi Courts Act, 2008, Sec. 3(1)
306
Ibid, Sec 8(1)

107
 The appeal shall lie to the High Court from any judgment of the Chief Kadhi ’s
Court, Deputy chief Kadhi’s Court and appellate Kadhi ’s Court and such appeal
shall be heard by a panel of five members presided by a Judge of the High Court
and the decision shall be by the opinion of the majority of the members.

The other four members shall be persons who are well conversant in Islamic Law
(Ulama) and who shall be appointed by the Judicial Service Commission”307.

307
Ibid Sec. 9 (1) (2) and (3).

108
 CONCLUSION

All praises are due to Allah, with His grace and blessings good deeds are accomplished.
May His blessings and peace be showered upon His last Prophet, Muhammad (S.A.W)
I praise and thank Allah who has enabled me to finish this humble work.

In this conclusion, I would like to make the following remarks and recommendations:
1- Ijtihaad is the reflection of the dynamism of Islamic Law. This is so because every
now and again new issues crop up which have no express rulings in both the
Qur’an and the Sunnah. Ijtihaad, therefore, is the only way to find Islamic
solutions to such issues since Islamic Law suits in all places and at all times.
2- Ijtihaad is a very wide source of Islamic Law and it includes a number of
subsidiary sources like Qiyaas, Istihisaan, Istislaah, Istishaab, Rai and Saddu-
Zhariah.
3- It is very important to note that there is no Ijtihaad in the presence of a specific
text from the Qur’an or the Sunnah on a given issue. It is only after failing to get
an express ruling of the issue from the Qur’an and the Sunnah that Ijtihaad is
resorted to
4- Ijtihaad is only done by qualified people who have a wide knowledge of the
Qur’an and the Sunnah, and are conversant with the rules of Ijtihaad
5- There is need to streamline methods of Ijtihaad and unification of Fatwaahs (Legal
rulings). This can be achieved through formation of Fiqh Academies and Councils
(Majaami Al-fiqihiyyah) in every country. These Academies and Councils should
be composed of learned Muslims who have a strong background of Islamic
knowledge and are able to do research on a given issue. Each of these Academies
and Councils should appoint one of its members to be its representative at
International Islamic Fiqh Academy (Majma Al-Fiqh Al-Islami Ad-Dauli).
6- The International Islamic Fiqh Academy (Majma Al-Fiqh Al-Islami Ad-Dauli)
should be the umbrella for all the Fiqh Academies and Councils and should be
made up of members from all those councils. It should serve as the top most organ
and its rulings should be binding on all the Fiqh Academies and Councils.

Lastly, I strongly believe that this book will acquaint the reader with the essentials of the
subject, and whoever would wishes to access more and detailed information can read
those books that are more detailed after having got the basics.

As no human being is immune to mistakes, I request that whoever finds any mistake let
him/her bring it to my attention.

I will appreciate all the comments intended to promote this piece of work to a better
standard.

109
All comments should be forwarded to me through the following e-mail address:
abuhudha@yahoo.com
Wassallam

110
 BIBLIOGRAPHY

Abbas, Twalib Bwana, The Kadhi’s Courts in Kenyan Judiciary, History, Procedure and
practice, 1st Edn 2010

Abu Dawood, Sulaiman Bin Al-Ash’ath, Sunan Abi Daud, [Beirut, Daarul-Kitaab Al-
Arabi]

AD-daaru Qutni, Ali Bin Umar, Assunan, [Beirut, Daarul-Maarifah, 1966]

Ajijola, A.D., What is Shariah, [New Delhi, Adam Publishers, 2002]

Al – Yubi, Muhammad Saad, Maqaasid AShariahtil – Islamiyyah, [ Riyadh, Darul-

Hijrah, 1st edn, 1998]

Al- Faasi, Mahammad Bin Al-Hassan, Al- Fikri Assaami Fi Tariikhil- Fiqhi Al- Islami,
[ Medina, Al- maktabatul- ilmiyyah, 1st edn, 1396 H]

Al- Mushaikhih, K., Al-Akdu Athamiin Fi Sharh Manzhumat Ibn Uthaimiin….

Al- Qaradaawi, Yusuf, Islamic awakening between rejection and extremism, [ Riyadh,
International Islamic Publishing House, 2nd edn, 1991]

Al- Qaradaawi, Yusuf, Islamic Law in the modern World, Translated by Khalifa,
[Riyadh, King Fisal Centre for research and Islamic studies, 1997]

Al- Qattan, Mannae’, Mabaahith Fi Ulumil- Qur’an, [Riyadh, Maktabat Al-Ma’rif, 1st
edn, 1992]

Al-Alwaani, Usuul Al-Fiqh Al-Islami, English Edn, [Riyadh, International Islamic Publishing
House]

Al-Fayyumi, A. Al-Misbaah Al-Muniir, [Beirut, Al-Maktabat Al-ILmiyyah]

Al-Hajwi, M., Al-Fikri Assaami Fi Taariikh Al-Fiqh Al-Islaami, [Medina, Al-

Maktabatul-Ilmiyyah]

Al-Hilaali & Khan, Translation of the meaning of The Noble Qur’an, [Madinah, King
Fahad complex for the printing of the Holy Qur’an]

Al-Hilaali, T. and Khan, M. Translation of the meaning of The Noble Qur’an [Madinah,
King Fahd Complex for the printing of the Holy Qur’an]
111
Al-Jurjaani, A. At-Taariifaat, [Beirut, Daarul- Kitaabi Al-Arabi, 1st Edn. 1405]

Al-khini Mustafa, Dirasatun Tariikhiyyah Lil- Fiqhi wa Usulih [Damascus, Asharikat Al-
Muttadidah, 1st Edn ,1984]

Al-Khudhari, Muhammad, Usulul- Fiqh [ Beirut, Daaru Ihya’ Turaath Al- Arabi, 7th edn,
1985]

Al-Qawnaawi, Q. Aniis Al-Fuqahah, [Jeddah ,Daar Al-Wafaa,, 1st Edn.1457 H]

Al-Qurtubi, Tafsiir Al-Qurtubi, [Beirut, Daar Ihyaa Turaath Al-Arabi, 1985]

Ar-Raazi, M. Mukhtaaru As-Sihaah, [Beirut, Maktabat Lubnaan, 1995]

Ashaatwibi, Ibrahiim Bin Musa, Al- Muwafakaat Fi Usuulul- Fiqh, Beirut, Daarul-
Ma’rifat.

Assayis, Muhammad Ali, Taarikhil- Fiqhil – Islami, [Al-Azhar University]

Assibaee,The Sunnah and its role in Islamic legislation [Riyadh, International Islamic
Publishing house, 2008]

Assuyuti, Abdu-Rahman Bin Abi-Bakr, Al- Itqaan Fi Ulumil- Qur’an, Cairo, Al-Haiat
Al-Masriyyah Al-A’maa Lil-Kitaab, 1974

Assuyuutwi, Abdu-Rahmaan, Al-Ashbaah Wa Nazhwa’ir, [Beiruth, Daarul-Kitaabul-

Ilmiyyah, 1st Edn 1990]

At-Tirimizhi, Muhammad Bin Isaa, Sunan Tirimizhi, [Beirut, Daaru Ihyaa Turaath Al-
Arabi]

Azzarqah, Ahmad Muhammad, Sharh Al- Kawa’id Al-Fiqhiyyah, [Damascus, Daarul-

Qalam, 2nd Edn, 1989]

Azzuhaili, Wahbah, Usulul-Fiqh Al-Islaami, [Damascus, Daarul-Fiqr, 1st Edn, 1987]

Bukhari,Muhammad Bin Ismail, Swahiihil – Bukhari, [Beirut, Daar Ibn Kathir, 3rd Edn,
1987]

Doi AbduRahman., Shariah tha Islamic law, [London, Ta-ha Publishers, 1984]

Ghadanfar, Mahmood Ahmad, Graet women of Islam, Translated by --Jamila

Muhammad Qawi, [Riyadh: Darussalam, 1st edn, 2001]

112
Hasan, Ahmad, The principles of Islamic Fiqh, [New Delhi, Adam Publishers, 2005]

Hassan, A., The early development of Islamic Fiqh, [Islamabad, Islamic Research
Institute, 1970]

Ibn Abdul- Barr, Jaamie’ Bayyanil- Ilm Wa Fadh’lihi, [1st Edn, Muassassat Ar-
Rayyaan,2003]

Ibn Maajah, Muhammad Bin Yaziid, Sunan Ibn Maajah, [Beirut, Daarul-Fiqr]

Ibn Manzhur, M. Lisaan Al-Arab, [Beirut, Daar Swadir, 1st Edn.]

Ibn Rushid, Bidayatul- Mujtahid Wa Nihaayatul-Muqtasid, [Cairo, Daru-Ssalaam, 1st

Edn, 1995]

Ibn Taymiyah, Raf’ul-Malaam An Al-Aimmatul-A’laam, [Riyadh, AR-ria’satul-A’maa Li

Idaaratil-Buhuuth Al-Ilmiyyah, 1983]

Kamali, Muhammad Hashim, Hadith Methodology, [Kuala Lumpur, Ilmiah Publishers,

2002]

Khallaaf Abdul-Wahhab, Ilm Usuul-lfiqhi, [Cairo, Maktabat Adaawa Al-Islamiyyah]

Maalik Bin Anas, Al-Muwatwa’, [Muassassat Zaaid Bin Sultaan Al-Nihiyaan, 1st Edn ,
2004]

Muslim Bin Al-Hajjaaj, Swahihil Muslim, [Beirut, Daar Ihyaa Turaath Al-Arabi]

Philips Bilaal, The evolution of fiqh, [Riyadh, Tawheed Publications, 2nd Edn, 1990]

Qadri, Anwar Ahmed, Islamic Jurisprudence in the modern world, [Delhi, Taj Company,
1997]

Zaidan, Abdul- Karim, Al-Wajiz fi Usulul fiqh [Beirut, Muassassatur-Risaalat, 1987]

113
 APPENDIX I

NAMES OF MECCAN SURAS

Here are the names of the Meccan Suras308:

Al-Fatihah, Al-An’am, Al-A’raaf, Y’unus, H’ud, Y’usuf, Ibrahim, Al-Hijr, An-Nahl, Al-
Isra’, Al- Kahf, Maryam, Ta-Ha, Al-Anbiya’, Al-Mu’minu’n, Al-Furqaan, Ash-Shu ’ara,
An-Naml, Al-Qasas, Al-Ankabuut, Ar-Ruum, Luqmaan, As-Sajda, Saba ’, Faatir, Ya-Sin,
As-Saaffaat, Swaad, Az-Zumar, Ghaafir, Fuswilat, As-Shuura, Az-Zukhruf, Ad-
Dukhaan, Al-Jaathiyah, Al-Ahqaaf, Qaaf, Azh-Zhariyaat, At-Tuur, An-Najm, Al-Qamar,
Al-Mulk, Al-Qalam, Al-Haaqqah, Al-Ma’rij, Nuun, Al-Jinn, Al-Muzzammil, Al-
Muddaththir, Al-Qiyaamah, Al-Mursalat, An-Naba’, An-Naazi’at, Abasa, At-Takwiir, Al-
Infitaar, Al-Mutaffifin, Al-Inshiqaaq, Al-Buruuj, At-Taariq, Al-A,la, Al-Ghaashiyah, Al-
Fajr, Al-Balad, Ash-Shams, Al-Lail, Adh-Dhuha, Ash-Sharh, At-Tiin, Al-Alaq, Al-Qadr,
Al- A’diyaat, Al-Q’ari’ah, At-Takaathur, Al-Asr, Al-Humazah, Al-Fiil, Quraish, Al-
Ma’un, Al-Kauthar, Al-Kafiruun, Al-Masd, Al-Ikhlaas, Al-Falaq, An-N’as.

APPENDIX II

NAMES OF MEDINA SURAS

Here are the names of the Medina Suras309:

Al-Baqarah, Al-Imraan, An-Nisa’, Al-Ma’idah, Al-Anfaal, At-Taubah, Ar-Ra ’d, Al-Hajj,
An-Nuur, Muhammad, Al-Fath, Al-Hujuraat, Ar-Rahmaan, Al-Hadiid, Al-Mujaadilah,
Al-Hashir, Al-Mumtahanah, As-Swaff, Al-Jumu’ah, Al-Munaafiquun, At-Tagaabun, At-
Talaaq, At-Tahriim, Al-Bayyinah, Az-Zalzalah, An-Nasr.

308
Al-Hilaali & Khan, Translation of the meaning of The Noble Qur ’an, Madinah, King Fahad complex for the
printing of the Holy Qur’an, appendix 1
309
Ibid

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 ABOUT THE AUTHER

Dr. Sowed Juma Mayanja is a Ugandan and holder of a PhD in Shariah, an M.A in
Shariah and a B.A in Shariah from Islamic University in Medina, Kingdom of Saudi
Arabia.

He also holds a Postgraduate Diploma in Education (PGDE), from Islamic University in

Uganda, a Diploma in Law from Law Development Centre (LDC), Kampala and a
Certificate in International Humanitarian Law (IHL) from University of Pretoria, South
Africa.

Dr. Mayanja worked as a Coordinator of the Faculty of Law at its inception at Islamic
University in Uganda in 2004, then as a Deputy Dean of the Faculty and also as the Dean
of the Faculty of law from 2008 to 2010.

Currently, Dr. Mayanja is a Lecturer and Dean of the Faculty of Law and Shariah at
Zanzibar University, Tanzania.

Other Published Work by Dr. Mayanja includes:

1) The Shariah and its role in the promotion of International Justice, an Article
published in Islamic University in Uganda Journal of Comparative Law, Vol. 1,
2007.

2) Adoption under both Ugandan and Islamic Laws; a comparative analysis, an

Article Published in Islamic University in Uganda Journal of Comparative Law,
Vol. 3, 2009.

3) Protection of Civilian groups under International Humanitarian Law and Islamic

Shariah, an Article Published in Al-Wasiya Journal of Islamic Committee of
International Crescent, issue of January 2011

4) Al-Miraath, The Islamic Law of Succession, A Practical Guide, a Text Book

published in 2012.

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