Evolution of Fiqh

Fiqh literally means, the true understanding of what is intended. An example of this usage can be found in the Prophet
Muhammad’s statement: “To whomsoever Allah wishes good, He gives the Fiqh (true understanding) of the Religion”.
Technically, however, Fiqh refers to the science of deducing Islamic laws from evidence found in the sources of
Islamic law. By extension it also means the body of Islamic laws so deduced.

Sharee’ah, literally means, a waterhole where animals gather daily to drink, or the straight path as in the Qur’anic verse.
“Then we put you on a straight path (Sharee’ah) in your affairs, so follow it and do not follow the desires of those
who have no knowledge.” Islamically, however it refers to the sum total of Islamic laws which were revealed to the
Prophet Muhammad (SAW), and which are recorded in the Qur’aan as well as deducible from the Prophet’s divinely-
guided lifestyle (called the Sunnah).

The distinction from the previous two definitions, the following three differences may be deduced:

1. Sharee’ah is the body of revealed laws found both in the Qur’aan and in the Sunnah, while Fiqh is a body of laws
deduced from Sharee’ah to cover specific situations not directly treated in Sharee’ah law.
2. Sharee’ah is fixed and unchangeable, whereas Fiqh changes according to the circumstances under which it is applied.
3. The laws of Sharee’ah are, for the most part, general:they lay down basic principles. In contrast, the laws of Fiqh tend
to be specific: they demonstrate how the basic principles of Sharee’ah should be applied in given circumstances.
The Development of Fiqh;
a) Foundation: the era of the Prophet (SW.) (609-632 CE)
b) Establishment: the era of the Righteous Caliphs, from the death of the Prophet (SWA) to the middle of the seventh
century CE (632-661)
c) Building: from the founding of the Umayyad dynasty (661 CE) until its decline in the middle of the 8th century CE.
d) Flowering: from the rise of the ‘Abbaasid dynasty in the middle of the 8th century CE to the beginning of its decline
around the middle of the 10th century CE.
e) Consolidation: the decline of the ‘Abbaasid dynasty from about 960 CE to the murder of the last ‘Abbaasid Caliph at
the hands of the Mongols in the middle of the 13th century CE.
f) Stagnation and Decline: from the sacking of Baghdad in 1258 CE to the present.

The First Stage: FOUNDATION

The first stage in the development of Fiqh covers the era of the Prophet Muhammad ibn ‘Abdillaah’s apostleship (609-632
CE) during which the only source of Islamic law was divine revelation in the form of either the Qur’an or the Sunnah [the
saying and actions of the Prophet (SAW)]. The Qur’an represented the blueprint in his day-to-day life (i.e. the Sunnah)
acted as a detailed explanation of the general principles outlined in the Qur’an as well as a practical demonstration of their
application.
The Method of Legislation
Sections of the Qur’an were continuously revealed to the Prophet Muhammad (SAW) from the beginning of his
prophethood in the year 609 CE until shortly before his death (623 CE), a period of approximately twenty-three years. The
various sections of the Qur’an were generally revealed to solve the problems which confronted the Prophet (SW.) and his
followers in both Makkah and Madeenah. A number of Qur’anic verses are direct answers to questions raised by Muslims
as well as non-Muslims during the era of prophet hood. Many of these verses actually begin with the phrase “They ask
you about.” For example, “They ask you about wine and gambling. Say, ‘There is great evil in them as well as
benefit to man. But the evil is greater than the benefit.” Another example is, on one occasion, one of the Prophet’s
companions asked him, “Oh Messenger of Allah! We sail the seas and if we make Wudoo (ablutions) with our fresh
water we will go thirsty. Can we make Wudoo with sea water?” He replied, “Its water is pure and its dead (sea creatures)
are Halaal (permissible to eat).” The reason for this method of legislation was to achieve gradation in the enactment of
laws, as this approach was more easily acceptable by Arabs who were used to complete freedom. It also made it easier for
them to learn and understand the laws since the reasons and context of the legislation would be known to them. This
method of gradual legislation was not limited to the laws as a whole, but it also took place during the enactment of a
number of individual laws.
In order to achieve the goal of reformation, Qur’anic legislation incorporated the principles of:
a) Removal of difficulty
b) Reduction of religious obligations
c) Realization of public welfare
d) Realization of universal justice.
This period marked the beginning of the evolution of Fiqh and it was during this period that the foundations for the
science of deducing laws from the Qur’aan and the Sunnah were laid by the Prophet (SAW) It might be said that in this
period the first Madh-hab (school of legal thought) took shape as the Prophet (SAW) guided and trained the Sahaabah in
Ijtihaad.

THE SECOND STATE: ESTABLISHMENT

This stage represents the era of the Righteous Caliphs and the major Sahaabah (companions of the Prophet (SAW). It
extends from the caliphate of Abu Bakr (632-634CE) to the Islamic state were rapidly expanded during the first twenty
years of this stage to include Syria, Jordan, Egypt, Iraq, and Persia. Thus, Muslims were suddenly brought into contact
with totally new systems, cultures, and patterns of behavior for which specific provision was not to be found in the laws of
Sharee’ah. To deal with the numerous new problems, the Righteous Caliphs relied heavily on decisions by consensus
(Ijmaa’) as well as Ijtihaad, in which they had been trained by the Prophet (SAW) while they were with him after his
migration to Madeenah. In the course of their extensive use of Ijmaa’ and Ijtihaad, these caliphs established procedures
which later became the basis for legislation in Islam, that is Fiqh.
Problem-solving Procedures of the Righteous Caliphs
Faced with a new problem, the caliph of this period would generally take the following steps in order to solve it:
(1) He would first search for a specific ruling on the problem in the Qur’aan.
(2) If he did not find the answer there, he would then search for a ruling on it in the Sunnah, the sayings and actions of
Prophet (SAW).
(3) If he still did not find the answer, he would then call a meeting of the major Sahaabah and try to get unanimous
agreement on a solution to the problem. (This unanimity was referred to as Ijma.)
(4) If unanimity could not be arrived at, he would then take the position of the majority.
(5) If, however, differences were so great that on over-whelming majority opinion could be determined, the caliph would
make his own Ijtihaad, which would then become law. It should also be noted that the caliph had the right to over-rule the
consensus.
The Approach of Individual Sahaabah to Ijtihaad
In addition to formal meetings of the major Sahaabah which were called by the caliphs for decision-making, there arose
many day-to-day situations where individual Sahaabah were asked to make
rulings. In such cases they tended to follow three general courses of action. In the first place, Sahaabah who were in
decision-making positions made it clear that their deductions were not necessarily as Allah intended. For example, when
Ibn Mas’ood was questioned about the inheritance rights of a woman who had been married without a defined Mahr
(dowry), he said, “I am giving my opinion about her. If it is correct, then it is from Allah, but if it is incorrect, then it is
from me and Satan.”
Secondly, if they made different rulings on a problem in their individual capacities and were later informed of an
authentic (Hadeeth) saying or action of the Prophet (SAW)on the subject, they would immediately accept it dropping all
differences. For example, after the Prophet’s (SAW)death, the Sahaabah held different opinions as to where he should be
buried. When Abu Bakr related to them that he had heard the Prophet (SAW) say that prophets are buried in the spot
where they die, they dropped their differences and dug his grave beneath his wife ‘Aa’eshah’s house. Finally, when
neither authentic proof nor unanimity could be arrived at, the companions of the Prophet (SAW) used to respect the
opinions of each other and would not force other Sahaabah to follow any individual opinion. The only exception to this
rule was if they found people following practices, which though formerly acceptable later became prohibited. For
example, Mut’ah, a pre-Islamic form of temporary marriage which had been allowed in the early stages of Islam, was
forbidden by the time of the Prophet’s(SAW)death. Some of the Sahaabah were unaware of the prohibition and thus
continued to practice temporary marriage during Abu Bakr’s caliphate and the first half of ‘Umar’s caliphate. When
‘Umar became aware of the practice of Mut’ah, he forbade it and prescribed a severe punishment for the offence.

Characteristics of Fiqh During This Period

As we trace the historical development of Fiqh showed different characteristic trends during different periods of political
and socio-economic development. First, we can discern that the outstanding characteristic of Fiqh during the period of the
Righteous Caliphs was its realism; that is, it was based on actual problems rather than on hypothetical or imaginary ones.
This realistic form of Fiqh was later referred to in Arabic as al-Fiqh al-Waqi’ee (realistic Fiqh) to distinguish it from the
hypothetical Fiqh advocated by the “Reasoning People” (Ahl ar-Ra’i) who came to prominence in Kufah, Iraq, during the
time of the Umayyads.
Secondly, although the Righteous Caliphs tended, as we have noted above, to follow certain procedures to achieve legal
rulings, neither they nor the Sahaabah as a whole prescribed set procedure to be followed throughout the Islamic nation
(the Ummah); nor did they make a record of the laws resulting from them
legal rulings. This open mindedness in areas not clearly defined by Sharee’ah reflects, in the first place, the Sahaabah’s
respect for freedom of opinion in such matters. Such an attitude contrasts strongly with the appearance of rigidity on the
part of certain later scholars. In the second place, it was in keeping with the Sahaabah’s policy of recommending for the
masses the careful study of the Qur’aan without the distraction of legal rulings on matters not defined therein.

THE THIRD STAGE: BUILDING

This stage covers the rise and fall of the Umayyad dynasty. The Umayyads were in power for approximately one century,
extending from the death of the last of the Righteous Caliphs (‘Alee ibn Abee Taalib) in 661 CE and the ascendancy of
the founder of the Umayyad dynasty, Caliph Mu’aawiyah ibn Abee Sufyaan, until the last of the Umayyad caliphs around
the middle of the eighth century
CE. The period was marked by great social unrest; the Ummah divided into various sects and factions; the caliphate was
converted into a kingship; many new practices were introduced, some of which were Haraam; the scholars refused to sit in
the audiences of the caliphs and in fact fled to outlying areas to avoid conflict and confusion.

The first attempts at compilation of Fiqh were made during the period of the Umayyads. The scholars of Fiqh during this
period followed two main trends in making their rulings: that of Ahl al-Hadeeth (the people of Hadeeth) and that of Ahl
ar-Ra’i (the people of Opinion). With the dispersion of the scholars there was a marked increase in their individual
Ijtihaads. The overall result was the evolution of a number of new Madh-habs. Both the principle of Ijmaa’ and that of
consultative government were lost due to the scholars’ avoidance of the degenerate Umayyad court. In order to preserve
essential Islamic principles in the face of Umayyad divergence from the Sunnah, the dispersed scholars relied on frequent
narration of Hadeeths and compiled the legal rulings of the most prominent jurists among the Sahaabah. Social unrest and
turmoil sere prevalent during this period and a number of religious sects and political factions came into being. The
Fabrication of Hadeeths in support of sectarian views arose during this stage for the first time. Scholars, therefore, saw a
need to compile and critically analyze the Hadeeths.

THE FOURTH STATGE: THE FLOWERING

This stage extends from approximately 750 CE to 950 CE, and covers the rise of the ‘Abbaasid Dynasty founded by
Caliph Abul-‘Abbaas (reign 750-754) 109, its consolidation and the beginning of its decline. It was during this period that
Fiqh took shape as an independent Islamic science; Islamic scholarship was actively supported by the caliph and it
flourished as discussion and debate on controversial issues became widespread; Madh-habs multiplied’ various
compilations of Hadeeth and Fiqh were made; and Arabic translations of scientific, philosophical and theological works
exerted influence on Islamic thought. By the end of the period, Fiqh was clearly divided into two sections; Fundamental
principles (Usool) and secondary principles of scientific, philosophical and theological works (Furoo’); sources of Islamic
law were identified and deferences developed between the major Madh-habs separating them from each other.
Fiqh took on a definite shape as an independent Islamic science during this period. The many Madh-habs which had
appeared in the latter part of the Umayyad period flourished and the centers of learning increased throughout the
‘Abbaasid state due to state patronage. For the first time the Fiqh of the various Madh-habs was successfully compiled on
a large and systematic scale. Fiqh became organized and divided into two main segments: Usool (fundamental principles)
and Furoo’ (secondary principles) and the main sources of Islamic law were clearly defined and graded. The Sunnah in its
entirety was also collected and recorded in books of Hadeeth by the end of this stage. During the first half of this period,
the Madh-habs under the guidance of their founders continued to experience a great deal of mutual exchange of ideas.
However, under the second generation of students, there was a trend toward rigidity and a breaking down of flexibility
which characterized the period of the great Imaams and the scholars before them.
THE MADH-HABS: SCHOOLS OF ISLAMIC LEGAL THOUGHT
The major Madh-habs were: the Hanafee Madh-hab, the Maalikee Madh-hab, the Shaafi’ee Madh-hab, the Hambalee
Madh-hab, and the Zaydee Madh-hab. These survived largely because of state support and a body of outstanding first-
generation students. The most important of the minor Madh-habs were: the Awzaa’ee Madh-hab, the Laythee Madh-hab,
the Thawree Madh-hab, the Dhaahiree Madh-hab and the Jareeree Madh-hab. These went out of existence either because
of political factors or because their students failed to record the rulings of the founders for posterity. The principal sources
of Islamic law agreed upon by all the major Madh-habs were: the Qur’aan, the Sunnah, Ijmaa’ of the Sahaabah and
Qiyaas. All of the major Madh-habs set conditions for the acceptance of the Sunnah as a primary source of Islamic law:
(a) The Hanafee Madh-hab stipulated that the Hadeeth be widely known (Mash-hoor).
(b) The Maalikee Madh-hab required that the Hadeeth not contradict the Ijmaa’ of the Madeenites.
(c) The Shaafi’ee Madh-hab insisted that the Hadeeth be authentic (Saheeh)
(d) The Hambalee Madh-hab only required that the Hadeeth be attributed to the prophet (SAW) and not fabricated. Thus,
Hadeeths of doubtful authenticity were considered a part of the Sunnah.
The controversial sources of Islamic were:
(a) Istihsaan and Ijmaa’ of scholars, held by the Hanafee Madhhab.
(b) Istislaah, Ijmaa’ of the Madeenites and their customs, held by the Maalikee Madh-hab.
(c) ‘Urf, held by both the Hanafee and Maalikee Madh-hab.
(d) Weak Hadeeth held by the Hambaleee Madh-hab.
(e) Aqwaal ‘Alee (rulings and statements of the fourth righteous caliph, ‘Alee), held by the Zaydee Madh-hab.

THE FIFTH STAGE: CONSOLIDATION

This stage covers the period between the year 950 CE and the sacking of Baghdad (1259 CE) and represents the decline of
the ‘Abbaasid dynasty until its eventual collapse. Competitive debates called Munaad Haraat continued to flourish under
the patronage of the ‘Abbaasid caliphs and some of these debates were actually recorded in books. In time, the spirit of
rivalry largely generated by these debates spread to the masses, and Madh-hab factionalism became widespread. There
was a drastic reduction in the number of Madh-habs, and the structure and operatin of the four that survived became
highly systematized. Scholars within a Madh-hab were obliged to base their Ijtihaads solely on the fundamental principles
(Usool) of their particular Madh-hab. During this period the compilation of Fiqh was further fomalized and used to further
Madhhab rivalry.
The majority of the Madh-habs, which flourished during the earlier periods, disappeared and only four remained. The
Madh-habs reached their final form of systemization and organization. Ijtihaad beyond the structure of the Madh-hab was
dropped and Ijtihaad Madh-habee took its place. Comparative Fiqh arose but was used essentially to advance sectarian
ideas.

THE SIXTH STAGE: STAGNATION AND DECLINE

This stage covers approximately six centuries starting with the sacking of Baghdad in 1258 CE and the execution of the
last ‘Abbaasid caliph, al-Musta’sim, and ending around the middle of the nineteenth century of the Christian era. This
period also represents the rise of the Ottoman Empire, founded in 1299 CE by the Turkish leader ‘Uthmaan I, until its
decline under the attacks of European colonialism.
Ijtihaad in all its forms was put aside, and the blind following (Taqleed) of one of the four Madh-habs was made
compulsory on all Muslims. The four Madh-habs became totally incompatible and the Muslim Ummah was virtually split
into four religeous sects. Scholarly activity was restricted to writing commentaries on previous works and promoting the
position of the author’s particular Madh-hab as in the period of consolidation. There were commendable attepts by certain
reformers to revive the original and dynamic nature of Fiqh, but their efforts proved unequal to the task of eradicating
Madh-hab fanaticism which had become so deeply ingrained. Attempts at the codification of Islamic law were made, but
the results suffered from sectarian views, and with the advent of European colonialism they were supplanted by European
law codes. There has been some lessening of Madh-hab fanaticism in recent years as a result of the reformist movements
and the wide-spread teaching of comparative Fiqh in modern institutions of learning. The state of stagnation and decline
of Fiqh and the existence of Madh-hab factionalism have continued until the present day.