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Pre-madhhab fiqh – Aisha Bewley

Title: Pre-Madhhab Fiqh

Author: Hajja Aisha Bewley

Reader: Uthman Ibrahim-Morrison

Publication date: 16/2/2013

Assalamu alaykum. Welcome to the Muslim History Programme of the MFAS. This is the third of 12 sessions which make up the Madhhabs of Islam module. Today’s lecture on pre-madhhab fiqh has been prepared by Hajja Aisha Bewley who, unfortunately, is not available to present it in person. Therefore, I will do my best to read it out on her behalf. The lecture will last approximately 40 minutes during which time you should make a written note of any questions that may occur to you for clarification after the lecture, which under the circumstances will be addressed to the Dean, the DoS and myself. 

Pre-Madhhab Fiqh

When we think about fiqh, we think of the various schools or madhhabs existing today: the Malikis, the Hanafis, the Shafi’is and the Hanbalis. None of these, of course, existed in the time of the Prophet a or the Companions. They are the result of a historical process which extended over generations, each with its own particular process. Most of the schools of fiqh are attributed to their founders in view of their role in their historical formulation: the Hanafis from Abu Hanifa, the Malikis from Imam Malik, the Shafi‘is from Imam ash-Shafi’i, the Hanbalis from Ahmad ibn Hanbal. These are quite late: Abu Hanifa lived from 80 to 148 AH and Imam Malik from 93 to 179 AH, and the other two are later still, ash- Shafi’i lived from 150 to 204 AH and Ibn Hanbal from 164 to 241 AH. There were earlier schools which have since disappeared: like the Syrian school of al-Awza‘i (88 to 158 AH) who rejected ra’y and relied solely on hadiths and the custom of the Companions as a “living tradition”. There were a number of other schools as well, but these are the four Sunni schools still existing. 

As I said, they did not spring from nothing. There was a process after the death of the Prophet a which led to their existence, and we will concentrate on that. Malik represented a tradition which existed in Madina, Abu Hanifa a tradition of deriving judgements from the sources they had (which largely can be seen as the school of Kufa), ash-Shafi‘i tried to bring the two schools together, and Ibn Hanbal looked back on tradition and took the normative practice of the first generations as tantamount to a textual source. Al-Awza‘i in Syria and al-Layth ibn Sa‘d in Egypt also took the normative practice as binding. So we want to look back before this period. In modern terms, we might say that they took common law as legally binding unless there was evidence to the contrary or it was detrimental to the Muslims. Common law is expressed through the established legal practices and precedence in earlier cases is sought (as authority).

There were a number of Companions who were thought of as sources whose opinion could be sought when problems or issues arose due to their proximity to the Prophet a and also their acknowledged grasp of the Message. The four Rashidun Caliphs were the first source and then those whom they consulted. Among those asked for fatwa in addition to the four caliphs Ibn Sa’d mentions: ‘Abd ar-Rahman ibn ‘Awf, Mu‘adh ibn Jabal, Ubayy ibn Ka‘b and Zayd ibn Thabit. He also mentioned ‘Abdullah ibn Mas‘ud and Abu Musa al-Ash‘ari. So when a problem arose, people went to these Companions to ask for their opinion and they had to formulate answers to the situations and problems which presented themselves. You get not just “What did the Prophet a do?” but “What would the Prophet a have done?” because new situations had arisen which required decisions.

There are few judgements from the time of Abu Bakr, largely due to preoccupation with the Ridda War and because he remained only two years. Nonetheless in those decisions which he made, he set the precedent for the method to use in reaching decisions. Maymun ibn Mahran narrates: 

 “When a dispute was brought before Abu Bakr, he would first look into the Book of Allah. If he found that on which he could base his judgement, he gave that judgement. If it was not found in the Book and he knew that there was a sunna from the Messenger of Allah a in that, he would give judgement according to that. If that was lacking, he would then go out and ask the Muslims, saying that a certain case had arisen and ask, ‘Do you know if the Messenger of Allah a gave any decision about that?’ Sometimes a group would gather around him and all of them would mention the same decision from the Messenger of Allah a. Abu Bakr would say, “Praise be to Allah who has placed among us those who have preserved what our Prophet a did!’ If he did not find any sunna of the Prophet a regarding it, he would gather the leaders and the best of the people and consult them. When they all agreed on the decision, he would give that decision.” (ad-Darimi)

So the method when there was no ruling in the Book or Sunna, was to consult and reach a consensus on what was the best course to follow.

‘Umar’s caliphate lasted ten years and saw great expansion and, of course, the need for judgement in many new situations which arose. The role of ‘Umar in Islam was very important. Indeed, it is crucial. While the Prophet a was in the house of al-Arqam in Makka and there were only about forty Muslims and they could not even pray at the Ka‘ba, the Prophet a prayed: “O Allah, support Islam with the one of two men You love most: ‘Umar ibn al-Khattab or ‘Amr ibn Hisham.” When ‘Umar became Muslim, Jibril descended and said, “Muhammad, the people of heaven rejoice in the Islam of ‘Umar.” ‘Abdullah ibn Mas‘ud said, “‘Umar’s becoming Muslim was an opening and his Hijra was a victory and his emirate was a mercy. I remember when we could not pray at the House until Umar became Muslim. When ‘Umar became Muslim, he fought them until they let us pray.”

There are many traditions reported about ‘Umar. At-Tirmidhi reported that the Messenger of Allah a said, “If I had not been sent among you, ‘Umar would have been sent,” and in al-Bukhari and Muslim, “Nations before you had inspired people (muhaddathun), and if there is any such in my nation, it is ‘Umar.” He a also said, “Allah has placed truth on the tongue and in the heart of ‘Umar.”

‘Umar followed the same method as Abu Bakr and consulted the other Companions before making a decision about something, as ‘Amir said, “‘Umar did not decide an affair which had not been decided before except after consultation.” You can see this in the reports from ‘Umar. He always asked for the opinions of the Companions and then came to a decision. He consulted the Companions about setting up the diwans, or registers, for the distribution of the booty and organising the armies. The setting up of the Bayt al-Mal came about after a huge amount of money came from Bahrayn. Walid ibn Hisham suggested doing what the Byzantines did. Ibn Sa‘d says:

Abu Hurayra came to ‘Umar from Bahrayn. Abu Hurayra said, “I met him in the ‘Isha’ prayer and greeted him. He asked me about the people and said, ‘What are you saying?’ I said, ‘I have brought 500,000 dirhams.’ He said, ‘What are you saying?’ I said, ‘100,000, 100,000, 100,000, 100,000, 100,000.’ He said, “You are dozing off. Go back to your family and go to sleep. Come to me in the morning.’” Abu Hurayra said, “I went to him and he asked, ‘What did you bring?’ I answered, ‘500,000 dirhams.’ ‘Umar said, ‘Is it good?’ I answered, ‘Yes. I only know that.’ He said to the people, ‘Much wealth has come to you. If you wish, you have a certain number, or if you wish, we will measure it for you.’ A man said to him, ‘Amir al-Mu’minin, I saw that the non-Arabs had a diwan on the basis of which people were given stipends.’ So he formed a diwan and allotted the first Muhajirun 5000 each, the Ansar 4000 each and the wives of the Prophet a 12,000.”

He consulted them about the amount he should receive from the treasury. So his view often indicated a consensus. A lot of firsts come from ‘Umar. He was the first to be called the Amir al-Mu’minin, the first to use the Hijra for dating, the first to collate the Qur’an in copies, the first to make a sunna of praying the tarawih in Ramadan and people agreed to do that. That was in the month of Ramadan 14 AH. He appointed two reciters for people in Madina: one recited for the men and one led the women in prayer. He was the first to impose 80 lashes for wine. He was the first to have a night patrol in Madina. He was the first to start the conquests and the first of those who put pebbles in the mosque. That was because of the noise people made by hitting their hands together to get the dust off of them.

And if he was proved wrong in a decision he would retract his decision. He once said in a speech, “Do not be excessive in women’s dowry. If she is noble in this world or has taqwa with Allah, the Messenger of Allah a would have been more entitled to that than you, and none of his wives or daughters was given a dowry more than 12 uqiyyas.” A woman got up and said, “‘Umar! Allah gives us and you forbid us! Does not Allah say ‘and have given your original wife a large amount do not take any of it.’” ‘Umar said, ‘The woman is right and ‘Umar was wrong.'” In one variant, “‘Umar bowed his head and said, “Everyone has more fiqh than you, ‘Umar!”

After the Sunna of the Messenger of Allah, ‘Umar’s fiqh, legal rulings and customs formed the stamp which became the Madinan, and ultimately, Maliki school. It really represented a consensus because it was based on consultation. ‘Umar was not simply making arbitrary decisions. Shortly before his assassination, ‘Umar said about his governors: “I sent them to teach people their deen and the sunna of their Prophet, to be just to them and distribute their booty between them and to refer to me that which is unclear to them in their business.” So there was a teaching process as well as administrative and military functions.

One of the Companions whom ‘Umar often consulted was Zayd ibn Thabit, the main scribe in charge of the collection of the Qur’an. Humayd ibn al-Aswad said that Malik said, “The Imam with the people with us after ‘Umar ibn al-Khattab was Zayd ibn Thabit, and the Imam of the people after Zayd ibn Thabit was ‘Abdullah ibn ‘Umar.” According to Sulayman ibn Yasar, ‘Umar and ‘Uthman put Zayd’s opinions above everyone else, with particular reference to qada’ (legal judgements), fatwa, al-fara’id (the fixed shares in inheritance) and recitation. Az-Zuhri said that this continued until his death in 45/665 about which Abu Hurayra said, “The scholar of the Community has died.” He was also described as the most proficient in shares of inheritance.

‘Umar appointed Zayd a qadi. He left Zayd in charge when he went on a journey. He also was in charge of such things in Madina during the caliphate of ‘Uthman, ‘Ali and Mu‘awiya. When we say ‘Qadi’ in these times, the situation was more fluid than all judicial decisions being under the control of a particular appointed position. That was a gradual process. The qadi replaced the traditional hakam (arbiter), meaning that he would apply judgement which directly came from or reflected the rulings in the Qur’an and Sunna rather than simply negotiating whatever seemed easy. They also dealt with cases of dispute in areas like business, marriage, land, and the like, or questions of inheritance. Criminal offences went before the caliph or his governor. 

Bukayr ibn ‘Abdullah said, “Most of the judgements and fatwas which Sa‘id ibn al-Musayyab took came from Zayd ibn Thabit. It rarely happened that when a judgement or important fatwa was referred to Ibn al-Musayyab, which was related from one of the Companions who was absent from Madina or from someone else, he would not ask, ‘What was the position of Zayd ibn Thabit about it? Zayd ibn Thabit was the most knowledgeable of people regarding previous judgements and had the most insight into what was referred to him about which he had not heard anything.’ Then Ibn al-Musayyab said, ‘I do not know of a statement of Zayd which is not acted on and on which there is not a consensus in the west and east, or on which the people of Egypt do not act. Hadiths and knowledge have come to us from other people on which I have not seen any of the people act.” Salim noted that the scholars went to other lands and gave fatwa based on their opinion and Zayd ibn Thabit remained in Madina giving fatwa to the people of Madina and to others who came.  He continued to do this until his death during the caliphate of Mu‘awiya. We have a report in which Marwan, the governor, had a man asking Zayd questions while people were taking notes. Zayd noticed this and asked to be excused as he was giving his opinion. He was cautious about his opinion becoming a written source.

Other Companions who were qadis in the early days outside of Madina include ‘Ubada ibn as-Samit in Syria, ‘Abdullah ibn Mas‘ud in Kufa, the Companion whom ‘Umar sent there as a qadi and Mu’adh ibn Jabal in Yemen. The Hanafi school developed in Kufa from Ibn Mas‘ud and ‘Ali through Ibrahim an-Nakha‘i to Abu Hanifa. (This also included the rulings of Qadi Shurayh.) So the process was happening throughout the Muslim centres, based on the authorities closest to the sources who were available.

We now reach the next generation, the Tabi‘un. In Madina, ‘Ali ibn al-Madini said, “Twenty-one men took from Zayd, who followed his opinion and established it: Qabisa, Kharija ibn Zayd ibn Thabit, ‘Ubaydullah ibn ‘Abdullah ibn ‘Utba ibn Mas‘ud, ‘Urwa ibn az-Zubayr, Abu Salama, al-Qasim ibn Muhammad, Abu Bakr ibn ‘Abdu’r-Rahman, Salim, Sa‘id ibn al-Musayyab, Aban ibn ‘Uthman, and Sulayman ibn Yasar.” This includes the seven fuqaha’ of Madina. This is the next generation, the Tabi’un.

Sa’id ibn al-Musayyab, one of the seven, was born in ‘Umar’s caliphate (when two years remained of it) and died at the age of 72 in 100 AH. It is said that Sa‘id ibn al-Musayyab was the principal transmitter from ‘Umar. Layth said, “That was because he had the best memory of people regarding his judgements and rulings.” He is described as the “faqih of the fuqaha’” and “the scholar of the scholars”. Malik said that the caliph ‘Umar ibn ‘Abd al-‘Aziz “did not give a decision until he had asked Sa’id ibn al-Musayyab.” Az-Zuhri and Makhul said that he was the ablest faqih they ever met. He himself said, “There is no one left with more knowledge of every decision which the Messenger of Allah made, every decision of Abu Bakr and every decision of ‘Umar than me.” He is also recorded as giving fatwas while the Companions were still alive – for there was confidence in his ability to reach a correct decision. 

Someone asked az-Zuhri about the source of Sa‘id ibn al-Musayyab’s knowledge. The answer was: “Zayd ibn Thabit. He also sat with Sa‘d ibn Abi Waqqas, Ibn ‘Abbas and Ibn ‘Umar, and visited the wives of the Prophet a, ‘A’isha and Umm Salama. He listened to ‘Uthman ibn ‘Affan, ‘Ali, Suhayb and Muhammad ibn Maslama, and many of his transmitters go back to Abu Hurayra whose daughter he married. He listened to the companions of ‘Umar and ‘Uthman.” He is often mentioned as “having the most knowledge of the people of Madina”.

The second of the seven fuqaha’ who formulated the fiqh of Madina in the time of the Tabi’un was ‘Urwa ibn az-Zubayr ibn al-‘Awwam. He was the brother of ‘Abdullah ibn az-Zubayr and the nephew of ‘A’isha and died in 94 AH. ‘Urwa was concerned with recording the fiqh and hadith he learned, and it is related that he wrote books; but he was afraid that they might become books alongside the Book of Allah and so he destroyed them. His son Hisham related that he had books which he burned on the day of the Battle of Harra. He later regretted that, however, and used to say, “I would rather have them in my possession than my family and property twice over.” He was better known for transmission of hadiths.

Kharija was the son of Zayd ibn Thabit. Al-Qasim ibn Muhammad, the grandson of Abu Bakr, one of the seven, said that when the governor asked him about something, he would use ijtihad. He was a faqih in legal opinion (ra’y), like his father Zayd well-known for that and the science of shares of inheritance. That is why Kharija had few hadiths and many fatwas based on opinion. Because of his great knowledge of the shares of inheritance, he used to distribute people’s inheritances according to the Book of Allah Almighty. Mus’ab ibn ‘Abdullah said, “Kharija and Talha ibn ‘Abdu’r-Rahman gave fatwa in their time. People accepted their statements and they distributed people’s inheritance – houses, palm-trees and property – and they wrote out documents for people.”

According to al-Madini, Malik followed the position (qawl) of Sulayman ibn Yasar, described by Malik as the most learned man after the death of Sa‘id ibn al-Musayyab who followed the opinion of ‘Umar. Sulayman ibn Yasar and his brother ‘Ata’ were freed slaves of Maymuna, the wife of the Prophet a, and he was one of the seven fuqaha’ of Madina. He was learned in fiqh. Al-Hasan ibn Muhammad said, “We consider Sulayman ibn Yasar to be more intelligent than Sa‘id ibn al-Musayyab.” He did not say that he was more learned. When Sa‘id ibn al-Musayyab was asked for a fatwa, he told the asker to go to Sulayman ibn Yasar whom he said was the most learned person then alive. He died in 107/725. There is some disparity about the date. Sulayman administered the markets of Madina when ‘Umar ibn ‘Abd al-‘Aziz was governor.

‘Umar ibn ‘Abd al-‘Aziz was quite important at this point, because he sent out emissaries to instruct his governors and qadis in how to implement the Shari‘a. The process of consultation is also found with ‘Umar ibn ‘Abd al-‘Aziz. When he was governor of Madina, he consulted a group of about ten scholars before making decisions.

“Seven” does not literally mean “seven” and the names of the seven vary. They formed a school which formulated the fiqh of Madina and gave it a distinctive character. Its basis was giving fatwa according to the fatwas of the Companions of the Messenger of Allah a and proceeding in their own way in respect of deriving judgements when they did not find a directly relevant fatwa which had been passed down. Sometimes they would exercise ijtihad according to their own opinions but only in the way in which the Companions had done. This would seem to suggest that the fiqh of opinion or ra’y had a prominent position among them, which would in turn tend to make them seem similar to the people of Iraq. However, the difference between their opinion and that of the scholars of Iraq lies in the fact that the scholars of Iraq used to give fatwas not only on whatever questions came up but as well in respect of things which had not even occurred, in the form of hypothetical questions which they devised. Furthermore, their opinion was not confined to deduction based firmly on transmitted judgements of the Companions. The Madinans only gave fatwas about matters which had actually arisen. The fiqh of opinion was used by them only to derive principles from the fatwas of the Companions and the judgements of the Prophet a which had been transmitted to them and were being acted upon on a daily basis around them in the city of Madina where they had been made.

The process continues. ‘Ali ibn al-Madini said, “”Then the knowledge of all these went to three men: Ibn Shihab [az-Zuhri], Bukayr ibn ‘Abdullah ibn al-Ashajj and Abu’z-Zinad. Then the knowledge of all these went to Malik ibn Anas. Ibn Mahdi liked this isnad and favoured it.” This is the third generation. 

Abu az-Zinad had his own circle in the mosque of the Prophet a in Madina. He died in 130 AH. Rabi’a ar-Ray also had a circle in the mosque. Layth said, “He was the master of the people of fiqh in Madina and their leader in fiqh.” He died in 136, at the beginning of the Abbasid period. Malik sat in his circle and it is evident that the method of ra’y he learned from Rabi’a was not the same as analogy. Its basis was harmonisation of different texts with the best interests of people and how they could best be benefited.

Al-Mahdi’s sons left Malik and told al-Mahdi. He sent to Malik and said, “You refused to come to them, so they went to you and now you refuse to read to them?!” He replied, “Amir al-Mu’minin, I heard Ibn Shihab say, ‘We have gathered this knowledge from men in the Rawda – they are Sa‘id ibn al-Musayyab, Abu Salama, ‘Urwa, al-Qasim, Salim, Kharija, Sulayman and Nafi‘. Then Ibn Hurmuz, Abu’z-Zinad, Rabi‘a and al-Ansari transmitted from them as well as the sea of knowledge, Ibn Shihab. People read to these men and they did not read.” Al-Mahdi said to his sons, “Go and read. These men serve as models.” 

So Malik came to a formulation which already existed in Madina, where there were a greater number of Companions, and gave expression to it. We find this in the Muwatta’ where he says, “The view held among us”, “in our city,” “that which is agreed upon among us”, “the Sunna as understood and practised among us.” So there already was a “school” as it were which was inherited from the Companions of the Messenger of Allah a through the Tabi‘un and the next generation, of which Malik is one. Ibn Farhun quotes in ad-Dibaj:

Ibn Abi Uways stated that someone asked Malik: “When you say in your book, ‘that which is agreed upon among us,’ ‘the view held among us,’ ‘in our city,’ ‘I came upon those with knowledge saying,’ etc. what do you mean?” Malik answered, “The book consists primarily of opinions. But I tell you truly, they are not my opinions. Rather, they are the views which I have heard from many knowledgeable men and the exemplary imams from whom I received learning… Then, having accumulated such a vast amount on their authority, I recorded my own opinion as well, and it is, indeed, my opinion. As for their views, they are the views which they found the Companions adhering to before them. I found them also to adhere to these points of view. This, then, is learning which has been passed down to us over the generations. Any opinion presented here was likewise the view held by an entire community of imams who came before us. “

And he goes on to explain the specific meaning of terms used.

Historians always contrast the people of Iraq and the people of Madina, or the school of opinion and the school of tradition. But there were also the Syrians, as represented by al-Awza‘i. He also insisted on the practice, but the practice of the Muslims, not specifying a location. Since he was in Syria, it might even have been Umayyad practice, given the fact that his school moved to Andalusia – with the remaining Umayyads – after disappearing in Syria. He viewed the practice as starting with the Prophet a, followed by the caliphs and verified by scholars. He also limited the application of hadith and rarely used analogy. So you find that it is similar to the position of the Madinans, and you find the same position with al-Layth ibn Sa‘d in Egypt. For them it was a question of which was the accepted practice, especially when there was a difference of opinion on it.

They often ignored a hadith in favour of the practice, and one must remember that at this point the Muslims had not developed the whole process for ascertaining the soundness of the text and isnad. If the hadith was in conflict with the existing ongoing practice, they assumed that it must be wrong or have limited applicability or have been superseded by something later. Ibn ‘Uyayna said, “Hadiths are a source of misguidance except for the fuqaha’.”

Ibn Abi az-Zinad said, “‘Umar ibn ‘Abd al-‘Aziz used to gather the fuqaha’ together and ask them about the sunnas and judgements which were acted upon. These he would then affirm, whilst those that were not acted upon he would discard, even if their source was absolutely trustworthy.”

Another instance – even earlier – is what Ibn Abi Hazim said: “Abu ad-Darda’ would be asked questions and would give answers and if someone said, ‘But such-and-such has reached us’, contrary to what he had said, he would reply, ‘I too have heard that, but I have found the practice to be different.’”

So up to this point, there was a view that one followed what the previous generations had done. But it reached the point that it was unclear whether those practices were correct or not.  The school of al-Awza‘i seems to have been so tied to the fortunes of the Umayyads that it disappeared with the ‘Abbasid victory, reappearing for a time in Andalusia until the Maliki school replaced it. It is also around this time that schools were called after their most prominent scholar. The real rivalry between the Madinans and Iraqis arises then, followed by ash-Shafi‘is’s attempt to bridge the gap by basically coming up with a new methodology. It is at this point that what we call madhhabs develop.

 That brings us to the end of today’s lecture. For further reading we recommend The Origins of Islamic Law by Yasin Dutton: Introduction; Part One (chaps. 1-3); Part Three (chaps. 8-9). The subject of our next lecture is the madhhab of Imam Abu Hanifa. Thank you for your attention. Assalamu alaykum.

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