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Fiqhi Ideas in the 1st Century AH
In any discussion of the Islamic fiqh (jurisprudence) in the 1st century AH it should be borne in mind that this was the formative period of the movement during which no codification had as yet taken place, i.e. there was no “science” of fiqh per se. Any abstraction of fiqhi principles from the surviving sources of the 1st century carried out within the framework of a historical research would of necessity encompass a wide gamut of issues, from religious rules and rites (`ibadat; sing. `ibadah) to matters relating to mu`amalat (sing. mu`amalah: bilateral contract) and government. With the death of Holy Prophet (PBUH) in 11 AH access to divine revelation and direct prophetic sunnah (tradition) was no longer possible and the need arose for juridical education and judgment based on scholarly interpretation of the Qur’an and sunnah. Until the middle of the 1st century AH the great Companions of the Holy Prophet (PBUH) such as Imam `Ali (PBUH), Ibn Mas`ud, Abi b. Ka`b and Ma`adh b. Jabal and during a later period those like Ibn `Abbas and Ibn `Umar were recognized as eminent jurists and fiqhi authorities. None the less, fiqhi differences among the Companions which dated back to the days of Holy Prophet (PBUH) assumed wider scope during this period. The sources of this divergence among faqihs (jurists), in addition to relating to the natural difference of opinion between scholars, goes back to the diversity of hadiths which they based their judgments on, a fact that had taken on regional dimensions.

In any survey of the reports from the period of the Companions it should be borne in mind that the existence of differences among them with regard to certain fiqhi subjects is a fact arrived at based on an analysis of historical evidence. At times, these differences existed among two groups of the Companions, such as the Muhajirun and Ansar, and at other times they arose between a single group of Companion faqihs. Examples of the latter include the disputed fiqhi issues between two of the most eminent faqihs among the Companions, Imam `Ali (PBUH) and Ibn Mas`ud, which became the subject of a book of the same title by Shafi`i. One such issue was the notion of “al-ma’ min al-ma’” which relates to the practice of ghusl (ablution) and which was a contested topic among the Muhajirun and Ansar during the days of the Companions. The controversy prompted the eminent Companion Abi b. Ka`b to set forth a theory which explained away the disagreement as having had its root in a rule that had already been the subject of an abrogation (naskh). Thus, he came to prefer hadiths which were in contravention of the notion of “al-ma’ min al-ma’”. One of the most ancient assertions on the subject of conflict between various prophetic hadiths are the remarks of Imam `Ali (PBUH) reported by Aban b. Abi `Ayyash, which enumerate the factors behind these divergences as (1) outright fabrication, (2) the imagination of the Companions, (3) the issue of the abrogating (nasikh) and the abrogated (mansukh), (4) and the distinction between the general (`amm) and the particular (khass) as well as between the muhkam (clear) and the mutashabih (ambiguous).

In addition to the above factors, the use of personal reasoning in matters about which there existed, or appeared to exist, no explicit injunction in the Qur’an or the sunnah further contributed to the difference of opinion among the Companions over various points of fiqh. There is no solid research on this subject, however, it seems certain that a number of eminent Companions saw themselves fit to issue opinions on ongoing cases about which there existed no Qur’anic verses or prophetic hadiths, a fact that appears to have been especially applicable in the cases of the first caliphs.

Apart from the establishment of new rules in the areas of governmental and economic affairs, which had numerous instances during the days of the first caliphs, new practices were also introduced with regard to matters of personal law and even religion. This was especially true in connection with the first caliphs, the second caliph `Umar in particular. Examples of the latter include the proscription of sale to ummahat awlad and the Tarawih prayers (prayers specific to the nights of Ramadhan). These types of rules, in addition to establishing a new practice or resolving the case of an ongoing dispute, were occasions for effecting a change in a long-established tradition, the examples of which include the legality of triple divorce and, according to some reports, the proscription of temporary marriage (mut`ah).

Based on historical evidence, in the later part of the caliphate of `Uthman (13 – 23 AH), adherence to the sunnah of the Shaykhayn (the first two caliphs) had become obligatory among a vast number of Muslims, instances of which may be found during the sensitive junctures in Islamic history. A prominent example is the six-member council established by `Umar to decide his successor. During its deliberations, `Abd al-Rahman b. `Awf made his allegiance (bay`ah) to the potential caliph contingent on the latter’s promise of loyalty to the Qur’an and prophetic tradition, as well as to the practice of the Shaykhayn, a condition which was agreed to by `Uthman and rejected by Imam `Ali (PBUH) who considered sunnah to be limited to the practices of the Holy Prophet (PBUH). The conflict between these two points of view were still in evidence years later when a man called Khath`ami made the renewal of his allegiance to Imam `Ali (PBUH) conditional upon the Imam’s acceptance of the tradition of the Shaykhayn, along with that of the Qur’an and the sunnah of the Holy Prophet (PBUH), a stipulation which met with the Imam’s stiff opposition. Such insistence on following the sunnah of the Shaykhayn is not detected during the period of the Successors, except among the scholars of the Muhakkimah, such as `Akramah, an early Kharijite faqih, who considered the Shaykhayn among the ’uli ’l-amr whose obedience was obligatory.

A survey of the sources used by the jurists in the period of the Companions in their elaboration of matters of law indicates the basis of their legal opinions (fatawi; sing. fatwa) to have been the Qur’an, whose use was aided by the sunnah of the Holy Prophet (PBUH) in cases where there existed no clear Qur’anic injunction on a particular issue; a practice with roots in the teachings of the Holy Book and one underscored in the surviving sources from the 1st century AH, such as the text of the peace treaty concluded in the aftermath of the Battle of Siffin, in addition to numerous hadiths reported by the foremost among the Companions. None the less, in support of the view with regard to considering additional sources of fiqhi opinion there do exist hadiths from the time of the Companions about using the “judgment of the righteous” in cases where there are no related assertions in the Qur’an or the prophetic sunnah. However, it should be borne in mind that these hadiths, which are attributed to `Umar, Ma`adh b. Jabal, Ibn Mas`ud, Ibn `Abbas and even, by some Zaydi sources, to Imam `Ali (PBUH) came to prominence during the later part of the 1st century AH. Thus, they may not be relied on as solid historical evidence for proving the existence of this point of view during the earlier part of the century.
In the days of the Successors, the opinions of the Companions came to be viewed by faqihs as a reliable source of legal judgment, a fact that served to expand the sources of fatwa (legal judgment) while constricting the scope of personal reasoning. An analysis of the sources of fiqhi disagreement during the period of the Successors indicates the same factors which gave rise to divergences of opinion among the faqihs of the time of the Companions: conflicting reports and traditions, and different viewpoints. The period of the Successors was a time of moving farther away from the days of the Holy Prophet (PBUH) and thus a widening of differences between the transmitted hadiths, a fact that, by the first half of the 2nd century AH, played the primary role in the divergence of fiqhi views among the juridical schools of Hijaz and Iraq. By the close of the 1st century AH the need was felt to devise a method for dealing with conflicting hadiths. For instance, Ibn Sirin set forth a general method based on which in cases of possible reconciliation between two hadiths it was best to choose the one whose practice was tantamount to erring on the side of caution, while the other was also considered as permissible. In the last decades of the 1st century AH, the major factor which distinguished the juridical methods of Iraq and Hijaz was the extent to which personal reasoning (ra’y) was used in the formulation of fiqhi issues. In fact, the school of Iraq which made a wider use of reasoning managed to experience a more rapid progression from the elementary and taqdiri stages of fiqh to its eventual codification. None the less, the juridical schools of Hijaz and Syria (Sham) also succeeded in arriving at a systematization of fiqhi principles within a short period of time. With regard to the assessment accorded to the notion of divergence among fiqhi views, it may be stated that though at first glance it appears as less than desirable, in practice, such differences of opinion were not seen as something to be frowned upon. In fact, in the later part of the 1st century AH, a faqih’s freedom to choose his own sources of legal judgment was viewed as a positive factor. This outlook had found support in hadiths, current in this period, reported from `Amr b. `As and Abu Hurayrah on the authority of the Holy Prophet (PBUH) with contents similar to the following: “should a jurist practice ijtihad (personal judgment) and err in his opinion, he will be worthy of divine reward, regardless of his misjudgement.” At the close of the 1st century AH, when `Umar b. `Abd al-`Aziz (reigned 99 – 101 AH) was asked to bring people together around a single religion, he reaffirmed the legitimacy of local schools of fiqh and showed reluctance in bringing an end to the existing diversity in fiqhi views. The belief that the leveling of fiqhi opinions was to impose undue restriction on people and that fiqhi diversity provided more choice for the practitioners of religion was a view widely held in the decades of transition from the 1st to the 2nd century. A case in point is `Awn b. `Abd Allah Mas`udi, the prominent Kufan Successor, whose remarks affirm such an opinion. Another example is an alleged hadith of the Holy Prophet (PBUH) which had gained wide currency during the same period according to which the difference of opinion among the ummah of Prophet Muhammad (PBUH) (or among his companions) was said to be a source of divine blessing.

In this period, fiqhi schools partook of their regional characteristics, which determined the weight they assigned to the particular companions of the Holy Prophet (PBUH). In Medina, the leaders of the Ahl al-Bayt (PBUT) consisted of a chain of Shi`ite imams (PBUT) who received their source of fiqhi knowledge from Prophet Muhammad and Imam `Ali (PBUT) and who subscribed to a particular method of jurisprudence. However, the continuity and concord among their views did not preclude expansion and development in their teachings, one that kept pace with the overall progress of the science of fiqh throughout the Islamic world. In the 1st century AH, and concomitant with the school of the Ahl al-Bayt (PBUT), there existed among the first and second generations of the Successors a non-Shi`ite fiqhi school in Medina seven of whose leaders came to be known as al-fuqaha’ al-sab`ah (the Seven Jurists). The Medinese fiqh of this period, in spite of its relative diversity, was mainly influenced by the reports of `Umar, `Ayishah, Ibn `Umar and Abu Hurayrah. In the days of the second generation of Successors, Mecca was also considered as another major center of fiqhi activity. The leaders of the Meccan school, such as `Ata’ b. Abi Rabah and Mujahid, based the majority of their fiqhi opinions on the hadiths reported by Ibn `Abbas, as compared with other Companions. From the view point of fiqhi elaboration of issues and flexibility in terms of scrutinizing the authenticity of chains of transmission, the Meccan school bore closer resemblance to that of Iraq than to Medina. In Iraq, the fiqhi views of the earlier Kufan Successors were greatly influenced by the teachings of three of the Companions: Imam `Ali (PBUH), the caliph `Umar, and Ibn Mas`ud. However, among the second generation of the Successors the views of later Companions, especially those of Ibn `Abbas and `Abd Allah b. `Umar, also came to play a prominent role. In spite of this, toward the close of the 1st century AH, the fiqhi atmosphere of Kufah was dominated by two groups of jurists: those with Shi`ite-`Alawite tendencies and the followers of Ibn Mas`ud, who had to a great extent hung on to their traditional views. The `Alawite view was represented by `Amir Sha`bi while the adherents of Ibn Mas`ud were led by Ibrahim Nakha`i, both of whom were as adamant in their traditional policy of refraining from providing answers to direct fiqhi questions, especially those of a taqdiri nature. In Basra, the teachings of the early Successors were mostly influenced by the views of `Umar.

 However, among the second generation of the Successors the views of younger Hijazi Companions, such as Ibn `Umar, were also of wide acceptance. The most distinguished proponent of Hijazi teachings in Basra was Hasan Basri (d. 110 AH). In spite of the fact that certain characteristics of Hasan’s method associate him with the earlier Basran followers of `Umar, his tendency to set forth a multiplicity of opinions and engage in ifta’ (issuance of fiqhi opinions based on personal deduction) distinguishes him from his forerunners. Any effort at classification and arrangement of the sources of fatwa in the period of the Successors must depend on the hadiths which themselves are but reports of what was said by the Companions. However, since these hadiths first gained currency during the era of the Successors they may be considered as historical evidence reflective of their view about the sources of fiqhi judgment. An influential hadith which came into prominence in the 1st century AH is one reported by `Abd al-Rahman b. Yazid and Hurayth b. Zahir from Ibn Mas`ud in which, in addition to the Qur’an and the sunnah, faqihs are encouraged to embrace “ma qada bih al-salihun” (“that which has been judged by the righteous”) as well as to engage cautiously in ijtihad based on their personal opinion.Finally, in the discussion of the 1st century AH, mention should be made of the Muhakkimite faqihs who from a very early date expressed views on certain general fiqhi issues which served to distinguish them as a distinct school of jurisprudence. Towards the close of the century, the Azraqites, the fanatic faction among the Muhakkimites, rejected personal ijtihad, while the Najdites of the same period employed personal reasoning in their fiqhi decisions. The radical Muhakkimites of the 1st century, owing to their Zahirite (literalist) orientation, came to be known for a number of peculiar fiqhi views which included the denial of legitimacy to rajm (stoning).

* source: Pakatchi , Ahmad "Islam Entry" The Great Islamic Encyclopedia. Ed. Kazem Musavi Bojnourdi.Tehran: The Center of Great Islamic Encyclopaedia , 1989-, V.8 ,pp.439 - 442
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