FIQH LECTURES Part I

NASHRODIN E. CALIB
Shari’ahCounselor

Periods of Development of Muslim Law:

1. First Period – is the period from the year 13 before Hijra to 10 after Hijra (608 AD – 631 AD)
during the lifetime of Prophet Muhammad (PBUH) which may be referred to as “The Period of
Divine Legislation”
2. Second Period – the period from 10 AH – 40 AH (631 – 660 AD) also referred to as “The Period
of the Four Rightly Guided Caliphs”
3. Third Period – from 43 AH – 132 AH (661 – 750 AD) The Period of the Umaiyad Caliphate”
4. Fourth Period – from 132 AH 350 AH (750 AD -961 AD) “The Period of the Four Founders of the
Four Sunni or School Of Muslim Laws”
5. Fifth Period – the period from 351 AH or 962 AD to the fall of Baghdad in 656 AH or 1358 AD,
“The Period of the Advent of the Mustawijhun Jurists”
6. Sixth Period – is the period from 656 AH or 1258 AD to the Abolition of the Caliphate in 1922,
when jurists known as the Mugallidun came about
7. Seventh Period – begun from 192 after the abolition of the Caliphate and the Sultanate of
Turkey in 1924 and has not yet come to an end.

THE FIRST PERIOD: THE “LEGISLATIVE PERIOD OF MUSLIM LAW”

Revelation: its meaning
It is type of knowledge which the person recognizes deep within himself with a certitude that it
has come down from God, whether directly or through meditation. Direct revelation is brought to
the ears of the person thru a voice or thru other means.
By inspiration (wahi) means that God puts certain sense or meaning into Prophet Mohammad’s
heart or sometime the Omnipotent God without being seen spoke to him in the same way as when
he spoke to Moses, and this is what is meant that God speaks from behind a veil; or by sending the
Archangel Gabriel to Muhammad with God’s messages either by the appearance of the Angel in the
form of a man before Muhammad, or while the latter is in a trance, in the same way as when the
Angel appeared to Joseph in a dream to inform Joseph of the conception of Mary of the child Jesus.
The Mekkan Period
The first sign of his prophetic vocation, accdg to his own words, was the discovery that
everything which he dreamed happened in his waking hours precisely as he had foreseen it. After a
time he felt a strong inclination to seek solitude and withdraw to Mount HIra, north of Mekkah.
This was a spiritual withdrawal broken only occasionally by visitation to the town for food. He
received his first revelation on the 17th day of Ramadhan (February 610 AD) in the Thirteenth year
before the beginning of the Muslim Era.
3 THEMES OF MAKKAN SURAHS:
1. The unity and attributes of God
2. The moral duties of mankind, and
3. The retribution in the next world
Subsequent Mekkan Quranic verses were revealed during the time when Muhammad
PBUH was conducting his private lecture in great secrecy were brief and in which references to
the earlier part of his public life were many. The sum and substance of his teaching during this
period was “I believe in God, His Angels, His Books, His Prophets, and Doomsday and all good
and evil are from God” or the Six (6) Pillars of Islam.

1
 The main achievement of Muhammad PBUH in Mekkah was the founding of Islam which
was broadly completed by the time of the HIjra but its institution which were still in a
rudimentary state were organized in the Madinite Period.
THE HIJRA PERIOD
With the HIjra, the Mekkan preparatory period ended, and at Yathrib or Madina, the
period of expansion of Islam and the Muslim law began. While at Mekkah, he was only a Nabi
(Prophet) of God, in Madina he began his public ministry as a Rasul (Apostle) of God to convey
his message to humanity. This was the turning point in the life of Muhammad PBUH and Islam
the religion of peace he preach.
THE MADINITE PERIOD
In Yathrib, he started his work as a Rasul of God to convey God’s Message to Humanity.
Hence came about the MadiniteSurahs covering about one third of the Quran which were more
elaborate and dealing broadly with religious, civil, criminal, fiscal and military laws and
regulations, including the Five Pillars of Islam, and governing social practices such as slavery and
polygamy, the giving of Alms and such other matters.
The MadinaSurahs differ from the MekkahSurahs, the latter give guidance to the
individual soul and to the Prophet as Warner, the former give guidance to a growing social and
political community and to the Prophet as exemplar, lawgiver and reformer.
BATTLE OF BADR. It was the first taste of battle for the Muslims against the Quraysh of
Makkah. The Muslims although ill-equipped, but moved by the strength of their faith and
discipline, won this battle. This was undoubtedly a great achievement of the believers in Islam,
and the Makkans saw what appeared to be a miracle performed not only by the Prophet but
also by his followers.
BATTLE OF UHUD. At the start of the battle, the Muslims made some successes against
the Makkans, and seeing the victory was certain, broke their line and scampered for the booty
of war. The Muslims lost the battle of Uhud due to their own fault and this defeat served as a
lesson to them frim discomfiture, in scores of occasion in battle fought in future.
BATTLE OF KHANDAQ. The Makkans besieged Madina with full force until two weeks
passed without any headway made by the Makkan force and the men have become dispirited,
depressed, and misunderstanding grew among the allies, until finally sandstorm struck on the
night destroying their tents and scanty supplies, scattered their pack and riding animals, and
gave the coup de grace to their morale and by morning they dispersed in confusion. Thus the
attempts of overwhelming odds to crush the Muslims were frustrated and the power of the
Makkan alliance was broken forever. The complete failure of the Makkans had laid the
foundation of the Muslim state in Madina which was shorty to expand all over Arabia and the
neighboring countries. Meanwhile, Muhammad PBUH had brought an economic deadlock to
the Makkans which made them changed their outlook towards the Muslims.

About after a year after the battle of Ahzab, the Prophet saw in a vision that he was
performing the Hajj to the Kaaba. He thought of performing an Umrah during the sacred month
when everybody when the pilgrimage to the Kaaba was never denied to anybody even to the
worst enemy. He was informed that they will be received by the Makkans with spear and
sword. He sent back words that they are not coming to fight but to pilgrimage and were
prepared to maintain peace with the Quraysh. The Quraysh settled to discuss a term of peace
with the Muslims but the negotiations failed. When the Prophet felt that his efforts to perform
Umrah or negotiate peace seems futile , he finally decided to take a pledge with his followersh
his followers called the Bayt al Ridhwan (Pledge of God’s Pleasure) to die to a man in defense of
their faith and not to flee in the event of conflict. The Quraysh realizing that the Muslims
controlled their trade route to Syria, having experienced the steadfastness of the Muslims to
Islam under the banner of their Prophet, and their own losses against the MUlims in battles had
convinced the Makkans of their weakness and chastened their spirit. The term of the truce was
for ten years. It was generally unfavorabke and humiliating to Muslims. Prophet Muhammad
2
 PBUH received a Devine Revelation: “Surely we have given that a clear victory.”Fath al-Mubin.
The truce enabled Muslims to mix fully with the Nomadic tribes and the allies of the Makkans
and to propagate their virtues without fear of the Quraysh. As a result, within a year and a half,
the Prophet could muster 10,000 Muslim warriors to march on to Makkah and establish Islam
there and shatter the idol of that place into pieces.

CONQUEST OF MAKKAH. The Quraysh violated the term of the treaty of Hudaybiyah
and when Muhammad PBUH demanded of the Quraysh to respect and comply with the treaty,
the latter instead preferred the abolition of the treaty. Thus on the 10th of Ramadhan 8H, the
Prophet set out for Makkah at the head of 10,000 well-armed followers. He wanted a bloodless
cAHonquest of Makkah so he asked the Makkans to surrender peacefully the city, guaranteeing
to them their safety. The Makkans realizing the futility of any resistance surrendered, and the
Muslim soldiers marched victoriously to Makkah.

FAREWELL PILGRIMAGE. Prophet Muhammad PBUH after having founded Islam and
established a Muslim state, on the 15 of DhulQadah 10H (632 AD) leading about 14,000
Muslims went to Hajj. On the 8th of DhulHijjah, he called upon his followers to assemble in the
valley of Arafat and delivered his last message to thise who were present to convey his message
to those who were absent.

THE SECOND PERIOD OF MUSLIM LAW

The Period of the Four Rightly Guided and Pious Caliphs (Khulafa-i-Rashidin) 10 AH to 40; also
known as the Thirty Years Period of the Orthodox Khilafat (Caliphate). With the death of the Prophet,
he Divine Legislation came to an end. He is considered the last and the seal of all theProphets and none
follows after him. He had left the Quran, and his traditions for their guidance. The issue of a successor
to lead the newly established Muslim state devolved upon his principal companions, and this led to the
next era of the period of Muslim law.

The FIRST CALIPH, ABU BAK’R “AL-SIDDIQ” IBN UTHMAN (632-643 A.C)

He was born in the second year of the year of the Elephant (570 AC). He was successful in
placing back the Muslim states under the Muslim rule, and preserving the unity of Islam. During his
period, a large number of the “Huffaz” (Quran memorizers) were killed in battle. Umar al Khattab
reminded him of the apprehending danger of losing the Quran memorizers and advised him to make
arrangement for the compilation of the Quran. Zayd bin Thabit, the Prophet’s secretary who had taken
down most of the Madinitesurahs, was entrusted with the important task. He collected all the pieces
together and put them into one volume. He inscribed the various verses in the Mush-haf only after two
men had born testimony that they had heard the Prophet utter during the revelation.

Abubakar wasalso like others known for his knowledge and devotion to the primary sources of
Islamic Law. Since no Qadis (judges) were appointed, he himself administered justice. He is believed to
be the first to establish prisons for the malefactors. During his reign, the Quran was his primary source
of law to govern the Muslims. In his administration of justice, he gives preference to the explicit ruling
found in the Quran or Hadith and only when failing to find light from either of the two, that recourse is
made to the counsel and line of action favoured by the majority of the ulamas (thru Ijma) and
consensus of the community.

THE SECOND CALIPH, UMAR IBN AL-KHATTAB (634-644 AC)

After the death of Abubakar, the copy of the Quraan compiled during his time was passed on to
Umar and he in turn entrusted the Divine Book for safekeeping to his daughter HAPSAH, the widow of
Prophet Muhammad PBUH. On Hapsah’s death it found its way to Abd Allah b. Umar al Khattab, who in
turn give it to Marwan, the governor of Madina. It is from that authentic original compilation of the
Quran that the third caliph Uthman based his copies, and distributed as the official copies to be used.
The present day copies of the Quran are based from that later copy.

3
 The Second Caliph therefore, could be creditedfor preserving the original authentic copy of the
Quran compiled during the period of the First Caliph. His greatest achievement was the greater
expansion of the Muslim dominion into formerly non-Muslim territories and consequently the
application of Muslim law to the Muslim colonies in those new territories.The Quran and the traditions
of the Prophet continued to be the primary laws of the Muslims.

With the growth of the Muslim empire, the affairs of the community became more complex
arising from new events and circumstances from which no provision had been made. In the absence of
a clear authority, the caliphs who were the companions of the Prophet, had to guide themselves by the
light of their reason, having regard to those usage of the community which had not been condemned
by the Prophet. Ijma-i-ummah (consensus of the community) became the third source of law. A way of
solution to the difficult legal problem. They had to decide the points with reference to the spirit in
which certain traditions were handed down by the Prophet and with reference to the necessity of the
moment and the interests of Islam.

He enforced the principle that the majesty of the law was supreme and that the administration
of justice must be above suspicion of subservience to executive authority. He systematized the
administration of justice by placing the judicial machinery on a right tract. He initiated the appointment
of the first Qadi (judge) thereby introducing a judicial reform from that employed by his predecessor.
He also believed in the supremacy of the laws and the independence of the judiciary. He displayed a
high degree of regard for the equality of men. He abolished slavery among the arabs, and the selling of
war prisoners into slavery. The social status of women were raised.

THE THIRD CALIPH, UTHMAN IBN AFFAN (Nov. 644 – June 656 AD)

When he took over as Caliph, he pursued the policy of expansion of the Muslim empire and
consequently followed the spread of Islam, and the application of Muslim law.

When HUDAYFAH BIN YAMAN noticed the variation in the recitations of the Persians and
reported this to Uthman and suggested to preserve the uniformity of the recitations. He summoned for
the Quranic sheet entrusted to Hapsah and summoned three people from the Quraysh known as the
KOREISHITES who were considered experts on the knowledge, precision and control of the material of
the book and commissioned them to write down the Mush-Haf (Quran) according to the last revision,
which the Prophet before his death had made of the Quran. The Koreishites made four copies of the
Mush-haf, three of which he sent to distant cities of Kufa, Busra, and Damascus, and he kept the other
one with him.

The standardization of the script and pronunciation was undoubtedly a great service to Islam
that Uthman rendered thereby preserving the script used during the time of the Prophet himself.

THE FOURTH CALIPH, ALI BIN ABU TALIB (June 656 – Jan 661)

During his reign, the problems of the caliphate during the time of Caliph Uthman fell on his
shoulders which troubled him until his death. He continued the policy of expansion of the Muslim
dominion and the Muslim rule.

Ali being a good scribe himself and a learned man, employed himself occasionally as a scriber of
the Quran, and after the death of the Prophet, he devoted six months in order to arrange the chapters
in the order of revelations. He knew the Quran by heart and wrote a commentary upon it. Under his
supervision, Abu’lAsward-al-Dyali compiled the first Arabic grammar specially for non-Arabs who
committed mistake in reciting the Quran. He is said to transmitted 586 HADITHS, 20 of which were
accepted unanimously by Bukhari and Muslim, 9 others were also acknowledge by Bukhari alone, and
50 by Muslim only. He was a noted jurist like Hazrat Umar. He had for the first time systematically
defined the powers and jurisdiction of Qadis. He, in fact, completed the task of the judicial machinery.

With his death, it brought to a close the age of the Four Orthodox Caliphs. This period, from the
point of view of jurisprudence, was characterized by a close adherence to the spirit of the ordinance of
Islam. Law was administered by the head of the state and the Church, or under his direct supervision.
4
The boundaries of Islam expanded with the growing rapidity and it came into contact with the laws and
customs of different subject nations. The first four caliphs were men of action and experience of the
world and law in their hands, while it was separated from religion became imbued with principles of
practical application. Thus, while the period of the Prophet from HIjra to his death is known as the
period of divine legislation, the 30 years period of the Four Orthodox Caliphs from 11 AH to 40 AH, may
be considered as the period of compilation and codification of the Quran.

THE THIRD PERIOD (41 TO 132 AH or 661AD to 750 AD) The Period of the UMAIYAD CALIPHATE

The rise of the Umaiyad dynasty started with the proclamation of Muawiya as Caliph in Safar
40AH or 660 AD. The caliphs of this dynasty were not generally noted for their knowledge of the sacred
laws, except Umar Bin Abdul Aziz, who was remarkable not only for his rigid piety, but also for his
extensive knowledge of the law and the traditions. There are many traditions which rest upon his
authority.

The Qadi still administered justice, but law during the reign of the Umaiyads grew and
developed only in the lecture room of the professors, who did not come into contact with the practical
concerns of the administration of justice. The zeal for the study of the law did not abate, and during
the latter days of the Umaiyad, it was largely influenced at least in Iraq and Mesopotamia, by recently
introduced science of divinity and scholastic logic.

During the time, the narration of traditions became common. People from different cities came
to the Companions of the Prophet seeking solution to new problems arising on account of change of
circumstances and conditions. The successors of the Companions also expressed their opinions on such
problems basing on a tradition and, under this method, the narrations of traditions increased. It is a
sad feature of the time that false or cooked –up traditions came to be narrated by many people, either
to fortify the views of some sects or group or to justify their worldly affairs. Against this forgery of
traditions, Caliph Umar Bin Abdul Aziz launched a campaign and wrote to the four corners of the
Muslim empire to report genuine traditions from the Prophet. A good and major number of honest,
reliable and truthful personalities acted and worked for truth. These persons struggled their best and
successfully compiled what was true, actual or real, and for which the history of the law remain
indebted.

During the period, distribution began to be made in the rules of Fiqh by Ilm and Usul, which
were later developed by jurists of the succeeding period as distinct schools of thinking. This was given
rise to by the difference of Hadith and Ra’y or personal reasoning (ordinarily known as QIYAS). The
Companions and their successors, in the absence of any basis in the Quran and Traditions, issued
opinion on individual reasoning. There were other persons who limited their opinions rigidly within the
traditions. But there was also a group of people who expressed legal opinions under the limits
provided by the Quran and the Sunna, thru the methods of wisdom and principles set by Usuls. They
argued that the wisdom of the Shari’a permitted them to give their opinions by understanding the
reference and context of the Ahkam in their aims and objectives. In this manner following the Shari’a
evidences, they often expressed opinions which were in consonance with the sacred principles and
rejected the traditions which went against them. In short during this period, there are arose two kinds
of muftis; (1) AHL AL-RAI or people of opinion, and (2) AHL AL-HADITH or the Traditionists.

The rebellion that led to the death of Caliph Ali by Muawiyah resulted in the formation of
several political factions. These factions were the Shia’s, Kharijites, Sunnis and Mutazila. Under each of
these factions, the development of Muslim law was influenced by their independent application of law.

The SHIA’S

Literally means SECT as the word SII conveys a sense of a sectarian; it also means “FACTION or
PARTISAN” and is an abbreviation of the term Shia Ali or the faction which by customary usage of the
jurists identify itself to Caliph Ali and his followers. It accepts the authority of the Quran but differ from
the Sunni as regards the traditions and the sources of law. They do not admit the genuineness of any
tradition not received from Ahl al-Bayt consisting of the Prophet’s son in-law, Ali, Fatima and their

5
descendants and repudiated entirely the validity of all decisions not approved by their own spiritual
imams.

They derived all the laws from the fundamental sources though different in manners, and the
trained clergy or Muslas are the only class that can give legitimate legal responses. The first two
schools of law that became prominent groups in the Shia were the Zaidi School named after Imam
Zaid bin Ali (d. AH 132) who is reputed to be the author of the Majmu-ul-fiqh, which however, was not
preserved in its original form. The second which is followed by the majority of the Shias is the
Imamiyah School, and its leader were Imam Muhammad al-Razir after him Imam JaafarAs Sadiq (died
148 AD) who is distinguished not merely as an Imam of the Shias but also as a man well versed in
Muslim Law and Science.

The IMAMIYYAH SHIA

It is named as such for the reason that it attached fundamental importance to the Imam, held
by the doctrine of infallibility of Imams. Its sources of law are the Quran, the Sunna, and the Consensus
of opinions. The only traditions which are accepted are reported thru chain of authorities going to the
family of the Prophet.

The jurisprudents of the sect submit that after a primary search for finding a basis in the book
and Sunna, if there is no direct authority, it is permitted to use wisdom (rationalism) as against
analogical deduction. Some take the view that reliance on wisdom should not be put for the reason
that what the Imam has said is binding and, thus, what is known is sufficient. They rely on what is
provided in such books as al-Kafi, al-Tahdhib, al-Istibsar, etc. containing the compilations of the
predecessors and consider them to contain information on all legal problems.

As regards jurisprudence, the Imamiyyah Shia School is not very much different from the Shafi’i
School, so much so that some writers have regarded it as a fifth school to be placed with the other four
Sunni Schools. The differences include such things as “Mut’ah” or temporary marriages, which the Shia
tolerate, and the differences over inheritance.

The ZAYDIYAH SHIA

The sect advocated the right of Imam Zayd Ibn Ali, the fifth Shia Imam, and after him, the rights
of the descendants of Fatimah, daughter of the Prophet. One of their oldest works is the book entitled
al-Majma. It comprises the naratives (traditions) and the fatwas attributed to him. One of their best
known books today is al-Rawd al-Hadir, a commentary on Majma. Al-Fiqh al-Kabir by
Sharafal_dinal_husayn ibn Ahmad al Him. (d.1221 AH)

They are the nearest Shia group to the Sunni Schools, its stronghold is in Yemen.

The KHARIJITES

They were members of the earliest of the religious sect of Islam, whose importance lies
particularly, from the point of view of the development of dogma, in the formulation of questions
relatively to the theory of the Caliphate and to justification by faith or by works.

The Kharijites strove to maintain the primitive, democratic principles of Islam. The sect
Kharijism, while embracing Islam, retained their pre-Islamic practices which are opposed to the
accepted Islamic law. They fully rejected the common doctrine of justification by faith without action,
or they do not accept one of the basic declaration of Islamic faith that anything, whether it be good or
not, comes from God. They disobeyed the Prophet’s sayings and violated the law as contained in the
fundamental Shari’a. they opposed the Shias and rejected the Sunni principles. Some of their views
were rather extreme and were regarded by the traditionalist as heretical.

The MUTAZILA

6
 It is the name of the great theological school founded in Busra during the second half of the
Muslim Century (7th AD) which created the speculative dogmatics of Islam. The Mutazilis are those who
prefers the doctrine of I’tizak, i.e. the doctrine of the Manzilabainal’mansilatain or the state
intermediate between belief and unbelief, the fundamental doctrine of the school.

The Mutazila undertook the defense of the creed and principles of Islam on a rational basis.
They discussed such problems as the question of free will, the attributes of God and the positions of
sinners, some of their views were rather extreme and were regarded by the traditionalists as heretical.
The SUNNIS (Traditionalists)

Mutazilah called themselves Sunnis or Traditionists. They formed the bulk of the Muslim world. They
do not subscribed to the idea of the Mutazilah’s reliance on reason and intellect, rather than on
authority of tarditon, and their adherence to tradition earned them the name, Ahl-al-Sunna, because
of their preference of the Sunna or practice of the Prophet than on logic and reasoning.

THE THIRD PERIOD ( duringUmaiyad Caliphate)

With the exception of Umar bin Abdul Aziz, the Umaiyad rulers were little concerned with the
maintenance of the purity and continuity of the Sunna. The administration of law was influenced by
them. The result was the Bid’a.(innovation) crept into the growth of the Sunna. From the beginning of
the second century, the legal scholars began to criticize the practice of the UmaiyadCourst as failing to
implement the spirit of the laws of Islam as laid down in the Quran.

THE FOURTH PERIOD 132 to 350 AH( TheAbbasides Caliphate and Four (4) Madhahibs(749 TO 961 AD)

The Abbasides Caliphs love to patronize learning and extended special encouragement to jurist,
partly it may be from political motives. Baghdad, their capital, became the centre of culture and
attracted jurist and traditionalist from Hijaz, Syria, Mesopotamia and other parts of the empire. They
appointed Qadis, men noted for their learning and legal acumen, and gave handsome salaries and high
place of dignity in the state. The four sunni schools of law, with whose jurisprudence we are
concerned, were founded. The principles of these schools are substantially the same, and they differ
from each other merely in matters of detail. This period marked by a theoretical and scientific study of
the law and religion commenced about the beginning of the second century of the Hijra and practically
ended with the third century.

The HANAFI MADHAB (81-150 AH/700-767 AD)

It was named after IMAM ABU HANIFA AL NUMAN IBN THABIT. He systematized the law for the
first time as a science. He was endowed with talent of exceptional nature and had the true lawyer gift
of detecting nice distinctions. He possessed remarkable powers of reasoning and deduction, which
combined with resources of a retentive memory and clear understanding, brought him into rapid
prominence as a master of jurisprudence.

He relied on personal judgment (RA’Y) and conclusions by Analogy (QIYAS), and his teaching
acquired for him the title of upholder of private judgment (Ahl-ar-Ra’y). He introduced the method of
arriving at a legal opinion by the process of deduction. He said: IF I DO NOT FIND MY ANSWERS IN THE
BOOK OF GOD OR IN THE TRADITIONS OF THE PROPHETS COMPANIONS FROM OPINION I WOULD NOT
DEVIATE TO THE OPINIONS OF OTHERS.

The MALIKI MADHAB (90/95-179 AH or 713-795 AD)

His name is Malik Ibn Anas. He was born in Madina. He studied hadith and learnt the earlier
legal opinions or fatawa. He learnt the Quran by heart. He also studied traditions under several
teachers and Muhadathirs. He was the Imam of Madina. Founded a school of law which exercised a
great influence in his time. His doctrines were not essentially different from those of Abu Hanifa. When
interpreting the Shari’a evidence, the Imam used to rely on the two fundamental sources, the Quran
and the Hadith. Malik learned more upon traditions and usages of the Prophet and the precedents
established by His Companions. He did not place much reliance on Qiyas (analogical reasoning). He
7
upheld the exercise of judgment when the other sources failed himthat is when no solution was to be
found in the Quran and the Sunna. He attached a prepondering weight to the usage and custom of
Madina relying on the presumption that they must have been transmitted from the time of the
Prophet. Thus, he gives the ‘AMAL’ the actual undoubted practice in Madina the preference over
traditions, when both differ, on the other hand , in cases where neither Madina tradition nor
MadinaIjma existed he laid down the law independently, in other words he exercise RA’Y. In the
absence of authority in the fundamental source, he recognized a principle corresponding to that of Abu
Hanifa’sIstihsan namely, that of public welfare (MUSALAHAT) or public good (Istislah) or public interest
(Musalahatul-Mursalah) as basis of deduction. To the four main sources of law, the QURAN, the
HADITH, IJMA and QIYAS, he would add Istidlal (juristic deduction) which according to his school does
not come within the scope of analogy.

Malik’s great work is the Kitab al-Muwatta, his chief book. The Muwatta (smoothed path) is a
very well known collection of traditions and contains about 300 traditions. It is considered the first
orderly collections in law, he base his decisions partly on his personal opinions. The great teachers of
Maliki schools were almost without exception, judges and practicing Lawyers and the prevailing tone of
their work is therefore, practical. They based their doctrine on custom, in their case the custom of
Madina, more than any other schools.

Among Malik’s pupils, MUHAMMAD IBN IDRIS ASH-SHAFI’I attained even greater eminence as a
jurist than the master himself. A foremost disciple of Abu Hanifa, ASH-SHAFII, studied traditions under
him, for three years. Imam Malik died in Madina 29 years after Abu Hanifa.

The SHAFI’I MADHAB of AL-SHAFI’I ABU ABD/ALLAH MUHAMMAD B. IDRIS (150-204 AH or

767-821 AD)

He was born in the Province of Asqalan to where his parents emigrated and settled. He
belonged to the Tribe of Quraysh from Abdul Muttalib. At age seven he learnt the Quran by heart and
memorized Malik’s Muwatta at ten.

He was noted for his balance of judgment and moderation of views and though reckoned
among the upholders of traditions, he examined the traditions more critically and made more use of
analogy than Malik. He allowed greater scope to Ijma (consensus of opinion) than Malik, putting a
more liberal and workable interpretation on the well-known dictum of the Prophet “My people will
never agree in an error”. But he agreed with Malik in adopting ISTIDLAL as a fifth source and rejected
Abu Hanifa’s equity of the jurists.

He objected to the principle of Istihsan (juristic preference) adopted by the Hanafis but himself
introduced the principle of Istihsab (public good or welfare). The principle of ISTIHSAB is a limited
principle. It only applies to cases where there is no evidence obtainable, and at best establishes the
continuance of a fact in existence, which was already proved to have existed. He may be described as
an eclectic who acted as an intermediary between independent legal investigation and the traditionism
of his time. The principal books written by Al-Shafi’I were the Kitab al-Umm, the Kitab al-Hujjah and the
Risalah al Usul. He is regarded as the founder of the Usul al-Fiqh.

HANBALI MADHAB OF AHMAD IBN MUHAMMAD IBN HANBAL 164 AH/780 AD

He learnt the Quran by heart at an early age and began to study linguistics and writings at the
age of fourteen. HE STUDIED Science under Imam Shafi’i. He explicitly stated: I am not a man of
dogmatic theology, rather, I am against it. Only what is in the Book and the Sunna or what has been
authentically related by the companions of the Prophet may be considered.

His great work, a collection of 50,000 traditions reported and known as

“Musnadul’limamHanbal” now forms a valuable addition to Muslim jurisprudence.

The FIFTH PERIOD. 351-656 AH (952-1258 AD)

8
 The jurists of this period are called Mustawjihun as they followed the views of the original
founders of the Schools of law and developed and systematized those views. The doctrines of the
various schools of law were consolidated and codified during this period. The jurists of this period
applied themselves to the task of consolidating the work done by the founders of the schools of law
both in the fields of theoretical science and the practical application of law.

The Qadis or Muslim judges too tended to regard themselves as belonging to particular schools
of law, and they to large extent tended to confine themselves to the administration of the doctrines of
the particular school to which he belonged.

The SIXTH PERIOD. 656 AH – 1319 AH or 1258 AD – 1922 AD TO THE ABOLITION OF THE CALIPH

The jurists of this period are called MUZALLIDUN, as they regard themselves as the followers of
the different schools of law. These jurists took a narrow view of their functions and occupied
themselves in determining which of the conflicting versions of the principal jurists, that is, the founder
of each schools and his disciples on a given question was correct and in the event of differences of
opinion among them, whose view was to be taken as representing the law.

By the beginning of the 4th century of Hijrah (about 900 AD) the point had been reached when
the scholars of all the surviving schools felt that all essential questions had been thoroughly
discussedand a consensus gradually established itself to the effect that from the time onwards, no one
could be deemed to have the necessary qualifications for independent reasoning in law, and that all
future activity would have to be confined to the explanation, application and at the most,
interpretation of the doctrines already laid down. The denial of Ijtihad brought with it the
unquestioning acceptance of the doctrines of the established schools and authorities (TAQLID).

TAQLID connotes the act of following and it has the significance that: “the servants of God who are
linked together by obedience to God receive the commandments of God thru such and such a chain.”
A jurist of this period does not approach a legal problem on his own evaluation of the Shari’a values
but follows the law of the school of which he belongs, as laid down by its founder, his disciples and
followers. It has been said that this process denies the jurists the use of his independent judgment. It is
true that the right of Ijtihad has not been claimed by modern jurists.

IJTIHAD literally means, “striving with full exertion” and denotes the endeavour of choosing in the
light of the Quran and the Sunna between two or more differing legal interpretation and of
deducting from the Quran and the Sunna new rulings for meeting new situations.

The SEVENTH PERIOD.

It is said to begin from the abolition of the Caliphate in 1922 and the Sultanate of Turkey in
1924 and is believed to have not yet come to an end up to the present. After the end of the sixth
period, Sunni Islam had no more recognized head and the history of Muslim law in the period was
greatly affected by the application of the law in every Muslim country. In this period, great inroads
were made by secular law into the domain of the Shari’a in most of the Muslim countries.

Under the impact of modern conditionsand the pressing need to bring the family law into line
with the demands of society, many changes were effected to the law as traditionally applied. In the
near Western influence on Muslim and jurisprudence exerted itself thru the general cultural medium
of Modernism which aims at adapting Muslim to modern conditions by renovating those parts of its
traditional equipment which are regarded as medieval and out of touch with modern times.