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The Legislative, Judicial, and Executive Branches in Islam — by A. W. Khallaf

The Legislative, Judicial, and Executive Branches in Islam

By Abd al-Wahhab Khallaf

 About the Text:

Law and Governance in Islamic Societies is a translation from Arabic of two lectures by Abd al-Wahāb Kallāf (d. 1956). The materials were originally published in Arabic in two different books. One was published in 1971 under the title Khulāsat Tārīkh al-Tashrī` al-Islāmī. The other was published nearly ten years later under the title al-Sulutāt al-thalātha fī al-islām.

This revised translation is based on the Arabic text of al-Sulutāt al-thalātha fī al-islām, which was published in 1980, but also checked against some of Kallaf’s ideas published in his other works, including `Ilm uṣūl al-fiqh, al-ijtihād wa-‘l-taqlīd, and fiqh al-siyāsa al-shar`iyya.

About the author:

 Abdul Wahhab Khallaf (1888 – 1956) is one of the most prominent jurists and expert in modern Sunni Islamic thought.

Born Abd al-Wahhab Abd al-Wahid Khallaf in the city of Kafr al-Zayyat in March 1888. He received a traditional religious education that led to his completion of the memorization the Qur’an. He joined al-Azhar in 1900. He completed his studies at the Sharia School in 1915 and was one of the first students to join the prominent institution since it was founded in 1907.

Abdul-Wahhab Khallaf became a Sheikh and worked at al-Azhar’s Sharia Judiciary School immediately after his graduation, and he remained there until the start of the 1919 Revolution. During the revolution, he moved to take a judicial position in the Sharia courts (1920). He was appointed director of mosques in the Ministry of Endowments in 1924, and to the Courts Inspection Department in 1931.

In 1936, he was appointed to a professorship of Islamic law position at Cairo University, and he remained affiliated with the institution until his passing due to illness in 1956.


Preface #

This work is a translation from Arabic of two lectures by Abd al-Wahhāb Khallāf (d. 1956). The materials were originally published in Arabic in two different books. One was published in 1971 under the title Khulāsat tārīkh al-tashrī` al-islāmī. The other was published nearly ten years later under the title al-Suluṭāt al-thalātha fī al-islām.

This revised translation is based on the Arabic text of al-Suluṭāt al-thalātha fī al-islām, which was published in 1980, but is also checked against some of Khallāf’s ideas published in his other works including Ilm uūl al-fiqh, al-ijtihād wa-‘l-taqlīd, and fiqh al-siyāsa al-shar`iyya.

Foreword #

Abdul Wahhāb Khallāf (1888 – 1956) was one of the most prominent jurists and experts in Sunni Islamic law. He was one of the religious and secular thinkers who contributed to building the features of the so-called conceptual edifice for Egypt in the era of liberalism, and who encouraged the appearance and participation of religious scholars in the media including radio, television, and newspaper. He was the most prominent person to address the public by radio when radio was established, and later became a public intellectual and a cultural icon.

Born Abd al-Wahhab Abd al-Wahid Khallāf, in the city of Kafr al-Zayyat in March 1888, Khallāf received a traditional religious education. After that, he joined al-Azhar in 1900. He was one of the first students to join the Sharia School since its founding in 1915, and he completed his studies there, graduating in 1915.

Khallāf became a shaykh (religious authority) and worked at al-Azhar’s Sharia Judiciary School immediately after his graduation. He remained there until the 1919 Revolution broke out, with which he seemed to identify. During the revolution, he moved to judicial positions in the Sharia courts (1920); later he was appointed director of mosques in the ministry of endowments in 1924; in 1931 he was appointed to the Courts Inspection Department.

In 1943, Khallāf was appointed as an instructor at the Cairo College of Law. In 1936, he was selected for a professorship of Islamic law at Cairo University, where he remained until his retirement in 1948. While in retirement, the university extended his service, assigning him a teaching role in the graduate studies department, and he remained active in that capacity until his passing in 1956.

Khallāf was an active scholar inside and outside Egypt. Together with his colleague, Sheikh Mahmoud Shaltut (1893-1963), he amplified the work of the Arabic Language Academy by establishing the Islamic Research Academy to engage with scholars outside Sunni Islamic institutions. He and Shaltut were instrumental in establishing and promoting intersect dialogue among Sunni and Shi`a scholars.

In terms of his insight on ijtihād, he identified four conditions that must be met for one to achieve eligibility for ijtihād:

  • Familiarity with the Arabic language and the ways in which its expressions and vocabulary are denoted;
  • Knowledge of the Qur’an;
  • Knowledge of the Sunna; and
  • Understanding of the critical aspects of analogy.

Khallāf left an extensive body of work, all in Arabic, listed here in translated titles to signal the topic and theme of each work.

  • Endowment Provisions and Inheritance Provisions (Rules of Public Trust [Ahkam al-waqf]), al-Nasr Press, Cairo, 1953.
  • Guardianship of Money Law, Dar Al-Nasr Press, Cairo, 1955.
  • Jurisprudence of ShariaPolicy, Dar Al-Ansar, Cairo, 1930.
  • Principles of Jurisprudence—Ijtihād, Dar Al-Kitab Al-Arabi, Cairo, 1950.
  • Science of the Principles of Jurisprudence, al-Nasr Press, Cairo, 1942.
  • Sources of Legislation for What Doesn’t Have a Text, Institute of Higher Arab Studies, Cairo, 1954.
  • Summary of the History of Islamic Legislation, (first printed with the book Ilm uṣūl al-fiqh, Cairo, 1942.
  • Rulings on Legal Conditions in Islamic Law According to the Doctrine of Abu Hanifa and What Should be Done now in the Egyptian ShariaCourts, Al-Nasr Press, Cairo, 1936
  • The ShariaPolicy or the System of the Islamic State in Constitutional, Foreign and Financial Affairs, Salafi Press, Cairo, 1930
  • The Three Authorities in Islam, Afaaq al-Ghad House, Cairo, 1980.

The Legislative, Judicial, and Executive Branches in Islam #

The Time of the Prophet #

This period is characterized by the presence of the Messenger who was receiving revelations from God. It is relatively short, starting from the declaration of his Prophetship (bi`tha) in the year 610 CE until his demise in the year 632 CE. Technically, this period started when he migrated to Madīna in the year 622 CE and lasted until his demise, because during his stay in Mecca, his main objective was to propagate the divine message and to shield himself and his followers from oppression from the Quraysh. At this stage, the source of Islamic law was God and God alone.

Legislation During this Period #

The first pillar of Islamic legislation is the Quran. The number of legal Quranic verses, however, does not exceed 200 verses, most of which were revealed after the migration (hijra), clarifying law in a particular event that already occurred or answering questions posed to the Messenger. These verses do not have the same style and mood for each instance in which they state the rules. The style varies because these verses were not only intended to decree or mandate laws, but also to express the inimitability (i`jāz) of the Quran, and to challenge experts and eloquent unbelievers to create something of its caliber. One example of the Quran’s inimitability is its diversity in language style.

For instance, the Quran includes legal rulings in the form of affirmative or negative imperatives (amr), as it is the case in this verse:

Do marry what you elect from women; couplets, triplets, and quadruplets … [4:3].

And this one:

Do not marry polytheists unless they believe … [4:3].

In other verses, the law is in the form of an indicative statement (khabar), as was the case in this verse:

Divorced women shall wait three months … [2:228].

And this one:

Mothers shall breastfeed their babies two full years for those who wish to finish suckling … [2:233].

In a third example, the law is in the form of an answer to an inquiry (istiftā’), like this verse:

They ask you if war is permitted during the sacred month (al-shahr al-ḥarām); say: great wars during it … [2:217].

And this verse:

They seek your ruling; say God will offer you a decree in [kalāla]; if a man dies and he does not leave behind a child and he has a sister, she shall inherit half of what he left behind … [4:176].

And lastly, laws might be in the form of a clear prohibition or permission, as in this verse:

God has made trade legal and He prohibited usury … [2:275].

And this verse:

It is prohibited for you (to marry) your mothers, your daughters, your sisters … [4:23].

Some scholars have singled out these verses for standalone commentaries, including al-Tafsīrāt al-aḥmadiyya, and Āyāt al-aḥkām by al-Rāzī. Some scholars have looked at these verses from the point of view of their respective school of law (al-madhhab al-fiqhī), and have made it their objective to reconcile between these verses and what their scholars (imāms) have stated. This approach usually leads to errors.

A few notes are in order regarding the Quran’s legislative verses:

  1. Many of these verses embody stated laws as well as the wisdom behind the laws, and the public welfare that necessitated them. In other words, these verses state a ruling and provide its justification. These verses are not limited to a textual statement of laws, as is the case in this verse:

They ask you about menstruation, say it is harmful; therefore, stay away from women during menstruation until they become clean … [2:222].

And this verse:

Surely Satan wants to cause amongst you enmity and contempt through wine and gambling, and wants to prevent you from the remembrance of God and from praying; so, are you going to stop … [5:91].

And the verse concerning the waiting period of a divorced woman in her husband’s house:

… She does not know, God might cause something to happen ... [65:1].

From this perspective, one may conclude that it is the responsibility of a legislator to explain the benefits that a ruling promotes or the harm it avoids to the governed public. Stating the law and the justification of the law ensures the law’s adoption and application, and ensures that people will commit to the laws and honor them, even in the absence of enforcement institutions.

Moreover, providing the law and the justification of the law encourages independent thinking in order to produce laws that meet public welfare needs; since God’s laws are justified by the needs of His servants, it follows that wherever exists benefits and well-being shall exist the law of God. In other words, God’s laws exist as long as public welfare (al-maṣlaḥa al-`āmma) exists.

  1. Many of the Quran’s legislative verses offer a generalized version of the law without mentioning details, as is the case in the verse:

O! You who believe fulfill your contracts … [5:1].

The above verse did not specify the type of contract, nor did it specify the type of obligations that must be recognized.

The verse “God has made trade legal and He has made usury prohibited …” [2:275] also did not specify the usury that is illegal and the trade that is legal.

The verse below did not mention what is ma`rūf, what is munkar, what is ṭayyib, nor what is khabīth.

Command them to enjoin what is good (ma`rūf), warn them against evil (munkar), make fine goods (ṭayyibāt) lawful for them, prohibit them from evils (khabā’ith), and disentangle them from their subconscious evil thoughts and its chains that enslaved them … [7:157]

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Legislative Prophetic Traditions #

Legislative Traditions consist of the sayings and actions of the Messenger, through which he answered requests for a formal legal opinion or stated his point of view regarding a particular event. They are numerous, covering all aspects of life. They are, to some extent, similar in style and in approach to the legislative verses of the Quran. Some sayings consist of the statement of law as well as the justification of the stated law. In order to clarify this, we provide the following examples:

In matrimonial laws:

It is not permitted to marry at the same time a woman and her aunt (sister of her father or mother). If you do so, you cause the discontinuity of blood relation (qaṭ` al-raḥim) …

On the prohibition of selling fruits before it ripens:

Do you see why God prohibited fruit (to be sold before it ripens)? So that no one of you will abuse the wealth of his brother.

On competition:

The believer is a brother of the believer: He shall not over-buy (by offering more money) that which his brother has bought, nor ask the hand of a woman who has been asked by his Muslim brother unless the latter cancels the engagement.

This style, as we mentioned regarding legislative verses, indicates permission to rely on independent thinking. It also rationalizes belief so that Muslims will obey these laws due to conviction rather than fear.

Other Traditions stated laws without any further elaboration. For example, the Tradition prohibiting dishonest trade (bay` al-gharar) does not define dishonesty:

Muslims recognize their terms (al-muslimūna `inda shurūṭihim) …

And:

You shall not inflict harm on others nor on yourselves (lā ḍarara walā ḍirār).

Overall, these Traditions (a) clarify and detail laws stated in the Quran in a generalized form; and (b) state laws not prescribed in the Quran.

Most of the sayings and deeds of the Messenger were of the category that explained or clarified laws stated in the Quran. This assertion is further declared in the verse:

And we have revealed to you dhikr so that you may construe to people what was divulged for them.

For instance, God commanded believers to perform prayers, give alms, perform pilgrimage, and fast during the month of Ramaḍān. The Messenger, on the other hand, simply clarified, through his words and deeds, the commands that were already stated in the Quran. For instance, regarding prayers, the Messenger said:

Pray the same way you see me pray.

He also said:

Learn your rites (manāsik) from me.

As a follow-up on the Quranic prohibition of usury, the Prophet said:

A date for a date, salt for salt, an equal quantity for an equal quantity, a hand for a hand; then whoever increases or asks for an increase is committing usury. If you are dealing in things other than these things, then, trade any way you wish as long as it is a hand for a hand.

In expounding on God’s prohibition of khabā’ith and legalization of ṭayyibāt, he cited rabbits and fish as examples of ṭayyibāt; and lions, some birds with talons, and domesticated donkeys as examples of khabā‘ith.

Legislative aḥādīth concerning issues that were not dealt with in the Quran are extracted from Quranic general principles. When God prohibited simultaneous marriage to two sisters by one man, the Messenger followed up by prohibiting simultaneous marriage with a woman and her aunt (of either side of the parents) by one man using analogy:

If you do that then you cause the discontinuity of the blood relation.

God also prohibited a man from marrying a woman who had breastfed him (ummāhāt min al-raḍā`a) and women who were suckled with him (akhawāt mina al-raḍā`a). The Messenger, then, expanded the law to prohibit—similarly—marriage to an individual who is related through suckling (taḥrīm mina al-raḍā`a) and what is prohibited because of blood relation (taḥrīm mina al-nasab), using analogy between the mother and sister. Hence, all themes in the Sunna can be traced back to a text in the Quran or to part of its general fundamentals or to what was generally implied in its verses. Therefore, legislative verses are considered the first foundation for legislature, whereas legislative aḥādīth are considered the second foundation. One must not consult the Sunna for a formal legal opinion before consulting the Quran. This principle is further supported in the Tradition of Mu`ādh, when a judge was asked about his sources and he answered:

I refer to the Book of God; if I don’t find (a supporting text), then I use the Sunna of His Messenger; if I don’t find (a supporting text), then I use my own judgment (ijtihād).

There is no dissent among Muslim scholars concerning the consideration of legislative aḥādīth as the second foundation of legislation.

Legislative aḥādīth, clarifying themes that in the Quran in general terms, were needed because an explanation must be appended to the text inscribed from God. God mandated giving alms (zakā); the Messenger specified the tax brackets, nature of the taxable assets, the tax rate, and its time span and conditions. So not only should zakā be given, but also it must be given according to the guidelines determined by the Messenger.

As for legislative aḥādīth that state laws not mentioned in the Quran, these were accepted because they were extracted from the Quran using analogy (qiyās) or justified by the general fundamental principles it underscores. Prophetic Traditions were seen as such because the Messenger was illiterate and he could not have been able to initiate all these laws had he not been inspired by divine revelations. If he happened to err in his judgment, God voided his initiative. For example, the Messenger used his own logic and decided to accept ransom (fidā’) for prisoners of war after the battle of Badr; God overturned his decision and redirected him in the verse:

It is not for a Messenger to enthrall prisoners of war until he establishes himself (yathkhan) on earth. You want the worldly reward and God wants the hereafter for you…

He also forgave people who did not report for war during the battle of Tabbūk, but God questioned that decision:

God forgave you when you permitted them …

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Jurisprudence during This Period #

The judicial branch—as was the case with the executive branch—was in the hands of the Messenger [PBUH], a power delegated to him by God:

Govern them according to what God has revealed, and do not follow their wishes instead of what has come onto you from the Truth.

And:

Nay! By your Lord, they shall not be considered believers, unless they choose you as the judge to settle their disputes without being annoyed or discomforted by your decision, and unless they submit fully.

During this time period, it was the Messenger [PBUH] who was in charge of the legislative branch; he also appointed others to serve as judges. Evidence of his authority can be concluded from the following sound Traditions:

Imām Aḥmad reported in his Musnad on the authority of Umm Salmah, Hind, and the wife of the Messenger [PBUH] who said:

Two men came to the Messenger [PBUH] disputing the distribution of an inheritance and neither of them had proof one way or the other. The Messenger [PBUH] said: “You have brought your dispute to the Messenger. I’m a human being. Maybe one of you is more eloquent and presents his argument better than the other. Be aware that I will make my decision given what I hear. So if I give one of you from the right of his brother, he should not take it, because it is nothing but a piece from the fire which he will carry around his neck until the Day of Judgment.” The two men cried and both decided to give up whatever rights they may have had. The Messenger [PBUH] then said: “Now, go and divide (the inheritance) and take each other as true brothers, and take your shares and ask each other for forgiveness.”

Mohammed Ibn al-Ḥasan said: “Abu Ḥanīfa had told us on the authority of Ḥammād, on the authority of Ibrāhīm al-Nakh`ī, that a man married a woman without giving her a dowry, then he died before consummation (before dukhūl). Abdullah Ibn Mas`ūd decreed that she should have a dowry like other women, no more, no less.” After making his decision he said: “If this is the right decision, it is from God; if it is wrong, then it is from Satan. God and his Messenger are not responsible. A man who was in his circle said, “We have heard that this man was Ma`qal Ibn Sinān al-Ashjā`ī.” A Companion of the Messenger said: “By the One we swear by, you have made the same decree the Messenger stated in the case of Berū’ Bint Wāshiq al-Ashja`iyah.” He said that Abdullah was so happy because his decree conformed to that of the Messenger [PBUH].

Mālik reported in his Muwatta: A grandmother came to Abu Bakr asking him about her share in inheritance. He said: “Nothing for you according to the Quran, and we don’t know of anything in the Sunna either. Go home and wait for me until I ask people.” He said: “He asked people and al-Mughīra Ibn Shu`ba said: ‘The Messenger has given her the sixth.’ Abu Bakr asked: ‘Can anyone else confirm this?’ al-Mughīra replied: ‘Mohammed Ibn Muslimah.’ who confirmed al-Mughīra’s story. Then Abu Bakr gave her the sixth.”

The other grandmother came to Umar Ibn al-Khaṭṭāb requesting her inheritance. Umar said: “According to the Quran, you do not have any share. And the previous decree was for someone else. I will not add a thing to the official shares. It is only the sixth. If both of you demanded it at the same time you would have shared it. Since she came first, then it will be hers.”

As for the Prophet’s appointment of other judges during his lifetime, a number of aḥādīth were stated in this regard:

Imām Aḥmad and Abu Dawūd have narrated on the authority of Mu`ādh Ibn Jabal, who said that when he was appointed judge of Yemen the Messenger asked him: “How would you reach a decision if a case is to be presented to you?” He replied: “I consult the book of God.” The Messenger said: “What if you don’t find (anything)?” He said: “Then I consult the Sunna of his Messenger.” The Messenger continued: “What if you don’t find (a ruling) in the Sunna of His Messenger nor in His book?” He replied: “Then I use my own judgment.” He said: “When he heard this, the Messenger put his hand on his chest and said: “Praise be to God who guided the messenger of the Messenger of God to what pleases the Messenger of God.”

Abu Dawūd narrated on the authority of Ali Ibn Abi Ṭālib who said:

The Messenger of God sent me to Yemen as a judge though I was young and I had no experience in judgeship and said: “Indeed God will guide your heart and make your speech firm. If two individuals bring before you a dispute, do not make a final decision until you hear from both sides; that is better for you since the truth will be clearer.” He said, “I’m still a judge and I never doubted a decision I have made so far.”

When God freed Mecca for the Muslims, the Messenger appointed `Utāb Ibn Asīd al-Qurashī al-Umawī, who remained there as a governor and judge until he died during the last days of Abu Bakr’s caliphate.

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Executive Decisions during This Time Period #

We define executive decisions as all actions required by the politics of Muslims and how they go about their affairs besides legislation and judiciary. During his time as Prophet, the Messenger held executive power as well as judicial and legislative powers. Given the exceptional role he was given as God’s Messenger, it was necessary that he supervise the three branches; as a Messenger, he was passing on to the people what was revealed to him from his Lord and inviting them to believe in Him. As a politician, he put in effort to organize his community and oversee their affairs in the light of what God legislated. The net of these activities constituted legislative, judicial, and executive roles. The fact that these three powers were in the hands of one person did not cause any danger that may have necessitated their separation, because he [PBUH] was infallible (ma`ṣūm) and guarded from undertaking an action based on his personal interests or his personal desires. In summary, we can say that he did not share legislative power with anybody; he played the role of the ultimate judge although he appointed others to that position, as we have explained. Finally, he served as the chief executive and he appointed others to secondary executive positions.

In his book, Nihāyat al-Ījāz fī sīrati sākinī al-Ḥijāz, in the section “Takhrīj al-Dalā’il al-Sam`iyyah,” the late Rifa`ah Bic Rāfi’ introduced a summary of the posts and positions that existed during the time of the Messenger and the people who were appointed to hold military, financial, or religious positions. He mentioned the ministry (wizāra), the chief of staff (hijāba), secretariat (kitāba), water distribution (siqāya), natural resources (sadāna), Pilgrimage leadership (imārat al-Ḥajj), Prayers leadership (imāmat al-Ṣalāh), teaching the Quran (ta`līm al-qur’ān), jurisprudence (fiqh), judicial sector (qaḍā’), documentation (tawthīq), inheritance distributor (fāridh al-mawārīth), pensions (nafaqāt), shares (al-aqsām), accountant (al-muḥtasib), announcer (munādī), city guard (ḥāris al-madīna), prison guard (al-sajjān), and law executors (muqīmī al-ḥudūd), among others. The list of these positions is more than two hundred pages long.

As examples, we will enlist the organization of some executive affairs during the time of the Messenger: military affairs, financial affairs, and execution of the laws. Those who wish for more details and further research may consult the book we mentioned above.

During the time of the Messenger [PBUH], military affairs were limited to fighting pagans who stood as hurdles in the way of the Islamic Invitation. An amīr headed each Islamic group going to war. If the Messenger [PBUH] was leaving with the troops, then he was the amīr. If he was staying, he chose someone else to be the amīr of the army. The Messenger had led the armies twenty six times (ghazwa) during his lifetime. He appointed an amīr for more than 56 sariyya. The appointed amīr was not restricted to commanding the troops militarily; rather, he also led the prayers, executed laws, and oversaw all of the troops’ affairs. The amīr, including the Messenger, consulted experts and ranking officers and did not make decisions without consultation.

It was reported that during one of the wars, the Messenger [PBUH] ordered the troops to camp in a particular place. One of his companions asked him if this was an order from God or a military maneuver. When the Messenger [PBUH] replied that it was a military opinion not inspired by God, the Companion objected to it and eventually the Messenger changed his instructions and followed his Companion’s advice.

In Ṣaḥīḥ Muslim, Buraydah Ibn al-Khaṭīb’s authority is recorded as reporting that the Messenger [PBUH] advised the amīr, saying:

Fight in the name of God for the cause of God. You ought to fight whomever disbelieves in God. You shall not surprise or mutilate your enemy and you shall not kill youngsters.

So in short, the Messenger was the commander-in-chief. If he were among the fighting troops, he was the executive commander-in-chief. If not, then he designated someone to oversee all of the military affairs of the troops. The appointed amīr then led, but he generally consulted the ranking officers before making any major decisions.

As for financial affairs, during this time they were limited to administrating the three revenue-generating areas:

  1. War-generated revenues (that which was captured during war, aka ghanā’im),
  2. Fines and fees (fī’), and
  3. Alms and taxes (zakā).

The administrators managed the distribution of generated money as determined in the Quran.

Ghanā’im were distributed as stated in chapter (sūra) al-Anfāl:

Do know that what you’ve collected (from war) for God the fifth …

al-Fī’ was that which was taken from non-Muslims in the absence of war (jizya). It was distributed as stated in chapter al-Ḥashr:

And what God has bestowed on his Messenger from them, you did not tire your horses over it …

Zakā was the taxes on money, cattle, land, and fruit. It was spent or distributed according to the instructions found in chapter al-Tawba:

Indeed, the alms are for the poor, the needy, those in charge of its collection …

The Messenger [PBUH] also used to designate one person—known as ṣāḥib al-maghānim

Figure 1

—to collect and account for ghanā’im during wars so that it was distributed fairly. It was narrated by Wahb Ibn Munabbih on the authority of a man from Quraysh who said:

When the Messenger [PBUH] surrounded Khaybar, some people were so hungry. When part of the city gave up to the Muslim army, one of the Muslims took a pocket of fat but was seen by the person in charge of ghanā’im, Ka`b Ibn `Amr Ibn Zayd al-Anṣārī, who took it from him, but the Messenger [PBUH] said: “Let him go with his pocket.” The man left and shared it with his companions.

The day of the Battle of Yarmūk, the person in charge of ghanā’im was Abu Sufyān Ibn Ḥarb. As for the battle of Ḥunayn, Mas`ūd Ibn `Amr al-Qāri’ was āḥib alghanā‘im.

The revenues of war, or fī’, were distributed immediately. Abu `Ubayd al-Qāsim Ibn Salām narrated on the authority of al-Ḥasan Ibn Mohammed that the Messenger [PBUH] never kept money with him or in his house. In other words, if money was received in the morning, he dispersed it before noon, and if it came in the afternoon, he did not go to bed before distributing it. Abu Dawūd also narrated on the authority of Hawf Ibn Mālik that the Messenger [PBUH] used to distribute fī as soon as it reached him. For that reason, there was no treasury during his time, nor was there an agency to manage the finances of the state; money was always distributed as soon as the Prophet received it.

It is reported that a person oversaw ghanā’im and fī’ until it was distributed. Similarly, the jizyah was administered by an agent who was responsible for its collection and distribution. It was narrated that once the Messenger [PBUH] reached a truce with the people of Najrān and Baḥrayn, he immediately appointed the “honest of the Ummah”—`Ubaydullah Ibn al-Jarrā—to collect the fees from them. When he [PBUH] appointed Mu`ādh Ibn Jabal as governor on Yemen, he also instructed him to collect one dinar or its equivalent from each adult. Other agents were also in charge of charity and alms collection. Ibn Isḥāq reported in al-Siyar that the Messenger [PBUH] used to send his envoys and governors—who could not be counted—to all the lands ruled by Islam. Amongst them: Umar, Khālid Ibn Sa`īd, Mu`ādh Ibn Jabal, and Ubay Ibn Ka`b.

Alms collected by agents were given to another agent called the mustawfī, who brought it to the Messenger. For instance, the Messenger sent Ali [RAA] to Najrān to receive whatever was collected from them as alms by `Amr Ibn Ḥazm and as jizyah by Ubaydah Ibn al-Jarrāḥ.

Alms were then distributed as ordered in the Quran. It was narrated that two men asked the Messenger [PBUH] if they could receive some money from the alms and he replied:

God did not delegate the appropriation of alms (ṣadaqāt) to Prophets nor to anyone else. God mandated their distribution to people who belong to one of the eight social groups; if you are eligible to receive any portion, I will give it to you.

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The Period of the Companions #

This time period extends from the demise of the Messenger [PBUH] in the year 11 Hijrī (H.) to the turn of the century: nearly 90 years. What is of importance here is the fact that none of the sources of law besides the Quran were ever written down. Certainly, Neither the Sunna nor the independent thinking of the mujtahids were recorded. Legislation and judicial matters—from anywhere in the Islamic land—were brought to the attention of the Companions of the Messenger. These Companions, who were prepared to state formal opinions, lived during most of the hundred years after Hijrah, including Anas Ibn Mālik, who died in the year 93 H. Hence this period was dubbed the Period of Companions (`ahd al-ṣaḥāba).

Legislation During This Time Period #

We have already established that during the time of the Messenger [PBUH], no one but him enjoyed legislative power. There were two sources for legislation: God’s revelations and the Messenger’s independent thinking. After his demise, the process of revelation ceased and his independent thinking ended. People in charge of the affairs of Muslims consulted legislative verses in the Quran as well as legislative aḥādīth whenever they needed a ruling concerning a particular issue. However, since these texts were—to some extent—answers to specific events that occurred in the past or answers to the needs of the first generation of the Muslim community, the rulings contained therein were meant for what had already happened, not what was happening now or what would happen in the future.

As the message of Islam spread, more people of different customs and traditions assimilated into the larger Muslim community. This expansion brought within its fold different customs, political order, traditions, social and ethnic diversity, and new political and economic factors that were not present during the time of the Messenger. In this new situation, Muslim scholarship was left with one of two options:

  1. Resort to a third source of legislation from which they could extract Islamic laws and decrees regarding issues not solved by legislative texts. Or,
  2. Choose a group of people to interpret the previously mentioned (two) sources and derive new rulings, so that Islam could continue to provide relevant answers to novel questions in a fast-growing community, ensuring the continuity of the Islamic legislative movement as the Ummaprogressed and developed.

Sources of Legislation during this Period #

Muslim scholars resorted to a third source of legislation known as ijtihād (independent thinking). It consisted of drawing analogies between issues and cases in the two primary sources of law and issues for which legal formal opinion was sought. The Messenger himself guided scholars to this avenue through his actions and sayings, since he himself exerted independent thinking on a number of occasions and he used analogy to extrapolate laws to similar cases. This was evident from his prohibition of simultaneous marriage with a woman and her aunt, hinting to the analogy by saying: “If you do that you cause discontinuity in the blood relation…” He also prohibited daughters (through suckling), as analogous to God’s prohibition of a mother (who breastfed the man seeking her hand in marriage), since both cases shared the same factor. Furthermore, the Messenger [PBUH] explained the reasons behind laws as if he were telling people that these laws were to protect and provide for the welfare of society at large, rather than add more burdens on individuals. He also approved of the independent thinking of a number of his Companions during his lifetime. Furthermore, he stated that the mujtahid would be rewarded regardless of the results of his efforts; rewarded twice if he reached the right decision or rewarded once if he erred. His interview of Mu`ādh Ibn Jabal before sending him to Yemen also legitimized and set guidelines for the mujtahids.

The above actions of the Messenger [PBUH] and other aḥādīth and verses guided his successors to adopt a third source of legislation: ijtihād. God also says in the Quran:

If you dispute any matter, do consult God and His Messenger…

And:

If they consult the Messenger and those in charge amongst them, that which they dispute will be clear to them …

So, successors consulted the Quran, the legislative aḥādīth, then—in cases where they did not find a ruling concerning the issue at hand—they used analogy to extract a new ruling.

In summary, the sources of legislation at this time were three: (1) the Quran, (2) the Sunna, and (3) independent thinking (ijtihād) of scholars among the Companions of the Messenger [PBUH]. Some people add to this list consensus (ijmā`), which is not appropriate since consensus is not a source of law, as scholars reach consensus after they refer to a text in the Quran or the Sunna. Thus, the source would be the text used and not their consensus. In other words, consensus is a proof of the validity of a particular law, but not a source of law per se.

Legislators of This Period #

The individuals who held legislative roles were a handful of the Messenger’s Companions who had lived with him for a protracted period of time, and who were well-known for their scholarship and capacity to memorize the Quran and aḥādīth. They were known as the jurist Companions (fuqahā‘ al-Ṣaḥāba). They lived in different parts of the Muslim world. A large number of Muslims consulted them whenever they needed a formal opinion, hence this class of jurists were looked to as people of the legislative branch of that time period. The most famous of them all were:

  • In Madīna: The four righteously guided caliphs, Zayd Ibn Thābit, and Abdullah Ibn Mas`ūd.
  • In Basra: Anas Ibn Mālik and Abu Mūsā al-Ash`arī.
  • In Shām: Mu`ādhIbn Jabal and Ubādah Ibn al-Ṣāmiṭ.
  • In Egypt: Abdullah Ibn `Amr Ibn al-`Āṣ.

Besides these prominent scholars, other Companions and their students also were known to issue formal opinions as reported by Ibn al-Qayyim, who reported that the number of people who offered formal legal opinions during this time exceeded 135 men and women. Nonetheless, those mentioned remained the most prominent legislators as well as the ultimate judges. Governors and designated judges sought their final ruling in complex cases.

It is worth mentioning at this juncture that none of these individuals earned the title of “legislator” as a result of their succession of the Messenger (as caliphs) or because they were elected as such. Rather, it was because of the amount of the Quran they had memorized, their deep knowledge of the meaning and spirit of legal principles found in the Quran and the Sunna, and their long companionship to the Messenger [PBUH]. The majority of Muslims recognized these qualities in them to the extent that these individuals became the only legislators.

Approaches and Jurisdictions #

The dominions of the early jurists were limited because they were not to override a law already stated in the Quran or in the Sunna. They could only interpret the texts of the Quran and the Ḥadīth to clarify the focus and the implications of stated laws. In the case of a lack of textual evidence concerning particular issues, their prerogative was limited to establishing an analogy to link issues that lacked legal clearance with those that addressed in the Quran or the Sunna. Their role, then, consisted of searching for common reasons behind a prohibition or legalization. We must add that none of these mujtahids ever held the right to state a primary law that could not be supported by the Quran and the Sunna. In this early stage, the consensus of the Companions (as a group) was the only form of legislative process. Later, individuals were able to legislate.

Legislation by Committee #

During the caliphate of Abu Bakr and the first half of `Umar’s caliphate, legislators convened as a group before issuing any law. This was possible since the land ruled by Islam was limited to the Arabian Peninsula and the scholars lived within relatively close proximity to one another. Thus, they were able to gather every time an issue was brought forth. Eventually, legislation—whether an interpretation of text or a pronouncement of new laws extracted using analogy—was issued as the opinion of their committee, not of an individual.

This fact can be supported by the Tradition narrated by al-Bahwī on the authority of Maymūn Ibn Mahrān, who said:

If a dispute is brought to the attention of Abu Bakr, he looks in the book of God; if he finds a solution in it, he makes his decision accordingly; if nothing related to the dispute is found in the book, he considers a Prophetic Tradition that he knew and he uses it to make his decision. If not, he presents the case to the people and asks if anyone knows a statement from the Messenger [PBUH] in this regard. Generally, a number of people will gather to recite what they learned from the Messenger. After which, Abu Bakr concludes by saying: “Praise be to God who made among us someone who memorizes the sayings of our Messenger.” But in the case where there is no evidence from the Sunna, he gathers the most learned individuals and consults them. If they reach a consensus, he uses their decision. `Umar, after him, has followed the same procedure; if he fails to find something in the Quran and the Sunna, he looks to see if Abu Bakr made a decision in a similar case; if not, he gathers the learned scholars and uses their consensus as his final decision.

It is obvious from this Tradition that decisions during this time were collectively reached in a consultative assembly. The caliph only states the consensus reached by the group. For this reason, during this era legislative independent thinking exhibited little disparity, because the jurists were able to compare different narratives in a group meeting and hear all views in one gathering. Such an advantage minimized differences and increased the possibility of attaining a correct decision. For the above reasons, consensus was easily reached during this time period, while it was impossible to attain in later time periods.

Singular Ijtihād and Dissent #

Once the Companions relocated to different parts of the expanding Islamic world, it became impossible for them to convene before releasing a formal opinion every time an issue was presented. This was not practical or possible given the large size of the Islamic nation, the primitiveness of transportation, and the diversity of issues that people of different ethnicities and different traditions raised. For these reasons, in each state (wilāya) there existed one—or more—scholar who taught the people what he had memorized from the Quran and the Sunna, interpreted legal verses and aḥādīth, and issued his own decrees in matters not covered in the Book or the Sunna. In situations where there was more than one scholar in the same state, they met to discuss issues before issuing any formal legal opinion.

Naturally, in these circumstances, disagreements and differences emerged for a number of reasons:

  1. The Sunnawas not written down.

Thus, it was not available as a standard copy for all legislators. The Sunna at this time was transmitted orally, making it possible for people to report on the authority of Abdullah Ibn Mas`ūd what they did not report on the authority of Abdullah Ibn Umar, or narrate on the authority of Abu Mūsā al- Ash`arī what was not reported on the authority of Mu`ādh Ibn Jabal, and so on.

  1. The difference in interpreting legislative verses and legislative aḥādīth:

It was possible that one word could mean more than one thing; therefore, interpretation of a text could differ from one scholar to another. For example, in the verse “and the divorced woman shall wait three qurū’,” the word “qurū’” was understood by Umar and Ibn Mas`ūd to mean menstruation, whereas Zayd Ibn Thābit understood it to mean cleanness (ṭuhr). As a result, they disagreed regarding the length and timing of the waiting period (`idda), whether it was three menstruations or three cleanness periods.

  1. The differences and particularities of the environments where these legislators lived:

In other words, the customs and traditions of the people of Kūfa, where Ibn Mas`ūd lived, differed from that of Madīna, the hometown of Abdullah Ibn Umar, or that of Egypt, the residence of Abdullah Ibn Amr Ibn al-`Āṣ, and the same could be said about the environment of Shām where Mu`ādh Ibn Jabal lived. This disparity in environment effected ijtihād, given that the purpose of ijtihād was to provide for public welfare and prevent any harm or discomfort. Surely, public welfare and comfort differ from one people to another and from one culture to another.

For the above reasons—and other reasons—the mujtahids’ laws varied from one scholar to another. Any given person from the general public was at liberty to choose anyone’s ruling. A Muslim woman, for example, would not hesitate to follow the decree of Ibn Mas`ūd to determine her waiting period, be it three menstrual cycles after her divorce (qurū’ = menstruation), or three cycles starting from the end of the menstrual period following the divorce as understood by Zayd Ibn Thābit (qur’ = ṭuhr). She might even follow one scholar on one occasion and another scholar on another. It was never made compulsory for people to follow a particular scholar on all of the issues that faced them. If one did follow all of these schools of thought, he would not be misled or committing an error, since all these views stemmed from the ijtihād of the Companions, who referred to the same source of legislation and who used analogy. Therefore, none of the scholars deserved to be followed more than the other. It was narrated that Umar Ibn al-Khaṭṭāb once met a man and asked him:

(…) “What have you done?” The man answered: “Zayd has decreed so-and-so for me.” `Umar added: ”If you asked me I would have decree otherwise.” The man asked: “Why don’t you do so, are not you the caliph?” `Umar replied: “If I was to order you to follow the Quran and the Sunna I would. But what I said is just my opinion and so was his (just his opinion). So there is no difference.”

So far, we have indicated that the Messenger legislated using revelations he received from God and that he added to that body of rulings with his own independent thinking. No one succeeded him and claimed to receive divine revelations. However, a number of scholars inherited his role as independent thinkers (mujtahid). Some of his Companions worked to understand the texts. They guided people in the light of their interpretations of the stated laws as well as new laws concerning new issues. Initially, they convened and released opinions that were the product of collective efforts. Later, once these Companions moved to different states, each of them undertook the legislative role along with the scholars who happened to live in the same city where he lived. Later, their students (tābi`ūn) followed the same path. Generally speaking, the legislative role was undertaken by a committee, whether the committee was a group of Companions as in the earlier part of this period, or a small group of scholars who lived in the same state later. The limits and domain of their authority was as mentioned previously.

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The Judiciary and the Judges #

We have said that during the time of the Messenger [PBUH], it was he who served as judge in person; he also delegated that authority to his governors and designated special counsel to settle specific disputes. He never appointed a judge to serve as a judge and only as a judge in any of the Islamic states, because there was no need for such an action, as we have explained. After his demise and during the early days of Abu Bakr’s caliphate, judicial power was encompassed within the caliphate. This is because the caliphate was regarded as a succession (khilāfa) to the ultimate legislative authority, and the caliph was expected to continue inviting non-Muslims to this religion, protecting as well as to governing and organizing the affairs of the people according to God’s words. This type of succession, then, necessitated that the caliph hold judicial power. The caliph needed to be able to serve on any post that helped him to run the affairs of Muslims, even if that meant consolidating legislative, judicial, and executive powers.

The caliph served in the judicial post. He sometimes delegated this authority to others. During Abu Bakr’s caliphate and the first part of `Umar’s, the judiciary post was run the same way it had been operating during the time of the Messenger, because Abu Bakr was particularly uncomfortable with making changes to a procedure or law inherited from the Messenger. In addition, there were not that many happenings requiring a policy change during this period. Evidently, Abu Bakr, who served as a judge in the case of the grandmother when he ruled for her to inherit the sixth, was using the same procedure adopted by the Prophet. He used the Quran and his knowledge of Sunna, as mentioned in the Tradition we cited above. It was reported that when a dispute was brought before `Umar and he did not find a ruling concerning it in the Book or in the Sunna, he asked if Abu Bakr had issued a ruling in a similar case. In other instances, he sought the help of prominent Companions before making a ruling. It was narrated that when he was appointed first caliph, Abu `Ubaydah told him: “I will lift the burden of treasury from you” and `Umar told him: “I will lift the burden of judiciary from you.” He also delegated judicial power to his governors. It was reported that the governors of Abu Bakr used to rule on disputed matters or appoint trusted individuals to help them in judicial affairs. This was the case also during the time of the Messenger.

Once `Umar was in charge, he preserved the same judicial structure set up by the Messenger and maintained by Abu Bakr until the expansion of the Islamic land. At this time, the interests of the state became more complex and the responsibilities of the governors augmented. The caliph alone was no longer able to retain the judicial branch. The same can be said about governors in some of the other states. In the middle of his caliphate, `Umar started a process of separation and decentralization. He delegated judicial affairs to judges. For instance, he appointed Abu al-Dardā’ as judge in Madīna, Sharīḥ judge in Kūfa, and Abu Mūsā al- Ash`arī judge of Baṣra. In this context, Ibn al-Zahrī and Ibn Musīb commented:

Neither the Messenger of God nor Abu Bakr had ever designated judges. It was `Umar who asked Ali to take part of the new responsibilities from him some times in the middle of his caliphate.

It was at this point of history that judges began running the judicial branch. The caliph himself mainly appointed these judges. `Umar Ibn al-Khaṭṭāb first appointed Sharīḥ as a judge in Kūfa, whom he later established as the permanent judge there. Sharīh stayed serving in that position for about seventy-five years—until the time of Abdul Malik Ibn Marwān. On other occasions, it was the governors who appointed judges.  `Amr Ibn al-`Āṣ, then-governor of Egypt, designated Uthmān Ibn al-Qays Ibn Abu al-`Āṣ judge in the same state. However, the governors appointed judges only in the states they governed as determined by the caliph, who had the authority to appoint judges or delegate that authority to his governors to designate judges. It was reported that when Caliph Ali appointed al-Ashtar al-Nakh`ī as governor of Egypt, he wrote to him saying:

… And choose a judge amongst the best of your constituents, one who does not grow tired of serving, nor who is bothered by disputes. One who does not persist erring, nor who shies from returning to the truth once he knows it. One who fears corruption and seeks the maximum understanding instead of the minimum, one amongst them who ponders most on confusion and takes seriously evidence, one who is least uncomfortable with attempting to reconcile between the plaintiffs and the defendants, one who is most patient in unveiling the matters, one who is strict and sure once he sees the ruling and is not doubtful, one who is hard to bribe. And know that they are very few.

Al-Ashtar was killed before he reached Egypt and this document that contained the foundation of judicial policies did not materialize.

The act of appointing judges did not prevent the caliph from serving as judge, since the appointed judge was considered his helper. `Umar, for instance, settled disputes amongst the citizens of Madīna, although he had already appointed Abu al-Baṣra judge of Madīna. All of the other righteously guided caliphs did the same on occasion. As for the governors, I did not read any materials indicating, one way or another, that they participated along with their appointed judges. It appears, however, that the governors who were permitted to appoint judges held themselves judicial authority as well as the power to appoint judges.

References Used by Judges #

Judges at this stage were mujtahids. They solely referred to the Book and the Sunna. If they found rulings in these two sources they used them. Otherwise, they ruled using their own ijtihād. Since the Book was already written down and published so that readers, judges, and muftīs could use it, it was easy for them to determine if a text dealing with a particular dispute at hand existed or not. But because the Sunna was not recorded and published, it was not as simple for a judge alone to determine whether the Messenger of God had ruled in a similar case. For that reason, the judge must consult the learned Companions and scholars in his state to know if there was a Tradition from the Messenger. In the case that he did not learn of any Tradition, he would strive to make his ruling independently. But in most cases, the ruling was stated after deliberation with the council of consultation (shūra). This approach was evident from what we have previously explained regarding Abu Bakr’s and `Umar’s process of consultation with prominent scholars and Companions in the absence of legislative verses and legislative Traditions. When asking if there were Traditions, they would make the announcement public since anyone at that time could have heard a saying from the Messenger. For consultation, however, only prominent Companions and scholars convened, since not all people were capable of issuing a formal opinion or exerting independent thinking. The rest of the righteously guided caliphs and the appointed governors and judges followed the same path. The judges regularly contacted the legislature, so making laws was the result of a consultative process. In each state, individuals who had memorized the Quran and Traditions served as advisors or consultants to the judge in charge. The fact that the judges referred to these scholars was not understood as imitation—since they were all mujtahids—rather, it was an effort to see whether they knew of a Tradition or an opinion that was unavailable to him, so that his ruling did not contradict the Sunna. Collective ijtihād was believed to increase the probability of reaching a correct decision. For the same reason, judges consistently consulted with the caliph before ruling on certain issues, because the caliph had many prominent scholars around him as advisors whose opinions might be closer to the truth.

Despite the fact that the sources of law that legislators referred to at this time were the Quran, the Sunna, or the ijtihād of the consultative councils, the rulings were not recorded as later guidelines or precedent; the shared belief then was to not force anyone to follow anything but the Quran and the Sunna. This also enabled the judges and the scholars to use only these two sources. If one were to read the history of the life of Sharīh, al- Sha`bī, Iyās, Uthmān Ibn Qays, or other judges, he would find very little information regarding the rulings they issued. Whatever little happened to be recorded was intended to express the degree of their maturity in the field of law, or to comment on opinions in specific cases. The same way the mujtahids were free, judges were also unbound by any rules except general guidelines in the Quran and the Sunna. Judges not only performed ijtihād on subject matters, but also performed ijtihād on the procedures in their courts, like requiring proof from plaintiffs and oaths if defendants denied. It was their custom not to rule unless they heard both sides. They showed great commitment to establishing justice, using all necessary means including requiring proofs, oaths, evidence, and even intuition. That is because it was wiser to use all possible means to reach truth and justice than to close the doors in the face of any attempt. For those interested in learning about the freedom of judges and the procedures used at that time, they may read the book: al-Turuq al-Ḥakīma fī al-Siyāsa al-Shar`iyya, by Ibn al-Qayyim (d.751 H.).

Specialization and Jurisdiction of Judges #

Subjective specialization (ikhtiṣāṣ), which refers to the kinds of disputes or issues that constitute a judge’s area of specialty, was never present at this period of time. We know, for example, that `Umar appointed Abu al-Baṣra as judge in Egypt, but we don’t know whether he restricted him to an area of law. Historical documents, however, reflect that judges at this stage ruled in civil disputes as well as family matters. This is evident from the materials presented Ibn al-Qayyim’s book mentioned above. The subjects presented include disputed due loans, claims of wife or child support, and other matters that can be classified as civil claims or civil penal codes.

Professor al-Khiḍrī Bic, may God’s mercy be upon him, said in his lectures titled “Tārīkh al-umam al-islāmiyya” (the history of the Islamic nation) on page 458:

It appears to us that the rulings of the judges during the time of the first four caliphs were limited to civil disputes. Private claims (qiṣāṣ) and public offenses (ḥūdūd) were under the jurisdiction of the caliph and governors. We know that the caliphs and amīrs ruled in matters of murder or flogging the drunker, but we did not hear of any judge who is not a governor and who ruled in these matters or even participated in the execution of laws of this area. Correctional penalties like prison cannot be ordered, save by the caliph or his agents. So, the jurisdiction of judges was very limited.

In Egypt, also, Mu`āwiyya once ordered the judge, Salīm Ibn `Iṭr, to rule in civil disputes.

We can then conclude that judicial power was a partnership between judges and governors who specialized in grievances (maẓālim). Grievance, as explained by al-Māwardī in his book al-Aḥkām al-sulṭāniyya, as:

(…) forcing aggressors to act justly using force, warning the disputing individuals to settle their disputes using authority.

Ibn Khaldūn defined it as:

governance as an imbuement of the power of the king and the fairness of the judge. It needs an upper hand and great fear that can end aggression in disputes and warn the aggressor. The serving agent has to look at the evidence and reports, analyze all the proofs and evidence, delay the ruling until the truth is clear, and force the accused to reconcile before witnesses. These duties are beyond the judge.

Al-Māwardī continued in his book, saying:

None of the four caliphs ever appointed judges, because at this early stage of the life of the Islamic community, people were deterred from persisting in committing aggression through truth and the concept of justice as moral values. Most disputes were a result of discrepancies that needed to be explained by law. As for the rough nomads, warnings were enough to deter them from committing any aggression. Thus the caliphs settled disputes where there was a need to explain or state the law. However, during his late caliphate, Ali [RAA] was forced to introduce stricter laws and pay more attention to the particulars of cases. He was the first one to introduce changes in the legal system and not restrict his duties to rule in disputes.  Because of this increased scope of responsibilities… and when aggression became rampant and warnings failed to serve as a deterrent, a system combining the power of the authority and the justice of the judicial process became needed to stop aggressors and protect the oppressed. The first ruler to reserve one day to hear disputes without being personally involved in the hearing was Abdul Malik Ibn Marwān. He appointed Judge Abu Idrīs al-‘Awdī to execute the laws. Therefore, Abu Idrīs was the immediate Executive Judge while Abdul Malik served as the Ordering (or substantive) one.

What can be concluded from the history of judicial power during this period is that judges were similar to muftīs. Their rulings were similar to decrees, as explained in the quote from Abu al-Ḥasan al-Māwardī:

(…) Disputes were more like inquiries regarding vague issues, about which a person was not sure of the view of the new religion, hence the ruling of the judges were sought simply for clarification.

If a dispute was not a matter as described above, but rather a case of aggression, then, it was the grievances’ agents who would rule. Since people willingly brought their cases before judges, it was not necessary to keep records of cases where the ruling was written down as reference for the aggrieved side. Once the number of disputes increased and denials started to appear, judges were compelled to record their rulings. The first judge to do so was the judge of Egypt, Salīm Ibn `Eṭr, who was appointed by Mu`āwiyya.

As for locale (geographic jurisdiction), it can be concluded from the written documents that judges were appointed to the whole state, the same way a governor was appointed to govern the entire state. The judges could also select helpers and assistants as needed, the same way a governor did.

Evidently, if we read the history of the judicial branch in Egypt or Syria, we would not find any indication of the existence of more than one judge in a single state. So we can conclude that one judge indeed served the whole state. This could be the result of the participation of the governors and caliphs in the settlement of legal disputes, thus causing the number of cases requiring a judge’s legal intervention to be very limited. In other words, each state did not need more than one judge to clarify ambiguous situations. Judges’ activities were conducted in the mosques with few exceptions during the time of `Uthmān, who introduced courthouses.

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A Selection of Rulings from this Period #

Below, we introduce a selection of rulings from the most famous judges of this period. It gives a clear picture of the organization of the judicial branch. These famous cases were reported by Ibn Qayyim al-Jawziyya in the book al-Turuq al-ḥakīma fī al-siyāsa al-Shar`iyya.

It was reported on the authority of al- Sha`bī that al-Muqdād had borrowed seven thousand dirhams from Uthmān. He then returned only four thousand. Uthmān reminded him that it was seven thousand dirhams, but al-Muqdād insisted that he borrowed only four thousand dirhams. The dispute, then, was brought before `Umar. al-Muqdād said:

“O! Commander of the Faithful, ask him to swear that it is as he says, then I will let him have what he says.”

`Umar commented:

“He is fair with you; do swear that it is that much and it will be yours.”

From Ali’s rulings, we report that an orphan female was living with a married man who stayed away from home most of the time. When the orphan grew up, the wife feared that her husband would marry her. She called some of her neighbors, who helped her hold the girl while she broke her virginity with her finger. When her husband returned home, the wife accused the girl of fornication and took her claim before Ali. Ali asked if she had any witnesses. She replied that her neighbors would testify to this effect. Ali sent for them. When they came in, he sent them to separate rooms and put his sword before him then called the wife, who insisted that she was telling the truth and urged him to consider her claim. He sent her to the room and called one of the witnesses. Once before him, Ali set on his knees and said:

“The woman said what she said but now she told the truth and I gave her my word that she will not be harmed. If you do not say the truth I will do so-and-so to you.”

The witness said:

“No, by God she (the girl) did not do anything. The wife saw in the girl some seductive beauty and she feared that she would lose her husband, so she called us to help her do what she did.”

Ali then said:

“God is Great! I was the first to separate between the two witnesses.”

Then he ruled that the wife be penalized for slander (qadhf). As for the women, he forgave them all. He also ordered the man to divorce his wife and marry the orphan and he paid the dowry on the husband’s behalf.

It was reported that two women brought a case before Ka`b Ibn Sūr, the judge appointed by `Umar. Each of the two women had a child but one of them fell on one of the children and killed him. So each one of them claimed that the living child was hers. Ka`b said: “I’m not Sulaymān Ibn Dawūd,” then ordered someone to bring him some fresh soil, which he spread on the ground; then, he ordered each of the women to walk on it. After that he asked the child to walk on the same dirt. Finally, he asked a track trailer to look at the footprints and decide to whom the child belonged.

A man loaned money to another, who later denied borrowing money from him. The case was presented before Iyās Ibn Mu`āwiyya. Iyās asked the plaintiff: “Where did you give him the money?” He answered: “In the wilderness.” Iyās continued: “What was there?” The plaintiff replied: “A tree.” Iyās then said: “Go back there and look around the tree; maybe you have buried the money under it and forgot. Maybe when you see the tree you will remember.” While the man was on his way the defendant remained in the courtroom as the judge continued hearing the rest of the cases. After a while he asked him: “Do you think that your friend reached the tree now?” The defendant answered: “No!” The judge then said: “You are a cheater, O! You enemy of God.” The defendant then begged for mercy but the judge ordered him to be handed over to the plaintiff when he came back, who would go with him to get his money.

I will conclude the presentation of these examples by mentioning what Ibn al-Qayyim reported in al-Turuq al-ḥakīma:

A man asked Iyās Ibn Mu`āwiyya to teach him judgeship. He answered that it cannot be taught, for it is an intellectual matter. But if you ask me to teach you the science which is the heart of the matter, in that regard God has said: “And Dawūd and Sulaymān who have ruled in the case of the field used by some people’s sheep. We were witnesses of their ruling, which we have made clear for Sulaymān and for both of them we have given wisdom and knowledge.” So, He has privileged Sulaymān with the understanding of the case and made the knowledge of it attainable by the public.

`Umar wrote to his judge, Abu Mūsā, stressing the importance of understanding that which is stated in each given case. It is true that Iyās and Sharīḥ were educated men who had acquired a great deal of knowledge in this discipline; however, they also showed a good understanding of the cases and as they relied on signs and witnesses. Governors who lacked these characteristics made bad judges and issued many erroneous judicial orders that caused the loss of rights and denied victims due legal remedies.

Executive Power during this Period #

We earlier defined executive matters of the Islamic state as the various actions and decisions undertaken by the caliph, the governors, and the other agents of the state required to run the affairs of the Umma besides the legislative and judicial affairs. Some researchers defined them as “administrative measures.” They were all of the things which were required by different sectors of the government including financial, educational, military, agricultural, and economic matters. They were also necessary executive actions undertaken by the caliph or governors regarding appointments, removal, and supervision of other administrators. These executive orders extended to determine the job requirements and jurisdictions of these appointed agents. Executive matters also referred to relations between different governing institutions as well as the relationship of governorships (appointed governors) with the leadership (caliphate). In general terms, they included all actions—besides legislation and judiciary—the governing body undertook in order to preserve the interests of the nation and to secure the safety of groups and individuals inside or outside the country.

There is no doubt that examining administrative business of the Islamic state throughout different periods and pondering on its nature as well as its changes is very hard for the researcher to attain. This is due to the fact that this business is not solely of a religious nature that can be extracted from texts of the sources of Islamic laws. It is also due to the diversity of these laws in different states, since each state had its own administrative organization that was compatible with the customs and the needs of its people. Very few historians have occupied themselves with detailing the administrative organization of each state, followed their evolutions, and recorded the differences between the organization of the executive offices in one state or another. Today, we find only fragments here and there recorded along with the Sīra of the caliphs and governors. Mohammed al-Khidrī Bic recorded most of it in his book Tārīkh al-umam al-islāmiyya. Professor Mohammed Kurd Ali also collected some of these issues in his book al-Idāra al-Islāmiyya fī `izz al-`arab (Islamic Administration during the Golden ages of the Arabs), and so did Mr. al-Katānī in his books al-Tarātīb al-idāriyya and Niḍām al-ḥukūma al-nabawiyya.

At this juncture, we will enlist the general foundation on which stands the administration of the Islamic state during this period. Then we will proceed to detail some of the manifestations of administrative work, hoping that these examples from executive affairs, along with what we have presented concerning legislation and judiciary, together can create a clearer picture of the policies of the Islamic government during the time of the Companions.

First principle: The Consolidation of Power #

The executive administration hinged on the authority of the caliphate and the power of the caliph. It was perceived as such, not only because the caliph was the leader of the Islamic state who inherited the responsibility of protecting the religion as well as the policies in this world through the process of bay`a (allegiance), but also because he enjoyed the right to claim control over all operations of the state and execute any order he deemed necessary for materializing that which he promised the people during his election (selection). But since he could not perform all this work by himself, he was obliged to appoint governors and agents who would act on his behalf in certain matters as necessitated by circumstance. In other words, all of the bureaucrats of the state were his deputies, acting on his behalf. He had the power to appoint them, discharge them, and supervise them. Generally, he also determined the authority of the governor and its boundaries. The caliph then enjoyed supreme power and supreme authority. It was possible that a caliph appointed a governor and increased his duties to include choosing the agents and other public servants. This was the case when `Amr Ibn al-`Āṣ was appointed governor of Egypt and Mu`āwiyya appointed governor of Syria. It was also possible for the caliph to appoint a governor and someone else as a special agent to collect taxes and alms; hence, for each of them a special duty. For example, along with `Ammār Ibn Yāsir, who was appointed governor of Iraq, Abdullah Ibn Mas`ūd also was appointed to teach the Quran and supervise finances. `Umar wrote to the people of Iraq when `Ammār Ibn Yāsir was governor, saying:

I have put in charge of your treasury Abdullah Ibn Mas`ūd and I have chosen him for you over myself.

The decision to increase the power of one governor and limit that of another, offering more freedom for one and restricting that of another, depended on how much the caliph trusted the appointee and his assessment of the public interest if governed by one person or another. This conscious selectivity stemmed from his awareness that these duties and responsibilities were actually his, thus he had the right to choose the individual who represented him best. Nothing limited his power in this respect except public welfare. This absolute power was positive when the caliph cared only to serve the public, thus using this power justly in order to materialize public interest. The negative side of this structure, however, emerged once the priorities of the caliph changed when he prioritized acquiring more power and securing the support of particular ethnic and social classes. Such an approach was adopted even if it jeopardized the public welfare.

Second Principle: shūra #

The righteously guided caliphs did not turn the process of governing into a monarchy. They always consulted people of opinion amongst the Companions. Abu Bakr, for instance, used to convene with the muhājirīn and the anṣār, and so did `Umar and the rest of the Rāshid caliphs after him. There are many documents describing the consultative council gathered by Abu Bakr before deciding on the war of apostasy as well as the council `Umar established to discuss taxes assessed on the use of the public lands (arḍ al-sawād). One can easily notice the freedom enjoyed by individuals who served on these councils in expressing their opinions and stating their arguments. These features provide us with a fair assessment of the level of attention awarded to shūra.

Professor al-Khidrī Bic—may God’s mercy be with him—wrote in his book Tārīkh al-umam al-Islāmiyya, on page 354 vol. 3:

If a matter is brought before `Umar, he does not decide on it until he gathers Muslims and consults them about it. He used to say: “There is no good in an individual who decides without consultation.” His consultation was of different degrees; he used to consult the public first, then he gathered the elders among the Companions of Quraysh and others. Whenever they agreed on one view he took it. He said in this regard: “It is the right of Muslims to see the people of opinion amongst them being consulted.”

In Vol. 3, page 454 we read:

`Umar had a private council formed out of prominent Companions like Uthmān, al-Abbās, Ali Ibn Abī Ṭālib, and Abdul Raḥmān Ibn `Awf. He also had a general council made of all individuals of opinions amongst the Muslims. He used to present the issue in the mosque after he called for prayer, and then state what he wanted, and finally he consulted his private advisors.

The same way judicial and legislative branches brought about justice and truth, the consultative process limited the absolute power of the caliph and moderated administrative affairs. But a law obliging the caliph to adopt a consultative government was never institutionalized as a way of preventing him from transforming the caliphate into a monarchy. Even the verses “And consult them in their affairs” (wa shāwirhum fī al-amr), and God’s statement that the way Muslims ought to run their affairs “shall be decided through consultation amongst them” (wa amruhum shūrā baynahum), were not taken as commands to establish consultative councils, nor were they taken to oblige the ruler to adopt the decision of consultative assemblies. This was because some of the scholars—may God forgive them—decreed that the above commands of establishing shūra were of the “preferred” (mandūb) category, not the obligatory one (wujūb). Other scholars, who said that those verses were commands of obligation, added that the advised individual is not obliged to be limited by the decisions of his advisor or of the council. In the light of these interpretations, some of the caliphs destroyed the institution of the shūra and used their absolute power to do whatever they wanted, to the extent that Abdullah Ibn Marwān said: “Whoever tells me “fear God” (ittaqī Allāh) after this moment, I shall cut his neck.” This attitude came to replace that of `Umar, who declared: “Whoever sees me doing something wrong, he must correct me.”

There were no established standards determining the qualifications of individuals needed to serve on consultative councils. In fact, the caliph was free to appoint members of such councils, factor in their recommendations, or do away with the entire process all together without any restrictions. He did not have to consult them at all if he did not want to. It was a trend that the Rāshidūn caliphs consulted those who could provide guidance for them, whereas the non-Rāshidūn caliphs consulted only their inner circles of confidants.

Third Principle: Decentralized Government #

During the period of the Rāshidūn caliphs and in the early part of the Umayyad Caliphate, governors enjoyed absolute freedom. They ran the affairs of their state however they wanted. In some instances, they cherry-picked issues to report to the caliph. There was no central government per se at this stage. Each state was an independent entity. `Amr Ibn al-`Āṣ in Egypt, Mu`āwiyya in Shām, and Sa“d Ibn Abī Waqqās in Iraq all were independent governors running their respective states as they wanted and as they deemed necessary in order to materialize public interest under the supervision of the caliph. But this kind of arrangement was dictated by the caliph and not by written laws. For this reason, when some of the caliphs sought to centralize the government and consolidate more power in their hands, they limited the governors’ powers and prohibited governors from undertaking certain decisions unless they sought prior clearance from them. Al-Ḥajjāj Ibn Yūsuf, for example, was the absolute ruler in Iraq during the caliphate of Abdul Malik Ibn Marwān. He killed, imprisoned, and flogged for any kind of sin. Neither the caliph nor anyone else objected to that. During the time of Sulaymān Ibn Abdul Malik, his power was limited. During the time of `Umar Ibn Abdul `Azīz, once he saw the corruption running rampant among governors who have absolute freedom, he deprived them of this freedom and mandated that any execution of capital punishment laws (killing, flogging, or cutting hands) must be brought to his attention for his personal approval first.

Fourth principle: Qualifications #

Governors and agents were selected carefully during the early part of this period. Only qualified individuals were offered such posts. The selection was never based on special personal favors, nor meant to please particular people. This process was established by the Messenger [PBUH] through his deeds and sayings; he appointed individuals from the Umayyad clan to three-fourths of the positions, although many Hashimites were qualified to a certain extent to hold such positions. When Abu Dharr, for example, asked him for a governor’s position, he turned him down saying: “O! Abu Dharr, you are a weak man.  What you are asking for is a trust.” When the Ash`arī asked for the same thing he replied: “By God I do not appoint for this job someone who asks for it nor someone who insists on having it.” It was reported that he said: “Whoever puts a man in charge of the affairs of a group knowing that there is in the group another man who is better qualified than him, he has betrayed God, His Messenger, and the believers.”

The early caliphs who appointed only qualified individuals adopted this principle. The caliphs then were looking for physically able leaders who also possessed strong moral character. As a result, the administrators of state operations at this early stage were efficient and trouble-free. `Umar was exceptionally good at selecting agents; he prolonged consultation and discussion of the matter before he appointed agents. If it happened that he appointed one, and then later found someone else who was more qualified, he discharged the first and replaced him with the second. Despite the distance separating him from his governors, he was well aware of the way they ran their respective states. He made it a habit to ask any visitor, and open his door to any individual with a grievance. He drew up very strict policies that enabled him to supervise the governors and check the sources of their wealth. These policies strengthened the Islamic state and instilled an atmosphere of order in the public life and effectiveness of administration. Once they moved from this path—the family of Uthmān started appointing agents and individuals on the basis of tribal affiliation and personal favors—the authority of the central government deteriorated and civil wars were ignited. We have discussed this issue in our lecture titled: “al-Muwaẓafūn fī sadr al-dawlah al-Islāmiyya,” which was published in the second issue in the second year of al-Muwaẓẓaf magazine.

In short, this was the principle the Companions adopted to administer public affairs. During this period they managed to govern successfully, which permitted the expansion of the boundaries of the Islamic state. The people of Africa, Egypt, Syria, and Iraq saw justice and fairness in the hands of these Bedouin that they had not seen when they were governed by the Persians or the Romans.

As examples, we mention the administration of the treasury, the administration of the military, and finally the organization of the executive branch during this period.

The Treasury #

We have already said that during the time of the Messenger of God, Muslims did not have a treasury because the revenues of the state were very little compared to its expenses.

Zakā and other kinds of alms were spent as determined by God: “As for alms, they are for the poor… (Mentioning the eight beneficiaries from this type of revenues).”

Ghanā’im were spent also as determined by God: “And know that whatever you have captured, for God the fifth …”

alFee’: “What God Has granted to His Messenger from the people of the cities …”

The rest of revenues were spent on general needs of the state, as we have explained in the section about financial policies in our book: al-Siyāsa al-shar`iyya. At this time, revenues were spent the same day they reached the Prophet’s hands. If there was anything left, the Messenger stored it in his house and in the houses of the Companions.

During the time of Abu Bakr, if any revenues reached Madīna from another state, he took them to the mosque and distributed them as determined above. Later, he established a treasury house in the suburbs of Madīna, but rarely was money stored in it, because revenues during this time did not grow above that during the time of the Messenger. In fact, Abu Bakr followed the procedure of the Messenger in this area like he did in all areas. It was reported that after his demise, `Umar and a few other Companions went to this house to account for the money, but they did not find anything.

During the time of `Umar, however, and with the expansion of the Islamic state and the increase in revenues, `Umar established Dīwān al-kharāj in order to organize the treasury of the state and to balance the budget.

The word dīwān originally meant the place where the money circulates in and out in form of revenues and expenses. Later, it referred to the special written documents and the posts occupied by individuals in charge of the treasury.

Kharāj originally refers to the name of what is due as taxes on the land where non-Muslims reside, hence the name al-arḍ al-kharājiyya. Later, it was generalized to refer to all the state revenue. And, finally, it was used to mean the financial organization, including its revenues and the expenses. For those interested in this this field, we ought to mention the book al-kharāj by Judge Abu Yūsuf, written for Caliph Hārūn al-Rashīd, which is considered to be the best Islamic by-laws on finances.

It was said that Umar decided to initiate Dīwān al-kharāj after receiving a sum of five hundred thousand dirhams from his agent in Baḥrayn, which he kept guarded in the mosque fearing that it might be stolen. Some people familiar with Persia and Shām suggested that he create the Dīwān and he did. Dīwān al-kharāj of Madīna was maintained in Arabic and the people in charge of it were from Quraysh. Dīwān al-kharāj in Shām was in Latin, the one in Iraq was in Persian, and the one in Egypt was in Coptic; and the agents working on them respectively were Christians, Zoroastrians, and Christians, not Muslims, since Muslims did not know the language of dīwān or the method of calculations used. The various dawāwīn remained in their original languages until the Arabs mastered these languages, then they translated them into Arabic. The dīwān of Iraq was translated from Persian by Sālah Ibn Abdul Raḥmān during the caliphate of Abdul Malik Ibn Marwān and the governorship of al-Hajjāj. The dīwān of Egypt was translated from Coptic by Yarbū` al-Fazarī in 87 H. during the caliphate of al-Walīd Ibn Abdul Malik and the governorship of Abdullah Ibn Abdul Malik. The dīwān of Shām was translated from Latin by Abu Thābit Sulaymān Ibn Sa`d during the caliphate of al-Walīd Ibn Abdul Mālik. After that, all records were kept in the Arabic language in all Islamic states.

At this time, state finances were organized so that each state had its own independent budget. In other words, all the revenue of each state was spent within it; the remainder was sent to the caliph to be spent on affairs related to all states. Some revenue was saved for emergencies. This information on expenses was reported in the book titled al-Khuṭaṭ by al-Maqrīzī, who reported that `Amr Ibn al-`Āṣ sent money to `Umar after he kept what he needed for the state of Egypt. It was reported that `Amr did not send him anything for some years. `Umar then wrote to him:

“I have thought about your situation and how you are doing, and I realized that your land is large and fertile. God has given its people the manpower, the animals, and power in the land and in the sea. The pharaohs did well despite their arrogance and their disbelief.  It amazes me that you have not sent me even half of what you used to provide when there was drought.”

`Amr replied:

“I worked during the time of the Messenger and during the time of those who succeeded him and we were—praises be to God—fulfilling the trust, protecting the rights of the community that God valued. We believed that doing otherwise was wrong. God has purified us from the sinful morsels so that we do not even think of it.”

`Umar wrote, answering:

“I did not send you to Egypt to find a morsel of food for yourself, nor for your family. But I chose you for what I hoped to be in your character: save the revenue and govern fairly and justly. Once you receive this book, send me the kharāj, which is the right of Muslims. As you may know I have people in great need.”

`Amr replied:

“The people of this land asked me to wait until their fruits were ready.  So, I did, because I did not want Muslims of this land to be forced to sell what they would not sell otherwise.”

From this correspondence, we can clearly see the governors’ degree of independence during this time. Each state had the option of saving for emergencies. Their net revenue was not all shipped to Ḥijāz. Rather, a portion was stored in the treasuries of Syria, Egypt, and Iraq.  Military personnel and other servants were paid directly from this revenue.

The best feature of the financial administration during this period was that it did not exceed the legal Islamic boundaries of revenue; Muslims and non-Muslims (dhimmīs) were not asked to pay except that which was commanded in the Islamic doctrines like zakāt, `ushr (tenth), jizyah, and land taxes. The taxed wealth was determined according to the principles of justice and equality. `Umar once told two of his tax agents in Iraq: “Maybe you over-taxed people to a level that they cannot bear?” One of them replied: “I left behind most of it.” The second agent said: “I left behind half of it.” `Umar commented: “By God, if it was left for the widows of the people of Iraq, I will let them have it so that they will not beg another leader after me.” `Amr Ibn al-`Āṣ also accepted the harshness and criticism of `Umar instead of disregarding the needs of his people in Egypt.

Generally speaking, during this period justice and equality prevailed; no public interest was ever ignored and no rights were lost. The importance they gave to the treasury reached the point where the caliphs appointed ministers to run it in some states instead of the governor. These individuals were generally among the best Companions. For instance, `Umar appointed Abdullah Ibn Mas`ūd to the treasury of Iraq. Other caliphs appointed one special agent in charge of alms and another in charge of kharāj. The agents were closely watched by both the caliph and the governor. They stressed accountability and listened to all the complaints related to these agents. A proof of the successful management of the treasury during this period is the noticeable increase in revenues, the establishment of numerous public facilities, and the rise in net revenues in the treasure houses. The book al-Kharāj by Abu Yūsuf contains data that supports these conclusions.

The Military #

The commander-in-chief of the Muslim armies was the Messenger of God and, after him, his successors. The Messenger of God led armies in person during the twenty-six gazwahs. The rest of his sarāyā were under the command of some of his Companions. However, the caliphs rarely led their armies. Ali Ibn Abī Ṭālib commanded the army in some battles. The caliphs did not generally lead military missions because the Islamic state expanded its control over larger areas, thus making it hard for the caliph to leave Madīna for wars. Instead, the caliphs selected individuals with military skill and courage to replace them. It should also be noted that during the time of the Messenger and during the caliphate of Abu Bakr, all Muslims were considered soldiers, expected to serve and defend their community and Islamic ideals. There was not a group of them professionally trained and reserved for war. Troops did not receive a determined pension from the treasury, either, but they did share war revenues in a manner prescribed in the section of sharī`a dealing with ghanā’im. Later, during `Umar’s caliphate, the military was organized as follows:

  1. He initiated army professionals and created distinct battalions or military sectors; he created the army of Palestine, the army of Arabia, the army of Iraq, and so on. These armies formed the Islamic Armed Forces. But reporting to military duties was still mandatory for all Muslims, including women and children, whenever needed.
  2. A military record (dīwān) was established to keep track of military personnel, their pensions, and their attendance. The record was in the Arabic language, maintained by scribes from Quraysh—`Uqayl Ibn Abī Ṭālib, Makhramah Ibn Nawfal, and Jābīr Ibn Mut`am—in the year 20 H. The reason for creating this record was the close attention given to military personnel and the importance of reporting for duty. It was reported that if an individual did not report for duty, his name would be mentioned in the mosque he frequented, which was not appreciated; Arabs considered such an action worse than a sword wound.
  3. A regular pension was assigned to military personnel directly from the treasury house. As we have mentioned, they did not have a stable predetermined pension during the time of the Messenger or during the time of Abu Bakr, nor did the troops reside in designated areas; rather they lived in the city along with the rest of the Muslims, ready for war any time it was ordered. Each military division had a representative who received their pensions and distributed them among the people of each division. The pension was paid from the revenues of their respective state. During Mu`āwiyya’s caliphate, the army’s pension was terminated and specific dates were set when they would receive a payment, and a number of changes were introduced; the caliph gave equal importance to marine and combat ships. This shift was necessitated by wars against the Romans and the need to protect coastal regions along the Mediterranean Sea. It was reported that the number of battle ships reached 1,700 ships before the occupation of Cyprus. Professor al-Khedrī, may God’s mercy be upon him, said on page 459, vol. 3:

[…]

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Organization of the Executive Branch #

We said earlier that during this period the caliph and governors shared one side of the judicial branch, and judges shared the other. All of them were judges. But the title “judge” was specifically given to individuals who issued legal opinions on civil matters and on matters known as al-aḥwāl al-shakhṣiyya. The judge, then, did not rule in matters of hudūd and punishment. That was left for the caliphs and the governors unless otherwise indicated and authorized by the caliph. Mu`āwiyya expended the duties of Egypt’s judge, Salīm Ibn `Itr, to include wounds (jirāḥ). Abdul Malik also shared with his judge, Abu Idrīs al-Aurdī, the duties of settling all sorts of grievances. So, any ruling stated by the caliph or the governor, including execution, cutting hands, or imprisonment, or other corporal punishments, was executed by the caliph, governor, or individuals they appointed. In other words, during the time of the Messenger and during the caliphate of the Companions, there were not specific individuals whose job it was to execute laws. In fact, all Muslims were expected to carry out the law since it was understood as part of the religious command to “forbid evil and enjoin what is good.” Al-Sa’ib Ibn Yazīd has said:

During the time of the Messenger and Abu Bakr and in the early part of `Umar’s caliphate, we went to the drunker and beat him with our hands, with our shoes, with our feet, and with our cloaks. During the last days of `Umar’s caliphate, it was made official to flog the drunker forty flogs; if they continued to transgress, they were flogged eighty.

Al-Katānī also reported in his book al-Tarātīb al-idāriyya wa niẓām al-ḥukūma al-nabawiyya, vol. 1 page 313:

Ibn al-Arabī reported that the stating of ḥudūd was left for judges; its execution was left for individuals selected by the Messenger of God like Ali Ibn Abī Tālib and Mohammed Ibn Muslimah.

[…]

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The Period of Tadwīn #

This period starts at the beginning of the first century of the Islamic calendar. It ends in the middle of the era of the Islamic legislative movement where the claim of the closure of ijtihād spread, hence the necessity to imitate one of the preceding imāms. This was approximately at the beginning of the fourth century of the Islamic calendar. In fact, the last known independent thinker who had his own school of thought and followers, as far as we know, was Mohammed Ibn Jarīr al-Tabarī (d. 310 H.).

This period is known as the “Golden Age” of the Islamic Ummah. It was the age in which Islamic civilization reached its peak in culture, development, maturity, and productivity across all aspects and fields of life.  It was during this time that the legislative heritage through which Muslims have been enriched was produced. It was during this epoch that a number of jurists known as imāms codified major laws, established the foundation of the Islamic legal philosophy, and established statutes. It was in this age that Islamic jurisprudence emerged as an independent science associated with powerful names that will be remembered forever. It was here where the intellectual and material power of Muslims were integrated to continue expansion and growth in the fields of science and politics. At a time when leaders of Islamic armies were cheering victories and propagating the call of Islam in nations as far east as China and as far west as the Atlas mountains, Muslims scholars in various parts of the world continued to make scientific advancements and produce the best that could be produced, especially in the field of religious sciences. The grand mosques in Madīna, Mecca, Kūfa, Baghdad, Egypt, Qayrawān, and Qurṭuba were all centers of scientific movements that brought about the best scholars and brilliant writings.

As we survey the legislative, judicial, and executive branches, a clearer picture of the activity and maturity of this age will develop.

Legislation during this Period #

It is hard to collect all the legislative discussions from this period into an article as concise as this one because they are numerous, and because the task of locating all of them is even harder. For this reason, the attempt before you will be limited to the most important subjects:

  1. Individuals who served as legislators during this period,
  2. Their procedures and the emergence of the madhāhib,
  3. The changes in sources of Islamic law,
  4. The names of some prominent jurists, and
  5. A comparison between this period and the preceding one and general remarks.

Before we start the discussion of these subjects, I will briefly define the meaning of the word tashrī` (legislation) and the word ijtihād (independent thinking) to clear up a misconception that appeared after the publication of the previous two articles dealing with the time of the Messenger and the time of the Companions.

The word tashrī` is said to have two meanings:

The first meaning: to make a primary law.

The second meaning: to explain a law stated as an established primary law.

As for the first meaning, tashrī` in Islam is done by none other than God, who initiated the primary law, revealed in His Quran and stated by His Messenger as established proofs. In this meaning, only God can legislate.

As for legislation in the second context, the explanation of what an established legal system says was undertaken by the Messenger’s successors: the Companions, the learned successors of the Companions, and those who succeeded them amongst the imāms and mujtahids. These individuals did not legislate primary laws; rather, they extracted laws from the texts of the Quran, the Sunna, and that which the legislator established as general rules and proofs. If one of them extracted a law using analogy, for example, then he did not legislate a primary law; rather, he exerted an effort to know the reason behind a stated law. The law, then, remained established, except for the fact that he now participated in determining the primary law’s manifestations and defining characteristics, which then served as template for new laws.  So, by his effort, it became clear to him that the text contained two steps: the situation in which the law is clear, and how he may participate along to determine the reason behind the law.

The word ijtihād also has two meanings:

One refers to the exerted effort to distinguish a law from its proof, whatever that proof may be. That includes all of that which the mujtahid understands from the text, and that which he extracts by means of analogy or that which he extracts from the general rules of the legal system. Some of the general rules include: the Discharge of Obligations (Sadd al-ḍarāi`), the Avoidance of Discomfort (Daf` al-ḥaraj), and the protection of Acquired Interests (al-Maṣāliḥ al-mursala).

The second meaning refers to determining a law which has not yet been dealt with in the legislative texts using analogy (qiyās) and comparing it to what the legislative texts have already dealt with. Ijtihād, then, is equivalent to qiyās. Thus the laws resulting from this kind of ijtihād are limited to those extracted using analogy. This meaning is what should be understood from the Tradition of Mu`ādh Ibn Jabal: “If I don’t find (it) in the book of God or in the Sunna of His Messenger, then I use my own ijtihād.” The first meaning, nonetheless, is very general, so much so that laws resulting from that process include all the results determined by a mujtahid during his study of texts and other sources of law. Generally, in the course of this study, we mean the first meaning.

Legislators of the Tadwīn Period #

We have explained that after the demise of the Messenger [PBUH], the learned ones among the Companions succeeded him in running the legislative branch. These Companions spread out across the Islamic world as a result of the expansion movement, and in order to spread the call of Islam. But a large number of them stayed in Hijāz.

It became known that in each part of the newly annexed land to the Islamic Umma, there was at least one scholar or a group of scholars teaching people the Book of God and the Sunna of His Messenger, exerting their own independent thinking in matters not dealt with in the Book or the Sunna, and serving as legislators for the Muslims of each particular region. The annual season of pilgrimage was an opportunity for them to convene and a chance to exchange views and learn more Traditions. Thus, the legislators amongst the Companions were in touch with each other despite the long distance and primitiveness of transportation.

In all corners of the Muslim world, followers gathered around these Companions. They learned the Quran and the Sunna from them, and watched them issue decrees on new happenings. In short, these followers received part of their teachers’ knowledge and memorized some of legislation’s and Islamic law’s secrets. Later, these students became known as the Followers (Tābi`ūn). Some of them actually participated, along with their teachers who were the Companions, in issuing formal legal opinion.  Sa`īd Ibn al-Musīb, for example, issued formal opinions in Madīna, where a number of Companions were still alive, and so did `Alqama Ibn Qays, who also served as a judge in Kūfa during the time of Abdullah Ibn Mas`ūd. With the extinction of the Companions, these students became the scholars to whom Muslims turned when they needed a legal opinion.

New students were attracted to the scholars amongst these Tābi`īn. They learned from them the Quran, the Sunna, and the rulings of the Companions. These Followers of the Followers (Tābi`ī al-tābi`īn), in turn, afterwards inherited their teachers’ religious and social positions. In this manner, the people of legislature were layered. Each layer consisted of students of their predecessors and teachers of their successors. Hence, the chain of the legislative movement was linked the same way jurists inherited legislature from generation to generation.  Muslims, then, inherited the privilege to turn to these people for formal opinions from one generation to another.

This link would be clearer if one were to take a closer look at historical layers of people who served on the legislature during this period in different parts of the Islamic world.

In Madīna after the Messenger, the people of legislation and formal opinion were numerous. Amongst them were the learned Companions. Most renowned of all, we mention the righteously guided caliphs, `Ā’isha, Obayy Ibn Ka`b, Abdullah Ibn `Umar, and Zayd Ibn Thābit. More decrees were memorized from `Umar and his son, and Zayd Ibn Thābit—who were considered legislative scholars in Madīna—than anyone else.

They were followed by the class of learned Tābi`ūn. Amongst the most famous of these, we mention here the seven scholars of Madīna; Sa`īd Ibn al-Musīb, `Ubayd Allah Ibn Abdullah Ibn `Utā Ibn Mas`ūd, `Uwah Ibn al-Zubayr, and Al-Qāsim Ibn Mohammed Ibn Abu Bakr. Kharijah Ibn Zayd Ibn Thābit, Sulaymān Ibn Yāsir, and Abu Bakr Ibn Abdul Raḥmān Ibn al-Hārith Ibn Hishām were also active in Madīna.

The students of the Followers then learned from them and formed the next generation of scholars known as the Followers of the Followers, a group that included Rabī`a Ibn Abdul Raḥmān, nick-named Rabī`a al-Ra’y, Mohammed Ibn Shihāb al-Zahrī, and Yaḥya Ibn Sa`īd.

These scholars then were succeeded by their students, a class which included Mālik Ibn Anas and those who followed him. The genealogy of the Mālikī school of thought, for instance, is defined as being formed by the following names: Mālik Ibn Anas, Rabī`a  Ibn Abdul Raḥmān and his followers, Sa`īd Ibn al-Musīb and his Followers, Abdullah Ibn `Umar and his followers, and the Messenger [PBUH].

In Mecca, the prominent scholar of law and jurisprudence and the teacher of the Quran and the Sunna was Abdullah Ibn Abbās. He taught a number of students from the class of the Tābi`īn. Most notably amongst them were `Ikrimah—his housekeeper—Mujāhid Ibn Jabr, and `Aṭā’ Ibn Abī Rabāḥ.

They in turn taught students from the Followers of the Followers, including Sufyān Ibn `Ayniyya and the keeper of the Ka`bah Muslim Ibn Khālid al-Zanjī.

These scholars also taught their successors: Mohammed Ibn Idrīs al-Shāfi`ī, who learned in his early age in Mecca from Muslim Ibn Khālid and Sufyān Ibn `Ayniyya. While in Madīna he learned from Mālik.  Then he relocated to Iraq and Egypt and learned from the scholars there as well.

In Kūfa and after the Messenger’s demise, Ali Ibn Abī Tālib, during most of his lifetime, Abu Mūsā al- Ash`arī, `Ammār Ibn Yāsir, and Abdullah Ibn Mas`ūd undertook the legislative role and issued formal opinions. But it was Abdullah Ibn Mas`ūd who left an important impact in Kūfa, mostly because when it fell under Islamic rule, Umar Ibn al-Khaṭṭāb sent him to Kūfa in the year 11 H. as a teacher and as a governor. Ibn Mas`ūd then built his house next to the mosque and used it as a school to teach the book of God, what he memorized from the Traditions of the Messenger, and issued formal opinions regarding that which was not addressed in those two sources. He used his personal contacts and friendship with the Messenger and his creative mind in the field of jurisprudence to grow to become the most reliable source in Kūfa and Iraq.

The successors and students of the above scholars, also known as the Followers, learned the principles of ijtihād from their teachers previously mentioned. This group included: `Alqama Ibn Qays al-Nakh`ī, al-Aswad Ibn Yazīd al-Nakh`ī, Masrūq Ibn al-Ajda`, Judge Sharīḥ Ibn al-Ḥārith, and Judge `Āmir Ibn Sherahbīl al- Sha`bī.

The class that followed these scholars included their students like Ibrāhīm Ibn Yazīd al- Nakh`ī, the teacher of Ḥammād; Ibn Abī Sulaymān, who influenced Abu Ḥanīfa al-Nu`mān Ibn Thābit, thus, according to many legal historians, becoming the pillar of the Ḥanafī school of thought.

The chronological order of the Ḥanafī school of thought can be drawn as follows: Abu Ḥanīfa, Ḥammād, Ibrāhīm Ibn Yazīd al-Nakh`ī, Ibrāhīm’s uncle; `Alqamah, Abdullah Ibn Mas`ūd, and the Messenger of God.

In Baṣra, formal opinions were issued by the scholar Companions, including Anas Ibn Mālik and Abu Mūsā al- Ash`arī.

These scholars then mentored a number of students and taught them the principles of ijtihād. The graduates of this class included: Qutāda, al-Hasan al-Baṣrī, and Mohammed Ibn Sīrīn, who in turn taught many others.

In Shām, formal opinions were sought from scholars like Mu`ādh Ibn Jabal, `Ubādah Ibn al-Ṣāmiṭ, and Abu al-Dardā’.

The above class of scholars, in turn, mentored a number of students and taught them the principles of ijtihād. This group included: Abdul Raḥmān al-Awzā`ī, who was the scholar of Shām and the contemporary of Abu Ḥanīfa, Mālik, and a number of other scholars of their caliber.

In Egypt, the authority of issuing formal opinions belonged to a number of Companions who participated in the expansion; but only Abdullah Ibn `Amr Ibn al-`Āṣ resided there permanently and taught Muslims the Book of God and the Sunna of His Messenger. He was the first teacher of jurisprudence and the first legislator in Egypt. He was of Kūfa’s Abdullah Ibn Mas`ūd’s caliber, or of the caliber of Madīna’s Abdullah Ibn `Umar, `Ubādah and of Mu`ādh of Shām.

A number of students succeeded Abdullah Ibn `amr Ibn al-`Āṣ. Yazīd Ibn Ḥabīb was the most famous muftī in Egypt. Since his father was from Danqala, Yazīd grew up in Egypt and served as the most sought-after judge and muftī for Muslims in Egypt, after his teacher Abdullah Ibn `Amr passed away.

Imām al-Laith Ibn Sa`d and his colleagues succeeded Yazīd, who passed their authority to Mohammed Ibn Idrīs al- Shāfi`ī, who settled with the Abdul Ḥakam clan in Egypt during the last years of his lifetime.

The legislative authority of all these scholars from different generations was not delegated to them by caliphs or governors; rather, Muslims trusted them and considered them capable of issuing formal opinions. This trust was based on the assumption that the individuals who had talked to the Messenger and witnessed most events of the Messenger’s period would know more about Islamic law, thus raising them to the level of a legislator. Muslims held the same view about those who succeeded the Companions, as well as those who succeeded the Followers of the Followers of the Companions. In other words, students not only inherited knowledge from their teachers, but they also inherited the trust of Muslims. This trust, nonetheless, was maintained and justified by these scholars’ and their students’ intellectual capacity and piety. Their decrees were sought regarding any issue regardless of their position: as governors or as the governed.

Even caliphs praised the status of such scholars. Not because they were appointed to issue formal opinions, but because of the respect they earned. `Umar Ibn Abdul `Azīz recommended Yazīd Ibn Ḥabīb whenever people from Egypt came to him with questions, the same way Ibn Abbās recommended Sa`īd Ibn Jābir to the people of the Kūfa who came to him with their questions during pilgrimages. When the Kūfans asked him a question, Ibn Abbās usually replied: “Is not Sa`īd Ibn Jābir among you?” These actions do not indicate that Ibn Jābir was officially appointed. Rather, it indicated respect and trust in his capacity to issue formal opinions.

Two characteristics marked the legislative process after the demise of the scholars of the first generation (Companions) and their immediate successors (Followers):

  1. At the beginning of this period, about the first third of the second century after Hijrah, every mujtahidrepresented an independent individual. He performed his duties by himself. He did not issue any opinion unless an event happened requiring him to do so. He did not record his rulings or the rulings of others. The people were free to choose any scholar they wished and follow the decree they felt most comfortable with. Thus, differences between these scholars were, in a way, a mercy for the people. Islamic law was neither an art nor a science. Rather, it was a collection of laws derived from the Quran and the Sunnaand other decrees agreed-upon by the scholars amongst the Companions. It is possible to add to this collection some of the rulings of one or a group of Companions accepted by the mujtahids because of the strength of evidence that usually led to such consensus, without which a collective opinion was not possible. Individuals would return to this collection whenever needed to extract laws concerning matters of worship, transactions, and so on.
  2. In the later part of this period, and during the time of Mālik, Rabīah al-Ra’y, Abu Hanīah, al-Thawrīyy Layth Ibn Sa`d, Mohammed Ibn Idrīs al-Shāfi`ī, and Abdul Raḥmān al- Awzā`ī and their contemporaries, new factors caused a change in the legislative process due to differences in what was considered a source of law. For example, some legislators relied on Traditions reported by one individual. Others required continuity in transmission and weighed the authenticity of the Tradition itself. Another group restricted sources of law to the collection of rulings issued by the Companions. Others rejected the authority of the Companions’ Traditions. The differing tendencies in interpreting texts also increased divergence in legislation; some were content with a superficial meaning of the texts. These scholars were later known as the “people of Tradition” (ahl al-Ḥadīth). Others did not limit themselves to a superficial meaning of the texts, and they were clustered in a group called “people of Opinion” (ahl al-Ra’y).

The differences in considering sources of legislation generated a difference in the means and ways of ijtihād, as well as new principles of and conditions for ijtihād. As a result, these groups of legislators became distinct political parties and groups. Each party had its own mujtahids, its distinct opinions, and particular school of thought. The only common factor between them was the general trend and the shared foundations used and respected by all of them. The leader of each party was the oldest amongst its mujtahids. The leaders and students then formed what became later a distinct school of thought known as Madhhab.

Abu Ḥanīfa and his companions—Abū Yūsuf, Mohammed Ibn al-Ḥasan, and Zafar Ibn al-Hadhbal—performed independent thinking and issued formal opinions independently. Each of them was an absolutely independent scholar, holding the capacity to extract laws from its sources. Abu Ḥanīfa did not imitate any of his companions in either fundamentals or in the branches of jurisprudence. But after studying with him and standing on the validity of his arguments, his companions elected to collect them and explain their implications. They also amalgamated his opinions with theirs so that they would not end up with a distinct school of thought different from his. The whole of these views, then, was dubbed the school of Abu Ḥanīfa, in reference to their leader and elder.

Similarly, Mālik Ibn Anas and his colleagues Ibn al-Qāsim, Ibn Wahb, Ibn Abdul Ḥakam, and Ashhab formed the Malikī school of thought. And so did Mohammed Ibn Idrīs al-Shāfi`ī and his colleagues, who established the Shāfi`ī school of thought.

Once the legists divided according to their affiliations with these parties and groups, each leader was followed by his companions, who grew competitive with one another. At this stage, scholars were more inclined to favor particular views and prefer certain arguments over others. As a result, a number of debates, oral and written, took place. These debates showed impressive depth and systematic analysis as they addressed various legal, philosophical, and religious issues. This was clear from the recorded debates collected by Mohammed Ibn Idrīs al-Shāfi`ī in his books al-Umm and al-Radd `alā Mohammed Ibn al-Ḥasan. These characteristics were also evident from the writings of Imām Abu Yūsuf in the book where he recorded the issues of disagreement between Abu Ḥanīfa and Ibn Abī Laylā. He mentioned the view of these two scholars, then sided with the opinion of one on some issues and the other on other issues. In some instances, he even offered his own opinion, which differed from both jurists. In al-Umm, Al- Shāfi`ī listed the views of imāms Abu Ḥanīfa, Ibn Abu Layla, and Abu Yūsuf. He also agreed with one of them sometimes, and expressed his own opinion at other times.

In the book Siyar al- Awzā`ī, in the chapter on jihād issues, Abu Yūsuf recorded what Abu Ḥanīfa and al-Awzā`ī disagreed upon. Abu Yūsuf also took Abu Ḥanīfa’s side in most cases. Al- Shāfi`ī reported the same debates in al-Umm, but took the side of Awzā`ī in most matters.

These debates have generated two elements:

  1. The domain of fiqhincreased amongst the legislators, turning Islamic jurisprudence into a well-defined science with its own disciplines and its own methodology. This domain was then directed to extract all extractable laws dealing with that which happened and that which might happen. In other words, jurists now not only provided answers to actual cases, but also issued rulings concerning hypothetical situations. It was said that Abu Ḥanīfa was the first to state laws concerning events yet to occur. It was this new development that created the establishment of the field of fiqh and all tendencies associated with it.
  2. The above development was the seed from which grew the idea school of affiliations. Scholars became more concerned with justifying the opinions of the founders and the Madhhab than reaching an objective conclusion. This would have been of no harm had it continued as an expression of support based on objective research and led to confirming a particular opinion as was the case with Abu Ḥanīfa, who supported the opinions of his companions by providing valid arguments and explanations that were reasonable and logical. This was the approach of all other leaders of Islamic schools of thought. But this changed, to the point where affiliation dictated a forced acceptance or support and imitation without examining proofs or studying opinions.

It was recorded in al-Hidāyah that “people were following the school of thought of Ibn Abbās because of a legislative order issued by the Abbasid caliphs, who published that people should perform the Eid prayers according to the school of thought of their grandfathers. As for the term madhhab (school of thought), it was believed to have been used first by Ibn Mas`ūd [RAA].”

In al-Khuṭaṭ, Al-Maqrīzī wrote that when Ismā`īl Ibn al-Yas` al-Kūfī, who supported the termination of trusts (ibṭāl al-aḥbās), was appointed judge in Egypt, al-Layth Ibn Sa`d wrote to Caliph al-Mahdī: “O! The Commander of the faithful, you have appointed on us a man who dishonors the Sunna of the Messenger of God behind our backs, although we know that he is honest in dealing with money.” The caliph then discharged him.

This use of the power of the caliph to support particular views, or to abuse others based on partisan affiliations, was the first seed planted to paralyze the movement of ijtihād and halt the growth of legislative movements. Supporters of each school of thought distanced themselves from the study of the proofs and from extracting laws from them and limited themselves to the sayings of their schoolmasters. They held these sayings in a similar manner as the early imāms held legislative texts, to the point where an opinion regarding a particular issue was considered equally valid as a text from the Quran and the Sunna, thus making it beyond the scope of ijtihād. Their efforts, then, became sectarian efforts rather than independent ijtihād. Because of these changes, legists of this period were divided into factions:

  • Absolute independent thinkers, which included the four imāms, their like, and the Companions.
  • School of thought independent thinkers, who were scholars who compared the decrees of the various schools of thought; they were also called “inter-study.”
  • Issues independent thinkers, who extracted laws not dealt with by the founders of their respective schools of thought; “inner-studies.”
  • The people of concordance (takhrīj), who stated the reasons (or causes) behind a stated law.
  • People of validation (tarjīḥ), who recommended a particular narration over another given the authority of its narrator from the point of view of reliability or knowledge.

The Class of Imitators #

We will mention our opinion on these factions when we discuss legal materials from this period. We referred to it just now to explain that the legists at the end of this period focused their efforts within their particular schools of thought and limited themselves to the sayings of the imāms, not to legal proofs. This decreased the productivity of the legislature and weakened it, although the fountain of legal proofs could not be exhausted. The idea of directing one’s efforts to support one school of thought, regardless of its right or wrong opinions, created a trend of dishonest interpretation of texts as well as a reliance on weak aḥādīth and a rejection of sound ones. It reached a point where Abu al-Ḥasan al-Karkhī, one of the prominent scholars of the Ḥanafī school of thought, said: “If a text contradicts a saying of our colleagues, then it should be abrogated or interpreted.” The gap thus increased between the legists of various schools of thought, to the extent that one could find peculiar decrees taking the time and energies of scholars. An example of this distraction is the following case:

Can a man who follows the Ḥanafī school of thought marry a woman who adheres to the Shāfi`ī school of thought?

The answer was affirmative, using an analogy with marrying a woman who is Dhimmī from the people of the Book.

Competitiveness in the field of legislation had good and bad impact on Muslims, which will be clarified when we address the period of imitation.

Legislative Methodology #

The legists of the second faction, occupied by the Tābi`īn and the Tābi`ī al-tābi`īn, did not have different legislative plans because they followed the same procedures as their ancestors. Once an event occurred requiring a formal ruling, these jurists referred to the Quran and to the Sunna and examined what was memorized from the Messenger’s Companions. If they did not find anything in the previous two sources, they used what they found suitable from this source or they exerted their own efforts and made a ruling. Their disagreements, then, did not fundamentally invalidate the sources and proofs of one another. Rather, disagreements were differences, similar to those among their predecessors, originating from an understanding of the meanings texts, from the need for public well-being, or from the availability of a Tradition to one scholar and not to another. These disagreements were never the kind of disagreements leading to the creation of different schools of thought. These differences were not critical, since sources and legal proofs were the same for all the legists. For these reasons, during the first part of this period, there were not different schools of thought in the sense of antagonistic schools; rather, there existed different points of view.

The legists of the third faction, however, including imāms and some jurists before and after them, differed in the procedures of legislation, since they fundamentally disagreed on acceptable sources of legislation. From their various approaches to legislation emerged various opinions, and from their various opinions emerged different schools of thought.

In other words, the madhāhib were created once their founders differed amongst each other on the foundations of legislature and their legislative approaches, not as a result of mere differences of opinion on secondary issues. The detailed laws of each school of thought cannot be understood unless one looks at them from within each particular school of thought’s framework and from the point of view of the scholars within that particular school of thought. Accordingly, each legal tendency had its own scholars called the mujtahids of the madhhab, whose responsibility it was to extract laws concerning issues not addressed by their imāms, while keeping in perspective the respective schools of thought’s general procedures and philosophy for extracting laws. Abu al-Abbās al-Qurṭubī, a Mālikī, wrote in his commentary on Ṣaḥīḥ Muslim:

Mujtahids are two kinds: one is the absolute independent thinker who is free to extract laws from primary sources. There is no doubt that this one will be rewarded for his effort; but it is hard, rather impossible, to find one of them in this time. The second is a mujtahid within the school of thought of an imām. They are generally the judges of justice of this time. He is bound by the foundation and proofs set by his imām. He is able to state his own view only in the absence of a ruling from his imām’s school of thought. But in case there existed a text, and it is not indicated otherwise, he rules accordingly, and he does not exceed studying that ruling and understanding its aspects. If a Tradition from his imām is contradictory to a text, then he is obliged to study the proofs of the two statements from the point of view of his imām’s school of thought.

We will explain some of the legislative foundations where the scholars disagreed, then we will proceed to explain their legislative approaches. After that, the procedures of the mujtahids of this period will be clarified, as well as their personal foundations in contrast with their agreement on the foundational legal principles, which are the Quran, the Sunna, consensus, and analogy.

  1. Decrees of the Companions

The mujtahid imāms first disagreed on the issue of the decrees of the Companions of the Messenger. The Companions left behind many rulings dealing with various matters. The Followers and the Followers of these Followers invested efforts in preserving these rulings and reported them from generation to generation, to the extent that such decrees were sometimes conflated with the Sunna. Should these decrees be considered a source of legislation to which a mujtahid must refer if he cannot find a text in the Quran or in the Sunna, concerning a matter at hand, before ruling on it himself? Or should he use his independent thinking after referring to the Quran and the Sunna, as done by the Companions themselves? And, in very short terms: should the Companions’ decrees be ranked above analogy?

There is no disagreement regarding the invalidity of a Companion’s saying unless supported by proof, because that is the general principle. Nor is there disagreement on the fact that the ruling of any of the Companions does not constitute authority over another Companion. For this reason, the Companions differed while ruling on numerous things. It is also a given fact that whoever imitates one of the Companions in one ruling may follow another. Commenting on these facts, Iraqīs said:

There was a consensus among the Companions that whoever sought formal opinion from Abu Bakr and `Umar could ask Abu Hurayrah and Mu`ādh Ibn Jabal and others and may adopt any of the views he wants.

We conclude from here that the opinion of a Companion was not legal proof over any of the other Companions, nor was it legal proof during the Prophet’s lifetime.

Regarding the time after that, I will quote some of the sayings of the imāms where they expressed their respect to the rulings of the Companions, then proceed to conclude a few things from these statements.

Imām Abu Ḥanīfa was asked about his approach in legislation. He said:

I would use the Book of God if it contains the law. If not, I use the Sunna of His Messenger, which is sound and transmitted through trustworthy individuals. If I do not find [a law] in the Book of God or in the Tradition of His Messenger, then I refer to the sayings of his Companions. I would use what I want and leave out what I do not want, without taking the Traditions of others over theirs. Once I arrive to the Traditions of Ibrāhīm, al- Sha`bī, al-Hasan Ibn Sīrīn, Sa`īd Ibn al-Musīb … (enumerating a number of the later mujtahids from the Tābi`īn and Tābi`ī al-tābi`īn), I then, can perform ijtihād the same way they did.

It was also reported that he was asked what he would do if his ruling contradicted the Quran. He replied that he would abandon his ruling. When asked about his reaction if his ruling happened to contradict the Sunna, he answered that he would abandon his ruling. Then he was asked about his response if he found that his ruling contradicted that of a Companion, and he also indicated that he would abandon his ruling. Finally, he was asked about his response to discovering that his ruling contradicted that of a Tābi`ī. He then replied: “If a Tābi`ī is a man, I am too a man.”

Faqīh of Egypt once sent a letter criticizing some of Imām Mālik’s decrees:

The Companions of the Messenger of God offered different rulings concerning a number of things. Had I known that you were ignorant of them, I would have sent them to you. The Tābi`īn—including Sa`īd Ibn al-Musīb and his colleagues—also differed greatly. Others after that also disagreed and you have witnessed their disagreements in Madīna and other places. You may remember the leading figures, Ibn Shihāb and Rabī`a Ibn Abu Abdul Raḥmān. The disagreements between Rabī`a and those whom I mentioned above are well known to you since you were present. I have heard your comments on that as well as those from others from Madīna including Yaḥyah Ibn Sa`īd, Abdullah Ibn Umar, Kathīr Ibn Farqad, and another who is even older than Kathīr, whose teaching you disliked so much that you left his class… Despite all that, Rabī`a still has a better, more authentic mind, an eloquent tongue, clear favors, a way into Islam, and an honest love for his brothers in general and for us in particular. May God have His mercy on him, forgive him, and reward him with what is better than his achievements.

Mohammed Ibn Idrīs al- Shāfi`ī wrote in his book al-Umm:

Those who are capable of governing or serving as judges should not govern or rule unless with absolute good, and that is the Book and the Sunna, or according to what learned people have decreed via consensus or using analogy with the above.

What can be concluded from the above sayings and other sayings of the imāms regarding this matter is that later scholars cannot disregard the decrees of the Companions if they were reached by unanimous consensus. This is attributed to the fact that the Companions witnessed the dawn of Islamic legislation and talked with the Messenger, thus enabling them to understand the secrets of legislation. Their ijtihād is, then, closer to the truth. If one chooses to contradict them, then his path is not that of the believers. The fact that the Companions have disagreed on a number of issues is proof that their consensus, if reached, must originate from a sound proof. This reasoning is actually an example of ruling by consensus. As an example, when the emigrant Companions and the Helpers agreed with Abu Bakr on the sixth as the share for the inheriting grandmother, no mujtahid ever challenged that decree.

However, if the Companions decreed differently on a particular issue, then mujtahids could choose a ruling they wanted depending on their own reasoning. For instance, when the Companions disagreed on the issue of whether brothers could share the inheritance from their grandfather, Abu Bakr did not give them a share on the basis of the grandfather being a father, while `Umar and Zayd Ibn Thābit gave them shares because he was not the direct father, the imāms also later disagreed; Abu Ḥanīfa adopted the first view while Shāfi`ī took the second opinion.

The Companions, in another example, disagreed on a question of “voiding previous divorce” (hadm al-talāq al-sābiq). `Umar, Ali, Ubay Ibn Ka`b, and `Imrān Ibn Ḥasīs thought that if a man divorced his wife fewer than three times and did not return to her before the end of her waiting period (`iddah) and she married someone other than him, then she returned to him, she should return with what is left of the number of divorces. Ibn Umar and Ibn Abbās, however, ruled that she returned to him as if they exhausted all three non-permanent divorces (ṭalāq rij`ī), because the second marriage voided one or three divorces. The first opinion was adopted later by Shāfi`ī  and Mohammed Ibn al-Hasan, while a number of other mujtahids, including Abu Ḥanīfa and Abu Yūsuf, adopted the second opinion. About this, it was said that the young mujtahids adopted the view of the old Companions, and the old mujtahids adopted the view of the young Companions.

There shall be no dispute whether the Companions’ consensus was used as a proof, nor shall there be a dispute whether the mujtahids chose one opinion over another in case of a disagreement between the Companions. The real issue was whether a mujtahid could ignore all of the Companions’ decrees in the absence of consensus among the Companions, or whether their diverse views should be considered as a consensus on a range of possibilities, hence only one of the presented views should be adopted.

From the statement by Abu Ḥanīfa, “Take from any Companion that which I want and leave out that of any Companion I want without taking another view besides theirs,” is clearly leaning toward the second possibility presented above. Ahmad Ibn Ḥanbal agrees with Abu Ḥanīfa. al-Shāfi`ī, however, asserts that mujtahids are obliged to follow, with no deviation to other sources, the Book, the Sunna, and the consensus of the learned ones. More evidence is clear from the statement of al-Layth Ibn Sa`d in his letter asserting that Rabī`a al-Ra’y contradicted what was previously stated, and that Mālik and his colleagues disliked that and left his class.

We can conclude from the above that the mujtahids had different opinions concerning the decrees of the Companions. This affected the discipline of uṣūl/jurisprudence, depending on their admission or refusal of the decrees of the Companions as legal proof.  It also led to more branching in some areas of law.

  1. The Method of Authenticating Sunna

Although the mujtahid imāms agreed that the Sunna, if authentic, is a valid proof in religious matters, and that it is the second source of law after the Quran, they disagreed on how to authenticate the Sunna. Based on this disagreement, some of them accepted aḥādīth narrated by a particular source they deemed reliable, and some of them rejected aḥādīth that were not reported by their preferred source. These disagreements generated a disparity in the laws.

The Ḥanafī imāms, for instance, indicated that the Sunna could be authenticated by means of widespread narration (tawātur). That is, a reported Tradition should be narrated by a person or a number of people on the authority of a another person or a group of people whom we could trust were not involved in a conspiracy and lying, or by means of abundance (shuhra). That is, a Tradition must be narrated by a just (`adl) individual on the authority of a just individual and it should be used by scholars of different states or used by the mujtahid Companions and not contradicted or refuted by another Companion. For this reason, one of the principles of the Ḥanafīs was the prohibition of abrogating a Tradition or adding to it unless a mutawātir or mashhūr Tradition is provided. Abu Ḥanīfa explained this when he said:

If I do not find it in the Book of God, I use the Sunna of His Messenger and the authentic Tradition reported by honest ones.

Abu Yūsuf introduced further explanation in his book Siyar al-Awzā`ī:

`Umar—as reported to us—never accepts a Tradition unless he puts the individual who reports it under oath.

Be aware that the number of Traditions increased with time. Scholars did not know these Traditions; they contradicted the Book and the Sunna, so be aware of strange Ḥadīth. Adhere to the Traditions narrated by the Jamā`ah and those known by scholars, and compare things to the Quran; what contradicts the Quran is not a Tradition of the Messenger.

As for Imām Mālik Ibn Anas and his companions, they accepted any Tradition used by the Companion scholars and used by Muslims of Madīna, as long as there was no disagreement on its authenticity. The reason behind this was that the people of Madīna acted the same way they saw the previous generation act, who in turn acted in accordance with the actions of the Messenger’s generation. This could be included under the category of “working Sunna.” Many times, Traditions were dropped simply because they contradicted the actions of people in Madīna. Refer to page 68 of the letters of al-Layth Ibn Sa`d, mentioned above.

Imām Shāfi`ī and his colleagues required that the Tradition must be reported by a “just” individual on the authority of a “just” individual, in a chain going all the way back to the Messenger. A Tradition was accepted even if the narrators were one person-to-one person.

  1. Isolation of Induction

If a law was stated without an explanation for the reasons behind it, a mujtahid could exert his independent thinking to determine the reason. The traditionalists called this takhrīj al-manāṭ, which was the foundation of analogy (qiyās). They disagreed regarding what could be called manā. This disagreement also caused disparity in laws. The imāms agreed that laws are introduced to provide for the needs of the people and that not all explanations could be adopted as reasoning for a particular legislation. They also agreed that a law’s reasoning must be compatible with the law itself. That is, a law’s reasoning must explain the benefit or the harm resulting from implementing the law. They added that simple conformity or compatibility of the law with the concluded reason is not enough to dub the conclusion “reason” (`illa), because many compatible explanations were rejected by the legislator (musharri`). Some “other thing” must be met before accepting it as the “reason.” This “other thing” was again a point of divergence among Muslim legists; a group that included the Ḥanafī scholars said it was the “effect” (al-ta’thīr). That is, the acceptable reason must be “influential,” so that the legislator considered it or at least considered it analogous in one of the three ways of consideration.

Another group that included the Shāfi`ī scholars said it was the “imagined” (al-akhāla): that is, that which came to the mind of the mujtahid when he imagined the description of a reason.

As a result of the above debate, other disagreements concerning “acquired interests” (al-maṣāliḥ al-mursala) emerged. Acquired interests were interests not voided or supported by an established law. This was a huge field of controversy.

These were some examples of what constituted an area of disagreement between the imāms in the foundation of jurisprudence known as uṣūl.

As for their disagreement over method, this was manifested in their division into groups called People of Tradition (ahl al-ḥadīth), which included the scholars of Hijāz, and people of opinion (ahl al-ra’y), which included the majority of the scholars of Iraq.

These labels do not mean that the scholars of Iraq would not use Ḥadīth; but, as we have already reported, their clear statements indicate their use of the Sunna once it was available. The label also does not imply that the scholars of Hijāz did not use their reason; in fact, we have reported that all scholars in Hijāz and elsewhere used reason whenever they failed to find a text. Their guide was always the Messenger of God, who used his own independent thinking and approved the independent thinking of his Companions. The Sunna, therefore, remained a legal source for all of them, and also so remained independent thinking as a tool for legislation for all of them.

The divisions and distinct connotations mean that the scholars of Iraq have encountered many circumstances forcing them to look at laws from a different angle and believe that the laws were articulated for some purpose. This purpose must be the well-being of the public, making it rational, not ritualistic. All laws, then, must be designed to avoid harm, eliminate discomfort, and materialize basic needs for society. The prime source of these laws is God alone, may He be glorified. The uniqueness of the source leads to the uniqueness of the laws; thus, these laws must exhibit a degree of similarity linked together with the same type of reasons without any contradiction or antagonism. Scholars were to follow this trend while extracting laws, because only in the light of these reasons can they understand the texts, distinguish between categories, and extract new laws regarding issues not covered in the fundamental sources. This method ought to be followed even if doing so leads them to misinterpret a text or choose one tradition over a more probable authentic one. For this reason, the first thing a scholar should think about is the understanding of the rationale behind inscribing such a law.

The scholars of Ḥijāz, however, did not face the same circumstances as the mujtahids of Iraq. Therefore, they did not have to adopt the same approach. The first thing they looked at in their cases was the text itself and its apparent meaning. They did not examine the concordance of the laws, nor did they think of the effects of such laws if applied without reasoning. They limited their reasoning to the superficial meaning of the text and questioned their reasoning if they did not figure out the text.

To elaborate more, we will enlist some of the key circumstances that forced the scholars of Iraq to adopt such a trend, and then we will mention a few examples highlighting the different outcomes resulting from the different trends. This will make the two methods crystal clear.

Some of the factors that led scholars in Iraq to apply reason to understand the deep meaning of the texts without limiting themselves to the superficial understanding of it were:

  1. The lack of narrated Traditions: This was because the number of Companions who settled in Iraq was very small. We also mentioned previously that when `Umarsent the first group of Companions there, he warned them against excessive narration of Ḥadīth, which might distract the people of Iraq from memorizing the Quran. So, in Iraq, only the Quran and a few Traditions—narrated by reliable sources—were available. These texts, if limited to their superficial meanings, did not encompass society’s needs and answer all their inquiries. Therefore, the scholars occupied themselves with understanding these texts to include all issues using reasoning and rationale. This was not the case in Hijāz.
  2. The environment of Iraq was different from that of Hijāz: The Persian Empire left a civilization in Iraq with all its customs and traditions that differed from the primitiveness and naivety of the Bedouins in Hijāz. The scholars in Iraq were asked for formal opinions regarding new matters that Muslims had never before encountered. Therefore, they used intellect and reasoning to determine laws. The environment, then, helped develop their capacity to research and reason. In Hijāz, however, most matters during the second century might have occurred during the first century. The fact that most scholars memorized Traditions from the Messenger or from the early Companions kept them from expanding the field using their own reasoning or searching for reasons behind the stated laws.
  3. The teacher of fiqhand legislation in Iraq was Abdullah Ibn Mas`ūd, who tended to examine interests resulting from implementing laws and to ponder on the reasons. In Hijāz, Abdullah Ibn Umar and Abdullah Ibn Abbās were the scholars of fiqh and legislation in Madīnaand Mecca, respectively, who were very strict in interpreting the Tradition literally.

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Changes in Legislative Sources #

The first legislative source: #

The first legislative source is the Quran, which was never changed, and it remains a mandating proof and the prime source and reference by Islamic legislators. All those who served in the legislature refer to the Quran as soon as a case is brought before them. If he finds a text, he applies it. He does not have any other alternative except his extra effort to understand the text and to comprehend its implications.

There is a general consensus among Muslims that the laws of the Quran are to be followed and that it is not permitted for a Muslim to ignore them at a particular time or in a particular place. There was no disagreement on this issue between one scholar and another. However, they disagreed on the meaning of some verses. One scholar might understand an imperative to mean a command, a particular as a general, a generic to mean an absolute, or a text to mean literal meaning. Another scholar might understand an imperative as a preference, a general as a specific, a generic as limited, and a text as its interpretation. Each of them would use hints and evidence to support his understanding. These differences are not a debate over the validity of the verses but are disagreements over its implications, because they all agree on its validity as a legal proof (dalīl shar`ī).

In respect to the Quran we mention two things:

  1. The words of the Quran were fixed and its publication was standardized.
  2. The availability of commentaries to explain the meaning of its verses and to enlist the reasons of revelation of some verses.

Regarding the first point, we add that that process secured it from any alteration or change. It is a fulfillment of God’s promise: “Indeed it is We Who have revealed the dhikr, and it is We Who will protect it.” The fixing of the wording of the Quran was done in two ways:

1-1. The increase in number of individuals who memorized the Quran, and its widespread teaching: People used to compete in memorizing the Quran to the point that in each state one could find large numbers of people who had memorized the whole Quran. Muslims inherited this practice generation after generation regardless of race or national background. Of the most famous memorizers of the Quran, from whom many other Muslims learned it, we mention the seven readers (al-Qurrā’ al-sab`ah); Nāfi` Ibn Abū Na`īm in Madīna, Abdullah Ibn Kathīr in Mecca, Abu Umar Ibn al-`alā’ in Basra, Abdullah Ibn `āmir in Damascus, and Abu Bakr `āṣim, Ḥamzah Ibn Habīb and al-Kasānī in Kūfa. All of these memorizers passed away in the second century Hijrī. They passed their gifts to their students, who have passed them to their successors, and so on, thus creating a chain of huffāẓ (memorizers), who initiated the recital of Quran as a science dubbed “science of recitation” (`ilm al-tajwīd). This practice was enforced by the belief that memorization of the Quran is the best form of worship.

1-2. The introduction of vowels into the Quran and the artistic style of vocalizing its verses: We have indicated before that the Quran was written down during the time of the Messenger, but on loose sheets. Some of these copies were left with the scribes of the Quran, and some were kept with the Companions, who wrote it for him. We have also mentioned that Abu Bakr gathered these sheets together, and then later Uthmān copied from this collection and distributed it in the Islamic states to be kept in the grand mosques. The Book as we have it today is named after Uthmān, since he was the one who collected and distributed it.

But the style of writing the Quran then was in the Kūfī style, which did not include the vowels, diacritics, or short and long vowels. The written language was, in a way, one that did not distinguish between `inda, `adbun, and `ibādun. One cannot see the difference between Yakhda`ūn and Yukhādi`ūn or “Fatabaiyyanū” and “Fatathabbatū.” All three examples would have the same consonantal skeleton.

At first, this potential source of confusion was not a problem, because the practice of memorizing the Quran and its oral transmission minimized the effect of the problem of the written Arabic. Most readers followed what was on the lines but read what was in their hearts. None of the readers ever relied on the written script only.

But once many non-Arab communities converted to Islam and writing the Quran spread among individuals, it was feared that non-Arab speakers would influence the pronunciation of the Quran of those readers who did not memorize it. To solve the problem of pronunciation, the governor of Iraq, Ziyād Ibn Aybah, appointed Abu al-Aswad al-Du’lī, who was one of the great Followers who had memorized the Quran, to put symbols in order to help people read the Quran. He started by vocalizing the endings of the words. He put a dot on top of the letter to indicate the accusative marker (fatḥa), a dot below the letter to indicate genitive marker (kasra), a dot to the side of the letter to indicate the nominative marker (ḍamma), and two dots to indicate tanwīn.

To solve the problem of confusing the letters and the motions, the other Governor of Iraq, al-Ḥajjāj Ibn Yūsuf, appointed Nasr Ibn `Āṣim to work on the problem. He then introduced the single dots and the paired dots.

Al-Khalīl Ibn Ahmad later changed the symbols of Abū al-Aswad; he made the fatḥa a horizontal line on top of the letter, the kasrah a small the Arabic letter, yā’ shaped, and the dhamma to small waw on top of the letter. He did not only put vowels on top of the endings of the words, but he also vocalized the entire word. He also added the symbols of long motions as well as the symbols for the energized letters (tashdīd). The Quran has been copied the same way since. Later, writing the Quran emerged as an independent “science” of writing distinct from regular writing styles.

Regarding commentaries and interpretations, Mohammed Ibn Jarīr al-Ṭabarī recorded the reported commentaries on the Quran.  He also collected the Traditions and commentaries of the Companions and Followers. A number of commentators followed him and put forth their own works. Some of these works focused on the eloquence and miraculous aspects of the Quran. Others went on to interpret the Quran.

What is of importance to us as we deal with legislation here is that scholars commented heavily on legislative verses. They even wrote special works dubbed “the Laws of the Quran,” which were indexed by Ibn al-Nadīm to include: Ahkām al-qur’ān by Imām al- Shāfi`ī, Ahkām al-Qur’ān by Abū Ja`far al-Taḥḥāwī, and Ahkām al-Qur’ān by al-Haṣṣāṣ. Other scholars followed their lead and wrote their own commentaries. These initiatives were wise decisions and constituted a great service to the field of Islamic law. The commentaries constituted a valuable reference and a rich tradition used by all scholars of the various schools of thought. Based on this work, new laws were extracted. But as far as we know and from the old books we have seen, the oldest commentary I have read is the book of al-Ḥaṣṣāṣ; it is clear that many of these commentators approached legislative verses from a sectarian position, hence these books were nothing more than sectarian work, not commentaries on the foundations of various schools of thought. I have read some of the books that start by mentioning the verse followed by a list of the different opinions of the schools of thought. But there is no abstract interpretation of the verses as they are without referring to the views of the various schools of thought. Because of this, in my opinion, the commentaries of this period were nothing more than fiqh discussions.

The second legislative source #

The second legislative source is the Sunna.  A few things happened to the Sunna during this period:

  1. The collection and writing of the Sunna.
  2. Its adoption by the Followers and the debate over whether it was an independent source of legislation.
  3. The debate between those who accepted it as a legal proof.

We will proceed to clarify the above points then conclude with our own views on this subject matter.

The Recording of the Sunna #

We previously mentioned that the Sunna was not written down during the time of the Messenger of God. We indicated that the Messenger chose scribes to write down the Quran as they heard it from him, but that he did not do the same for the Ḥadīth. In fact, he ordered them not to record his sayings. Therefore, up until the end of the first century, there was no other written source of legislation except the Quran. The Sunna was never recorded at this stage, except for a few sayings recorded by a small number of Companions, who did so for their personal use as reported by mujāhid, who said:

“I have seen with Abdullah Ibn `amr Ibn al-`Āṣ a written journal. I asked him what it was, to which he replied: “al-Sādiqa! containing what I have heard in person from the Messenger of God [PBUH].”

We mentioned that the idea of recording the Sunna was mentioned to Caliph `Umar Ibn al-Khaṭṭāb, but this suggestion was not undertaken by `Umar for fear of confusing it with the Quran. It was also repeated again before Caliph Umar Ibn Abdul `Azīz, a decedent of `Umar Ibn al-Khaṭṭāb, in the second century Hijrī. He wrote to the governor of Madīna, Abu Bakr Ibn Ḥazm:

“See what is left of the Tradition of the Messenger of God and write it down. After all, Abu Bakr started recording the Ḥadīth.”

He also ordered Shihāb al-Zahrī to study the Ḥadīth of the Messenger of God and collect it in books to be distributed in the Islamic states. After this order, the second source of legislation became recorded and written down to be referred to whenever needed. Before that, the Sunna was only memorized and transmitted orally. Once recorded, it was secured from any attempt at change, addition or deletion. Once the second source of legislation was fixed, it was not possible to resort to analogy without referring to it first.

However, the collection and recording of the Sunna was not done the same way the Quran was recorded. After copying the Quran from its original copy, Uthmān ordered all other written versions to be burned. Hence, the copies in all states were identical. The Sunna, on the other hand, was never standardized and already-existing copies were never burned. For this reason, the Sunna remained different from one scholar to another.

Abu Ja`far al-Manṣūr, the second Abbasid caliph, noticed this problem but did not manage to take necessary measures to standardize the Sunna. It was reported that Abu Ja`far al-Mansūr ordered Mālik Ibn Anas, the scholar of Madīna, to write a book for the people to avoid the easiness of Ibn Abbās and the strictness of Ibn Umar. Ibn Anas responded by writing al-Muwaṭṭa’. He then tried to force the people to accept al-Muwaṭṭa’ the same way they accepted Muṣḥaf Uthmān, but Mālik told him: “It is not possible, because the Companions were divided after the demise of the Messenger; each one followed what he heard.” After hearing this, al-Manṣūr changed his mind.

At any rate, the recording of the Sunna had a positive effect even though it did not unite the community on one single legislative source as the Sunna.

We don’t know of any surviving documents dating before the work of Abu Bakr Ibn Hazm and Mohammed Ibn Shihāb. The oldest material we have seen is al-Muwaṭṭa’ by Mālik Ibn Anas, in which he amalgamated the Traditions of the Messenger with those of the Companions and Followers. He used the ascription method (masānīd), where one first mentions the narrator then enlists all aḥādīth reported by that particular narrator. The collection by subject is called the assorting method (ṭaṣnīf). Most of the masānīd were written in the later part of the second century Hijrī. The oldest musnad we have seen is that of Imām Ahmad Ibn Ḥanbal.

The third generation found in these documents’ large resources, so they resorted to filtering the reported materials. We mention the most prominent of them, al-Bukhārī (d. 256 H.), Muslim (d. 261 H.), Abū Dawūd, al-Tirmidhī, al-Nasā’ī, and Ibn Mājah, all of whom died in the third century Hijrī. Their books are known as The Six Sound Books (al-Ṣiḥāḥ al-sitta).

Close attention was not only given to writing and categorizing the Sunna, but also to studying the chain of narration from the point of view of accuracy, justice, and soundness. The people who undertook this task were known as the people of al-jarḥ wa-‘l-ta`dīl (examination and correction). The study of the Sunna then became twofold: transmission (riwāya) and knowledge (dirāya), fields that were well-studied and researched by scholars. This effort generated new sciences in the field of Ḥadīth the same way sciences were created in the field of the study of the Quran.

During the time of the Messenger and that of the Companions, there was no dispute over the validity of the Sunna as a legal proof. It was considered the second source after the Quran. Ibn Jabal stated, as we indicated, that he would use the Quran, the Sunna, then exert his own ijtihād. Abu Bakr also asked the people if there was anyone who memorized something from the Messenger whenever he was faced with a case not addressed in the Quran. And so did `Umar and the rest of the legislators amongst the Companions and Followers. The supportive text in this regard was God’s words: “O you who believe, obey God, obey the Messenger…” and “And if they refer it to the Messenger and the learned ones…” and “If you dispute some matter, refer it to God and to the Messenger…” and “Whoever obeys the Messenger, has obeyed God…” etc… Because of this explicit proof no one ever argued against the validity of the Sunna as a mandated legislative proof.

By the end of the first century Hijrī, however, with the extinction of the Companions who were capable of distinguishing lies from the Ḥadīth, profiteers made up aḥādīth to legitimize their actions and cover up their mistakes. The fact that the Sunna was not collected and written down made it very easy for them to do so. As a result, the number of aḥādīth increased and contradictions appeared, causing the rise of slander and defamation. It became very hard to distinguish between sound aḥādīth and those which were not sound or authentic. Furthermore, since the Companions did not require that aḥādīth were reported verbatim as said by the Messenger, the possibility of misinterpreting a Ḥadīth was very probable.

Because of these two reasons, along with some other reasons, scholars were divided over the question of whether to use the Sunna as a legislative proof.

A group of scholars rejected the Sunna in its entirety. This group evolved in Basra, where i`tizāl was created. They argued that God revealed the Quran, which contained the explanation of everything, so how could one interpret obligations and commands set forth in the Quran, or limit the general laws or generalize a specific law using aḥādīth, when we are not absolutely sure of its authenticity, nor are we sure about the infallibility of its narrator? They added: How can a thing believed to be absolutely authentic (Quran) be explained by something that is probably authentic (the Ḥadīth)?

In my opinion, this was a weak argument, if not absolute deviance. Because God—may He be glorified—has only entrusted to people tasks that they can handle. Concerning the Tradition, all that can be done is to use all possible means to maximize their assurance about its authenticity and minimize doubts of its inauthenticity (taghlīb al-ẓann). One who manages to establish a high probability that a Tradition was said by the Messenger of God is required to live according to that Tradition. Were absolute certainty about the authenticity of a Tradition required as a condition, no judge would ever be able to take any statement from a witness, nor would the prayer of a Muslim be considered valid, because the statement of a witness is nothing more than the most probable opinion. Facing the Qiblah is also established on the best approximation of orientation toward the Ka`ba. The effort of the scholars of the Sunna in examining and verifying it leads to the increase of its probable authenticity.

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