Indexed OCR Text

All that had an effect on Islamic figh. That effect varied according to the
strength of the intellect and the D e e n of those who learned this philosophy.
Some people had strong intellects and correct and true belief and so they
mastered the ideas which came to them by the strength of their intellects and
belief, and were encouraged and used some of these concepts to stimulate
their thoughts and perceptions and to discipline their thinking. Some of them
were not strong enough to cope with these influences and their intellects were
unsettled by them, which resulted in intellectual confusion. Various kinds of
scholars, writers and poets were overcome by those ideas and became
bewildered and confused.
There were also zindiqs who propagated ideas designed to corrupt Muslim
society, disturb the peace and undermine the Muslims. Some wanted to
destroy Muslim rule and revive ancient Persian rule, as in the case of the
revolt of al-Muqanna' in Khorasan against the Abbasids in the time of the
Khalif al-Mahdi. The Abbasid khalifs unsheathed the sword against those z i
n di q s who rebelled - they flogged those who disrupted society and who
wanted to circulate freethinking among the Muslims and to induce them to
abandon the commands of the Shari'a and the strictures of the D e e n. They
gave rein to scholars to refute those who spread false doctrines among the
Muslims with adulterated proofs.
Those scholars, who were the Mu'tazilites, countered them by making use of
cogent proofs and strong evidence. The khalifs brought them close to them,
joined their gatherings, and opened to them the doors of their palaces in the
time of al-Mansur and alMahdi, and even more so in the time of al-Ma'mun,
al-Mu'tasim and al-Wathiq. In the time of these latter three khalifs they acted
as ministers, chamberlains and scribes. Indeed, al-Ma'mun considered
himself one of them. He directed those scholars to refute the z i n d i q s,
Magians and others who debated with them in order to defend Islam. This
was one reason why they proceeded to formulate dogma and defend it with
new means which were unknown in the manner of deduction that had been
employed by the Companions and Tabi'un.
In doing so the Mu'tazilites borrowed ideas from philosophy to sharpen their
weapons and support their arguments. Then they adopted their opponents'
methods of attack and defence. Questions into which those opponents delved
arose for them and consequently they became embroiled in philosophical

questions which the Muslim scholars among the Companions and Ta bi ' un
had never seen the need to consider. They discussed the will and actions of
man and the power of Allah over them, and they spoke about the Attributes
of Allah and whether they were different from the Essence or the same thing.
While they considered such matters the fuqaha' turned aside, finding such
speculative thinking distasteful.
In addition, such people differed in their deduction of doctrine from the path
of the righteous Salaf and from the path of the h a d i t h scholars and fu q a
h a '. Thus it was natural that these two groups who served the Islamic De e
n did not meet, because their reasoning and the arenas of their thought were
so different. The fuqaha' and hadith scholars learned their Deen from the
Book and Sunna and their knowledge was based on understanding the texts
of the Book and the Sunna of the Prophet. They derived their rulings from the
texts or by ijtihad through opinion if there was no text. That is the furthest
that they went. The Mu'tazilites sought to establish doctrine by purely logical
criteria and to that end they used logic and philosophy.
This turn of events meant that people had to specialise in particular
disciplines. Some had understanding of the texts of the Noble Qur'an and the
Sunna of the Prophet and the deduction of Islamic law from or through them.
Others undertook to clarify Islamic doctrine and to defend it by the means
which their opponents used. To that end they used anything that would lead
to victory in debate. However, some of the Abbasid khalifs tried to force
scholars to accept the views of the Mu'tazilites regarding an issue which was
known in history as "the Createdness of the Qur'an." Al-Ma'mun, al-
Mu'tasim and al-Wathiq tried to force the fuqaha' and hadith scholars to
accept the position of the Mu'tazilites on this and they used force against
them. In this way the Mu'tazilites became the opponents of the fuqaha' and
hadith scholars.
In the time of ash-Shafi'i, then, the science of kalam was based on the
teachings and techniques of the Mu'tazilites. Ash-Shafi'i hated that science
and was averse to becoming involved in it because he only knew of it in the
form which he saw in the Mu'tazilites. So the effect of the Mu'tazilites on
ash-Shafi'i was both negative and positive. Part of its positive effect was his
method and strength in legal argument. He used to argue with some of the
fuqaha' of opinion who were involved in Mu'tazilism, like Bishr al-Marisi,

and they were very skilful in arg u m e n t . Perhaps ash-Shafi'i studied their
techniques of argument, how to approach the opponent, and how to produce
evidence against him from his own words. That is one thing for which ash-
Shafi'i was famous, and his books are full of it. In any case, the general
ambience was one of argumentation and disputation.
The first Muslim groups who had resorted to force in an attempt to take
power from the Umayyads - the Shi'a and the Kharijites - had dropped their
swords and had lost their cohesion, and their seditions had died down. Those
who followed those sects, however, moved from spears to pens and began to
organise their opinions, record their arguments, and defend them with
evidence and proof whenever the opportunity arose. So the schools of the
Shi'a were formed: the Twelver Imamis, who had a distinct figh; the
Isma'ilis, who had a philosophy and particular social customs; and the
Zaydis, who had an immense body of fi q h w h i c h was studied at this
time.
Among some Islamic works discovered in Milan are a number of lines
ascribed to Imam Zayd (d. 122) which deal with f i q h. Whether or not their
ascription to Zayd is valid, there is no doubt that the fiqh of the Shi'a was
studied and known in the time of ashShafi'i. You can see in what we have
already reported of the words of ash-Shafi'i that he was aware of the opinions
of Muqatil ibn Sulayman, who was a Zaydi Shi'i; and there is no doubt that
he had knowledge of this group, or at least of their fiqh, even if his name is
not mentioned in his books.
One aspect of the attention that groups of people began to pay to the different
sciences which they studied and debated was that scholars began to record
what they learned. This is what distinguishes the Abbasid period. In the
Umayyad era scholars received knowledge orally, especially where the
religious sciences were concerned. In the Abbasid era knowledge began to be
recorded, sciences became distinct from one another, and each science had
particular scholars who were skilled in it and defined its rules. For instance,
al-Khalil ibn Ahmad codified the metres of poetry and prosody, linguistic
scholars produced rules for the science of grammar and morphology, and so
on. The same thing happened with fiqh and hadith.
The fuqaha' and hadith scholars began to record their sciences at the end of

the Umayyad period and during the period we are discussing. The fuqaha' of
Madina collected the fatwas of 'Abdullah ibn 'Umar, 'A'isha, Ibn 'Abbas and
the great Tabi'un after them in Madina, analysed them, and derived rulings
from them. Similarly the Iraqis collected the fatwas of 'Abdullah ibn Mas'ud,
the judgements and fatwas of 'Ali, and the judgements of Shurayh and other
qadis of Kufa, and then deduced and extrapolated from them. In the Abbasid
period, h a d i t h literature expanded, with immense legal consequences. The
Shi'a fuqaha' also began to record their opinions.
Imam Abu Yusuf wrote The Book of Kharaj, The Book on the D i s a g
reement between Abu Hanifa and Ibn Abi Layla, and his refutation of the
positions of al-Awza'i. Muhammad ibn al-Hasan recorded the fiqh of Abu
Hanifa and his colleagues. In his Fihrist, Ibn an-Nadim mentions many books
ascribed to Abu Hanifa and his people. When fiqh was recorded in the time
of ash-Shafi'i, the fiqh of those before him and those contemporary with him
already existed in writing. Thus the existing legal knowledge was fully
recorded and he must have had extensive knowledge of it.
The Islamic empire stretched from Andalusia in the west to the kingdoms
bordering China in the east. There were several Islamic centres and cities
which had scholarly renown. Early on the Companions of the Messenger of
Allah had dispersed to those cities, and each Companion had students and
legal opinions in keeping with the situation of the people of the cities in
which they lived. Each city had its own social, commercial, and scholarly
circumstances and sought to claim distinction through the great number of its
scholars and fuqaha'.
There is no doubt that this situation had a great effect on fiqh. It also had a
great effect on the education of ash-Shafi'i, especially as the f i q h of those
cities was recorded and disseminated and scholars discussed it critically and
thoroughly examined it in their debates. Ash-Shafi'i travelled to many of
these regions, as he had travelled in the Arabian peninsula, including the
desert, and to Yemen as an agent of one of the governors. He went to Kufa
and Basra and debated with scholars there, learning from them and replying
to them. His book al-Umm tells us that he debated with the scholars of Basra
who denied that any hadith could be used as evidence. Thus he began to
travel between Baghdad and Makka and he studied and read what the
scholars wrote in every city and region until he put down roots in Egypt,

where all this study and experience bore fruit.
The Abbasid khalifs had a religious position, even if they were immersed in
luxury, eager for pleasure, enjoying forbidden things or some things which
are not clearly lawful or unlawful if we accept the least hostile reports. So
why did this corrupt dynasty still have this inclination? Because it was a
dynasty founded on the basis of its connection to the Prophet, may Allah
bless him and grant him peace. The authority of the Abbasids was necessarily
reliant on the Shari'a since they were connected to the Prophet by lineage.
Because of this religious disposition among the Abbasid khalifs, they brought
scholars close to them, elevated them, gave them stipends, and made the
scholarly way of life easy for them.
The scholars who were court favourites in the reigns of alMahdi, al-Hadi, al-
Ma'mun, al-Mu'tasim and al-Wathiq were Mu'tazilites who were deployed
to fight the zindiqs and the nonMuslims who attacked the principles of Islam.
In the time of Harun ar-Rashid, the fuqaha', hadith scholars and preachers
were favoured at court, and it is reported that he imprisoned the Mu'tazilites
and forbade them to occupy themselves with kalam. This may have been
responsible for ash-Shafi'i's aversion to them in Baghdad under ar-Rashid.
This lasted until al-Ma'mun tried to impose the Mu'tazilite position, as we
already stated. Ar-Rashid's patronage of the fuqaha' had visible effects. He
listened attentively to their advice and asked for it if they were reluctant to
give it. He listened, even if the words were harsh and severe. He paid heed to
Malik's advice to him and listened to others as well.
It is related that the Khalif asked ash-Shafi'i to advise him when he defended
himself against the accusation of being an 'Alawite and successfully proved
his innocence. Thus figh and the fuqaha' had standing in the time of ar-
Rashid. That is one of the factors which encouraged fi q h and caused people
of intelligence and nobility to seek it. The fuqaha' also had a good position in
the time of al-Amin, even if he did not bring them near to them or listen to
them as his father had done. They were not harmed in the beginning or
middle of the reign of al-Ma'mun, but at the end of it came the whole
business of the "Createdness of the Qur'an" which he innovated. At that point
ash-Shafi'i was living in Egypt where fiqh and hadith had great prestige. The
fuqaha' and hadith scholars there had high standing with the governor.

Scholastic debate was intense in the Abbasid era and it became the arena of
scholarly rivalry, the field of competition for men of letters and an object of
estimation for every masterly scholar. Every distinguished educated person
wanted to use knowledge as a means to personal glory and research as a
means to individual elevation. Debate was encouraged by the khalifs and they
held gatherings in their palaces. Some of them participated in the debates and
became involved, especially al-Ma'mun who had some knowledge of
philosophy.
As well as those debates whose motive was desire for reputation and
elevation, there were also purely religious debates stimulated by zeal for the
Deen and for the school to which the debaters belonged. There were debates
between hadith scholars and fuga ha' and the Mu'tazilites motivated by
sincerity on the part of the f u q a h a ' and sincerity also on the part of the
Mu'tazilites. Then there were debates between the f u q a h a ' themselves.
During the Hajj to the Sacred House and in the Haram of the Prophet there
were disputes between the fuqaha' and in other cities of Islam - Baghdad,
Basra, Kufa, Damascus and Fustat - there were debates between people of
different orientations among the f u q a h a '. Wherever the faqih went he
would find someone to argue with.
The debates between them were not confined to unclear matters but
sometimes involved letters and treatises. Malik heard that alLayth ibn Sa'd in
Egypt was not giving fatwa in accordance with the position of the people of
Madina, the place to which Hijra had been made and where the Qur'an was
revealed; and so he wrote to him on the subject. Al-Layth replied to him with
sincerity and penetrating thought in figh. Al-Layth's letter reveals the legal
bent of that time, and it combines the fi q h of opinion and h a d i t h. It is
quoted in I'lam al-Muwaqq'in by Ibn al-Qayyim.
Peace be upon you. I praise Allah for you. There is no god but He ...
You have been informed that I have given fatwas different from those your
community agrees on and that I must fear for myself because those near me
rely on my fat w a s, whereas people should follow the people of Madina, to
which the Hijra was made and where the Qur'an was revealed. You are
correct in what you wrote to that effect, Allah willing, and it came to me in a
way which I do not dislike. No one is more strongly inclined than I am to
prefer the knowledge of the people of Madina who have passed away and no

one acknowledges their fat was more readily than I do. Praise be to Allah, the
Lord of the worlds, Who has no partner.
As for what you mentioned about the Messenger of Allah, may Allah bless
him and grant him peace, residing in Madina, the Qur'an being sent down to
him among the Companions and what Allah taught them from him and that
people became their followers, it is as you have stated.
You mentioned the Words of the Almighty, ' The Forerunners, the first of
the Muhajirun and the Ansar, and those who have followed them in doing
good: Allah is pleased with them and they are pleased with Him. He has p re
p a red Gardens for them with rivers flowing under them, remaining in them
timelessly, forever without end. That is the great triumph.' (9:100) Many of
those Forerunners went out to perform jihad in the Way of Allah, seeking
Allah's pleasure, and they formed military garrisons and people flocked to
them. They made known the Book of Allah and the Sunna of His Prophet and
they did not conceal anything that they knew.
There were some in every group who taught the Book of Allah and the Sunna
of the Prophet and exercised ijti had in respect of anything which the Book
and Sunna did not explain to them. They were headed by Abu Bakr, 'Umar
and 'Uthman, whom the Muslims chose for themselves. These three did not
neglect the armies, nor were they heedless of them. They wrote what was
necessary to establish the Deen and warned against disagreement about the
Book of Allah and the Sunna of His Prophet. They did not abandon any
command explained by the Qur'an or carried out by the Prophet, may Allah
bless him and grant him peace: they taught it and made it understood. When a
command came, the Companions of the Messenger of Allah acted on it in
Egypt, Syria and Iraq in the time of Abu Bakr, 'Umar and 'Uthman, and
continued to do so until they died.
However, the Companions of the Messenger of Allah, may Allah bless him
and grant him peace, disagreed in their fatwas about many things, as you well
know. Then the Tabi'un disagreed strongly about some matters after the time
of the Companions of the Messenger of Allah: Sa'id ibn al-Musayyab and
people like him. Then those who came after them disagreed and they are
present today in Madina. Their leaders are Ibn Shihab and Rabi'a ibn Abi
'Abdi'r-Rahman.
You are aware of this, having been present when Rabi'a disagreed with some
of what happened. I heard what you said about it and what was said by some
of the people of Madina - Yahya ibn Sa'id, 'Ubaydullah ibn 'Umar, Kathir
ibn Farqad, and many others older than him

- until it reached the point where you were compelled to part from him
because of what you disliked in what he said. Nonetheless, there is much
good, intelligence, eloquence, virtue, and excellent method in Rabi'a. He also
has true love for his brothers in general and for us in particular - may Allah
have mercy on him, pardon him and reward him.
Ibn Shihab has made several varying statements which were sometimes
contradictory. In spite of his excellent opinion and knowledge, it happened
that when he wrote to us he would sometimes give three answers to one
question which would contradict one another, not remembering the previous
opinion he had given on it. This is what led me to abandon what you object to
my abandoning.
You also know my objection to the Muslim armies combining the prayers on
a rainy night. Rain in Syria is more frequent than in Madina as Allah knows.
No Imam there ever joined the prayers on rainy nights, and they included
Abu 'Ubayda ibn al-Jarrah, Khalid ibn al-Walid, Yazid ibn Abi Sufyan, 'Amr
ibn al-'As, and Mu'adh ibn Jabal. We have heard that the Messenger of Allah
said, 'Mu'adh ibn Jabal has the most knowledge of the h a 1 a 1 and haram,'
and it is said, 'Mu'adh will come on the Day of Rising one step above the
scholars.' There were also Shurahbil ibn Hasan, Abu'd-Darda', and Bilal ibn
Abi Rabah. Abu Dharr was in Egypt, as were az-Zubayr ibn al'Awwam and
Sa'd ibn Abi Waqqas. There were seventy of the people of Badr in Hims. In
Iraq there were Ibn Mas'ud, Hudhayfa ibn al-Yaman, and 'Imran ibn Husayn.
The Amir al-Mu'minin 'Ali settled there with an extraordinary number of
Companions.
Another subject that you raised is judging with only one witness and an oath
of the claimant. You know that it is still practised in Madina, but the
Companions of the Muhammad in Syria, Hims, Egypt and Iraq did not do so;
nor did the Rightly-Guided Khalifs, Abu Bakr, 'Umar, 'Uthman and 'Ali
instruct to them to do so. Then 'Umar ibn 'Abdi'l-'Aziz came to power, and
he revived the sunan - as you know - and strove to establish the Deen and
find the correct position as applied by the people of the past. Zurayq ibn al-
Hakam wrote to him, 'You judge in Madina by a single witness and the oath
of the claimant,' and 'Umar ibn 'Abdu'l-Aziz wrote to him, 'We use that
judgement in Madina but we find that the people of Syria are different and
therefore we only judge by the testimony of two just men or one man and two
women; and the prayers of Maghrib and 'Isha' are never combined here on
rainy nights.' Rain was abundant there ...
I have heard something about some fatwas from you which are disliked and I

wrote to you about some of them; but you did not did reply to my letter. I
feared that it was burdensome for you and so I left off writing to you about
opinions of yours of which I have heard and which I disapprove. I heard that
when Zafar ibn 'Asim al-Hilali wanted to perform the rain prayer you told
him to pray before giving the khutba. I made a strong protest against it
because the khutba in the rain prayer is the same as in the Jumu'a prayer
except that at the end of the khutba of the rain prayer the Imam switches his
cloak around, descends and prays. 'Umar ibn 'Abdi'l-'Aziz, Abu Bakr
Muhammad ibn 'Umar ibn Hazm and others prayed the rain prayer and all of
them did the khutba and supplication before the prayer. That is why everyone
thought that what Zafar ibn 'Asim did was weak and disapproved of it.
I have also heard that you say that two partners do not have to pay zakat
unless both of them have the minimum amount on which zakat becomes
obligatory. The letter of 'Umar ibn al-Khattab states that they must pay zakat
proportionally if their combined shareholding adds up to the prescribed
amount. That was done while 'Umar ibn 'Abdi'l-'Aziz was in power before
you, and by others. It agrees with what Yahya ibn Sa'id says, and there were
no better scholars in his time ...
I have omitted many similar subjects, and I wish that Allah may give you
success and long life for the sake of people's benefit ...
This letter makes two things clear to us. Firstly, arg u m e n t s between
fugaha' occurred in all branches of fiqh and that argument was prompted by
desire to ascertain the truth, not by desire to defend a preconceived opinion.
Such argument was governed by honest words, gentle speech and calmness
and was far from whim, anger, acerbity and rudeness in which opinion was
mixed with passion and in which truths would be hidden in the middle of
storms of conflicting emotions, passions and selfishness incompatible with
the truth.
Secondly, in his presentation al-Layth mentions the questions in which Malik
differed from the opinion of various Companions and Tabi'un, and then
chose among them those which he thought represented the majority opinion.
This shows that study in that time included the study of opinions of the
Companions, Tabi'un a n d fuqaha' of the cities, and that students compared
them and chose from among them what was best for people and embraced by
the majority.

One could refer to the time of ash-Shafi'i as the era of fruitful legal debate. It
could be said that the Islamic fiqh which he produced owed much to these
sincere debates. Questions arose which were analysed and debated and which
formed the focus of the different positions of the fuqaha'. These debates
recorded legal evidence and the principles whereby the various opinions were
extended to secondary rulings. That is because when the fuqaha' wrote their
books, with few exceptions, they recorded secondary rulings and judgements
without mentioning their evidence and the principles on which they were
based. When opinions clashed in legal debate, each debater brought his proof
and explained his method. Debates, then, were the impetus from which the
fundamental principles of the schools originated.
When ash-Shafi'i set down his school - or dictated it or it was reported from
him - it had the flavour of debate because much of it was the fruit of debate.
Ash-Shafi'i, eminent debater that he was, appears to have derived the
maximum possible benefit from it in setting out the basic principles of fiqh.
These different debates and comparison of different opinions influenced his
thought and so he formulated the universal rules for deduction from these
disparate elements.
Sunna and Opinion
From the death of the Prophet, may Allah bless him and grant him peace,
until the time of ash-Shafi'i there existed a group of f u q a h a ' who were
famous for opinion and a group famous for transmission. Among the
Companions some were famous for opinion and some for hadith and
transmission. It was the same with the Ta b i ' u n and the generation after
them and then the m u j t a h i d Imams: Abu Hanifa, Malik and the f u q a h a
' of the cities. Some were famous for opinion and some for hadith. We will
now briefly explain this.
Ash-Shahrastani says in al-Milal wa'n-Nihal, "Situations arising from acts of
worship and daily life are endless. We know for certain that there is not a text
on every situation, nor is that conceivable. Because the texts are limited and
situations are not, ijti had and analogy must be considered in order that every
situation may be brought within the compass of the Shari'a. After the death
of the Prophet, the Companions were faced with countless unprecedented

situations. They had in their possession the Book of Allah and what was
known of the S u n n a of the Messenger of Allah. So in regard to the events
which befell them they had recourse to the Book, and if they found a clear
ruling, they carried it out. If there was no judgement in the Book, they
resorted to the Sunna of the Messenger of Allah, and consulted the memories
of his Companions to ascertain the ruling of the Prophet in similar cases. If
there was no one who knew anything they exercised ijti had in their opinions.
"So they proceeded to examine the case in the light of the Book, then the
Sunna, and then opinion. 'Umar stated in a letter to Abu Musa al-Ash'ari:
'Understanding is something which reverberates in your breast which is not
in the Book or S u n n a. Learn similarities and likenesses, and form analogies
on that basis.' The Companions used opinion, but disagreed as to how much
it should be used. Some used it more often than others and some hesitated if
there were no text from Book or a followed sunna.
"They agreed to rely on the Book and a known s u n n a if one existed, but if
they did not find a known sunna the famous fugaha' used opinion. If any of
them were unsure about their memory of a hadith of the Messenger of Allah
or of his fatwa about a matter, they preferred not to relate it but to give a
decision by opinion, fearing that relating it might involve lies against the
Messenger of Allah. They report that 'Imran ibn Husayn used to say, 'By
Allah, I think that if I had wished, I could have related from the Messenger of
Allah for two consecutive days; but I was deterred from doing so by men of
the Companions of the Messenger of Allah who heard what I heard and saw
what I saw, and who relate hadiths which are not exactly as they tell them. I
fear that I might be confused like them.""
Abu 'Umar ash-Shaybani said, "I sat with Ibn Mas'ud and a year would go
by without him saying, 'The Messenger of Allah said.' When he did say,
'The Messenger of Allah, may Allah bless him and grant him peace, said,' he
trembled and said, 'like that, or close to it."" 'Abdullah ibn Mas'ud thus
preferred to give a decision according to his own opinion and to bear the
responsibility for it if he was wrong, rather than possibly lie about something
the Messenger of Allah said or did. He said, after deciding a problem
according to his opinion, "I say this from my own opinion. If it is right, it is
from Allah. If it is wrong, it is from me and from Shaytan." He used to be
elated when his opinion accorded with a hadith which one of the Companions

transmitted.
A second group criticised those who gave fatwa by their opinion, saying that
they gave f a t w a in the De e n of Allah without authority from the Book or
the Sun n a. The truth is that the Companions found themselves in an
impossible quandary resulting from the strength of their religious feelings.
On the one hand they might memorise a lot of hadiths from the Messenger of
Allah in order to learn the judgements from them, but then they feared that
they might be inaccurate about what he said. As we read in adDihlawi:
"When 'Umar sent a group to Kufa, he told them: 'You are going to a people
who are confused about the Qur'an, so they will ask you about hadith. Do not
give them too many." And on the other hand, they could give fatwa by their
own opinions and be in danger of making things lawful and unlawful without
proper justification. Some of them preferred hadiths from the Messenger of
Allah and some of them chose opinion when there was no clear precedent. If
they subsequently learned of a clear s u n n a, they retracted their opinion.
That was related of many of the Companions, including 'Umar.
After the Companions came their students, the Ta b i ' u n, and two problems
arose in their time. One is that the Muslims divided into parties and groups.
The level of disagreement became intense and impassioned. They were
severe with one another and started to accuse one another of disbelief,
iniquity and rebellion, and to threaten one another and to unsheathe the
sword. The Community divided into the Kharijites, Shi'ites, Umayyads and
those who were quiescent in the face of the afflictions which occurred and far
from sedition, not becoming involved in it.
The Kharijites formed different sects: the Azraqites, Ibadites, Najdites and
others. The Shi'a formed into disparate groups, some of whom had bizarre
opinions which took them outside of Islam, even though they pretended to
follow Islam in order to corrupt people. They were not concerned with
establishing the Deen, but rather with destroying its basis to restore their old
religion and its power and authority - or at least to shatter Muslim cohesion
or to make the Muslims live with intense seditions, and to extinguish the
Light of Allah.
Madina lost the unique authority which it enjoyed in the time of the
Companions, especially in the time of 'Umar which is considered the Golden

Age of legal ijtihad. It was the home of the scholars and fuqaha' of the
Companions. They did not leave it without maintaining a scholarly
connection with it. They corresponded regarding problems which arose,
because the sunna of 'Umar was to ensure that the Companions of Quraysh
were kept within the confines of the Hijaz. The great Muhajirun and Ansar
never left the boundaries of Madina without his permission and he watched
over them.
When 'Umar died, they left for outlying regions. Each group of them had a
legal school which was related from them, and the people of the places to
which they emigrated followed their path. In the time of the Tabi'un there
were students of those fuqaha' who lived in Madina or other places. Each city
had its fuqaha' and their views grew apart as the cities were far apart: each
adopted the customs of his region and had to deal with the particular
problems which troubled his own region. So people followed the path of
those Companions who were in that region and transmitted the h a d i th s
which they reported and which therefore became current among them. Thus
various methods of legal thought appeared, all derived from the Qur'an and
the Sunna of the Pro-phet.
As we have seen, in the time of the Companions there were basically two
schools. In one, opinion dominated and transmission played a lesser role,
though if a clear s u n n a e m e rged opinion would be abandoned in favour
of it. The other relied almost totally on transmission and preferred not to give
a fatwa when there was no transmission, rather than risk contravening the D e
e n of Allah by opinion. In the time of the Ta b i ' u n the gap between the
two widened and those who preferred transmission increased their adherence
to their path, considering that to be a protection from the seditions which had
now become severe. They found safety only in holding to the Sunna. The
others normally had much less recourse to the S u n n a, which had in any
case become subject to falsification in outlying areas, and because the new
situations that arose and required rulings they tended to rely far more on
opinion. In addition, new ideas assailed them through contact with new
cultures in lands conquered by Islam; and many of the Tabi'un were non-
Arabs, heirs to the ancient civilisations of their ancestors.
So the gap widened between the schools and they grew further apart than
they had been before when it was difficult to distinguish between them. The

basis of the disagreement was not concerned with whether accepting the
authority of the Sunna should be accepted. It lay in two matters: the extent of
the use of opinion, and secondary questions deduced through its use. The
adherents of tradition only used opinion when absolutely necessary, rather as
a Muslim may eat pork if no other possibility exists. They did not look into
secondary questions or extrapolate judgements for speculative situations
which had not arisen. They only gave fatwas for problems which had actually
occurred and did not look into hypothetical situations. As for the people of
opinion, they gave many f a t w a s based on opinion whenever they had no
sound ha dith o n the subject. They did not confine themselves in their
studies to the deduction of rulings on actual problems but also posed
hypothetical questions and gave judgement on them on the basis of their
opinions.
Most of the adherents of hadith were in the Hijaz, even though there was
some fiqh of opinion there. This was because it was the home of the first
Companions and a place of Revelation and because many of the Tabi'un who
resided there were trained by the Companions who made little use of opinion
- although a few were students of a Companion who used opinion a lot and
transmitted his opinions. Most of the adherents of opinion were in Iraq
because they trained with 'Abdullah ibn Mas'ud, who refrained from
transmitting from the Prophet out of fear of making a mistake but did not
refrain from exercising his opinion. If there was a sound hadith on the
subject, he referred to the hadith. There were also old philosophies and
sciences in Iraq as well as the classical texts of Greece and Rome. Those who
were influenced by this were comfortable with i j t i h a d by opinion,
especially when there were not many hadiths among them to be consulted.
This process continued and in the time of the Ta bi ' i't - Tabi ' in and the
mujtahids with madh ha bs, the gap became very wide indeed and
disagreements became intense. When the two groups met each borrowed
from the other. The people of h a d i t h a b a ndoned their former hesitation
and were compelled to use opinion in some cases; and when the people of
opinion saw the Sunna and traditions, some wrote them down and began to
examine them, supporting their opinions with hadiths or leaving opinion
aside if they had a sound hadith. This was the period in which ash-Shafi'i
lived and studied.

Lies about the Prophet proliferated at the time of ash-Shafi'i because various
groups defended their positions unscrupulously with words which led to the
spread of forged hadiths which they espoused and spread among the
Muslims. This upsurge in lies led to two things. Hadith scholars started to
devote themselves to the investigation of truthful transmission, and to
distinguishing the true from the false. To this end they studied the
transmitters of hadiths, investigated their circumstances, learned those who
were truthful and ranked them according to their truthfulness.
Then they studied the hadiths and compared them unquestioned elements of
the De e n. Eventually some scholars recorded the sound hadiths: Malik and
his Muwatta', al-Jawami' of Sufyan ibn 'Uyayna, and al-Jami' al-Kabir of
Sufyan ath-Thawri. The second consequence was that people gave fatwa
more and more frequently according to opinion out of fear of lying against
the Prophet or depending on something that might well have been forged.
This occurred mostly in Iraq because the fu q a h a ' there who transmitted
from the Followers and the next generation were known for opinion and often
gave fatwa by it. Ad-Dihlawi says in his book after discussing the adherents
of hadith:
Over and against them, in the time of Malik and Sufyan and after them, were
people who did not dislike questions and were not afraid to give fatwa,
saying that fiqh must be spread on the basis of the Deen but fearing to
transmit the hadiths of the Prophet and attribute them to him wrongly. Ash-
Sha'bi said, 'We prefer anyone to the Prophet (as authority for fi q h).'
Ibrahim said, 'I prefer to say "Abdullah said" and "Alqama said".' They did
not have the hadiths and traditions to deduce the fiqh on the principles which
the people of hadith chose, nor were they inspired to look into the words of
the scholars of other lands, collect them and investigate them. They believed
that their Imams had the highest level of precision and their hearts were the
closest to the Companions. 'Alqama said, 'Is there anyone more solid than
'Abdullah ibn Mas'ud?' Abu Hanifa said, 'Ibrahim has more fiqh t h a n
Salim. If it had not been for the virtue of being a Companion, I would have
said that 'Alqama had more fiqh than Ibn 'Umar.' They possessed
intelligence and intuition, and their minds swiftly moved from one thing to a
no ther, enabling them to derive the answer to problems from statements of
the Companions. Everyone is given ease in that for which he was created and

'every party rejoices in what it has'. So they formulated figh on the rule of
extrapolation. The people of Iraq gave fatwa b e c a u s e they felt that it was
their duty and the basis of the deen; at the same time they were afraid to
report from the Messenger of Allah. They did not accept the statements of the
people of other lands, and were partisan towards their shaykhs.
Whatever the reasons, the Iraqis made much use of opinion but the Hijazis
and Syrians used it less. As we indicated before, the adherents of opinion and
those of h a d i t h agreed that judgement must be by the Book and sound
Sunna but they differed. The people of hadith were afraid of opinion but not
of transmission from the Messenger, and did not adopt opinion except when
forced to do so by the fact that they did not know of a hadith, whereas the
people of opinion were afraid of relating hadith but not of giving fatwa on
questions which they could later retract if they later came across a hadith.
The people of opinion also refused to accept weak hadiths, whereas some of
the people of h a d i t h accepted them. Imam Malik, the Imam of the people
of Madina in that time, used munqati', mursal, and mawquf hadiths, the
practice of the people of Madina, balaghathadiths, and the statements
of the Companions before resorting to analogy.
In that time in which argument and dispute flourished, there was a group who
denied that the Sunna and reports ascribed to the Prophet, may Allah bless
him and grant him peace, could be used as evidence. Ash-Shafi'i mentioned
them and his debates with them in al-Umm. There were disagreements about
whether or not to use traditions as evidence because of the uncertainty about
their ascription to the Prophet. In the time of ash-Shafi'i the schools began to
come closer together because they influenced one another in their discussions
and debates. Certainly Abu Yusuf accepted the study and memorisation of
hadiths and their use as evidence.
We have briefly explained the difference between the fuqaha' of opinion and
those of the S un n a. Was the opinion in question merely legal analogy,
which is to relate a matter on which there is no specific ruling to another
prescribed matter with a ruling since the same legal reasoning applies to both
- or is it more general than that? Anyone who studies the meaning of the
word 'opinion' (ra'y) in the time of the Companions and the Tabi'un will find
that it is general and not peculiar to analogy alone. It includes analogy and
much more besides. When we deal with the formation of the schools, we also

find this general use of the term. When we focus on the time of the schools,
we find that each school differs in the explanation of the opinion which it is
permitted to adopt.
Ibn al-Qayyim explains that the opinion which was transmitted from the
Companions and Ta bi ' un was what the heart saw after reflection,
consideration, and seeking to identify what was correct when there were
conflicting indications. The sources of the fatwas of the Companions and
Tabi'un and those who followed their path show that the idea of 'opinion'
includes all that about which a faqih gives a fatwa for which there is no text,
relying in his fatwa on what he knows of the deen in a general way, what
agrees with its rulings in general, or what resembles another matter for which
there is a text when he connects like to like. That opinion includes analogy,
istihsan, masalih mursala and custom.
Abu Hanifa and his adherents used analogy, istihsan, and custom, and Malik
used istih s a n, masalih mursala and custom. He was famous for the use of
considerations of welfare. That is why there was flexibility and receptivity
for all the affairs of people in different times although it was a school in
which analogy was not frequent. Malik said that i s t i h s a n was nine-tenths
of knowledge: but that was when there was no text or fatwa from a
Companion and no precedent practice of the people of Madina.
Ash-Shafi'i came and founded a systematic method of deduction which
allowed judgements without a text to be relied on and did not accept the
previous latitude in the derivation of judgements. He thought that there
should be no opinion in the Shari'a unless its basis was analogy permitting a
matter without a text to be connected to the ruling on another matter with a
text. In such cases, opinion had to be traced to a text so that there was no
possibility of innovation in the S h a r i ' a. As for general deduction and
justification for judgements without a basis in a text with a judgement, he
considered that to be innovation in the Shari'a.
That is why ash-Shafi'i said, "Anyone who uses i s t i h s a n h a s legislated
for himself." He set out rules and criteria for analogy and defended and
supported it so that he went further than the Hanafis in its formulation and
affirmation. Ar-Razi commented, "The wonder is that Abu Hanifa used to
rely on analogy, and his opponents used to criticise him for over-reliance on

analogy, but it is not transmitted from him or any of his companions that he
wrote at all affirming analogy; nor that he mentioned a judicial error let alone
proof in its establishment; nor that he responded to the proofs of his
opponents in denying analogy. The first to speak on this question and report
proofs in it was Imam ash-Shafi'i."
The fatwas of the Companions and Tabi'un a n d the
practice of the people of Madina
Both the people of h a d i t h and the people of opinion were inclined to
accept the fatwas of the Companions, because following is better than
innovating and because the Companions had been present with the Prophet
and so their position was more likely to be correct. They are the Imams who
are followed. Most of the f u q a h a ' preferred their opinions. It is reported
that Abu Hanifa used to say, "When I do not find the ruling in the Book of
Allah or the Sunna of the Messenger of Allah then I can take the statement of
his Companions if I wish and leave those of other people. But I do not
disregard their words for the words of anyone else. But when it is a question
of Ibrahim, ash-Sha'bi, al-Hasan, Ibn Sirin, or Sa'id ibn al-Musayyab, then I
can exercise ijtihad in the same way that they did." Since that was the
position of Abu Hanifa, the Imam of the people of Iraq, on the opinions and
positions of the Companions, others must have been still more inclined to
accept their fatwas and what is reported from them.
Many fatwas of the Companions were transmitted at that time. The minds of
the fuqaha' were focused on those fatwas and they used them as a model
when exercising their ijtihad. They followed the same path as them, respected
their opinions and relied on them when there was nothing in the Book or S u
n n a. When the Companions agreed on an opinion, the mujtahids after them
were obliged to accept it. If one of them stated an opinion not known to be
opposed, the majority of the fuqaha' accepted it. If there was a disagreement
between them, many of the m u j t a h i d s chose from their opinions that
which agreed with their own inclination, and they did not leave the
framework of those opinions for any others.
The fuqaha' in the time of the Tabi'un and mujtahids acted like that, even if
they did not consider those fatwas to be an independent principle or a legal

rule in the De e n. Perhaps they did so because they saw that the Companions
had witnessed the descent of Revelation of the Qur'an to the Messenger and
must have derived their opinions from their knowledge of the actions of the
Messenger of Allah, and no one is permitted to exercise i j t i h a d about a
matter ascribed to the Messenger. So they did not consider the Companions'
opinion to be mere legal ijtihad: it was closer to the Sunna than to ijtihad. The
Companions are followed because they were the first teachers who spread
Islamic fi q h in all directions. They were stars shining with the primal light
of Islam.
Ash-Shafi'i came and studied with the shaykhs of the Hijaz and with Malik
who thought that the opinions of the Companions must be accepted, and
indeed that the opinions of some of the great Tabi'un should be preferred to
personal opinion and, furthermore, that the practice of the people of Madina
also should be preferred to personal opinion. Abu Hanifa, the Imam of the
Iraqis, also preferred them and put them ahead of his own opinion. Ash-
Shafi'i reported that he used to say about their opinions, "Their opinions are
better for us than our opinion for ourselves." We read in I'lam a 1 - M u w a q
qi'in, "Ash-Shafi'i said in the first version of the R i s a l a, 'They are
above us in every science, i j t i h a d, scrupulousness and intellect."
Ibn al-Qayyim quoted the following from ash-Shafi'i's book The
Disagreement with Malik: "Knowledge has stages: the first is the Book and S
un n a; the second is consensus about what is not Book or S u n n a; the third
is the statement of the Companions which is not known to be opposed; the
fourth is the disagreement of the Companions; and the fifth is analogy." The
opinion of the Companions had its place in the ijtihad of ash-Shafi'i. We will
elucidate that further when we discuss his principles. The fuqaha' of hadith
used to prefer the opinion of the Tabi'un at times over analogy, while the
fuqaha' of opinion took the position of their shaykh Abu Hanifa that he could
use ijtihad as they did. Ash-Shafi'i was an upholder of the second method.
We now move on to the thing which Malik preferred and to which he held
very strongly: the Practice of the People of Madina. He adhered to their
practice because the Practice of the People of Madina to which H i j r a was
made and in which the Qur'an was revealed was a normative legal precedent
for people, as he says in his letter to al-Layth. This issue was the focus of
much debate between the f u q a h a ' of that time. Ibn al-Qayyim mentioned

that Malik accepted the practice of the people of Madina, which was not
binding for any of the other people of the cities and did not constitute
evidence in the Deen that may never be opposed.
Ibn al-Qayyim said in I'lam al-Muwaqqi'in, "Malik himself forbade ar-
Rashid to force people to act by his school when he resolved to do so. He
said, 'The Companions of the Messenger of Allah dispersed in the land and
each group of them had a knowledge which others did not have."" This
indicates that Malik did not consider the practice of the people of Madina to
be binding upon all of the Community. It was his choice when he saw that it
was the practice; but he did not say that in his land or anywhere else it was
not permitted to act by something else. He mentioned reports that this was the
practice of the people of his land, and he invoked the consensus of the people
of Madina in about forty instances. These instances fall into three categories.
. Those in respect of which no one is known to have opposed the people of
Madina.
· Those concerning which others differ from the people of Madina, even if
the exact nature of their disagreement is not known.
· Those in which there was disagreement between the people of Madina
themselves.
We have seen that ash-Shafi'i was a student of Malik and that for the greater
part of his life he refused to oppose him publicly even though he might
disagree with him. When he travelled to Baghdad for the first time in 184
AH, he was considered one of the adherents of Malik and he defended the
fiqh of the people of Madina. On that account there were debates between
him and Muhammad ibn al-Hasan. Since that was the case, he must have
preferred the opinion of his shaykh regarding the practice of the people of
Madina.
Several statements were transmitted from him about the people of Madina.
Al-Bayhaqi related in his book The Vi rtues of ashShafi'i that Yunus ibn
'Abdi'l-A'la said, "In the course of a debate ash-Shafi'i said, 'By Allah, I
give you only good counsel. When you find that the people of Madina have
something, no doubt should enter your heart that it is truth. If anything comes
to you, no matter how strong it is, for which you find no basis (in Madina),