by Dr. M. Hamidullah
From the book Emergence
of Islam by Dr. M. Hamidullah
The first three books on the subject have not reached
us viz. Abu Hanifah's Kitab al-Ra'y, and Abu Yusuf's and Muhammad
ibn al-Hasan al-Shaybani's books bearing the title Kitab al-Usul.
The earliest work which has reached us was written by al-Shafi'i, a student
of al-Shaybani. Al-Shafi'i was linked with many traditions at the same
time. He was horn in 150 AH, the year in which Abu Hanifah died. He did
not, therefore, learn directly from Abu Hanifah, but he studied for many
years under one of his distinguished pupils. Muhammad ibn al-Hasan al-Shaybani.
Similarly, for many years he remained a student of Malik in Madinah. He
studied philosophy, logic and dialectics. In those days the Mu'tazilah
were at the height of their fame. He dabbled in debates with them as well.
Many a quality combined in the person of al-Shafi'i with the result that
he was able to render a signal service to Islam. One of them was his ability
to serve as a link, connecting the groups of opposing trends among Muslims.
Some of the Muslims then, as now, were conservative while
others were progressive. People with these two opposing attitudes are found
in every culture and community. Some people were busy collating and learning
Hadith while some were interested in other subjects. Some jurists whose
interest lay in law were busy contributing to the Islamic law with the
help of logic and philosophy and their attention was somewhat diverted
JURISPRUDENCE AND IJTIHAD
The result was that in al-Shafi'i's day a serious rivalry
had developed between the votaries of Hadith (ahl al-Hadith)
and the votaries of reason (ahl al-ra'y). By 'votaries of Hadith
are meant those who were busy collecting the sayings and commandments of
the Prophet (peace be upon him), and by 'votaries of reason' are meant
the jurists who were busy collating the laws of Islam which they sought
to develop with the help of inference and analogy. Both were pulling in
different directions because the votaries of reason were not well-acquainted
with the Hadith. They presumed that the Hadith did not provide
answers to all their questions. They resorted to reason and analogy and
came out with new rulings. It sometimes happened that Hadith was
found to contain answers to some of the problems posed by them. The votaries
of Hadith would dub the votaries of reason as heretics, charging
them with ignoring the Prophet's traditions although they certainly did
nothing of the kind deliberately. The case simply was that they were unaware
of the traditions concerned.
Shafi'i combined both the qualities in his person. He
had acquired Hadith from the masters of the subject and he had learnt law
from the masters of analogy. He also had a full command over philosophy
In his person, therefore, emerged a scholar who served
as a link between the two schools and provided a synthesis. His greatest
achievement was that he united the two conflicting schools. He was fully
conversant with Hadith and was a leading expert in analogy, inference,
deduction and ijtihad As a result he was able to satisfy both the schools.
Another achievement of Shafi'i is his authorship of Kitab
al-Risalah which was aimed at creating unity of thought among Muslims.
We can say that this is the oldest available book on Islamic jurisprudence.
It has now been translated into many European languages. It has also been
translated into Urdu. It can be said that by writing this book Shafi'i
founded a new science. At least, he provided a strong foundation for it.
The statements made in the book continue to hold the field even after the
passage of centuries. The technical terms used by Shafi'i are still current
The word risalah means "letter." The background
to the use of this word as a title of the book is that he wrote it in deference
to the request of a student who wanted a written lesson on the principles
of jurisprudence. The answer was a long letter comprising a hundred and
fifty pages. It deals in detail with such questions as: What is law? How
is it made? What are its sources? How can differences in those sources
be resolved? How can a new law be made'? How to abrogate an old law? What
is the way to interpret the relevant texts and the terms used therein?
Shafi'i's Risalah attempts to answer these questions. It even explains
the rules of language, prosody and rhetoric, illustrating it all with examples.
Objections too have been answered by Shafi'i in a profoundly scholarly
In the age of Shafi'i the Mu'tazilah were at the height
of their influence and authority. They were disinclined to consider all
traditions, in a simplistic manner, to be authentic. It is now generally
believed that they rejected the Hadith as such. This, however, is a calumny.
In reality their position was not that of rejection of Hadith. We have
earlier mentioned a book of Abu al-Husayn al-Basri. It had been compiled
by a Mu'tazilah scholar. He explains in detail the canons of the authenticity
of traditions. A Sunni reader will find it difficult to differ with the
principles formulated by him. How is it then, that the Mu'tazilah were
condemned for their alleged rejection of Hadith? We should like
to refer to the contribution Shafi'i made in this connection.
Scholars of the Mu'tazilah school believed that there
should be more than one narrator of a tradition which lays down a law or
from which a law could be inferred. A lone narrator could not be relied
upon, not because he is wrong, but because law demands two witnesses to
confirm a statement. This argument was rejected by other Muslim jurists.
The traditonist scholars and Shafi'i gave a convincing reply, with the
result that the objection of the Mu'tazilah to the reliability of single
narrator traditions (ahad) lost their weight and people began to accept
them. Shafi'i selected a number of instances from the life of the Prophet
(peace be upon him) when action was taken on the evidence of one man. For
example the Prophet (peace be upon him) dispatched a man one day, after
the morning prayers, to go round and announce that the qiblah had been
changed from Jerusalem to the Ka'bah. Only one person was sent. He asked
the people during the prayers to turn their faces towards the Ka'bah instead
of Jerusalem. The people acted upon his word. This proves that during the
days of the Prophet (peace be upon him), action was taken on the evidence
of one person, and it was never held that unless two persons communicated
the command of the Prophet (peace be upon him) it should not be obeyed.
Shafi'i gave another example. One day in Madinah, a man appointed by the
Prophet (peace be upon him) proceeded alone to proclaim the prohibition
about alcohol. Anas, a well-known Companion, relates this incident which
he witnessed during his childhood. This is a tradition recorded by al-Bukhari.
Anas states that at the time the messenger proclaiming
prohibition passed by his house, he was serving wine to his guests. Immediately
on hearing the proclamation, his father asked Anas to destroy the wine.
He look up a hammer and broke the barrel into pieces. Those who were drinking
threw their cups away. All this took place on the announcement of one person.
Shafi'i has given many examples to prove that one man's
statement is enough to act on a tradition from the Prophet (peace be upon
him). It was his great achievement that he was able to unite both the schools
of tradition and the school of analogy so that they could serve better
the cause of Islamic law. Until his time the traditionists tended to be
concerned with the study of only the traditions and narrating them to others.
They did not study other subject; like logic, philosophy, dialectics, etc.
The result was that they insisted or, the application of the literal meaning
of the words of the texts which was not appropriate. On the other hand,
the votaries of reason insisted on resorting to analogy without fully searching,
in the first instance, for relevant references to the subject in
the Hadith. Oblivious of the traditions, they would pronounce on legal
questions on the basis of their personal opinion.
The credit goes to Shafi'i. Thanks to his impact, the
traditionists began to follow a discipline in their subject and started
writing Hadith under different chapters.
Different traditions on the same subject were collected
under one heading so that one could determine their chronology and decide
which tradition had abrogated another. Followers of the school of reason
also began to study Hadith. A new avenue for the development of Islamic
law came into being largely due to the effort of Shafi'i.
So far only four books have been mentioned viz. Abu Hanifah's
al-Ra'v. Kitab al-Usul by two students of his and Kitab al-Risalah
by Shafi'i. Nothing new except commentaries have been published during
the many centuries since the appearance of these books. Turks have made
a major contribution in that they have written scores of books which are
either repetitions of the old or their summaries or they sought to comment
on them. A major work in two volumes by Abu al-Husayn al-Basri spread over
a thousand and five hundred pages has been compressed into twenty pages
by al-Baydawl. If has become a riddle. Then began a series of notes
and commentaries on al-Baydawi's book. The book of al-Baydawi was taught
as a textbook and to explain it one needed the help of commentaries and
notes which continued to be written.
THE MODERN TIMES
In modem times the most significant contribution to the
subject has been made by the late Sir Abdur Rahim. He was once President
of the Indian Legislative Assembly. Later he came over to Pakistan. At
the invitation of the University of Calcutta, while he was a judge at the
High Court of Madras, he gave a series of lectures which were subsequently
published under the title Principles of Muhammadan Jurisprudence. He has
made a little innovation in this field. He has dealt with the subject as
discussed in the old books on the principles of jurisprudence and he has
dilated upon the new books on philosophy and law published in recent times
in Europe. He has tried to compare the two, i.e. the Islamic and the European
principles of jurisprudence.
From this point of view Sir Abdur Rahim's Muhammadan
Jurisprudence opens a new chapter in our study of the classical books on
the subject. For we come across a few factors which are not to be found
in the old books. For example, the first question raised in the old books
relates to the sources of law. The answer would be the Qur'an, the Hadith,
consensus and personal reasoning. They would not deal with subjects or
categories such as worship, worldly matters like criminal law and the law
of inheritance, constitutional and commercial law, etc. Our classical books
on jurisprudence do not take into account of these categories, Sir Abdur
Rahim has treated legal subjects in the manner they are treated in modem
legal works. It is his achievement that has combined the classical and
modern learning in his comparative work.
THE PLACE OF IJTIHAD
In the end, we should like to briefly refer to ijtihad,
an important principle of Islamic jurisprudence. The Prophet (peace be
upon him) gave permission to Mu'adh ibn Jabal to invoke his own reason
only in cases where the Qur'an and the Hadith were found silent on a certain
issue. If the Qur'an is clear, the question of ijtihad does not arise.
If the Qur'an is silent and the Hadith is clear, the question of ijtihad
not arise again. It can be resorted to only in case both the basic sources
i.e. the Qur'an and the Hadith, are seen to be silent in respect
of our question.
The effort at legislation in this event has been given
a number of names by our jurists. Ijtihad is one; qiyas is another.
is yet another, and so also is istislah.
All these words are not
synonymous. There are subtle differences of meaning between them. In this
connection I would
like to mention the word istihsan in particular. It is
associated with the Hanafi school so closely that other schools of jurisprudence
do not like it. You should not be surprised, therefore, that Shafi'i has
written a tract in refutation of istihsan. The book is entitled
al-Radd 'ala al-Istihsan. It seems from its study that a certain
presumed meaning has been given to the word istihsan which the author proceeds
According to the Hanafi school of law, istihsan
would mean that it is not enough to study the obvious circumstances of
a case, but one should go deeper into the matter before giving a ruling
on the issue in question.
We shall cite an example. Suppose we entrust a person
with something and ask him to convey it to a particular person. One would
ordinarily expect that he would deliver the same thing to its destination.
A money order is sent these days through the post offices. We entrust a
sum of money to the post office with the request that it should be delivered
to a certain person. The common principle of trust demands that the person
concerned should convey the same money to the given address. But according
to the postal system, the money handed over to it is deposited in the treasury
and the man who receives the money order is provided with an equal sum.
It is not necessary to dispatch the very same money that the sender of
the money order has paid. This is exactly the meaning of istihsan.
Even though the current system of delivering the entrusted money is different
in a superficial sense from the concept of trust, yet it facilitates the
discharge of the trust, without changing the value of the money for the
sum to be delivered equal to the sum paid by the sender. Hence the substance
of the concept of trust has not been violated.
This applies not only to individual opinion or an Inference
but also covers collective opinion. At least the Hanafi school of law accepts
that a new consensus can cancel an old consensus. Suppose there is a consensus
on a certain issue. We accept its authority but it does not mean that no
one can oppose it till eternity. If someone has the courage to oppose it
with due respect and reason, and if he can persuade the jurists to accept
his point of view, a new consensus comes into being. The new consensus
abrogates the old one. This principle has been propounded by the famous
Hanafi jurist, Abu al-Yusr al-Bazdawi in his book Usal al-Fiqh (Principles
of Jurisprudence). AI-Bazdawl belongs to the fourth and fifth centuries
of the Hijrah. This work is a great contribution to Islamic jurisprudence.
It is on account of his statement that we can say that consensus cannot
become a source of difficulty for us. If a consensus is reached on some
issue and it is found subsequently to be unsuitable, the possibility remains
that we may change it through reasoning and create a new one cancelling
the old consensus.
The purpose of this brief comment was to underline the
fact that Muslim's have codified their law after the demise of the Prophet
(peace be upon him) in a manner which has not only preserved it for posterity
but has also ensured that it remains practicable through the ages. It is
a universally recognised principle that a law Ian be changed either by
the Law-maker Himself or an authority higher than His. Anyone of a lower
status cannot change the law. If God has given a command, He alone can
change it. If a Prophet (peace be upon him) has pronounced a verdict, he
or another Prophet can change it and indeed Allah can, but no authority
lower than that of a Prophet (e.g. a jurist) can change the taw laid down
by a Prophet. The opinion of a jurist can, however, be rejected by another
jurist who can offer his own opinion instead.