Fiqh

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Fiqh
Arabic فقه
Romanization Fiqh
Literal meaning "deep understanding"
"full comprehension"
Legal systems of the world[citation needed]
  Bijuridical / mixed (civil and common law)

Fiqh (Arabic: فقه[fiqh]) is Islamic jurisprudence.[1] It is an expansion of the code of conduct (Sharia) expounded in the Quran, often supplemented by tradition (Sunnah) and implemented by the rulings and interpretations of Islamic jurists.

Fiqh deals with the observance of rituals, morals and social legislation in Islam. There are four prominent schools (madh'hab) of fiqh within Sunni practice and two within Shi'a practice. A person trained in fiqh is known as a Faqih (plural Fuqaha).[2]

Etymology[edit]

The word fiqh is an Arabic term meaning "deep understanding" or "full comprehension". Technically it refers to the body of Islamic law extracted from detailed Islamic sources (which are studied in the principles of Islamic jurisprudence) and the process of gaining knowledge of Islam through jurisprudence. The historian Ibn Khaldun describes fiqh as "knowledge of the rules of God which concern the actions of persons who own themselves bound to obey the law respecting what is required (wajib), sinful (haraam), recommended (mandūb), disapproved (makrūh) or neutral (mubah)".[3] This definition is consistent amongst the jurists.

In Modern Standard Arabic, fiqh has come to mean jurisprudence in general, be it Islamic or secular. It is thus possible to speak of Chief Justice John G. Roberts, Jr. as an expert in the common law fiqh of the United States, or of Abdel Razzaq El sanhouri Pasha as an expert in the civil law fiqh of Egypt.

Introduction[edit]

The Qur'an gives clear instructions on many issues, such as how to perform the ritual purification (wudu) before the obligatory daily prayers (salat), but on other issues, some Muslims believe the Qur'an alone is not enough to make things clear. For example the Qur'an states one needs to engage in daily prayers (salat) and fast (sawm) during the month of Ramadan but some Muslims believe they need further instructions on how to perform these duties. Details about these issues can be found in the traditions of Muhammad, so Qur'an and Sunnah are in most cases the basis for (Shariah).

Some topics are without precedent in Islam's early period. In those cases, Muslim jurists (Fuqaha) try to arrive at conclusions by other means. Sunni jurists use historical consensus of the community (Ijma); a majority in the modern era also use analogy (Qiyas) and weigh the harms and benefits of new topics (Istislah), and a plurality utilize juristic preference (Istihsan). The conclusions arrived at with the aid of these additional tools constitute a wider array of laws than the Sharia consists of, and is called fiqh. Thus, in contrast to the sharia, fiqh is not regarded as sacred and the schools of thought have differing views on its details, without viewing other conclusions as sacrilegious. This division of interpretation in more detailed issues has resulted in different schools of thought (madh'hab).

This wider concept of Islamic jurisprudence is the source of a range of laws in different topics that govern the lives of the Muslims in all facets of everyday life.

Component categories[edit]

Islamic jurisprudence (fiqh) covers two main areas:

  1. Rules in relation to actions, and,
  2. Rules in relation to circumstances surrounding actions.

These types of rules can also fall into two groups:

  1. Worship (Ibadaat)
  2. Dealings & Transactions (with people) (Mu`amalaat)

Rules in relation to actions ('amaliyya — عملية) comprise:

  1. Obligation (fardh)
  2. Recommendation (mustahabb)
  3. Permissibility (mubah)
  4. Disrecommendation (makrooh)
  5. Prohibition (haraam)

Rules in relation to circumstances (wadia') comprise:

  1. Condition (shart)
  2. Cause (sabab)
  3. Preventor (mani)
  4. Permit / Enforced (rukhsah, azeemah)
  5. Valid / Corrupt / Invalid (sahih, faasid, batil)
  6. In time / Deferred / Repeat (adaa, qadaa, i'ada)

Fields of jurisprudence[edit]

Methodologies of jurisprudence[edit]

The modus operandi of the Muslim jurist is known as usul al-fiqh ("principles of jurisprudence").

There are different approaches to the methodology used in jurisprudence to derive Islamic law from the primary sources. The main methodologies are those of the Sunni, Shi'a and Ibadi denominations. While both Sunni and Shi'ite are divided into smaller sub-schools, the differences among the Shi'ite schools is considerably greater. Ibadites only follow a single school without divisions.

Sunni jurisprudence[edit]

Map of the Muslim world with the main madhhabs

Sunni schools of jurisprudence are each named after the classical jurist who taught them. The four primary Sunni schools are the Hanafi, Shafi'i, Maliki and Hanbali rites. The Zahiri school remains in existence but outside of the mainstream, while the Jariri, Laythi, Awza'i and Thawri have since become extinct.

The extant schools share most of their rulings, but differ on the particular practices which they may accept as authentic and the varying weights they give to analogical reason and pure reason.

Shi'ite jurisprudence[edit]

Ja'fari jurisprudence[edit]

The Ja'fari school is associated with Ja'far al-Sadiq. The time and space bound rulings of early jurists are taken more seriously in this school, likely due to the more hierarchical structure of Shia Islam which is ruled by the Shi'ite Imams. The Ja'fari school is also more flexible in that every jurist has considerable power to alter a decision according to his reasoning.

The Jafari school uses the intellect instead of analogy when establishing Islamic laws, as opposed to common Sunni practice.

Ismaili jurisprudence[edit]

Daim al-Islam is a book on the rulings of Islam followed by Ismaili Muslims who adhere to the Shi'a Ismaili Fatimid fiqh. It describes manners and etiquette, including Ibadat in the light of guidance provided by the Ismaili Imams. The book emphasizes what importance Islam has given to manners and etiquette along with the worship of God, citing the traditions of the first four Imams of the Shi'a Ismaili Fatimid school of thought.

Zaidi jurisprudence[edit]

Zaidi jurisprudence follows the teachings of Zayd ibn Ali. In terms of law, the Zaidi school is quite similar to the Hanafi school from Sunni Islam.[4] This is likely due to the general trend of Sunni resemlbance within Zaidi beliefs. After the passing of Muhammad, Imam Jafar al-Sadiq, Imam Zayd ibn Ali, Imams Abu Hanifa and Imam Malik ibn Anas worked together in Al-Masjid an-Nabawi in Medina along with over 70 other leading jurists and scholars. Jafar al-Sadiq and Zayd ibn Ali did not them selves write any books. But their views are Hadiths in the books written by Imams Abu Hanifa and Imam Malik ibn Anas. Therefore the Zaydis to this day and originally the Fatamids, used the Hanafi jurisprudence, as do most Sunnis.[5][6][7]

Ibadi jurisprudence[edit]

The Ibadi school of Islam is named after Abd-Allah ibn Ibadh, though he is not necessarily the main figure of the school in the eyes of its adherents. Ibadism is distinct from both Sunni and Shi'ite Islam not only in terms of its jurisprudence, but also its core beliefs.

Arguments for and against reform[edit]

Each school reflects a unique al-urf or culture (a cultural practice that was influenced by traditions), that the classical jurists themselves lived in, when rulings were made. Some suggest that the discipline of isnad, which developed to validate hadith made it relatively easy to record and validate also the rulings of jurists. This, in turn, made them far easier to imitate (taqlid) than to challenge in new contexts. The argument is, the schools have been more or less frozen for centuries, and reflect a culture that simply no longer exists. Traditional scholars hold that religion is there to regulate human behavior and nurture people's moral side and since human nature has not fundamentally changed since the beginning of Islam a call to modernize the religion is essentially one to relax all laws and institutions.

Early shariah had a much more flexible character, and some modern Muslim scholars believe that it should be renewed, and that the classical jurists should lose special status. This would require formulating a new fiqh suitable for the modern world, e.g. as proposed by advocates of the Islamization of knowledge, which would deal with the modern context. This modernization is opposed by most conservative ulema. Traditional scholars hold that the laws are contextual and consider circumstance such as time, place and culture, the principles they are based upon are universal such as justice, equality and respect. Many Muslim scholars argue that even though technology may have advanced, the fundamentals of human life have not and is in the scope of current laws.

Early history[edit]

The formative period of Islamic jurisprudence stretches back to the time of the early Muslim communities. In this period, jurists were more concerned with issues of authority and teaching than with theory and methodology.[8]

Progress in theory and methodology happened with the coming of the early Muslim jurist Muhammad ibn Idris ash-Shafi`i (767–820), who codified the basic principles of Islamic jurisprudence in his book ar-Risālah. The book details the four roots of law (Qur'an, Sunnah, ijma, and qiyas) while specifying that the primary Islamic texts (the Qur'an and the hadith) be understood according to objective rules of interpretation derived from scientific study of the Arabic language.[9]

Secondary sources of law were developed and refined over the subsequent centuries, consisting primarily of juristic preference (istihsan), laws of the previous prophets (shara man qablana), continuity (istishab), extended analogy (maslaha mursala), blocking the means (sadd al-dhari'ah), custome urf and saying of a companion (qawl al-sahabi).[10]

Diagram of early scholars[edit]

The Quran set the rights, the responsibilities and the rules for people and for societies to adhere to, like not dealing in interest. Muhammad then provided an example, which is recorded in the hadith books, showing people how he practically implemented these rules in a society. After the passing of Muhammad, there was a need for jurists, to decide on new legal matters where there is no such ruling in the Quran or the Hadith, example of Islamic prophet Muhammad regarding a similar case.[11][12]

In the years proceeding Muhammad, the community in Madina continued to use the same rules. People were familiar with the practice of Muhammad and therefore continued to use the same rules.

The scholars appearing in the diagram below were taught by Muhammad's companions, many of whom settled in Madina.[13] Muwatta[14] by Malik ibn Anas was written as a consensus of the opinion, of these scholars.[15][16][17] The Muwatta[14] by Malik ibn Anas quotes 13 hadiths from Imam Jafar al-Sadiq.[18]

Much of the knowledge we have about Muhammad is narrated through Aisha the wife of Muhammad, also a renowned scholar of her time. Aisha raised and taught her nephew Qasim ibn Muhammad ibn Abu Bakr after her brother Muhammad ibn Abu Bakr was killed by the Syrians.

Qasim ibn Muhammad ibn Abu Bakrs mother was from Alis family and Qasims daughter Farwah bint al-Qasim was married to Muhammad al-Baqir and was the mother of Jafar al-Sadiq. Therefore Qasim ibn Muhammad ibn Abu Bakr was the grand son of Abu Bakr the first caliph and the grand father of Jafar al-Sadiq whose views the twelver Shias follow. The twelver Shia do not accept Abu Bakr as the first caliph but do accept his great grand son Jafar al-Sadiq.

Aishas also taught her nephew Urwah ibn Zubayr. He then taught his son Hisham ibn Urwah, who was the main teacher of Malik ibn Anas whose views many Sunni follow and also taught Jafar al-Sadiq. Qasim ibn Muhammad ibn Abu Bakr, Hisham ibn Urwah and Muhammad al-Baqir taught Zayd ibn Ali, Jafar al-Sadiq, Abu Hanifa, and Malik ibn Anas.

Imam Jafar al-Sadiq, Imam Abu Hanifa and Malik ibn Anas worked together in Al-Masjid an-Nabawi in Medina. Along with Qasim ibn Muhammad ibn Abu Bakr, Muhammad al-Baqir, Zayd ibn Ali and over 70 other leading jurists and scholars.

Al-Shafi‘i was taught by Malik ibn Anas. Ahmad ibn Hanbal was taught by Al-Shafi‘i. Muhammad al-Bukhari travelled every where collecting hadith and his father Ismail ibn Ibrahim was a student of Malik ibn Anas[19][20][21][22][23][24]

In the books actually written by these original jurists and scholars, there are very few theological and judicial differences between them. Imam Ahmad rejected the writing down and codifying of the religious rulings he gave. They knew that they might have fallen into error in some of their judgements and stated this clearly. They never introduced their rulings by saying, "Here, this judgement is the judgement of God and His prophet."[5] There is also very little text actually written down by Jafar al-Sadiq him self. They all give priority to the Qur'an and the Hadith (the practice of Muhammad). They felt that the Quran and the Hadith, the example of Muhammad provided people with almost everything they needed. "This day I have perfected for you your religion and completed My favor upon you and have approved for you Islam as religion" Quran 5:5.[37]

These scholars did not distinguish between each other. They were not Sunni or Shia. They felt that they were following the religion of Abraham as described in the Quran "Say: Allah speaks the truth; so follow the religion of Abraham, the upright one. And he was not one of the polytheists" (Qur'an 3:95).

Most of the differences are regarding Sharia laws devised through Ijtihad where there is no such ruling in the Quran or the Hadiths of Islamic prophet Muhammad regarding a similar case.[5] As these jurists went to new areas, they were pragmatic and continued to use the same ruling as was given in that area during pre-Islamic times, if the population felt comfortable with it, it was just and they used Ijtihad to deduce that it did not conflict with the Quran or the Hadith. As explained in the Muwatta[14] by Malik ibn Anas.[15] This made it easier for the different communities to integrate into the Islamic State and assisted in the quick expansion of the Islamic State.

To reduce the divergence, ash-Shafi'i proposed giving priority to the Qur'an and the Hadith (the practice of Muhammad) and only then look at the consensus of the Muslim jurists (ijma) and analogical reasoning (qiyas).[15] This then resulted in jurists like Muhammad al-Bukhari[28] dedicating their lives to the collection of the correct Hadith, in books like Sahih al-Bukhari. Sahih translates as authentic or correct. They also felt that Muhammads judgement was more impartial and better than their own.

These original jurists and scholars also acted as a counterbalance to the rulers. When they saw injustice, all these scholars spoke out against it. As the state expanded out side Madina, the rights of the different communities, as they were constituted in the Constitution of Medina still applied. The Quran also gave additional rights to the citizens of the state and these rights were also applied. Ali, Hassan and Hussein ibn Ali gave their allegiance to the first three caliphs because they abided by these conditions. Later Ali the fourth caliph wrote in a letter "I did not approach the people to get their oath of allegiance but they came to me with their desire to make me their Amir (ruler). I did not extend my hands towards them so that they might swear the oath of allegiance to me but they themselves extended their hands towards me".[38] But later as fate would have it (Predestination in Islam) when Yazid I, an oppressive ruler took power, Hussein ibn Ali the grand son of Muhammad felt that it was a test from God for him and his duty to confront him. Then Abd Allah ibn al-Zubayr, Qasim ibn Muhammad ibn Abu Bakrs cousin confronted the Umayyad rulers after Hussein ibn Ali was betrayed by the people of Kufa and killed by Syrian Roman Army now under the control of the Yazid I the Umayyad ruler.[39] Abd Allah ibn al-Zubayr then took on the Umayyad's and expelled their forces from Hijaz and Iraq. But then his forces were depleted in Iraq, trying to stop the Khawarij. The Ummayad's then moved in. After a lengthy campaign, on his last hour Abd Allah ibn al-Zubayr asked his mother Asma' bint Abu Bakr the daughter of Abu Bakr the first caliph for advice. Asma' bint Abu Bakr replied to her son, she said:[40] "You know better in your own self, that if you are upon the truth and you are calling towards the truth go forth, for people more honourable than you have been killed and if you are not upon the truth, then what an evil son you are and you have destroyed yourself and those who are with you. If you say, that if you are upon the truth and you will be killed at the hands of others, then you will not truly be free". Abd Allah ibn al-Zubayr left and was later also killed and crucified by the Syrian Roman Army now under the control of the Umayyads and led by Hajjaj. Muhammad ibn Abi Bakr the son of Abu Bakr the first caliph and raised by Ali the fourth caliph was also killed by the Ummayads.[41] Aisha then raised and taught his son Qasim ibn Muhammad ibn Abu Bakr who later taught his grandson Jafar al-Sadiq.

During the early Ummayad period, there was more community involvement. The Quran and Muhammad's example was the main source of law after which the community decided. If it worked for the community, was just and did not conflict with the Quran and the example of Muhammad, it was accepted. This made it easier for the different communities, with Roman, Persian, Central Asia and North African backgrounds to integrate into the Islamic State and that assisted in the quick expansion of the Islamic State. The scholars in Madina were consulted on the more complex judicial issues. The Sharia and the official more centralized schools of fiqh developed later, during the time of the Abbasids.[42]

Reforming Umayyad rule from the inside[edit]

One of Muawiyah's most controversial and enduring legacies was his decision to designate his son Yazid as his successor. Yazid was experienced militarily, after taking part in various expeditions and the siege of Constantinople but politically inexperienced. Marwan also wanted Yazid to be the Caliph so that he could run things behind the scenes, as he would become the senior member of the Umayyad clan after Muawiyah's death. Mohammad, Abu Bakr and Umar also mistrusted Marwan and he had lived in Taif during their rule, where he made friends with Hajjaj.

Tom Holland writes "Tempers in Medina were not helped by the fact that the governor in the oasis was none other than the fabulously venal and slippery Marwan. Rumours abounded that it was he, back in the last calamitous days of Uthman's rule who had double crossed the war band that had come to Uthman. The locals mistrust of their governor ran particularly deep. Nothing he had done had helped to improve his reputation for double dealing.[43]

The appointment of Yazid was unpopular in Madina.[44]

Marwan had been appointed as the governor of Hijaz by Muawiya. He delivered a sermon and mentioned Yazid bin Muawiya so that the people might take the oath of allegiance to him as the successor of his father (Muawiya). Then 'Abdur Rahman bin Abu Bakr told him something whereupon marwan ordered that he be arrested. But 'Abdur-Rahman entered 'Aisha's house and they could not arrest him. marwan said, "It is he ('AbdurRahman) about whom Allah revealed this Verse: 'And the one who says to his parents: 'Fie on you! Do you hold out the promise to me..?'" On that, 'Aisha said from behind a screen, "Allah did not reveal anything from the Qur'an about us except what was connected with the declaration of my innocence (of the slander)."[non-primary source needed][third-party source needed]

Ibn Katheer wrote in his book the Al-Bidayah wan-Nihayah [45] that "in the year 56 AH Muawiyah called on the people including those within the outlying territories to pledge allegiance to his son, Yazeed, to be his heir to the Caliphate after him. Almost all the subjects offered their allegiance, with the exception of Abdur Rahman bin Abu Bakr (the son of Abu Bakr), Abdullah ibn Umar (the son of Umar), al-Husain bin Ali (the son of Ali), Abdullah bin Az-Zubair (The grandson of Abu Bakr) and Abdullah ibn Abbas (Ali's cousin). Because of this Muawiyah passed through al-Madinah on his way back from Makkah upon completion of his Umrah Pilgrimage where he summoned each one of the five aforementioned individuals and threatened them. The speaker who addressed Muawiyah sharply with the greatest firmness amongst them was Abdurrahman bin Abu Bakr as-Siddeeq, while Abdullah bin Umar bin al-Khattab was the most soft spoken amongst them.

Abdur Rahman bin Abu Bakr and Abdullah ibn Umar were mid level Muslim commanders at the Battle of Yarmouk that took Syria. Abdur Rahman bin Abu Bakr sister Asmā' bint Abu Bakr also fought in the Battle of Yarmouk and was opposed to Yazid.[46] Abdur Rahman bin Abu Bakr had been one of the first to dual in that battle, after taking a sword to hand over to a Qays bin Hubayrah who had lost his sword, while in a dual with the Roman Army's best horseman. Two more Roman horsemen then came forward saying "We see no justice when two of you come against one of us." Abdur Rahman bin Abu Bakr replied "I only came to give my companion a sword and then return. Were 100 of you to come out against one of us we would not be worried. You are now three men. I am enough to take on all three of you". After which he took down the Roman horsemen on his own.[47] After seeing this, Bannes the Roman general said "Caesar really knew these people best. I now know that a difficult situation is to come on you. If you do not attack them with great numbers, you will have no chance". Abdullah ibn Umar had also been a mid level commander in the Battle of Yarmouk. Some Roman soldiers went to the house of Abu al-Jaid a local Christian in az-Zura ah and after eating all the food, raped his wife and killed his son.[48] His wife complained to the roman general and he ignored her. Abu al-Jaid then went to the Muslims and told them that he knows the local area and if the Muslims exempt him and his descendents from taxes for ever he will help them defeat the Roman army.[48] He then took horse men led by Abdullah ibn Umar to the Roman camp at night and attacked them and then ran away. The Romans chased them and in the dark tens of thousands of them fell down a cliff at the an-Naqusah Creek into a river.[49] Abdullah bin Az-Zubair had also been a commander in various battles including in North Africa and was also involved in the siege of Constantinople.

Muawiyah then delivered a sermon, having stood these five men below the pulpit in full view of the people after which the people pledged allegiance to Yazeed as they stood in silence without displaying their disagreement or opposition for fear of being humiliated. Saeed bin Uthman bin Affan, the son of Uthman also criticized Muawiyah for putting forward Yazeed.".[45] They tolerated Muawiyah but did not like Yazeed.

The following year Muawiyah removed Marwan bin al Hakam from the position of Governor in Madina and appointed al-Waleed bin Utbah bin Abi Sufyan.[50]

According to some sources Muawiyah warned his son Yazid against mistreating Hussein. His final warning to Yazid was: "As for Husayn what can I tell you concerning him? Be careful not to confront him except in a good way. Extend to him a free hand (literally, a long rope) and let him roam the earth as he pleases. Do not harm him, can show verbal anger but never confront him with the weapons of war but rather bestow on him generous gifts. Give him a place of honor near you and treat him with due reverence. Be careful O my son, that you do not meet God with his blood, lest you be amongst those that will perish"[51][52]

Yazeed and Hussein knew each other well and had both been involved in the Siege of Constantinople.[53] Many years later, after the events in Karbala when the governor of Kufa, Ibn Ziyad sent the head of Hussein to Yazeed. The Servant of Muawiya bin Abu Sufyan is reported to have said: "When Yazeed came with al-Husain's head and placed it in his hands, I saw Yazeed crying and he said: 'If there had been any relationship between Ibn Ziyad and al-Husain then he would not have done this (referring to Ibn Ziyad).'"[54]

After Hussein was killed Abdullah Ibn Az-Zubair expelled Yazids forces from Hijaz and the Kharijites got stronger in Iraq. Yazid died a few months later in young age and his son did not want to take part in a civil war against Abdullah Ibn Az-Zubair and abdicated and later died.

After years of planning and scheming and making every one else fight, Marwan came to power in Syria and the Qurra (the Kharijites) established a state in Southern Iraq. The very thing Hassan signed a treaty with Muawiyah to avoid.

Now there were three camps, the Scholars in Madina, the Kharijites in Iraq and Umayyads in Syria.

In Sahih Al Bukhari, the people still referred to the Kharijites by their old name Qurra and most Muslims resented these civil wars and felt that the Arabs had left the teachings of Muhammad and gone back to their old ways of fighting over wealth.[55]

When Ibn Ziyad and Marwan were in Sham and Ibn Az-zubair took over the authority in Mecca and Qurra' (the Kharijites) revolted in Basra, I went out with my father to Abu Barza Al-Aslami till we entered upon him in his house while he was sitting in the shade of a room built of cane. So we sat with him and my father started talking to him saying, "O Abu Barza! Don't you see in what dilemma the people has fallen?" The first thing heard him saying "I seek reward from Allah for myself because of being angry and scornful at the Quraish tribe. O you Arabs! You know very well that you were in misery and were few in number and misguided, and that Allah has brought you out of all that with Islam and with Muhammad till He brought you to this state (of prosperity and happiness) which you see now; and it is this worldly wealth and pleasures which has caused mischief to appear among you. The one who is in Sham (i.e., Marwan), by Allah, is not fighting except for the sake of worldly gain: and those who are among you, by Allah, are not fighting except for the sake of worldly gain; and that one who is in Mecca (i.e., Ibn Az-zubair) by Allah, is not fighting except for the sake of worldly gain."

Abdullah Ibn Az-Zubair then sent his brother to Iraq to take on the Kharijites who were by then getting stronger. This depleted Abdullah Ibn Az-Zubair forces and he was later defeated by the Syrians.

Ibn Zubayr was finally defeated by Abd al-Malik ibn Marwan, who sent Al-Hajjaj ibn Yusuf. Hajjaj defeated and killed Ibn Zubayr on the battlefield in 692.

On his last hour he asked his mother Asmā' bint Abu Bakr what he should do. Asmā' bint Abu Bakr replied to her son, she said:[40] "You know better in your own self that if you are upon the truth and you are calling towards the truth go forth for people more honourable than you were killed and have been killed and if you are not upon the truth, then what an evil son you are, you have destroyed yourself and those who are with you. If you say what you say, that if you are upon the truth and you will be killed at the hands of others then you will not truly be free, for this is not the statement of someone who is free".

Then Asmā' bint Abu Bakr said to her son, this is the statement of the mother to her son, "how long will you live in this world, death is more beloved to me than this state you are on/ this state of weakness".

Then this conversation between Abd Allah ibn al-Zubayr and his mother continued.

Then Abd Allah ibn al-Zubayr said to his mother after she had told him to go forth and fight.

He said, "I am afraid I will be mutilated by the people of Sham, I am afraid that they will cut up my body after they have killed me".

So she said to her son, "after someone has died it won't make any difference what they do to you if you have been killed". Abd Allah ibn al-Zubayr then said to his mother, "I did not come to you except to increase myself in knowledge".

He said to her, "I did not come to you except to increase me in knowledge, look and pay attention to this day for verily I am a dead man, your son never drank wine, nor was he fornicator, nor did he wrong any Muslim or Non Muslim, nor was he unjust, I am not saying this to you to show off or show how pure I am but rather as an honour to you".

So then Abdullah Ibn Zubair left by himself on his horse and he was killed by the Army of Hajjaj and when he was killed by the Army of Hajjaj all the Army said “Allah hu Akhbar” and Abdullah Ibn Omer heard this and he said,” how strange is it that this man when he was born all of the Muslims said “Allah hu Akhbar” and now that he is killed everyone is also saying “Allah hu Akhbar”.

Asma refused to go and ask permission to put down her sons body and it was said to her, "if you don't go his body will remain like that. So she said let it be then".

Until eventually, Hajjaj came to her and said, "what do you say about this matter" and Asma was in her old age and blind by then. Asma said, "Verily you have destroyed him you have ruined his life and with that you have ruined your hereafter". Asma died a few days later.

Ibn Katheer says that Abdullah Ibn Umar resented the conduct of some of the Ummayad rulers and governors like Hajjaj. Imam Abu Muhammad Adbullah ibn Abdul Hakam who lived near that time, said in his book the first biography on Umar Ibn Adbul Aziz that Abdullah Ibn Omar's niece was married to one of Marwans son called Abdul Aziz who lived in Madina.[56] Abdul Aziz lived in Madina and had not become an Umayyad ruler, but he had a young son called Umar Ibn Abdul Aziz. Abdullah ibn Umar kept Umar Ibn Abdul Aziz with him for his education when Abdul Aziz and his wife moved to Egypt. Umar Ibn Adbul Aziz was educated in Madina. The scholars in Madina including Abdullah Ibn Umar and Qasim ibn Muhammad ibn Abu Bakr who was jafar Sadiqs grandfather and Abu Bakr's grandson felt that they could use Umar Ibn Adbul Aziz to peacefully reform the Umayyad rule.

Imam Abu Muhammad Adbullah ibn Abdul Hakam (died 214 AH) wrote that many years earlier: "During the time of Umar Ibn al Khattab the (second Caliph) he prohibit the sale of milk mixed with water. One night, he came out for some need at the outskirts of Madinah. Suddenly, he heard the voice of a woman. She was telling her daughter, "Daughter, you have not yet mixed water in the milk. It is nearly dawn. " The daughter said, "How can I mix water in the milk? Amir ul Muminin has prohibited it". The mother said, "Other people also mix it. You also mix it. How does Amir ul Muminin know?" The daughter replied. "If Umar does not know, then the creator of Umar knows. Once he has prohibited it, then I cannot do it."

Umar was greatly pleased with this conversation. When morning came, he called his son Asim and narrated the incident that took place at night. He then said, "Go and find out who that girl is". Asim went. He made enquiries and found out that the girl was from the tribe of Banu Hilal. He returned and informed Umar. He said to Asim "Son, go and get married to her. Definitely, she is worthy of bearing a horseman who will lead the entire Arabia."

Consequently Asim married her and a daughter Umm e Asim bint Asim Ibn Umar Ibn al Khattab was born from her. Umm e Asim got married to Adbul Aziz bint Marwan bin al Hakam. Umar Ibn Adbul Aziz was born from her.[57]

After his education, Raja bin Haiwah who was also a scholar and an advisor to some of the Umayyad rulers took Umar Ibn Adbul Aziz to Syria. Raja bin Haiwah also worked closely with the scholars in Madina. Ibn Katheer wrote in his book the Al-Bidayah wan-Nihayah that during the time of Abdul Malik, Raja bin Haiwah also managed the finances for the construction of the Dome of the Rock in Jerusalem, that stands to this day.[58]

Ibn Katheer wrote that even the Umayyad ruler Al-Waleed bin Abdul Malik would write to Umar Ibn Abdul Aziz in Madina for advice on legal matter. Umar Ibn Abdul Aziz would then convene a meeting with the jurists in Madina and they would all decide on the reply.[59]

Later the future Ummayad ruler Sulaiman would also consult Umar Ibn Abdul Aziz. Hajjaj opposed Sulaiman from becoming Caliph, even through his father had wrote in his will that after his brother Al-Waleed bin Abdul Malik, Sulaiman would be Caliph. So Sulaiman became even closer to Umar Ibn Adbul Aziz who also opposed Hajjaj.[60]

When Umar Ibn Abdul Aziz was made the governor of Madina, he asked the Khalifah that he wished to be excused from Hajjaj coming to Madinah. After which, Hajjaj was prevented from going to Madina.[61]

According to Imam Abu Muhammad Adbullah ibn Abdul Hakam from Madina (died 214 AH 829 C.E) Umar Ibn Adbul Aziz then said to the ruler Walid Ibn Abdul Malik "After ascribing partners to Allah, there is no greater sin than spilling blood. Your governors are unjustifiably killing people and they only write the crime of the killed person (murder) to inform you. You will be answerable for this and you will be held accountable (by God). Therefore, write to your governors telling them that no one should be punished by death, but they should write of the crime to you. There should be witnesses to it, then you should decide on that punishment to be meted out after great thought and deliberation" Walid said "O Abu Hafs (He called Umar Ibn Adbul Aziz, Abu Hafs), May Allah grant you blessings in your life and delay your demise. Bring the pen and paper." Walid then wrote this command to all the governors. Besides Hajjaj, no one found it difficult. It weighed heavily on him and he became very agitated. He thought that no one else besides him got this command. He investigated and found that he was wrong. He said "Where did this calamity come from? Who told this to Walid?" he was told that 'Umar Ibn Abdul Aziz was responsible for this. When he heard this he said, "Oh, if the one who gave this consultation is Umar, then it is not permissible to reject it".[62]

The ruler Sulayman Ibn Abdul Malik said to Umar Ibn Adbul Aziz "Look how many people gather during the Hajj season." He replied "Amir ul Mu minin, all of them are your plaintiffs" (They will complain about you in the court of Allah on the Day of judgment)[63]

According to Imam Abu Muhammad Adbullah ibn Abdul Hakam who lived near that time and later Ibn Katheer said that Ibn Jareer said that, Raja bin Haiwah (who was also a scholar) the minister of marriage, for the Ummayad ruler Sulaiman said that when Sulaiman was on his death bed, I told him "Indeed amongst the things that preserves the caliph in his grave is his appointment of a righteous man over the muslims." So he wrote a letter appointing the scholar from Madina, Umar bin Abdul Azeez. To allow the Ummayads to accept this, Raja then advised him to make his brother Yazeed bin Adbul Malik the successor after Umar bin Abdul Azeez.[64][65] Umar bin Abdul Azeez was a grand son of Omar, the second Caliph from his mothers side. After his appointment he set up a committee of the jurist in Madina headed by Qasim ibn Muhammad ibn Abu Bakr and it included Urwah ibn Zubayr, Ubaidullah bin Abdullah bin Utbah, Abu Bakr bin Abdur-Rahman bin al-Harith bin Hisham, Abu Bakr bin Sulaiman bin Abu Hathmah, Sulaiman bin Yasar, Salim bin Abdullah, Abdullah bin Amir bin Rabee'ah and Kharijah bin Zaid bin Thabit, in Madina to advise on legal matters.[66] The work of Malik ibn Anas and successive jurists is also based on the work of this early committee in Madina. Malik ibn Anas also refers to these Fuqaha' of Madina.[67] Madina at the time had the largest number of Muhammad's companions therefore no one could lie about what Muhammad had said, while in Madina during that period. After becoming the Khalif, Umar Ibn Adbul Aziz worked very closely with the scholars in Madina to make the laws in line with the Quran and the teachings of Muhammad's. He also reduced the allowances of the Umayyad family members. Which they deeply resented.

When Umar Ibn Adbul Aziz reduced the allowances of the Umayyad family members. They sent some one to him to ask for more. When Umar Ibn Adbul Aziz refused, the man said to them "O Banu Umayyah, you should rebuke yourself. You got up and married a person of your family to the grand daughter of Umar. He wrapped Umar in a cloth and presented him to you. You should therefore rebuke yourself".[68]

Umar Ibn Adbul Aziz also started peace talks with the Kharijites. He then reduced the taxes for the Muslims. He sacked oppressive governors and replaced them.[69] His policies made him very popular with the population but not so popular with the Umayyads. The reduction in the taxes also reduced further expeditions and the expansion of the state. But lower taxes and better justice allowed the economy to expand. The tax collector Yahya Ibn Sa'id complained that after collecting the taxes, he could not find people willing to take the charity from the welfare state[70]

Imam Abu Muhammad Adbullah ibn Abdul Hakam (died 214 AH) writes that Umar Ibn Adbul Aziz then stopped the allowance of the Banu Umayyah, stopped giving them land and made them the same as every one else. And they complained bitterly. So Umar Ibn Adbul Aziz said to them "By Allah, I want that no impermissible decision should remain on the earth that I will not finish off." [71]

According to Imam Abu Muhammad Adbullah ibn Abdul Hakam who lived near that time and later Ibn Katheer, Umar Ibn Adbul Aziz was soon killed, but when the future rulers tried to reverse his policies, the population started to rebel.

With the death of Umar Ibn Adbul Aziz the scholars in Madina got very upset. But in the short time Umar Ibn Adbul Aziz was in power the changes he made, had a long lasting effect in the minds of the people. An associate of Umar Ibn Adbul Aziz, Zayd ibn Ali the grandson of Husayns was also very upset. Zayd ibn Ali then started receiving letters from Kufa asking him to come to Kufa. In 740, Abu Hanifah supported his friend Zayd ibn Ali against an Umayyad ruler but asked his friend not to go to Kufa. Abu Hanifah, Malik ibn Anas and Zayd ibn Ali's family advised Zayd ibn Ali not to go to Kufa feared that Zayd ibn Ali would get betrayed in Kufa.[72][73][74][75] But Zayd ibn Ali felt that he needed to oppose the Umayyads by force. Zaydis believe that on his arrival in Kufa, on the last hour of Zayd ibn Ali, the people in Kufa asked him: "May God have mercy on you! What do you have to say on the matter of Abu Bakr and Umar ibn al-Khattab?" Zayd ibn Ali said, "I have not heard anyone in my family renouncing them both nor saying anything but good about them...when they were entrusted with government they behaved justly with the people and acted according to the Qur'an and the Sunnah.".[76][77]

After which they withdrew their support [72][72][73][74][78] and Zayd ibn Ali fought bravely against the Umayyad army but was killed. The Scholars kept up the pressure on the Umayyads and as the Umayyads tried to re-impose the taxes abolished by Umar Ibn Adbul Aziz, the population also got more rebellious.

Later the Abbasids came to power and they tried to change the laws so that they could be above the law, in 767 Abu Hanifah died in prison when he refused to support the Abbasid ruler Al-Mansur and Malik ibn Anas was flogged.[79][80] But then the Abbasids backed off and allowed the laws of Madina to be implemented again and the book Muwatta Imam Malik of Malik ibn Anas based on the laws based on the Quran and the example of Muhammad and based on the work of the committee of the main jurist in Madina headed by Qasim ibn Muhammad ibn Abu Bakr, who was jafar Sadiq's grandfather and Abu Bakr's grandson were again implemented.

Later the Abbasids tried to impose the mutazilite philosophy so that they could change the laws, so that they could present them selves as being above the law. Imam Ahmed Hanbal confronted a ruler and was tortured and sent to an unlit Baghdad prison cell for nearly thirty months.[81]

In 767, Abu Hanifah had died in prison when he refused to support the Abbasid ruler Al-Mansur[80][82] but later the mutazilite philosophy failed and the Hanifi jurisprudence was implemented. Since Imam Zayd ibn Ali and Imam Jafar al-Sadiq worked with Imam Abu Hanifa and Imam Abu Hanifa wrote books at that time, the Zaidi's and originally the Fatimid's used the Hanifi jurisprudence. In terms of law, the modern Zaidi school is quite similar to the Hanafi school[4]

These scholars also laid the foundations of Science in the medieval Islamic world and some scientists and Mathematicians on the List of Muslim scientists were taught by these scholars, they then taught other scholars. Islam discourages the belief in superstition. Hence these scholars felt that humans could truly appreciate God magnificence, by studying Gods creation.

Quran 45:3[83] "Indeed, within the heavens and earth are signs for the believers."

For them Islam and science were linked[84][85][86] The students of these scholars also preserved and translated the Greek and Latin manuscripts during the Dark Ages in Europe. They were also instrumental in the making of the European Renaissance[87][88][89][90] Many of the early advances in astronomy were made because the Muslims relied on the Sun, the Moon and the stars for the times to pray, and the time of Ramadan and the direction to the Mecca, for the direction to pray and for navigation in the desert and the sea.

All the Muslims follow the Quran and the example of Muhammad. The differences between the denominations in Islam are primarily political. The Sunnis give more importance to the Quran and the books containing the hadith, examples of Muhammad, but since all the early scholars and all the four caliphs worked together, the Sunnis accept all the first four caliphs, as they were elected by the community. They also accept all the early imams (scholars) for their knowledge. While the Shias who constitute around 10-20% of the Muslims are more hereditary and only accept Ali the fourth caliph, accept Hassan and only accept certain male descendent of Ali through his son Hussein as imams. But different branches of Shia accept different brothers.

Some of the elite in the old empires of the Middle East felt discontented with the passage of their empires and did not like the Arab Caliphs, their ideas eventually found their way into the religious differences. During the Abbasid period, many history books were also written as a reference for future generations, recording everything people were saying about the early history of Islam. They were not subject to the same level of authenticity checks. In many cases the preislamic customs of the populations that converted to Islam were also absorbed into their rituals.[91] This also amplified the differences. During the Arab-Byzantine Wars the Byzantines benefited when there were political disagreements between the Muslims and used the time to establishment of the themata.[92] Some of the ideas of the kharijites who were initially very extreme in their support of Ali's caliphate, but later killed Ali when he made peace with Mu'awiyah also lived on.

Ali according to both the Sunni and the Shia books was against sectarianism. The following sermon of Ali exists in both the Sunni and the Shia books.

"Ali says: With regard to me, two categories of people will be ruined, namely he who loves me too much and the love takes him away from rightfulness, and he who hates me too much and the hatred takes him away from rightfulness. The best man with regard to me is he who is on the middle course. So be with him and be with the great majority of Muslims because Allah’s hand of protection is on keeping unity. You should beware of division because the one isolated from the group is a prey to Satan just as the one isolated from the flock of sheep is a prey to the wolf. Beware! Whoever calls to this course of sectarianism, even though he may be under this headband of mine."[93]

After the Mongolian invasion and the subsequent reduction in the literacy rates, people began to label them selves as belonging to denominations rather than actually reading the books of these scholars.

The differences amplified after the Safavid invasion of Persia and the subsequent Safavid conversion of Iran to Shia Islam due to the politics between the Safavids and the Ottoman Empire.[94] To consolidate their position, the Safavid's also exploited the deep rooted differences between areas formally under the Persian Sassanid Empire and areas formally under the Byzantine Roman Empire. Differences that existing from the Roman-Persian Wars and the Byzantine-Sassanid Wars. Under the oppressive rule of Yazid I, some Muslims began to think that if Hussein ibn Ali the descendent of Muhammad was their ruler, he would have been more just. However later a minority, took this concept one step further and also started thinking, what if history took a different course and these ideas were later odopted by some Shia and institutionalised by the Safavids. For the first time in the history of Islam, the Safavids also established a hierarchical organization of the Shiite clergy and funded this hierarchy through the collection of waqf and Khums.[95][96] Before that point Jafar al-Sadiq disapproved of people who said anything bad about his great grand father Abu Bakr the first caliph.

After witnessing what happens due to the lust for wealth and power, others like Hasan of Basra advocated piety and the condemnation of worldliness which later influenced the development of the Sufis. It was further developed by Al-Ghazali.

Possible links with Western law[edit]

A number of important legal institutions were developed by Muslim jurists during the classical period of Islam, known as the Islamic Golden Age. One such institution was the Hawala, an early informal value transfer system, which is mentioned in texts of Islamic jurisprudence as early as the 8th century. Hawala itself later influenced the development of the agency in common law and in civil laws such as the aval in French law and the avallo in Italian law.[97] The "European commenda" (Islamic Qirad) used in European civil law may have also originated from Islamic law.[98]

The Waqf in Islamic law, which developed during the 7th–9th centuries, bears a notable resemblance to the trusts in the English trust law.[99] For example, every Waqf was required to have a waqif (settlor), mutawillis (trustee), qadi (judge) and beneficiaries.[100] The trust law developed in England at the time of the Crusades, during the 12th and 13th centuries, was introduced by Crusaders who may have been influenced by the Waqf institutions they came across in the Middle East.[101][102]

The Islamic lafif was a body of twelve members drawn from the neighbourhood and sworn to tell the truth, who were bound to give a unanimous verdict, about matters "which they had personally seen or heard, binding on the judge, to settle the truth concerning facts in a case, between ordinary people, and obtained as of right by the plaintiff." The only characteristic of the English jury which the Islamic lafif lacked was the "judicial writ directing the jury to be summoned and directing the bailiff to hear its recognition." According to Professor John Makdisi, "no other institution in any legal institution studied to date shares all of these characteristics with the English jury." It is thus likely that the concept of the lafif may have been introduced to England by the Normans, who conquered both England and the Emirate of Sicily, and then evolved into the modern English jury.[98]

Several other fundamental common law institutions may have been adapted from similar legal institutions in Islamic law and jurisprudence, and introduced to England by the Normans after the Norman conquest of England and the Emirate of Sicily, and by Crusaders during the Crusades. In particular, the "royal English contract protected by the action of debt is identified with the Islamic Aqd, the English assize of novel disseisin is identified with the Islamic Istihqaq, and the English jury is identified with the Islamic lafif." Other English legal institutions such as "the scholastic method, the licence to teach", the "law schools known as Inns of Court in England and Madrasas in Islam" and the "European commenda" (Islamic Qirad) may have also originated from Islamic law.[98] The methodology of legal precedent and reasoning by analogy (Qiyas) are also similar in both the Islamic and common law systems.[103] These influences have led some scholars to suggest that Islamic law may have laid the foundations for "the common law as an integrated whole".[98]

See also[edit]

Notes[edit]

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  2. ^ Glasse, Cyril, The New Encyclopedia of Islam, Altamira, 2001, p.141
  3. ^ Levy (1957). Page 150.
  4. ^ a b Article by Sayyid 'Ali ibn 'Ali Al-Zaidi, A short History of the Yemenite Shi‘ites (2005)
  5. ^ a b c Islamic Finance: Law, Economics, and Practice By Mahmoud A. El-Gamal Page 122 [1]
  6. ^ The Encyclopedia of the Arab-Israeli Conflict: A Political, Social and Military History edited by Spencer C. Tucker, Priscilla Mary Roberts Page 917 [2]
  7. ^ The Iraq Effect: The Middle East After the Iraq War By Frederic M. Wehrey Page 91 [3]
  8. ^ Weiss (2002), pp.3, 161.
  9. ^ Weiss (2002), p.162.
  10. ^ Nyazee (2000)
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  13. ^ The Seven Fuqaha' of Madina
  14. ^ a b c Al-Muwatta'
  15. ^ a b c History of Islamic Law by N. J. Coulson page 103
  16. ^ E.J. Brill's First Encyclopaedia of Islam, 1913-1936, Volume 5 By Martijn Theodoor Houtsma page 207 [5]
  17. ^ Studies in Islamic History and Civilization: In Honour of Professor David Ayalon By Moshe Sharon Page 264 [6]
  18. ^ Al-Muwatta of Imam Malik Ibn Anas, translated by Aisha Bewley (Book #5, Hadith #5.9.23)(Book #16, Hadith #16.1.1)(Book #17, Hadith #17.24.43)(Book #20, Hadith #20.10.40)(Book #20, Hadith #20.11.44)(Book #20, Hadith #20.32.108)(Book #20, Hadith #20.39.127)(Book #20, Hadith #20.40.132)(Book #20, Hadith #20.49.167) (Book #20, Hadith #20.57.190)(Book #26, Hadith #26.1.2)(Book #29, Hadith #29.5.17)(Book #36, Hadith #36.4.5) Al-Muwatta'
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  31. ^ Mishkât Al-Anwar
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  35. ^ Atlas Al-sīrah Al-Nabawīyah. Darussalam, 2004. Pg 270
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  45. ^ a b "The Caliphate of Banu Umayyah: the first phase", taken from Al-Bidaya wa'l-Nihaya by Ibn Katheer, Ismail Ibn Omar 775 HISBN 978-603-500-080-2 (translated by Yoosuf Al-Hajj Ahmad), page 82.
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  59. ^ The Caliphate of Banu Umayyah the first Phase, Ibn Katheer, Taken from Al-Bidayah wan-Nihayah by Ibn Katheer, Ismail Ibn Omar 775 HISBN 978-603-500-080-2 Translated by Yoosuf Al-Hajj Ahmad Page 414
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  93. ^ Nahjul Balagha, Sermon 126
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References[edit]

External links[edit]

Further reading[edit]