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F I Q H I S L A M I C L A W & U S U L A L - F I Q H Dr. Yusuf Ziya KAVAKCI LLB,BD,Ph.D. ( Istanbul ) Ex-Professor ( Islamic Law ) and Ex-Dean of College of The Islamic Studies,Erzurum,Turkey Director of The Islamic Center,Richardson,Dallas,Texas 1


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Dr. Yusuf Ziya KAVAKCI LLB,BD,Ph.D. ( Istanbul ) Ex-Professor ( Islamic Law ) and Ex-Dean of College of The Islamic Studies,Erzurum,Turkey Director of The Islamic Center,Richardson,Dallas,Texas


To the Memory of Relatives My Grandgrand Father Tahir Dede MyGrandFather Mustafa Chishkaroghlu My Father My Mother My Sister Ahmed Kavakci Fatma Kavakci Firdevs Kavakci

My Father in-Law Ibrahim Edhem Gungen My Teachers Terzi Ahmed Efendi ( Topaloglu ) Mahir Iz Cevdet Simsek Saban Bas Bekir Haki Yener M. Tayyib Okic To the Future of my folk Gulhan Kavakci Merve Safa Kavakci / Abushanab Ravza Kavakci Elif Mina Kavakci Fatima Abushanab Maryam Abushanab


Table of Contents Page Preface................................................. 7 Fiqh.................................................... 11 Ijtihad................................................. 37 Khilafiyyat............................................. 55 Imamah.................................................. 67 Hisbah.................................................. 87 Majalla................................................. 105 Modern Issues........................................... 125 Usul al-Fiqh............................................ 145 Adillah................................................. 165 Linguistics of Usul al-Fiqh............................. 181 Bibliography............................................ 207


Preface Islamic Law ( Fiqh ) is a very important discipline for muslims all over the world,especially for muslims of the new world.It shows the way of life,how to live and how to abide by the Word of Allah ( Wahy ).It is a set of rules and regulations based on the Qur'an and Sunnah.All muslims are to abide by its rules from the point of Islam; they are fully binding. Muslim scholars of the past produced immense amountof Fiqh literature. Thousands of books have been produced in this area which are marvellous intellectual productsofthe islamic scholarship of hundreds of ulama belonging to different nations. Unfortunately we lack any center which can take care of this branch of Islamic sciences in a modern advanced way. We need to computerize all books and materials of Islamic Literature with all its barnches like Tafsir,Hadith,Fiqh,Sirah and Fatwahs. So that whenever any body needs any thing,it becomes available to him in seconds at the touch of a button. Hundreds of books perished in wars ( mongolian invasionof Baghdad,wars in Muslim Spain etc.),fires and we areleft with only the names of the books which are yet to be discovered. By computerizing we may possibly fill the gaps and prevent the literary heritage from being exposed to destruction and stretch what we have in our hands to the maximum level of benefit. For that we need a good center for Islamic Studies with very strong financial sources which is steady and enough.The best minds of the Ummah must be given a chance to study there and to produce the books and codes the muslims need or will need in future. A team work is necessary.Individualism must be left out. All muslim states and organizations must cooperate with that center. This center may host hundreds of muslim scholars who may contribute to the Islamization of every thing we need and every corner of the Globe we want. Islamic Law is based on iman;that is belief in Allah,in His books,in His prophets,in the Hereafter and so on,so forth.It is our life long belief and the commitment to practice His Word (Wahy). The source of this law is Allah and His messenger. No secular type of understanding exists here in this law.Human beings are not the main source of law at all in Fiqh. Fiqh is a universal and global system.It also has historic background and history of development.


We muslims are suffering under the almost total ignorance of the Islamic Law.One of the most dangereous movements is ignoring the Islamic Literature and seeing onneself eligible to derive rules directly from the Qur'an and the Sunnah without prperly being equipped with the necessary sciences (al-`Ulum al-Aliyyah) as well al-`Ulum al`Aliyyyah. The English words need to be evaluated by muslim scholars who are well in linguistics of English and Arabic.They must find ways of Fiqh terms to be expressed in English.It is necessary to search those words which are accepted as equivalent to Arabic Fiqh words and are to be covered by the same rules as in Arabic fiqh literature.Words have very significant status in Fiqh, indeed.There is no consensus in the English words used in Islamic literature so far.Even the English translations of the Qur'an have very wide range of words and terms which have no common bases among them. I did my best; but it is far away from being perfect.We do not have any team of scholars whom we may consult with.Every body is busy with his own affairs. What we are witnessing here,was the same in the past. Muslims accepted Islam and they adapted their lives to all aspects of Islam. I tried to cover a pretty broad literature in this field andcould not follow a unique transcript system. Meantime, I had to endure the lack of some letters in English such as Cha,Sha in Turkish or different accents in french words. I intended to give a little broad view of Islamic Law to English reader,especially in the area of the Methodology of Islamic Law ( Usul al-Fiqh ),which I believe maybean original contribution to Islamic Sciences here in USA and dealt different subjects under the various titles. My attempt is a very humble one.I will be happy, if I get any kind of feedback to my humble work. Some Fiqh academies,Islamic centers and universities seem to be very traditional and slow in motion.They look a little stagnant and not ready to catch up the speed of the problems rising all around the muslim world. Sitting in the luxurous halls and having coffee, does not help stop the course of life and solve the practical problems. We muslims of today in general and responsible authorities and persons in special must get lesson from the History and understand how our forefathers served to Islamic Sciences and produced enormous amount of literature in each walk of life without any precedent.


At the end, I must thank the brothers who encouraged me to produce this work and shared with me a lot of troubles in finalizing the text.I am grateful to Ausaf Husain,who went through the text several times.Jazahullahu khairan. Wa mina Allahittawfiq. Y.Z.K. November 1989 Dallas USA Correspondence: P.O.Box 833010, Richardson, Texas 75083 USA.


FIQH Generalities Fiqh is a science of rules, laws and regulations drawn from Qur'an and Hadith based on evidences and arguments accepted by muslim scholars in their capacities as religious leaders of their communities and authorities in islamic sciences. It is a compendium of laws governing the entire life of human beings starting with conception in their mothers wombs to the period after death. Shari`a (Shari`ah) is some times used in the same context,i.e. legal part of religion. But in reality Shari`a means the way and the path; the way leading to Allah and the straight path. It is mentioned in Qur'an several times,generally meaning religion (Din). According to a very famous saying of Prophet Muhammad (p.b.u.h.), a muslim's recordings of rewards won't stop with his death in the following categories: a) a continous charity which helps the public, b) a contribution to knowledge and science in a way that benefits others, and c) a good offspring who prays for him/her. This also applies in the realm of Fiqh. Before dealing with the definition of Fiqh, a term of specific science, I must give literal meaning of the Arabic word Fiqh ( al-Fiqh ); that is to understand,to perceive deeply, and to manage understanding the meaning and core of something. The word is mentioned in Qur'an with its different forms of derivations; i.e., " .. they have hearts but theydon'tquite understand.." ( al-A'raf,l79 ). The forms mentioned in Qur'an are as follows: " yafqahun " (thirteen times), " yafqahuu " ( four times ), " tafqahuna " ( once ), " nafqahu " ( once ). They are scattered over ten chapters of Qur'an. Their total is 19. In all of these citations the word fiqh means, in its derived form, to understand something and to perceive something. Of course, fiqh in this context deserves more semantical,sociopsycological studies to be done by modern advanced techniques,following, for sure, the historical linguistic and cultural data traceable in the History of Civilizationof Humanity.We must not overlook in this type of studies the vast information provided to us by past muslim scholars,and our new methods must be in compliance with the rules laid down by famous alims in the past.Our modern findings and techniques must always be checked in terms of Usul al-


Fiqh, Principles of Tafsir and the allied sciences.We can not underestimate the services rendered by our fore-fathers to the Islamic Sciences otherwise it will be no less than of arrogance. Thus it is very much necessary to re-evaluate the services rendered by the muslim scholars of Arabic grammar, both Morphology ( Sarf ) and Syntax ( Nahw ),Diction and Semantics of Arabic etc. along with modern ways and methods of interpreting the historical texts in their conceptual cultural contexts. Concept of Fiqh must be studied in detail from the point of human psycology, physico-chemical mechanism and reaction ofFiqh, namely process of " understanding" of human mind and related organs of his body. Human understanding and thinking is very important aspect of human being on which the address of divine revealation is based. In other words, the whole divine massages, Qur'an and indirectly the Hadith are to be based on " undarstanding " in terms of logic interpretations and rules and regulations to be drawn from the textual study of the sources. That is why in Islam, faculty of reasonable understanding and logic power of human being are very much necessary for being responsible and accountable in this world and hereafter. A person who does not have the proper power of reasoning and a certain level of understanding may not be charged with the address (khitab) of Allah and the message of Prophet Muhammad (p.b.u.h.),i.e., wahy in total. Modern studies are desperately needed in order to be able to communicate with the masses, to reach their minds and understanding,and to inculcate the Islamic norms and values in the minds of the new generation; both in terms of age and in terms of conversion to Islam. As we see a little later, Fiqh is the legal aspect of the way of life in Islam. So it resembles other legal systems in some points.The biggest difference among them are philosophical and creed aspect of Fiqh. As a matter of fact, Fiqh stems ultimately from the word ( wahy ) of Allah,who is the Creator, who is the ultimate Planner, who is Everlasting,Omnipotent, all Powerful etc. He isthe real Legislator. He is the One Who willquestionall human beings and even beings in the Hereafter.Every body's actions and deeds will be weighed carefully and graded accordingly.The Hell and the Paradise have been created by Him for reward or punishment.He


is Ever-lasting and every-thing e;se is transitory.He is the main source for every thing,every movement and every act. The sentences and articles of different legal systems, including worldly ones, may look like each other and even may be exactly the same.But the philosophy of Islamic Law is very different and perfect in all its aspects. Its social aspect is very much interwoven with ethics,fear and concern of Allah,connected with the complete perception of the Hereafter,the Hell and the Paradise. The sanction of Fiqh is belief in Allah,the wholehearted acceptance of Him with free will and acceptance which is backed with belief in the Hereafter, with its components such as weighing the deeds and actions and accounting, etc. Definition: Fiqh is defined as "a persons knowing and understanding what is for him and what is against him". This is the definition which is ascribed to Imam Abu Hanifah. That is the most general definition of Fiqh as an independant social islamic science. It includes all types of rules and regulations required by Islam, irrespective of it's content; wheather it is related with the belief ( Aqidah ) or it is related with ethics ( Khuluq, Akhlaq ) etc. In Qur'an a word derived from Fiqh ( li yatafaqqahu fi'l-din ) is also mentioned in the context of acquiring knowledge in religion ( Islam ). I think it is a meaning having nearest connotation to the legal concept of Fiqh. A.Yusuf Ali translated the referred " li yatafaqqahuu fi 'l-din " as " They could devote themselves to studiesinreligion " ( al-Tawbah,ix,122 ) and Marmaduke Pickthall's interpretation is as " they may gain sound knowledge in religion " ( Reference: Same as above ). A hadith which should be mentioned in this regard is " Man yuridi Allahu bi-hii khairan yufaqqihhu fi'l-din "( Allah will let any body gain sound knowledge in religion if He wants for him any good).This hadith is very important and basic for islamic studies in general and rules and regulations of Islam ( Fiqh ) in particular. As a pure legal science, Fiqh is defined " science of knowing applicable and practicable sharia rules and laws ( al-ahkam ) together with their evidences and arguments in detail ." This definition is really a comprehensive anddevelopedone.The previous definition refers to the general type of knowledge in religion and it is a very early definition, dated as first half and possibly first quarter of the second islamic century. The meaning of this general definiton is very much reflected in the title of the book " al-Fiqhu 'l-Akbar ", the book which is ascribed to Abu Hanifah ( d.l50/767 ).The subject of the book is not strictly depictable as judicial and legal in terms of Fiqh,but it is generally in the realm of Aqidah including wide range of escatological subjects and theological motos. The definitionsgiven by different schools and scholars mayvary


slightly because of the differences in understandings and conceptual states of minds stemming from sociological elements traceable in the environments they flourished.This point may lead us to the problem of sociological elements of the vast Fiqh literature.This is a very big debateable issue for the scholars in the context of divinity of Fiqh rules and the unchangeability of Sharia rules.They also debate as to what portion of Fiqh are purely divine and religious based on pure revelation ( wahy ) and binding, and what parts are worldly and socilogical,thus changeable to suite special circumstances. By tracing thisissueindetail, we might arrive at the roots of the techniques which developed Fiqh in the early years of Islam without precedents and without previous specimen of studies; based on Qur'an and Hadith to suite the conditions of the society they were living in. Search of the lines,graphics and curves of divine and sociological elements and their interactions with each other would give us the history of development in Fiqh and will enable us to trace the routes of legal opinions and their influences on human minds and society in general. It finally will lead us to discover the methods of developing new techniques for the solutions of the modern problems which we badly need. We need this sort of approach, at least from the theoretical point of view, in order to find new theories to tackle current issues. Ijtihad with new type of approach will gain strength and momentum possibly to the level necessary to prepare conditions for further development of Islamic Jurisprudence in our modern centuries. Islamic Law,Islamic Jurisprudence,Droite Musulmane,Islamisches Recht and the like possible names in modern european languages are debateablefrom the point of whether they reflect full connotation and significance of discipline of Fiqh. One thing must be pointed out that in all of these expressions we've got to put " Islam " in order to exlude the profane nature of laws in related languages. Islamic Law is in its very nature divine and not quite ready to be fully adapted to exclusively worldly sources of legal systems which are based on " voix populi " as parallel and equal to divine nature of the law contrary to Fiqh which is fully based on the real source of Law;i.e., Allah. Jurists of Islamic Law are faqihs ( plural is fuqaha' ); it is a word derived from same infinitive of Fiqh.Faqih has to know Arabic to master Qur'an and Hadith.He should have proven his ability of analyzing the cases promptly and properly.He is supposed to be healthy physically and mentally and gifted with normal faculty of senses. Looking back at the History of Fiqh, the majority of faqihs were not arabic speaking,i.e., Arabs; rather they were scholars who took the responsibilities of being judges, mufties and imams of their communities and teachers in different levels; directing the muslims to ma'ruf ( all types of


good ) and enlightening them about munkar ( all sorts of bad;i.e; bad according to Islam, bad according to logic and reasoning, and bad according to tradition ). They were actual gauardians of the Word ( revelation,wahy ) in all fields of human life. Needless to say that faqih literally means " one who understands and has full faculty of perceiving the cases and wahy ". This shows that faqih in the past, contrary to his stand of today, was the most genius of the Muslim Nation, cream of their societies. They received full support of their fellow brothers and were provided with all types of facilities and conditions to encourage them to acquire all necessary knowledge. The books, the facilities and the case studies were made available to them through unbelievable variety of waqfs (foundations, dedicated to the cause of Allah). The entire muslim society was with them with full cooperation and understanding. Some of the faqihs and alims in general had / have official type of approach to the issues and gave / give solutions furthering the official state position. They serve the sovereignity by this approach and support some of the faults and mistakes made by the king,caliph or whoever is in command. These scholars have power and some times invisible upper hand in the solution of social issues, including the application of Islam in the country. The credit and discredit must go to them at least in certain issues. Some times they are tools of oppression excecuted upon real alims fighting boldly for Islam. Quite a few of them even work as intelligent elements for their favoured state which leads to spying on muslims and islamic activities of the related organizations and get their share of credit. This game,I believe,is being played in many muslim countries. Coverage: Fiqh does not ascribe to the concept of the division of state and religion. Western type of divisions are not favoured in the Islamic Law.All aspects of human life automaticallyy are the subject of divine rulesand regulations.Worship and actofprayer are parts of Muslim Law.They are located as first chapters of the literatures ofFiqh.The first chapter generally ison cleanliness ( taharah ), physically as well as spiritually.AAn individual's cleaning the body and heart in due process is very much the bottomline of obeying the divine word and a must for a muslim in all walks of life.Islamic Law governs the individual from the period before birth up to the period after death with no exceptions to its jurisdiction. Itspower ofenforcement comes from the very natureof belief in Allah, from person himself indeed.Notice the necessity of having belief, intention and resolution personally and individually in all acts of worship,transaction etc.Any act of worship, lacking the proper intention and not having been duly processed, may not be accepted according to the Islamic Law even if it lasted and was observed years after years. Ethics and morality are not considered outside the realm of Fiqh.Nevertheless, the subject, for practical reasons, is dealt as a different discipline and divided into independent areas of studies.All these areas may be perceived as chapters of the same book sincethe source of the


word is one ( Allah ),the positive source is the same ( Qur'an and Sunnah of the Prophet Muhammad ) atleast in belief,theory, and perception. No muslim may find any moment and any place in his life in which he can feel himself a free to do whatever he wishes without the bondage of Islam. Because of the comprehensive nature of the Islamic Law, marriage contract, for example, has a power of worship as the topic of marriage in Fiqh Literature is generally located in the chapter of worship (Ibadah).That is why marriage has rules and regulations, and individuals are supposed to observe these rulesin detail.Marriage is not a personal privilege of an individual. Nobodyhas freedom in deciding to marry or not to marryor to have free marital relationship with some body whom he/she is not islamically marriedto.Rules andlaws ofa marriage range from optional,recommended and mandatory levels upto forbidden and not recommended types etc.These are all Fiqh problems for sure. Furthermore Fiqh is backed up on sound ground by being accountable in the Hereafter;thus it is extended upto the lifeafter.This belief makes the Islamic Law strong, and self-powered and selfsanctioned in the minds and hearts of the muslim citizens. Systematics of Fiqh Books: I think, I must deal a little bit with the topic of arrangements of subjects generally followed in Fiqh Literature.This will give us an idea of inner structure of Fiqh books in general, at least in the Hanefite School of Thought.This is almost a standard structure in this literature.I want to give the Table of Contents of a book which was almost a standard text book in Madrasahs (universities)ofthe Ottoman Empire. That is the book " Multaqa 'l-Abhur ",which is a compilation of the problems dealt in alQuduri,al-Mukhtar,al-Kanz,al-Wiqayah and some additional issues from al-Hidayah ( all aretitles of reliable and renowned Fiqh books produced in different centuries). This book deals with a wide variety of opinions with special reference to the preferred ones ( al-arjah ) and the most accurate ones ( al-asah ). The book was compiled by Ibrahim b.Muhammad b. Ibrahim ( Ibrahim son of Muhammad who is son of Ibrahim ) .He was originally from Halab ( Aleppo / Syria ).He got his basic academic education in his town,then moved to Istanbul and settled there. He functioned as an imam in different mosques and was finally appointed as a khatib in Fatih Mosque and a teacher in Daru 'Qurra' Madrasah.


Fatih Mosque was a very important center for islamic studies and his job was one of the highest positions of its kind. His death occurred in 956/l549, when he was over nintyyears of age.I must add that his service to Islam and the islamic sciences coincides with the golden period of the Ottoman Empire and the Islamic Khilafah. I would like to remind you that the first half of the sixteenth century is a period stamped by Sultan Suleyman the Magnificent ( Kanuni Sultan Suleyman as he is called in Turkish History ). Therefore, the book and its arrangement has a special type of significance and meaning andit may rightly represent the literature it belongs.The book has been edited many times and is translated in Turkish and has some commentaries. Table of Contents of Multaqa 'l-Abhur: Book of Cleanness : division ( fasl ) of Cleanness is permissable,division: well is cleaned up;chapter ( Bab ) al-Tayammum ( Cleanness by dust ) ; chapter of wiping on boots ( khuf ),chapter of menstruation,division of bleeding of illness ( mustahadah ),chapter of uncleanness. Book of Salah ( prayer ) : chapter of call to prayer,ch.of requirments of prayer,ch.of description of establishing the prayer,division of necessity on spiritual focus in prayer,division of imam's recitation loudly,devision on : prayer in congregation is strong practice of the Prophet ( sunnah mu'akkadah ),ch. on breaking the prayer,annulling prayer,Prayers of witr,tarawih,makeup prayers,prayer of patient,traveller,Jum'ah, two festival prayers,prayers of catasrophe and fear,funeral prayer and prayer inside the Ka'bah. Book of Zakah ( Islamic Tax and sharing community expenses ):Tax and due on animals,cattles,sheep,goat,horse,gold,silver,mine etc.Person in charge of collecting the tax etc. Book of Fasting: ch.on things breaking fasting,a patient may not fast,pledging fasting,religious seclusion in mosque ( i'tikaf ). Book of Hajj( Pilgrimage ) d.put on ihram (special clothes), entering Macca,offenses against pilgrimage,sacrificing animal etc. Book of Marriage: ch. Peopleforbiddento marry,guardians,dowry, marriage of infidels,justice among wives etc.


Books ( only ): Breastfeeding ( suckling ),divorce,freeing slaves,vows and oaths,fixed penalties,theft,international law,foundling,lostandfound,lost things,partnerships,foundation, business transaction,exchange of money,guarantee,transfer the right and debt,judgement,evidence,agency and representation,suit and litigation,confession,peaceful setlment of disputes,lend and borrow,donation and gift,rent and lease,mukatab ( slave ),wala' ( specialrelationbetweentheoldowner and free slave ), coersion and threat,put under guardianship and conservatorship, slave permitted to make his own business,usurpation,preemption, how to divide anonymous shares,sharecropping,sharing looking after trees,slaughtering animals,things abominable islamically, revival of no man's land,drinks,hunting,pawn,blood money,social security regarding murders of which killers are unknown,wills and testaments,persons whosesex ( whether they are males /females), and law of inharitance. Aswe observe, the system of Multaqa' l-Abhur has structure of a book,bab (chapter) and fasl ( division ) and last two are not consecutively following each other and greater/smaller than each other.But it is fairly systematic and in detail. As we see from the study of the table, Fiqh books and Fiqh Literature in general cover a vast area. Actually all aspects of human life with all its flexible principles as Ijtihad,almaslaha,istishab,sadd al-zara'i,re'y,qiyas and the like are covered in these books. Academicians in this field discussed which book is to be accepted as the first book in Fiqh in its academical sense.Some of them are of the opinionthat " Muwatta' " by Malik b. Anas (d.l79 / 795), founder of the renowned Malikite School of Thought,is the first. When we study Muwatta`s content we observe that hadiths are arranged somewhat according to fairly complete standard Fiqh book's Table of Content;however being very early document in its own field the credibilty of being one of the first example may go to this gorgeous book;there is no doubt about it.But I think the overwhelming feature of Muwatta' is its being a hadith book. There is another marvellous piece of literature earlier than this


one;that is " al- Majmu' al-Fiqh " by Zaid b. Ali ( d.l22/740) who is one of the descendants of Ali, who is son in-law of Prophet Muhammad (p.b.u.h.).His grandfather is al-Husain,son of Ali,husband of Fatimah,daughter of Muhammad (p.b.u.h. ). Zaid lived in Kufah and died in the year l22 H/740 A.D. Zaidiyyah School of Thought in Yaman is named after him. Ja'far al-Sadiq, al-Zuhri,Shu'bah and Abu Khalid al-Wasiti are among those who narrated from him. This book has been published in Milano/Italy in l9l9 as a critical edition by Eugenio Griffini with notes in Italian.The full name is as follows: Corpus Juris di Zaid ibn Ali ( viii sec. cr. la piu antica raccolta di legislazione e di giurisprudenza musulmana finora ritrovata testo arabo publ.per la prima volta sui mss. iemenici della Biblioteca Amrosiana. The Kitabs (Books,Main chapters ) are : Book of Cleanness,Prayer,Funerals,Zakah ( tax ),Fasting,Kharaj (taxgiven tomuslim state by non-muslim statein war ), Transaction ( selling and buying ),Witness,Marriage,Divorce, Severe Penalties,International Public Law,Law of Inheritance. The book has further divisions as bab ( chapter ) only. The credit must go to this book,Majmu' al-Fiqh,with regard to systematics of Fiqh Literature,I think.However, whether this book is purely first Fiqh book or it is a book related to hadith literature,is debatable from the point of independence of academic disciplines. Going back to the previously mentioned book Muwatta',for the purpose of comparison,the latter has the systematics of book ( kitab ) only;the subdivisions are having no titles as chapter or division. Majmu' al-Fiqh is more developed from this point of view than Muwatta',an additonal credit to its being earlier than the latter. Problem of Influences on Fiqh:


At this time I would like to touch upon the issue of influences on Fiqh allegedly made by Jewish Law and Roman Law especially.These are two main systems of laws established before Fiqh. JewishLawhas foundations in the OldTestamentwhichoriginally was revealed from God,but changed with time and lost its original form in the language of Moses ( p.b.u.h. ).But still it has probably some elements shared by all divine books.Therefore,some rules and orders of Old Testament and Qur'an and by that way Jewish Law and Fiqh are common, in another word look like each other. The murder,adultery,theft may be cited as examples.That is why it is natural to see some resemblances in these two systems. But to say that Fiqh was influenced by Jewish Law isasimple claim which should be positively proven withsolid and soundevidence. Idon't see any sound evidence shown in this regard.Goldziher,Fitzgerald, Goitein,Nallino,Schacht,Sawa Pasha and others aired their views on this issue.But the problem is there and it needs further research. Prof.Dr.Muhammad Hamidullah made avery precisestudy on this issue which may be recommended for further steps ( Hal li 'l- Kanun al-Rumi Ta'thir `ala 'l-Fiqhi 'l-Islami ),edited by M.Hamidullah,second edition, Beirut l973. One can't prove that Fiqh borrowed from Jewish Law anything important neither from the point of content nor from the point of systematics.This, I think, is a claim put forward by biased orientalists and christian missionaries. Roman Law is a law which prevailed in the areas which have been conquered later by muslims and some of their population converted to Islam.The Roman Law actually was/is historically one of the very strong, widely spread, and practiced law in the Middle Eastern


countries before Islam. Beirut and Istanbul were two main centers of legal studies in those centuries.That was the case even before Jesus Christ ( p.b.u.h.).This law was appliedin Eastern Europe,Middle Eastern Countries and North Africa for centuries.Islamic Law was developedin and around the Arabian Peninsula and was widely applied in nearly all Roman Empire territories,especially, during the later centuries. All of Codex,Digesta,Novalae etc. were produced and applied in those territories. It is worth mentioning that we have today a code consisting of l30 articles which was in force during the advent of Islam in Syria. This was a Roman Code related with civil as well as penal rules. It has Armenian,AssyrianandArabic versions. German orientalists K.G.Bruns and E. Sachau worked on the text and prepared avery scholarly critical edition of it and published the originals together with German translation and commentary. It is very much advisable to onewhois interested in further research in the area of influences and originality of Fiqh to study this text along with other scholarly books, and to compare contents, ideas and systematics with early Fiqh literature in modern scientific ways.It is a Code contemporary to our Prophet Muhammad ( p.b.u.h.). Full reference is as follows: " Syrisch-Roemisches Rechtsbuch aus dem fuenften Jahrhundert," ed.K.G.Bruns and E.Sachau,Leipzig l880.


This is a study which was done more than a century ago.Some one first time in Turkey, possibly first time in Muslim World,after a century from its publication, attempted to compare the Code with Islamic Law and Modern Turkish Law briefly ( Y.Z.Kavakci,Suriye Roma Kodu ve Islam Hukuku,Ankara l975 ). Syrian-Roman Code was first discovered by a dutch orientalist, Land in British Museum as a syrian text and published in Anecdota syriaca ( 1862 ). The Code was applied widely in Midle Eastern countries through Middle Ages under the names of " Statuta imperatorum ", " Libri basilicon ", and " lages Constantin Theodosii et Leonis ". It was first mentioned in " Bibliotheca Orientals " ( Rome 1717-1728 ) by J.S. Assemani and later Bickell mentioned it just as a name in " Geschichte des Kirchenrechts ".The Code was studied first by Rudorff,Roediger and Petermann,who were members of "Academy of Sciences ( die Akademie der Wissenschaften ) in Berlin.All were linguistics specialists and lawyers.Rudorff studied the aspect of law in this Code,and the other two worked on its Arabic and Armenian texts and published it with Latin translation.But the study was to be accomplished by Bruns and Sachau by going into the detail grammatically and from the point of liguistics.It bears all characteristics of the Roman Law which was widely applied in the Midle East,Europe and North Africa etc.The edition has three main chapters: First chapter is onsyrian manuscripts ( London and Paris ), Arabic and Armenian texts are published in their original characters. Second chapter is on the German translations of those texts. Third chapter is alloted to notes and annotations and evaluations of paragraphs. The Arabic text is in Bodlean Library in Oxford / England, recorded under Thom.Roe 26,folio 338a-356a. The Arabic text of this code has a trinity preamble,if you will,at the beginning.It means that is not purely a piece of Roman Law, it is a code, affected by christianity.Its articles were named as " bab ". This code was very popular in Syria and Mesopotamia in the fifth century and after that in muslim period compared with Justinian Corpus Juris, because muslim conquest crashed down political leadership of nonmuslim areas and gave credit to the churches thereby the religious leaders became powerful and the sole representative of the society and they prefered this


text.The text was available in Arabic and Armenian.This was,perhaps, another point of credit for this text. Here we see nearly all legal matters mixed up with each otheri.e.Inheritance,slavery,bequaeth,will, guardianshipand conservatorship,gift by the way of will,dowery,relation between father and his children,theft,divorce,suit procedures,freedom of religion and religious practices,marriage,engagement,propety systems in marriage,limits of marriages,children after divorce,property rights,burglarism,and somepenalrules.Theseare main subjects of this Code.The most frequently mentioned rules are rules related with wills,inheritance,different rules related with slaves and marriage issues,I guess. We do not have any evidence which shows that Prophet Muhammad and any of his companions were involved with other than islamic legal literature or had some sort of mental or practical attachments to any legal text pertinent to Roman Law and others. As a matter of fact,none of the early faqihs are reported to have known and to have used any term or expression of Roman Law origin.We may mention among othersmembersof Madina,Macca, Kufa,Egypt and Damascus Fiqh schools.None from the early muslim jurists who layed the very foundations and grounds of the Islamic Law ( Fiqh ) are reported to have known any thing from Roman Law,or used the codes pertinent to Roman Law. Abu Hanifah ( d.l50 / 767 ),Malik b. Anas ( d. l79 / 795 ),Imam Shafi'i ( d.204 / 8l9 ),Ahmad b. Hanbal ( d.241 / 855 ),al-Awza`i Abd al-Rahman ( d.157 /774 ), Sufyan al-Thawri ( d.l6l / 777 ), Dawud al-Zahiri ( d.270/883 ) etc. are to be mentioned in this regard.They have written many books.None of these books have any word having Latin or Greek origin,unlike the philosophy books which contain a lot of Greek words,like very word philosophy in Arabic is Falsafah. Previous Laws: I think it is proper to say a few words here about a very original rule in Islamic Law regarding the laws and legal systems of the past.The rule runs like this: " All previous legal systems and laws are acceptable and valid for muslims unless they are,or the parts pertinent to them, annulled or modified in their context.Therefore, we are all the time positive towards the past laws,no matter whether they originated from this or that.Thisis because of the divine nature of laws and especially


when they emanate from revealed books and because the message revealed to all the prophets are the same in general.The verse l3 of Surah al-Shura (no 42 ) possibly refers to this issue;the issue of commonalities among divine laws;past and present. Professor Hamidullah published a nice article in an issue of France - Islam,in which hediscussed scholarly aspect of the legality and validity of laws in the Old Testament especially basing on alGhazzali`s opinions in his " al-Mustasfa ". Social conditions and common needs of human beings also lead to the adoptation of the similar types of legal rules and even more to invent same measures and rules for their convenience. This, I believe, is an undeniable view in all social areas. First Written Constitution: We all know that the humanity has always been in need of laws and legal systems to maintain justice and equity.Constitutions come at the top of these sort of laws binding all other laws.The humanity received for the first time in the History of Constitutions a written form of constitution by the City State formed under the chairmanship of Prophet Muhammad (p.b.u.h. ) in Madina fourteen centuries ago. According to the new studies made in this area, this document contains more than 50 articles.It is, at the same time, the first text of a Social Contract in the History of Humanity;the parties involved were muslims,jews and christians among others.These were the signing parties. Let's study the elements of the Constitution: The land was the city land of Madinah ( Saudi Arabia ).The borders were same borders with the city. The citizens were inhabitants of Madina belonging to different tribes and religions. The language was Arabic. It was in reality a City-state of federative nature;in other words,constitution was a Federal Constitution and the state was a Federal State. The content of the Constitution contained, to the surprise of modern intellectuals, almost if not fully, all types of human rights,privileges,freedoms and responsibilities.


Further more it contained articles on military forces and responsibilities, conscriptions,how to defend the City so on so forth. The state was headed by Prophet Muhammad ( p.b.u.h. ) and system of government was presidential system;that is the president was the central authority with full authorization;the ministers and other administrative position holders allderived their authority from the appointing decree of the President, the Prophet.They all held the positions of being representatives of their communities. The form of government was based on representative election made by natural and sociological representations of their groups,tribes or families. Non-muslims had rights and privileges more than possibly what they have today.A full freedom of conscience and religion, and freedom of education were really very much favorite issues. They had freedom of social security, especially regarding murders. The subject needs further legal studies and analysis.The study on the Constitution made by Muhammad Hamidullah may be referred: The First Written Constitution in the World,Lahore l975. Qur'an As a Legal Text: Some people tend to call Qur'an Constitution of Muslims.Of course the term constitution has a special meaning in the discipline of Constitutional Law;that is a main law passed by special authority having been duly authorized;a law regulating the main structure of govornment,fixing rights and responsibilities along main branches of State: Legislative,executive and judiciary. But all constitutions according to modern Constitutional Law are stemmed from human nature;source is human; not divine at all.No European writer on this area will accept this idea of divine nature of the Constitution .According to them, people have original power and their power equals God's power (vox populi,vox dei).This idea can not be accepted in Islamic concept of constitution at all.It may even be looked at as totally anti- islamic and polytheistic. All constitutions in one way or another, are changeable;no matter how rigid and strong they might be, none of them are unchangeable and eternal.Even the strongest ones,like the Constitution of U.S.A.,get dozens of amendments and those amendments some times are more


referred than the main text.Majority of contstitutions of states in the world have been changed many times since their creations. Qur'an is not like that at all.It is the world of Allah for sure;it has an eternal quality as the Creator.It did not change and will never change.It is eternal.So it is different thanother constitutions in terms of Constitutional Law. Then what is the legal qualification of Qur'an? Let's touch this issue a little bit. As academicians in this field have stated there are documents which are groundsand foundations of constitutions.These documents affect constitutions and even make constitutions;they are above constitutions.Documents on human rights,declarations made by revolutionary committees in revolutionary regimes,state wise accepted leadership concepts and ideas,documents of international agreements such as the United Nations Charter,doctrines adopted by high command or leadership,such as Communism,Socialism . Qur'an may be placed in such a position,if you will, as the documentwhich all legislation,executive and judiciary mustrefer to in all areas ; so a constitution may be drafted and put into force codified in modern way with preambles,articles, paraghraphs,divisions,titles and subtittles etc. Imust statethatQur'an is much more than any sort of constitution to a muslim.It is every thing.His daily life is supposed to be dominated fully by it.All rules of Qur'an are binding on muslims in every aspect of their life. Qur'anis his credo,qur'an is his prayer book,Qur'an is hislegal manual,Qur`anis his text book ;it is a book of recitation,reading, chanting if you will.In short Qur'an is his body and soul book; allways will be with him,awaken or asleep. As it is obvious in Fiqh, there is no separation of church and state, in other words, no way to secularism or laicus in reality. A muslim is always tied and bound with divine rules.This actually is his worldly mission.That is to follow Allah's word and to disseminate it as much as possible.Furher more, can a person really be isolated from all his feelings and emotions in his dealings? Definitely not! This isthe Islamic perception of legalities and laws. In Islam there is an interesting concept of death.That is expressed in a motto " Mutu qabla an tamutu ( Die before you really die ) ". That means one must constantly remind himself about the reality of death,accountancy and the Herefter life.In other words, he must die theoretically and philosophically from time to time if not constantly and check his acts and deeds and review his balances and not take the risk of any chance to loose in the Hereafter,which one will encounter for sure.Sufically speaking onemust be some kind of Ibrahim Adham;left whatever he had as


position and wealth and purified himself from the dirt of the environment and worldly and secular culture ( involvements ) and engagements.He died spiritually before his literal death occured. Very few orientalists were interested and concerned in this field. Late Joseph Schacht is one of the best in this field as orientalistinlast few decades.His book, The Origins of Muhammadan Jurisprudence is a scholarly important work.His last book " Introduction to Islamic Law ", is a little manual,I believe, in its field.Young orientalists seem to have no real interest in this area. I can't remember any name worth mentioning now a days in terms of producing scholarly works or even showing a keen interest.





Ijtihad We haveinFiqh a very important institute,by whichIslamic Law adjusts itself to contemporary muslim needs and finds satisfactory answers and solutions to social conditions.That institute is Ijtihad. The origin of Ijtihad is JHD ( Jahd ).That means literally to spend efforts to the best and highest ability for some action. But it means as a term of the Methodology of Fiqh, mujtahid's spending all of his efforts to know the rules of shari'a by deriving them from authentic sources. So Ijtihad has the following elements:a) spending all effort to the extent that one may not increase any more; b)the person must be at the level of mujtahid; c) the purpose of this activity must be to get in the core of rulings of Shari'a in that regard; and lastly d ) this process must be by the way of deriving rulings and drawing them from their evidences and justifying them with relevant arguments. Mujtahid is a person who is eligible to make ijtihad and qualified to draw necessary rulings from main sources ( Kitab and Sunnah ) and secondary sources ( qiyas,re'y,istishab ect. ). As a matter of fact he is a higher level faqih in terms of having authority of exercising independent research on original islamic problems and finding solutions to them.These two words,faqih and mujtahid, are closely interrelated with each other.There is a relation of umum ( being more general and bigger surrounding concept ) and khusus ( beig smaller concept included along with others in previous content of term ),as they name it in al-Mantiq al-Suri; that is Aristotlean Logic. So all mujtahids are faqihs; but not all faqihs are mujtahids.Some of the faqihs are mujtahids.The word faqih is wider and bigger and the mujtahid is smaller among faqihs. Some of the faqihs are not mujtahids.This is the logical interrelation between these two concepts.The


relation between these two concepts are mutlaq ( absolute ) relation. Ra'y: The very bottomline of the institute of Ijtihad is mujtahid's own power of perception and understanding and evaluation of the issue and evidences and others.This is a very personal abilitywhich he will exercise in his jahd.That is called Ra'y, a concept which is equivalant to the term of oponio (opinion) in Roman Law.That is the feature that makes one mujtahid dfferent from another.Each mujtahid will have his own way of thinking,which naturally will be different than the others.Some may go a little further;some may stay behind.By the way, theHanefite School of Thought is generally named as Ra'y School;even argued against them in the History of Fiqh.They are a school which used the Ra'y technique vastly in their dealings with theFiqh issues. Muslim jurists applied their ra'y processes in analogies especially and the door of Ijtihad rested ontheir abilties of using ra'y in their studies.When the faqihs lost their abilities,door of Ijtihad closed by itself automatically;no body closed the door willingly.By this we mean that it is always a chance to open it and activate its mechanism when we reach to that level. Ijtihad has a little detailed conditions and reqirements which we will deal a little later.

Requirements of Ijtihad: As it was stated earlier, discussing the definition in its short form, not all types of efforts are being considered as Ijtihad in its legal narrow context.Thus there are conditions and requirements for ijtihad and finally for mujtahid. First ijtihad must depend on the knowledge of Arabic.Mujtahid must know Arabic either by the way of nature and birth or by the way of learning.Since the sources are in Arabic,it is a must to know arabic. Second, mujtahid must know the Book,Qur'an, properly with all its possible content including the knowledge of nasikh,mansukh,asbab al-nuzul and all allied sciences. Third,knowledge of hadith, like wise, is a must together with its usul. Fourth, knowledge of Usul al-Fiqh with its details. In addition to these requirements there are some conditions such as knowing the positions of consensus and natural capacity for ijtihad,knowledge of main goals and purposes of the Shari'ah,the fields where ijtihad is possible and the areas where ijtihad is not acceptable.


I have to point out that ijtihad is by no means restricted with the time or place.It is valid for all the times and places.In other words, there are no restrictions on ijtihad from the point of time and from the point of geography so long as its requirements are met. The process of ijtihad is a mandatory duty for an eligible mujtahid. If he has the capacity and if there is a need for ijtijad hemust do his best.But if there is no body at that level and the necessity is there, ijtihad is the resposibality on the muslim community and on its leadership;since there can be no community without leadership (Imamah) at least in theory. Some mujtahids may be eligible in some areas and some not in others. According to some scholars,this is acceptable,but according to others it is not,because ijtihad may not be divided. To keep the rulings of ijtihad intact at all times is a must,so long as there is no necessity to change. The Problem whether ijtihad is binding or not and Taqlid: To cut the topic short, the mujtahid himself must follow what he ruled.As for others, there are two different points in this regard: a) every body is responsible to make some kind of ijtihad he is in need of.He himself is mukallaf ( responsible ) in the presence of Allah; b) there is nothig wrong for any body who is not at certain level of ijtihad to follow other mujtahids. To follow other mujtahids is called taqlid.It is not acceptable in Islam to follow others blindly without knowing the process and evidences. But it is some times inevitable, because of the ignorance prevailing inmuslimcommunities and because all people may not practicallay reach the level of mujtahid. The purpose of being responsible in Islam is to obey the commandments of Allah and to do good deeds ( amal salih );this purpose may be attained at least at certain level by following the other mujtahids.This is for sure a matter of human shortcoming,not being perfect ( kamil ) always as he/she should be.

How were the Schools of Thoughts established?


Ijtihadfinallyleads into the problem of the formation of Islamic Schools of Thoughts .It is true that the process of formation of schools of thoughts of practice in Islamic History was not intentionally and willingly meant from the beginning by any of mujtahids.They were muslim scholars who did their bests for the betterment of the societies and communities they lived in ahumble and quiet manner.They did not claim at all that they were the best and that they formed or going to form schools of thoughts different than the others and that the people must follow them.The schools of thoughts were formed per se automatically in the society after the mujtahids passed away,practically, as a result of the services they rendered to the society and in return they got respect and commitment from the fellow muslims in the country they served. As we know school of thought is in Arabic madhhab ( plural is madhahib ).This word is derived from the root DH H B which means " to go ".Madhhab means " the way to go " in its literal meaning.That may be put into ways and methods of thinking and applying them in daily life, being consistent in their logics and argumentations ect.This does not mean that they did not change at all;no,they changed and developed with time. As a matter of fact, the faqihs and mujtahids of same madhhab differed from time to time from the point of view of understanding and appraising the issues and cases.Once a preliminary study was reported in a book in terms of unanimity and diversities of opinions of faqihs of same madhhab and some time of other madhhabs.It showed that unanimously accepted opinions may not exceed 20 % of all issues to be found in that particular Fiqh book.I mean that diversity in opinions in Fiqh matter,generally speaking,is natural,practical, useful and even necessary.Further, comperative studies, based on computerized data of Fiqh Literature, will revealeven more outstanding and astonishing facts,I believe. Since the formation of madhhabs was a natural sociological phenomenon, to eliminate them or to try to regulate them, taking away from their natural courses, will be an artificial matter which might not be accepted by the society and might lead to new chaos of ideas and practices and turmoils in the community. So individuals who are against madhhabs are actually unknowingly tryingtoforman artificial typeoftheir own madhhab and are pushing the issue out of its natural course.Further more, it is


observed that opponents of madhahabs themselves are those who benefit from established madhhabs; in other words, their knowledge and practice of Islam and even their appraisals of the ideas and opinions on Islam are the product of some madhhab, practised in the areas they lived.In reality they owe a lot to those madhhabs they even tend to criticize. We know practically from Islamic History that in the beginning of the first islamic century there were so many madhhabs.Even during the period of Rashid Caliphs and The Companions nearly each sahabi supposedly had had the authority,theoretically if not in practice,of deciding on the issues he was involved in;that is some kind of madhhab of his own.This was perhaps so natural,because principles of madhhab were not yet layed down and observed by others. Some of the madhhabs which prevailed in early stages of the History of Islam were absorbed by others and lost their identities by the time in a natural process of development.Madhhabs ascribed to Ibn Jarir al-Tabari,Sufyan al-Thawri and al-Awza`i may be cited as examples of this development.They were assimilatedin the Hanefite,Shafi`ite, Malikite and Hanbalite Schools of Thoughts in due course of time. The issue of commitment to madhhabs: To be committed to madhahab is not at least theoretically a must;since the madhhabs were formed later and they were not prevailing during the time of Prophet Muhammad ( p.b.u.h. ). And also madhhabs are product of sociological process and contain predominantly human nature.Therefore, no madhhab is binding on individuals,binding in the context of being at the level of Kitab and Sunnah.But they are binding from practical point of view on one who is muqallid (at the level of imitating madhhabs and being ready to have his own opinion and view in each case and walk of life). There is a concept of talfiq of madhhabs;that to merge them in one and to borrow from one another one. This is theoretically possible;but in practice it gives rise to a new type of madhhab.Of course,in case of need it may be put into practice in limited issues and some decisions may be passed through this technique ( especially by mufti and muslim judges );perhaps this will give the related person to keep himself in the tract of Islam,rather than to let him go away from any kind of shadow of Kitab and Sunnah. Taqrib of madhhabs movement is another newly favoured concept.That is to make different madhhabs share common things and come near each other and finally perhaps make one or eliminate some of them etc.Scholarly it looks possible; in practice it does not seem feasible.


To shift one madhhab to another is like wise academically and theoretically possible;but in pratice it is not easy to be applied,even not advisable to the common type of muslims who have no solid background for their own ijtihad. Madhhabs in the Islamic History played an important role in producing a vast Islamic heritage of literature .Some of them were backed by the states and sponsored better than the others.Caliphs and heads of muslim states preferred one of them to be followed in public and judicial issue,of course not interfering individuals freedom of applying in their personal problems whatever they wished.Ottoman Empire period,Fatimid State and North African Muslim States may be cited as examples of states adopting one particular madhhab at least in practice. Qarakhanids in the Islamic History are ones who favoured Hanefite madhhab and produced a tremendous amount of books on Hanefite School of Thought which today are first hand Fiqh sources. Madhhab, if studied well according to the principles of Khilafiyat ( Comperative Fiqh Studies ) in this continent, with proper vision and flexibility in application, will possibly eliminate a lot of negative attitudes of the muslims in this continent.And finally, it may lead us to better cooperation, integrity and unity as one Ummah. But to apply the principle of ijtihad today may be reconsidered and strenghtened by taking the way of ijtihad by an eligible council formed for thispurposerather than by individuals. An individual may not master the necessary sciences well enough in midst of modern anti-islamic environment of daily llife;members of the council may accomplish what individuals can't do and the best efforts of individuals may collectivly lead,if not to perfection,then at least to state of less fault and shortcoming,insha Allah.So today it is mandatory for responsible leaders of the communities to develop a way toward this direction;and pave the way to this important institute." Allah's mercy and help is with jama'ah ( team work,cooperative work )." and affairs and things must be run with Shura ( Council and group work ). There is a term which I think is good to deal here in this chapter; that is al-Takhrij. This word means literally to take out,to bring some thing out and away.As a term it means to draw and derive the hukms from the texts of mujtahids and imams of each madhhabs,contrary to Mujtahids who draw the hukms from Nass ( Qur'an and Sunnah ).The one who does Takhrij is called Ahl al-Takhrij,sahib altakhrij and mukharrij. The methodology of Takhrij is the same as Ijtihad. Ahl al-Takhrij faqih must know the ijtihads of his madhhab,rules and regulations related with that,must have the ability and capacity to ponder over dalils, to make research on them, and to know the traditions and usages of his society.


al-Ifta' A concept which may also be related to ijtihad is al-Ifta' ( to give Fatwa). Fatwa is the shar`i answer to a question related with an islamic issue. The plural is Fatawa,the person asking the question is mustafti,and the one who gives Fatwa is mufti. Mufti must, in reality, be a faqih at the level of ijtihad.So according to the Usul al-Fiqh, real muftis are mujtahids and naming muftis the persons who are not at the level of mujtahids is nothing, but allegorical way (majazi). Muftis,if they are not at the level of mujtahids,are just naqils (narrators / reporter). Fatwas are given by a. the way of Ijtihad, b.Takhrij, and c.reporting the view of mujtahid. Each school of thouhgt has its own way of dealingwith the ifta institute with some requirements. Hanefites have three types of sources: a. Zahir al-Riwayah: Ijtihads and opinions of Abu Hanifah,Imam Abu Yusuf and Imam Muhammad ( Abu Hanifah's students ).This group is the strongest of its kind. b. Nawadir:These are not as authentic as Zahir al-Riwayah. c. Nawazil ( al-Waqi`at,alFatawa ):These are the opinions of imams other than Abu Hanifah,Abu Yusuf and Imam Muhammad. Mufti in each case must mention the mujtahids name he is referring to and the name of the book he is basing his fatwa on.Of course, there are some rules and regulations to be followed by muftis when he is to select one opinion from several opinions available on the subject in his madhhab.The enormous amount of literature already available in this area will help the mufti in his Fatwa. The steps a mufti must follow in finalizing his fatwa: First he must find unanimously accepted opinions of Faqihs.


Second he mus follow the opinion of Abu Hanifah if there is a conflict of ideas in Hanefism with the following exceptions: a. Abu Yusuf's opinions are to be preferred in Judicial Procedures and witnesses; b. Imam Muhammad's views are to be based on Zawi 'l-Arham group in Islamic Inharitance Law; c. ABu Yusuf and Muhammad must be followed in traditionally changeable rules; d. If there is any ijma` on these two imams,that must be followed; e. If one of the opnions have been favoured by later faqihs, that opinion must be depended on; f. Any rule based on Istihsan technique is preferred to Qiyas. g. Any hukm of in which dalil and illah is mentioned is preferable to one which has none. h. Zahir al-Riwayah comes first,then Nawadir. Third he will give fatwa based on Abu Yusuf,then on Imam Muhammad if no Riwayah is available from Abu Hanifah.In case,there is none reported from these three imams,Fatwa must be based on Imam Zufar,Hasan b. Ziad. Then comes Thahawi,Abu Hafs al-Kabir,Abu Ja`far and Abu 'l-Lays etc. This is the prescribed way which must be followed by general levels of muftis and qadis in general. Muftis may also refer the books written in their areas.The different books adopted different techniques of arranging the problems and provide special notes identifying which techniques are important and which ones are good for them.These books and notes may help them immensely in their profession. There is a vast amount of literature which may help the students in approaching the terminologies used in Fiqh Schools such Tilbat al-Talabah.al-Ta`rifat by Sayyid al-Sharif alJurjani and many Usul al-Fiqh Books. In each Islamic country hundreds of Fatawa have been produced.In Ottoman Turkish we have marvellous amount of Fatawa Books which have utilized unique techniques.They treasure enormous volume of Fatawas in almost all areas of Fiqh.


Fatawa-i Ali Efendi,Fatawa-i Abussuud Efendi etc. are just some examples.Fatawas in Arabic as Fatawa al- Tatarkhaniyyah are also very usefull sources to be referred. The Ottoman Empire Archives and Sijills of Shari`ah Courts ( Archives where the recording of Shari`ah Courts are kept ) are really inviting the real researchers in this field. The Ifta Methods in Shafi`ism: Three leves of sources are given: a. Aqwal: the opinions and ijtihads of Imam al-Shafi`i. b. Wajh ( plural Awjuh ): The hukms drawn by the method of Takhrij. c. Tariq ( plural Turuq ):The issues and opinions which are not ascribable to al-Shafi`i and other Imams. Malikites and Hanbelites have their own methods and definitions and they also give some details for correct way of giving Fatwa to the questions and issues raised during their times. Tabaqat al-Fuqaha' Faqihs ( plural Fuqaha' ) are graded by scholars in different categories.They classified them according to patterns they used for them.This made it easy for every body to know the level ofany faqih lived upto a given time. Many authors compiled a good number of books in the Tabaqat field.Some of them following special school of thought,while others taking some of the madhhabs,if not all of them. `Abd al-Hayy al-Laknawi has written " al-Fawa'id al-Bahiyyah fi Tabaqat al-Hanafiyyah ". Tabaqat al-Kubra by al-Subki. Taj al-Tarajim fi Tabaqat al-Hanafiyyah edited by Flugel. Each School has its own classification. Hanefites: Ibn Kamal Pasha classified faqihs as following: l. Mujtahid in Shar`: One who never follows any mujtahid and is himself the source of methods and principles to be followed by others.Like Abu Hanifah,al-Shafi`i,Ahmad b. Hanbal, Malik b. Anas are in this category.


2. Mujtahid in Madhhab: These Mujtahids,although eligibleto act independently, follow their leaders in shar` and they differ from their imams on very few issues.i.e.,Abu Yusuf and Imam Muhammad etc. 3. Mujtahid in Mas'alah : These are eligible to do ijtihad on issues which have no precedence in their School of Though,i.e.,as Abu Bakr al-Khassaf,Tahawi,al-Karkhi,al-Halwani( alHalwa'i ), al-Sarakhsi,al-Pazdawi and Qadikhan. This group does not oppose their imams in its decisions. 4. Ashab al-Takhrij: This group does not have authority for Ijtihad.They just clarify what are not clear in their madhhab books based on other texts of their imams.They very rarely draw some hukms from the nas,when there is none,e.g. Abu Bakr al- Jassas and Abu Abd Allah al-Jurjani. 5. Ashab al-Tarjih : They are faqihs who just prefer those opinions which are better and more accurate than the others among the opinions and reports made in their School, e.g.al-Marghinani, al-Quduri and Ibn al- Humam . 6. Ashab al-Tamyiz : This group is one who differentiates among Zahir al-Riwayah and Nawadir,and strong views and weak opinions etc. Abau 'l-Barakat al-Nasafi,Taj al-Shari`ah and Muzaffar al-Din b. al-Sa`ati are at this level. 7. Simply Muqallids: These are those who have no previously mentioned authorities and they simply memorized the majority of the hukms and problems and their solutions in their schools of thought.Many faqihs after 800 A.H. are in this group.Ala' al-Din al-Khaskafi and Ibn `Abidin are in this category. This classification has been criticized by some scholars such as Muhammad Zahid alKawthari,one of the important scholars who was DeputyShaikh al-Islam during the last stages of the Ottoman Empire and lived and died in Egypt. Shafiites' Classification: al-Nawawi,Jalal al-Din al-Suyuti and Ibn Hajar al-Makki and other shafi`i scholars classified the faqihs in the following manner: 1. al-Mujtahid al-Mutlaq:


a. al-Mustaqil: He is a mujtahid in Shari`ah.The Leaders of the four madhhabs belong to yhis classisfication and are experts in their fields. b. al-Muntasib: He is free in the madhhab.He follows the methodology of his School,but is free in al-furu` ( detailed issues ofFiqh).e.g. al-Qaffalal-Saghir,Imam al- Haramain, Ghazzali,Abu Ishaq al-Shirazi,Abu Ali al-Marwazi are in this group. And if they disagree with their imams and differ in their views from them,their opposing opinions are not counted as part of their madhhab and are not included in shafi`i books. 2. al-Mujtahid al-Muqayyad: a. Mujtahid in madhhab: They make ijtihad only in their madhhabs. b. al-Mujtahid fi 'l-Fatwa: This group of mujtahids are those who give fatwa by preferring one of the opinions expressed in their madhhabs.Shafiites do not come down to accept the other levels of scholars as faqihs. Some of the Faqihs of Imitation and Stagnation ( taqlid ) Period of Fiqh ( The periods in which Ijtihad stopped because of non existence of eligible mujtahids ): Hanefites: al-Karkhi ( d.340 ),al-Jassas ( d. 370 ),Abu 'l-Layith al-Samarqandi ( d.373 ),alQuduri ( d.428 ),al-Dabusi ( d.430 ), al-Sarakhsi (d.483 ),al-Bazdawi ( d,483 ),Hakim al-Shahid ( d. 544 ),al-Kasani ( d.585 ),Qadikhan ( d. 592 ),Marghinani ( d. 593 ) and others. Abu 'l-Barakat al-Nasafi ( d.710 ),Sadr al-Shari`ah ( d.747 ), al-Zaila`i ( d.743 ),Ibn al-Humam ( d.861 ),Molla Khusraw (d.885) Ibn Malak ( d.885 ), Ibn alNujaim ( d.969 ),Abussuud ( d.982 ), Molla Gurani ( d.893 ),Zanbilli Ali Efendi ( d.923 ),Ibn Kamal ( d.940 ),Ibrahim al-Halabi ( d. 956 ) nd Ibn `Abidin ( d.


1252 ). Shafiites: al-Qaffal al-Shashi ( d.336 ),Abu Ishaq al-Isfara'ini ( d. 418 ),al-Mawardi ( d.450 ),Abu Ishaq al-Shirazi ( d.476 ), al-Juwaini ( d. 478 ),al-Ghazzali ( d.505 ) and others. Ibn `Abd al-Salam ( d.660 ),al-Subki ( d.756 ),Ibn al-Subki ( d.771 ),al-Taftazani ( d.793 ),al-Firuzabadi ( d.817 ),Ibn Hajar al-`Asqallani ( d.852 ), Jalal alDin al-Mahalli ( d.864 ), Jalal al-Din al-Suyuti ( d.921 ) and others. Malikites: Ibn al-`Arabi ( d. 543 ),Qadi `Iyad ( d.545 ), Ibn al-Rushd ( d.595 ) etc. Ibn Hajib ( d.646 ),al-Qarafi ( d. 664 ),Ibn Farhun ( d.799 ) and others. Hanbelites: Abu Bakr Ahmad al-Hallal ( d. 311 ),Ibn al- Qasim alHiraki ( d. 334 ),Ibn Qudamah ( d. 620 ). Najm al-Din al- Tufi ( d. 716 ),Ibn Taimiyyah ( d.728 ),Ibn Qudamah ( d.744 ),Ibn Qayyim ( d. 751 ) and others.





Ilm al-Khilaf We have, among original islamic sciences, a subject which was founded by a scholar at the end of thefourthislamic century/ tenth century A.D. This main scientific activity,most probabely, bore its fruits around first quarter of the fifth islamic/ eleventh A.D.century. The science of the subject is Ilmal-Khilaf ,a science of Comperative Fiqh Studies.Its main area is the study of islamic rules and regulations according to all possible schools of thoughts and to compare their evidences and argumentations ect.


Its founder is a central asian muslim jurist, Abu Zaid `Abd Allah b. Umar b. `Isa al-Qadi.This is his full name. His title is al-Dabusi. al-Dabusi comes from Dabusiyyah;it is the name of a village in the area called Sughd between Bukhara and Samarqand.Yaqut al-Hamawi mentioned this place in his marvellous book Mu`jam al-Buldan as a village in between Bukhara and Samarqand in Ma Wara' al-Nahr. Le Strange gave some more information in this regard in the book The Land of Eastern Caliphate. We may understand from the title ( nisbah ) al-Dabusi that muslim people were named after their countries as the case is with al-Bukhari, al-Sarakhsi,al-Bazdawi,al-Kasani, al-Marghinani and others.These words are from morphological point of view nisbahs ( adjectives made by adding suffixes showing the country, village or place one is attached to either by birth, dwelling, work or some other affiliation).This system shows that the places they were attached to were their favourites;they were proud of those titles and it was not a matter of disgust or shame to feel bad about. These titles may be like Dallas-dallasite,N.York-N.Yorker and California-californian. Ma Wara' al-Nahr is the name of a region between the rivers Saihun and Jaihun in Central Asia which lies today in USSR ( Russia ).These two rivers are named in English Oxus - It is known as Amu Darya as well and it is a river flowing in Central and Western Asia from Pamir plateau into Lake Aral and it is over l400 miles ( 2253 km ) long - and Nexsus -Syr Darya ( in ancient Jaxartes ) a river in USSR Soviet Central Asia flowing from Tien Shan West ant Northwest into Lake Aral and it is l500 miles ( 2414 km ) long -. Ma wara al-Nahr means literally " beyond the river " ; that is the region named as Transoxiana in Muslim Geography. The word al-Dabusi ( some say al - Dabbusi which may be a wrong pronunciation of the same word ) comes from Dabusiyyah ( al - Dabusiyyah ) which is the name of a village mentioned above.The word is said to be from Turkish which is in modern Turkish "topuz". Topuz in Turkish means a ball headed hammer type of an instrument to hit.But the word being arabisized changed the meaning a little bit into " pin ". The word is mentioned of course in different sources ; such as Tabari , Ibn Khallikan and others.Hamidullah has an article on the subject published in "Islam Tetkikleri Enstitusu Dergisi",vol.ii/1 (Istanbul/Turkey ). Ahmed Ates touches the subject as well: "Arap Yazi Dilinde Turkce Kelimeler


( x.YuzYilda)",Rahmeti Arat Armagani,Istanbul/Turkey. Actually this shows that al- Dabusi came from turkish origin and that the area where he was born and lived in was aturkish dominant region; however, one must admit the difficulty of determining the race and language used by themuslimsof those days.The languages and nationalistic elements were not favoured in those days;these ideas weere inflamed later by the French Revolution in the last quarter of the l8th century. This is true for nearly all early Islamic History; especially when muslim scholars produced a huge amount of books in Arabic leaving no trace of their original language and culture and nationalistic elements in their books.They learned Arabic and wrote in Arabic only. This was the case in the areas where Abu Zaid `Abd Allah lived. Qarakhanids: Thearea he lived was the center of Qarakhanid Muslims.They are named also as IlakKhans.These are the pioneers Turkish People who accepted Islam during the third Islamic century and then established the first Turkish Muslim State in Central Asia.The State was one of the first sunni states,if not the very first.All were sunni muslims adherent to the Hanefite School of Thought with very few exceptions. As a matter of fact, Hanefite School of Thought was very favourite amongthose muslims. Their commitment to this school made them to serve that school well by preserving the texts of Fiqh and by commenting on them and by producing immense amount of literature on Islamic Law.They were not Arabs,for sure,but their committment to Islam and their involvement in the Islamic Law and allied sciences were so high and outstanding that they produced around 400 Fiqh books in Arabic of which 99 % are in the branch of Hanefite Fiqh.About 20 books are in the category of Fatawa (plural of Fatwa). This is the category in which fiqh opinions and ijtihad of muslim faqihs on the day to day issues and practical problems are expressed and the theoretical grounds for the practical solutions are recorded. This category is another gorgeous proof of sociological adaptability and practicality of Islamic Law in different centuries and different areas and regions.Fatawa literature have been developed in later centuries especially during the long period of OttomanEmpiretotheutmostlevelof quality and accomplishment.It is a very rich source for socio-political practices,cultural and traditional elements,islamizations and evaluations made by those muslims in their days.Further research will reveal the methods of evolutions of Fiqh concepts and the techniques of solving the problems in conformity with Wahy and reason and tradition,and adapting Islam to satisfy the needs of societies in ways and means which are practical.


The number of faqihs who happened to live in the two centuries of xi - xii A.D. exeed 300.The most famous one are: al-Halwa'i ( d.456/l063 ),Abu Bakr Muhammad al-Sarakhsi ( d.483/1090 ), al-Bazdawi `Al ( d.482/l089 ),al-Sadr al-Shahid `Umar ( d.536/ 1141 ),al-Nasafi `Umar ( d.537/1142 ),al-Samarqandi ( d.538/1143 ),Ibn Maza Mahmud ( d.570/1174 ),al-`Attabi Ahmad ( d.586/1190 ),al-Kasani Mas`ud ( d.587/1191 ),Qadikhan ( d.592/ Marghinani `Ali ( d.593/1196 ) and some others. They produced marvellous literature of Fiqh not yet surpassed, I believe.Their books are today's best reference sources still held in the hands of Arab and nonarab muslim scholars all over the world. The Qarakhanid faqihs wrote commentaries on the books of Muhammad b. al-Hasan al-Shaibani ( 132-189/709-805 ) who is one of the best productive students of Imam Abu Hanifah ( 80-150 / 699-767). ThiswaytheyservedFiqh really in a unforgettable way, actually letting Fiqh develop and expand vastly to the needs of societies. Over 25 commentaries,spanning over two centuries,were written solely on the books of al-Shaibani. His books were in reality dictations of his teacher Abu Hanifah,possibly the books main author is Abu Hanifah himself. The books ascribed to al-Shaibani are mainly called Kutub al-Dhahir arRiwayah and they are: al-Jami` al-Saghir,al-Jami` al-Kabir,al-Siyar al-Saghir,al-Siyar al-Kabir, al-Mabsut and al-Ziyadat.The majority of these books have been studied and edited as critical editions first time in the History by a muslim scholar at OsmaniyaUniversity,Haiderabad-Deccan (India); he is al-Afghani;we owe him real thanks and we wish for studies of this natureto follow in the near future by new generations capable of doing it. The commentaries, made on these books and others, made Fiqh an independent applicable,workable,flexible and practical branch.Without their commentaries we would have felt defficulty in understanding and interpreting the original works of Fiqh literature; since they are concise and condensed texts and are not easily understandable. The faqihs of this period made these texts understandable and accessible.They rendered to the Islamic Law a most valuable and precious services by their works.We muslims owe to them a lot.Their method of dealing the matter with 1191 ) and al-


perspective of ra'y probably helped to the cause as well.Their books are still number one manuals of Hanefite Fiqh. We need to turn to them,to study, and master their contents, in order to promptly and properly apply them when we need them. Abu Zaid `Abd Allah was born in Dabusiyyah at the year of 367/ 987. Al-Dabusi inherited his scholarly culture and traditon from the chain of Maturidi,al-Jassas alRazi ( 305-370/937-981 ),author of the book " Sharh Mukhtasar al-Tahawi " and develped it himself and his students.This channel was named by a modern scholar ( Hamidullah ) as " Asian School ".He is student of Abu Ja`far b. `Abd Allah al-Astrushani who got his education under the auspices of Abu Bakr Muhammad b. Fadl and Abu Bakr al-Jassas. al-Dabusi is a muslim jurist who was judge, on of the " seven judges" during his period.His name was being repeatedly mentioned as an example for others . He is known as " one who always challenges his opponent " and is even reported to have produced some relevantpoemsinstatntly inpublicly followed scientific dialogues. His death occured in Bukhara;there is no debate about it. But the dates about his death varies according to the sources.Three dates are given for this occasion:430/1038,432/1040 and435/1043.One more date is recorded.That is 403/1012.I think,this may be ignored; there is some thing wrong with this date. We consider the first number (430/1038) correct;because no discrepancies are reported about his birth date and it is unanimously given as 367/977 and it is stated that he was 63 year old when he died;this note lets us to believe that the correct number about his death is solely 430/l039. The foundation of the Comperative Fiqh Studies: al-Dabusi'smain feature is his contribution to Fiqh studies by establishing an independent discipline of Comperative Fiqh Studies,Ilm al-Khilaf or Khilafiyyat; with his book which is first of its kind.This book will be discussed later. The biographers mention that he is the one who formulated the essantials of this science. " He is one who founded Ilm al-Khilaf (Huwa 'lladhi dawwana Ilm alKhilaf) ". The book related with this topic is " Ta'sis al-Nadhar fi Ilm al-Khilaf ".It is his unique published work to the best of my knowledge.C.Brockelmann gives in his GAL its printing place as Cairo . No date for the edition has been cited.It is a little book in volume,but its content and role is very vast.


This book contains about 75 fiqh maxims and rules.They are named as ASL ( root,rule ).The book is divided into 8 divisions.Its method of dealing with the issues is as follows: He mentions firsta maxim or a rule under the heading " al- Asl ",then some practical examples on this rule is applied under the title of " wa `ala hadha masa'il " or " minha "; after thathe debates the different approaches and opinions from different angles and argues their evidences in a very scholarly way.The author,in the first introductory lines,states the reason why he compiled this work, what lack of scholarly understanding and lack of knowledge he observed in dialogues, as common deficiencies. Thus he shows how a very simple issue is scholarly discussed and efficiently dealt with in a very developed manner in that early stages of the Islamic Law. This is a science which we desperately need now and in this continent;the continent of new prospects and hopes in terms of Islam. Only by this science we may overcome our nationalistic diversitiesand conflicts,formal/informal,hiden/open,shaped/unshaped or what ever it is; uprooting them all and planting instead a solid ground based on centuries of long muslim experiences,common feelings and benefitting,if we can,from immense and huge literature produced by highly respected scholars of the past muslim history. Needless to say that this book opened an originalchapter in its gender. One must note with satisfaction the preliminary works done before al-Dabusi,the works which paved the way to the final establishment of the Khilafiyyat and played a precedental role in this new field.The works of al-Awza`i,Abu Yusuf's " Radd " against him;the contribution to Fiqh which made scholarly debates and publicly performed conferences and meetings can not be overlooked at all. al- Ashbah wa 'l-Nadha'irs by al-Jassas and Ibn Nujaim have for sure benefitted from this type of literature and especially from the Ta'sis al-Nadhar. Ta'sis al-Nadhar is based primarily on Fiqh maxims and general rules and it is the first attempt for a discipline to be based nearly totally on the maxims.In codification, the maxims and general rules are very important in modern laws.The situation was not different in the past. Events are limitless and indefinite.Only very well arranged legal rules and codes may cope properly with nearly endless disputes.The maxims are in reality backbones of codes in all legalsystems,past and present.In Islamic Law this credit must go to al-Dabusi's work.


The Majalla ( the Ottoman Code,prepared and put into force at early years of the second half of nineteenth century all over Ottoman Realm), has one hundred maxims and general rules which are marvellous generalities applicapable to all conditions and situation.These rules and maxims get their roots in the Ta'sis al-Nadhar by al-Dabusi, among others. The Comperative Fiqh Studies must be revived particularly in this century and in this continent to be able to meet the challanges of the modern necessities of the century and to find good solutions tothe contemporary issues;this will give us a new hope for the future of Islam. Of course, Qur'an and Hadith have a lot of rules and maxims and substances for them. al-Dabusi also produced the following books: l. al-Amal al-Aqsa. 2. al-Asrar fi 'l-Usul wa 'l-Furu`.This book was very famous in Muslim Spain,al-Andalus and it was copied by Muhyi al-Din al-`Arabi in Baghdad and spread in Spain.A modern scholar ( Hamidaullah ) suggests that it affected the books and methods of Ibn Rushd ( Averroes ),i.e., his book Bidayat al-Mujtahid wa Nihayat al-Muqtasid. 3. Taqwim al-Adillah: the book is related with Usul al-Fiqh having an original method of dealing the issues in a comperative way using the techniques of Islamic Theology ( Ilm alTawhid ) and accordingto the remarks of a modern scholar no bookmay be matched with it. al-Dabusi Has the following books of which no copies of the manuscripts are knownexist today. They are yet to be discovered: 1- al-Anwar fi Usul al-Fiqh, 2- al-Nudhum fi 'l-Fatawa, 3- Sharh Jami` al-Kabir, 4- Tajnis al-Dabusi, 5- Khizanat al-Huda.






The insitution is called al-Imamah al-Kubra and al-Khilafah in its literature.Imamah means leadersip,presidentship, and headship;the adjective and title form of it is Imam ( leader, president and head ). The plural form of Imam is a'immah. The word al-Khilafah means successorship,vicegerency,representing the original position of a real president or head;the adjective form of it is Khalifah which means vicegerent,successor,deputy and representative.In English the word is caliph. It has plural forms as Khulafa' and Khalai'f. Both of these words,Imam and Khalif,are mentioned in Qur'an and the Hadith many times.The word Imam is mentioned in Qur'an seven times in singular form ( in this context: Surah al-baqarah -iiverse: 124;al-Furqan -25- verse:74; al-Isra' -xvii-71 ) and five times in plural ( a'immah ) form ( al-Tawbah -ix- verse:1 2; al-'Anbiya' -21- verse:73;al-Qasas -28- verse:5,4l;al-Sajdah -32verse:24 ). It is very interesting to note that the words imam,imamah and a'immah are all derived from the root AMM (Alif Mim Mim) whichis the root of Ummah ( plural form is Umam ) which is mentioned in Qur'an fifty one times in singular form and thirteen times in plural form.The literal meaning of the word AMM is tolead,tobe leader. The word Amam is another derivation from the same root and means front in English. Ummah means nation; thatis anation which has a ledear; animam,a head; nation under the same administration and regime.By this we may go to the necessity of being under an imam,following a leader,in otherwords, being a member of a muslim state etc.Itis worth mentioning, that imam is


used at the same time to signify a person who is in charge of leading the regular prayers in congregation;that means that it is the duty ofthe Khalifah to lead the prayers at least in theory.Imam is also in Qur'an, in the context of main book. The word Khalifah is mentioned in Qur'an in singularform two times ( al-Baqarah -ii- verse:30; Sad -37- verse:26 ).And the plural form Khala'if is mentioned in Qur'anfour times ( al-'An`am -vi- verse:l65; Yunus -x- verse:14,73;Fatir -xxxv- verse:39 ) and the form Khulafa' is mentioned three times ( al- 'A`raf -viiverse:69,74; al-Naml -xxvii- verse:62 ).The root is KHLF from which derivedthe words of Ikhtilaf'mukhtalif,takhallafa,khalf, Khilfah,Khilaf,Khawalif etc. The root KHLF means literally to succeed,to come after,follow and to back up.The word ikhtilaf which is derived from same root has the meaning to disagree,to have opposing opinion etc.Perhaps this hints us that Khilafah may not be without ikhtilaf,without conflict,and the Khalifah ( caliph ) must bear and tacklewithall ikhtilafs ( conflicts ).Same is for the word Khilaf. The institution as a part of Islamic ConstitutionalLaw, the headship of muslim state,presidentship of the Islamic State and Imam / Khalifa is the president and head of muslim state.For that it is obvious that there must be an organized Public Muslim Community Entity,that is a Muslim State,after that might be an Imam or a Khalifa heading the State.I think it might be a good pointto note that the word Khalifah is used forthefirst human being,fatherofhumanity,Adam,before his creation in front of the angels;so being caliph is very muchdeep rootedqualification and is engraved in the nature of human beings.This is the related verse: " Behold.your Lord said to the angels: I will create a vicegerent ( Khalifah ) on earth.They said, will you place therein one who will make mischief therein and shed blood? While we celebrate your praises and glorify your holy name;He said I know what you don't know "( Surah al-Baqarah -ii- verse: 30 ). Qualifications of an Imam: l)Hemust have full walayah in Islam which means as follows: a. He must be a male muslim.There are a few hadiths concerning this requirment: "People who invest their administrations and affairs to a woman will never prosper " ( Sahih Bukhari,al-Fitan


wa 'l-Maghazi ).Of course the subject here is the presidentship of muslim state that is why it is necessary to entrust the walayah ( authority ) to the srtongest ones in nature,in tarining,in tradition,in culture, physically and mentally, and not to leave any gap for discrepancies.But in the specific type of areas, for example the areas related to ladies, they must be entrusted to share with others the responsibilities;as it was practised by the Prophet and his companions. The stroy of Bilqis in Qur'an may be interesting to be dealt in this regard a litle bit.It is mentioned in Surah al-Naml ( xxvii ) verses: 23 - 44.She was the qeen of Saba' ( Yaman );that is Sheba in the Biblical concept and was contemporary to Prophet Sulaiman, son of Prophet Dawud.She was the head of state,having a parliament or congress which she consulted and put a theory of war by saying how devastating are wars to the people involved and how the social structures of societies which are parties of war change upside down and every thing gets affected badly from war's devastating effect.The problem here is that this lady is shown as leader of state and her eligibility is not denied clearly by following texts of Qur'an.This may lead some people to think that the meaning of hadiths quoted above may be referring to some specific situations and at least in theory it is not clearly stated that woman may not be given any just and fair responsibilty in the muslim public structure, including state.As it is well known, woman are by no means excluded from being mukallaf and responsible from all the rules and regulations in Islam;they are fully privileged and responsible from the point of Qur'an and Sunnah.However they have their privileges for being different andenjoythose differences. Some of the modern muslim writers tend to say that muslim women were denied,at least practically, later on the privileges they used to benefit in the early years of Islam. b. To be muslim.Leader of the community must be muslim;because he is entrusted to apply Islam;for that he must be believing in Islam and practicing it. There is a verse in Qur'an saying " Allah never grant to the unbelievers a way over the believers " ( Surah al-Nisa' -iv- verse:141 ).This verse is an evidence that a non-muslim may not be given any authority on muslims and islamic affairs;imamah is an authorization and trust. c. He must reach to the age of puberty acceptaable in Islam. d. He must be sane,not having any defect in his mental faculties. e. Freedom.He must be free,not slave ,captive or any body else who lost his freedom one way or the other.


2) `Adalah;that is to have good islamic stand in public and private, accompanied withnice islamic attitudes, and balanced physically and mentall