F I Q H ISLAMIC & USUL AL-FIQH LAW
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
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
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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
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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.
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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.
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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.
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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-
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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
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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
9
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
10
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
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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.
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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.
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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
14
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:
15
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
16
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.
17
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
18
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
19
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.
20
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
21
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
22
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.
23
I J T I H A D
24
25
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
26
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.
27
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?
28
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
29
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.
30
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.
31
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.
32
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.
33
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.
34
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:
35
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.
36
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.
37
K H I L A F I Y Y A T
38
39
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.
40
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
41
( 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.
42
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-
43
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.
44
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.
45
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.
46
47
I M A M A H
48
49
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
50
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
51
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.
52
2) `Adalah;that is to have good islamic stand in public and
private, accompanied withnice islamic attitudes, and balanced
physically and mentall
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