Islamic Law

The following notes were taken by me during a series of lectures in the 2017 ALIM program. I am sharing them here so others may benefit from what I learned. To the extent I’ve made any errors in either understanding or communicating a concept, that fault is entirely my own, and not that of my teachers. Allah knows best.

Key Terms

• Shariah is an attempt of expressing divine will on Earth as understood by the Quran and Sunnah, i.e., what does God want from us. Being a Muslim is the process of actively seeking to comply with God’s will.
• Fiqh means “to understand.” Over time, it has come to mean “knowledge of Allah’s will,” but now simply means “law.” It is an attempt by the human being to construct laws that are believed to be ordained by God.
• Usool al-fiqh: The how-to-guide of interpreting fiqh. Imam Shafi laid the groundwork by defining the four primary inputs of fiqh: (1) Quran; (2) Sunnah; (3) consensus (ijma); and (4) rational thought (ijtihad)
• A fatwah is merely a legal ruling. It is the output of fiqh.
• Ijtihad is the rational process of understanding.
• Qias refers to the process of making laws through analogy. It is a form of legal reasoning that relies on rational thought.

Why we do have usool al-fiqh?

During the Prophet’s time, if we wanted something adjudicated, we didn’t go to the Quran. We went to the Prophet. The Prophethood was Sharia in its purest sense.

As a result, there was no interpretive legal scholarship (fiqh) because the people simply asked the Prophet directly. The Prophet never used words like “wajib” or “fard.” These were terms that were coined after the Prophet died as part of doctrines that developed to guide our actions as Muslims. So, our understanding of fiqh developed by scholars who attempted to understand Allah and the Prophet’s commands.

Before diving into the fiqh, it is worth noting that we tend to overemphasize the legal components of Islam compared to our predecessors in faith. Many generations of Muslims prioritized spiritual development over the creation of legal canon. In fact, in the first 13 years of the Seerah, during the Meccan period, the people followed God’s will (Shariah), but there was little fiqh (law). The Prophet did not reduce every Muslim community to a list of do’s & dont’s. Consider this example:

• A man came to the Prophet and said, “inni halaktu” (I have destroyed myself). “My wife and I had sex during Ramadan (day).”
• Prophet: “Free a slave to make up for it”
• Man: “ I can’t afford that”
• Prophet: “Fast two months”
• Man: “I couldn’t fast one day, let alone 60”
• Prophet: “Feed 60 poor people”
• Man: “No one is poorer than me”
• Prophet started to laugh and gave the man a container of dates and told him to feed his family, and that his sins would be forgiven.

However, a proper understanding of our fiqh is a necessary component of our faith. It is fard ay’n for every Muslim individual to know their obligations. But we don’t all need to become legal scholars on those topics. As you can see from the following discussion, fiqh is actually a very mechanical topic. Islamic studies generally has an ethical and spiritual component to it. Calculus does not; Fiqh is similar to calculus. Think for example of the technicality of the legal rules regarding wudu.

All this to say, if the following discussion bores you, that’s ok. Pray your prayers, do good on this Earth, and Allah is merciful. But for those who are interested in the knowledge creation process under Islamic law, read on.

Usool ul Fiqh

Legal work is not the same as spiritual work

Fiqh is by nature minimalist. It requires the minimum for a Muslim to fulfill his obligation. It is the application of law at the lowest common level. Anything that is “partially halal” is 100% halal.

Zahid’s are maximilists. They view minimalism as deficient. They strive for maximum obedience. This of course is dangerous when turned into a form of law, and conflicts with the mandate: “Do not make haram what I have made halal”? Therefore, when we think about law, it by nature minimalist.

When cops are walking down the streets of Saudi, they are simply “doing their job.” In America, when we decide to follow the law, we don’t do it because of the “spirit” of the consitution; we do it because we do not want ot be fined. So when people “use” and “abuse” sharia law for personal interest, faqih says “absolutely halal,” even if the Zahid says “fear Allah”.”

We cannot prescribe laws that require maximum behavior. Least of all spiritual ones. Consider the spectrum of actions:

Haram — Makruh — [Mubah — Nafil — Mustahab — Sunnah- Wajib/Fard]

Everything within the [brackets] is halal. 100% perfectly acceptable behavior that you will not be punished for. Even makruh is debatable “Acceptable.” However, if you deny fard, you are considered a kafir. There is of course a difference of opinion on what is & isn’t fard.

Sources of Law

Quran

• The Quran is not a “book of law” or commerce; but it has rules in that we can use to create a legal/economic system.
• The Quran sometimes speaks to the heart other times to the mind; sometimes to an individual and other times to the community at large; sometimes to Muslims, other times to all of humanity; sometimes to the present, other times to the present, and sometimes to the future. And there are no subheadings dividing these different audiences. It is not arranged by topic.
• This lack of a clear mandate is why it requires scholars to derive the rules — not weekend warriors cherry picking statements that suit their interests.
• Most of the verses pertaining to usul & fiqh are found in Surah Al Nisa.

Just because of the Quran makes a certain statement, does not make it automatically a rule of law. Words can be unclear or need additional support. Some words are unequivocal; others have several meanings; and some are forever shrouded in mystery (“alm”). This is explained in more detail below.

Hadith

Before we try to understand usool al fiqh, we must first have a grasp of hadith sciences. After the Prophet died, we needed to find a way to verify what he did or did not say. During the time of Omar Bin Abdulaziz, Shihad Al-din Al-Zuhri proposed compiling the authentic sayings of the Prophet to weed out any falsehood and to clear the way forward to discerning God’s will

The general process:

• If a chain is confirmed by four (4) independent chains, than it is “muttawtir” (diversely congruent). Every verse in the Quran is muttawtir. Only about 250 hadith are, including one that says: “whoever lies on me intentionally shall prepare a seat in hell fire.”
• If one (1) chain is confirmed, it is “sahih” (authentic).
• Rejecting a hadith as “da3eef” does not mean the Prophet never said it. Just that we can’t prove he did with utmost certainty according to our research models.
• Two qualities for every person on the chain are necessary: (1) attentive mind and memory; (2) upright moral character.
• “Upright moral character” is context specific. For example, in the past if a man ate in public, or did not wear a hat, they were considered untrustworthy. Another man used to trick his horse by falsely offering to feed him if he did certain tasks; the scholars considered this to be an act of deception unfit for a narrator of the Prophet’s words.
• Imam Bukhari reviewed 60,000 purported hadith. Most were rejected.

The role of reason

The Prophet trained his companions to make ijtihad even during his lifetime. As an example, in 4AH, Muad Ibn Jabal was sent on a delegation to Yemen. The Prophet asked him: “How will you teach them.” Muad replied: “The Quran.” The Prophet said: “If you don’t find what you need? Muad answered: “The Sunnah of his messenger.” The Prophet continued: “If you don’t find what you need?” Muad concluded: “Adjudicate to the best of my intelligent ability.” Ijtihad of the text is for the scholars. Ijtihad of the scholars is for us.

Using our intelligent faculties often leads us to ruling by analogy (qias). For example, trying to define what is it about alcohol that makes it haram. Maybe it’s the effect on the mental faculty? So, if that aspect is present in other beverages, that makes them haram too, even if it’s not explicitly mentioned in the Quran / Sunnah. To systemtize this:

• Alcohol is haram → Rule found in Quran/Sunnah
• Because it alters the mental state → Reason allows us to understand the rule
• Cocaine is haram for the same reasons alcohol is → New fatwah based on logical / legal reasoning

Ijma (consensus)

Ijma is a social consensus of scholars. Ijma functions as a rational counter weight to the textual sources of the Quran and Sunnah.

But what is the jurisdiction? Who counts? Is it limited by time and place In seeking to answer this question, scholars have defined two forms of ijma: (1) Sarih, which is the categorical consensus, meaning all eligible scholars voice opinion on a given subject; and (2) Sukati, meaning one or more scholars make a statement and the rest remain silent (Imam Shafi rejected this form).

Consensus building can be split into three phases of Islamic history:

• Phase one: Rightly guided Caliphs who strove for consensus among companions.
• Phase two: Successors to companions who strove for consensus among peers,
• Phase three: Jurists of a given locality who strove to obtain consensus among scholars of an era.

Properties of the text

A text has two properties, its: (1) transmission/authenticity, and its (2) clarity.

Transmission

• A muttawtir statement has at least 4 paths of verification. This is the highest level of authenticity.
• The Quran is revelation, so of course it is considered without error. And every ayah in the Quran is muttawtir, compared to less than 100 hadith the have that status.
• However, in an area of law, a hadith may sometimes qualify a verse. When and where this can happen is where most of the debate rages in usool al fiqh, and it depends on the “clarity” of the verse.

Clarity

• Regarding clarity, there are two types of statements that are found in the Quran and Sunnah: (1) definitive and (2) presumptive. The former is clear, the latter is vague.
• We use rational arguments to categorize the statements into the two categories (meaning, it is not self-evident).
• Although the Quran, in terms of its transmission, is agreed upon, there are instances in which its clarity is disputed. So sometimes, an authentic and clear hadith can outweigh the persuasive meaning of a vague ayah; it can modify or restrict.

Four Mathahib

Studying the history of fiqh is important to understanding the methodology we can apply today. Our modern opinions need to be put in conversation with the history of jurisprudence. Ignoring the mathahib is denying the historical work of our ancestors, and the interpretive possibilities of Islam.

Separation of “church” and state

In the Sunni school, there was no direct connection between spiritual and political leaders. The mathahib had NO DIRECT relation to a government. In fact, it was viewed as a distasteful and perverse thing for a scholar to work for the government — it would impair their independence. However, government itself was not viewed as bad; government’s were, after all, needed to enforce the fatawah. Governments were viewed as a necessary evil because the fuqahah had no power to enforce fatawas.

Methodology

The mathahib differ on methodology, which is lost on most people who debate their output.

For example, imagine that at the end of your grandfather’s life, he taught your father a recipe, and your father later taught that recipe to you. Now imagine you later found a written version of that recipe that was written by your grandfather in your attic.

Assume that all three sources have slightly different steps. If you wanted to learn the recipe, which source would you trust the most: (1) follow the recipe that your father taught you; (2) learn the recipe from the written note; (3) ask your father to tell you the recipe. This, in a nutshell, is what the mathahib disagree on.

Imam Malik choose to follow the practice passed down from father to son. Imam Hanbali choose to follow the written recipe. Imams Shafi and Hanafi chose approaches in the middle.

• Maliki school focus on Madina (authenticity) →Did the prophet say this.
• Hanafi school focuses on applicabilitiy (context) →Did the prophet mean this
• Shafi school was cogninizne tof this split, so he tried to take a balanced apporach that merged the two schools.
• Hanbali school disregards what we refer to as “context” and focuses on the text and authenticity. By prioritizing the text of authentic hadith, this school favors the presence of the Prophet over the rational thought of contemporary scholars.

Note, there is a difference between the “Maliki school” and a “Maliki opinion.” The schools typically developed after the mathab died (with the exception of Imam Shafi who developed his methodology during his lifetime.

In certain periods of history, Muslims lived in fairly pluralistic regimes tht would allow them to choose which mathab based court to go to resovle their disputes. However, Talfeek is the process of cherry picking different positions to suit your interests. This is not permitted. Each school seeks to be logically consistent.

The following is a super high level overview of the different mathahib:

Abu Hanifah, Iraq (d. 151 AH)

• Emphasized rational thought and context analysis.
• Valued the process of conscious interpretation. Would ask questions to test the limits of rules. (i.e., If 3 days is sufficient, what about 2.9).
• Most people in the world are Hanafi. And Hanaifi law is the most applied mathab. Most Islamic empires were Hanafi. Abbasid, Mogul and Ottomon empires were all Hanafi. This forced the Hanafi doctrine to consider the social, legal, and political challenges of governing, which in turn made it more flexible. The other doctrines, are in a sense, theoretical. Saudi is the first government that applied Hanbali law.
• Active in a time in which hadith fabrication was rampant. So used logic/rational thought to verify certain statements.
• Did not record his own methodology; it was his students who did that.
• Opened the door to cultural accommodation by translating the Quran to Farsi

Malik, Madina (d. 179 AH)

• Strong reliance on Quran and the practice of the sahaba — he gave more weight to the living situation of the people in Madinah. This, in his view, was more authentic.
• Once gave the answer “a divorce under compulsion is not a legitimate divorce,” which was a subversive way to tell people that if Caliph Ma’moon forced them to give ba’ya, that this was invalid.

Al-Shafi, Palestine (d. 204 AH)

• First major jurist who formulated a discourse on the methodology of fiqh → he defined his own method and this birthed the discipline
• He tried to merge the approaches of Malik and Hanaf.
• Of all the mathahib, he was the most native/fluent Arab speaker — and he often used this to his advantage
• He views the Sunna as clarifying what its in the Quran; and he used this approach to make general principles that applied elsewhere

Ibn Hanbal, Iraq (d. 241 AH)

• Values authenticity and text.
• Is willing to use “weak” hadith in his fiqh, because the even weak text is better than “rational arguments” that untethered from the sacred sources. He places weak hadith above Qias (reason).
• The Prophet once said: “Between Muslims & Kufar is Salah.” All Imams except Ibn Hanbal take this literally.

Flexibility is a necessary attribute of any legal system

We believe in a universalized prophet, this makes it difficult to adhere to specific contextualized laws that change with the times. Our focus has always assumed that the ideal society lived in 7th century Arabia and that we ought to merely replicate that society. What if that isn’t our job, from a legal point of view?

Modern law is expansionary; it predicts an evolving society and also changes with it (even if it is by nature slow moving). Islamic law needs to share this characteristic too.

But our view of “Islamic law” is both sanctified & sacred. This is a problem because it makes it difficult to engage with the process of making laws. When “Islamic law” was applied under the state, the people understood the law as something man-made, as social, and that it is something we can engage with — not just observe from a distance.

So this means spirituality should not directly factor into usool al fiqh. As blasphemous as it seems, an atheist can technically be a faqih — though maybe this is taking it too far. Think of how a Muslim lawyer practices law in a secular system — what would it look like for a secular non-Muslim lawyer to practice in an Islamic system? The point is we can’t allow spiritual lens to cloud our judicial sentiment. We understand that Islam is the final complete message of Allah to all of humanity. It is sanctified. But Sharia and fiqh and law and society are not sanctified. We depart from the sanctity in order to form these constructs.