The Sahabah who gave Fatawa in the Prophet's lifetime
were: Abu Bakr, 'Uthmtan, 'Ali, 'Abd al Rahman ibn 'Awf, Abd Allah ibn
Mas'ud, Ubay ibn Kab, Mu'adh ibn Jabal, Ammar ibn Yasir, Hudhayfah ibn al
Yaman, Zayd ibn Thabit, Abu al Darda, Abu Musa al Ash'ari and Salman al
Farisi, may Allah be pleased with them.
Some Sahabah gave more Fatawa than others. Those who gave the most Fatawa
were: 'Aishah Umm al Mu'minin, 'Umar ibn al Khattab and his son Abd Allah,
'Ali ibn Abu Talib, Abd Allah ibn Abbas and Zayd ibn Thabit. The Fatawa
given by any one of these six would fill a great volume. For example, Abu
Bakr Muhammad ibn Musa ibn Ya'qub ibn al Khalifah Ma'mun collected the
Fatawa of Ibn Abbas in twenty volumes.
Those from whom a lesser number of Fatawa were narrated are: Umm Salmah
Umm al Mu'minin, Anas ibn Malik, Abu Sa'id al Khudri, Abu Hurayrah, 'Uthman
ibn 'Affan, Abd Allah ibn Amr ibn al 'As, 'Abd Allah ibn Zubayr, Abu Musa
al Ash'ari, Sa'd ibn Abu Waqqas, Salman al Farisi, Jabir ibn Abd Allah,
Mu'adh ibn Jabal and Abu Bakr al Siddiq. The Fatawa of each of these
thirteen would fill only a small part of a book.
To this list can be added Talhah, al Zubayr, 'Abd al Rahman ibn Awf, 'Imra-n
ibn Husayn, Abu Bakrah, 'Ubadah ibn al Samit and Mu'awiyah ibn Abu Sufyan.
The rest gave only a few Fatawa, and only one or two, in some instances
more, have been transmitted from any of them. Their Fatawa could be
collected into a small volume, but only after much research and sifting
through texts18.
In preparing their Fatawa the Sahabah used to compare the particulars of
events that had happened to them with similar matters for which judgments
had been given in the texts of the Qur'an and the Sunnah. In thus
referring the matter to the sources, they employed the method of looking
for the meaning and legal significance through examination of the text's
literal wording, its implications, and any other relevant details.
Having arrived at a decision, they would then explain to others how they
had adduced the arguments that led them to their judgments, whether these
had been derived from the letter of the text or from its spirit, and the
people would follow them. Indeed, these early Muslim jurists never stopped
researching a question until they reached a decision they felt certain of,
and until they were completely satisfied that they had done their best and
could do no more.
THE ERA OF THE GREAT SAHABAH
After the time of the Noble Prophet (PBUH) came the era of the Great
Sahabah and the Rightly Guided Caliphs Khulafa' Rashidun . This period
lasted from 11 to 40 AH. The Reciters Qurra' was the term used at the time
to denote those Sahabah who had a good understanding of Fiqh and gave
Fatawa.
THE TIME OF ABU BAKR AL SIDDIQ(RA)
Maymun ibn Mahran summed up Abu Bakr's method of arriving at legal
judgments as follows:
Whenever a dispute was referred to him, Abu Bakr used to look in the
Qur'an; if he found something according to which he could pass a judgment,
he did so. If he could not find a solution in the Qur'an, but remembered
some relevant aspect of the Prophet's Sunnah, he would judge according to
that. If he could find nothing in the Sunnah, he would go and say to the
Muslims: 'Such and such a dispute has been referred to me. Do any of you
know anything in the Prophet's Sunnah according to which judgment may be
passed?'. If someone was able to answer his question and provide relevant
information, Abu Bakr would say: 'Praise be to Allah Who has enabled some
of us to remember what they have learnt from our Prophet.' If he could not
find any solution in the Sunnah, then he would gather the leaders and
elite of the people and consult with them. If they agreed on a matter then
he passed judgment on that basis.19
If all the methods mentioned above failed to produce any result, then he
would make Ijtihad and form his own opinion, either by interpreting a text
in such a way as its legal implications became apparent, or by exercising
his own legal acumen.
An example of Ijtihad of the first kind was when he was asked about the
Kalalah. In response, Abu Bakr said: "My opinion, if it is correct, then
it is from Allah, and if it is wrong, then it is from myself and from the
Shaytan. The Kalalah is one who has neither ascendants nor descendants."20
Another example of the same was the instance when 'Umar mentioned to him
the following Hadith of the Prophet (PBUH): "I have been commanded to wage
war against people until they say that there is no god but Allah..."21,
and Abu Bakr said, "Zakah is a part of it."22
When Abu Bakr wanted to wage war against those who were withholding Zakah,
'Umar cited this Hadith to show that fighting them was not permitted,
because the Prophet had said: "...until they say that there is no god but
Allah. Then, if they say this, their blood and their wealth will be spared
by me, except where due by right (ie. unless they do acts that are
punishable in accordance with the Shari'ah of Islam).
According to 'Umar, these acts were: adultery, murder, and apostasy; since
withholding Zakah was not expressly mentioned by the Prophet (PBUH). But
Abu Bakr said to him: "Zakah is a part of it. By Allah, I would fight
anyone who performed Salah but did not pay Zakah! If anyone were to
withhold from me even the smallest amount they used to pay to the Prophet,
I would go to war with them over it."
An example of the second type of Ijtihad was when he decided that the
mother's mother may inherit, but the father's mother may not.
Some of the Ansar said to him: "You allow a woman to inherit from the
deceased, while he would not inherit from her if she were the deceased.
And you have left with nothing the woman from whom he would inherit were
the situation reversed." Abu Bakr then decided that both maternal and
paternal grandmothers would share one-sixth of the inheritance.
Another example is his judgment that everyone should receive an equal
share from the public treasury. 'Umar asked him: "How can you consider one
who entered Islam with misgivings to be equal to one who left his home and
wealth behind, and migrated to be with the Prophet?" Abu Bakr, however,
insisted that: "They all entered Islam for the sake of Allah, and their
reward is with Him; this world is nothing." when, however, 'Umar became
the Khalifah, he differentiated between people and paid the "stipend"
according to how early each person had entered Islam, whether they had
migrated, and how much they had suffered for the sake of Islam.
Another example of Abu Bakr's exercise of Ijtihad was when he compared the
appointment by the Khalifah of his own successor, to the appointment by
means of Bay'ah. Thus, he appointed 'Umar to be the Khalifah after him,
and the Sahabah agreed with him.
Khalid ibn al Walid wrote to Abu Bakr, telling him that in some areas of
the Arabian Peninsula he had found men engaging in homosexual practices.
Abu Bakr decided to consult the Sahabah of the Prophet (PBUH) as to what
he should do about it. One of the Sahabah was 'Ali, and his was the
strictest judgment.
He said, "his sin was known only in one nation, and you know what Allah
did to them. I suggest that these people should be burnt to death."
Abu Bakr wrote back to Khalid to tell him that they should be burnt to
death; and this was done.23
SPECIAL FEATURES OF FIQH IN THE PERIOD
The use of al Qiyas was widespread in cases where there was no
relevant text in the Qur'an or Sunnah and none of the Sahabah objected to
this.
Al Ijma' was also widely used as a basis for judgment. This was
facilitated by the fact that the Sahabah were few, and it was easy for
them to agree amongst themselves. They used al Ijma' in many cases; for
example, their decisions that the Khalifah or Imam should be appointed,
that apostates should be fought and killed, that an apostate could not be
taken as a prisoner of war, and that the Qur'an should be collected and
written down in one volume.
THE TIME OF 'UMAR IBN AL KHATTAB (RA)
'Umar's recommendations to the judge, Shurayh, as mentioned above, explain
his way of deriving judgments from the available evidence. The most
noticeable feature of 'Umar's methodology, however, is the fact that he
often consulted the Sahabah and discussed matters with them so as to reach
the best understanding and find the most appropriate way to carry out
judgments. In his approach to questions of legalities, 'Umar was like a
shrewd and cautious chemist whose intent is to produce medicine that will
cure disease without causing adverse side effects.
As a result, 'Umar left us a great wealth of jurisprudence. Ibrahim al
Nakha'i (d.97 AH) said that when 'Umar was martyred, "nine-tenths of all
knowledge disappeared with him.24
Ibn Mas'ud said of him, "whatever path 'Umar chose, we found it easy to
follow."25
'Umar's understanding was comprehensive and he was possessed with good
common sense. Thus, he was quick to relate the particular to the general,
and could pursue the ramifications of an issue back to basic principles in
order to see its wider implications. This is how he was during the time of
the Prophet (PBUH) and Abu Bakr, and he did not change when he himself
became the Khalifah.
'Umar learnt a great deal from the Prophet (PBUH). He often noticed that
the Prophet would refrain from issuing an order to the people to do
something good, although he wanted to do so, because he did not want to
subject them to hardship. He (PBUH) often used to say: "If it were not
that I am afraid to impose hardship on my Ummah, I would have commanded
them to do... such and such."26
Sometimes he would forbid them to do certain things, and then, when he saw
that the reason for forbidding them was no longer valid, he would lift the
ban. On other occasions, he would be about to forbid something, and they
would tell him of the hardship and distress that such a prohibition would
cause them, so he would refrain from it so as to protect them from
hardship.
'Umar saw how the Prophet (PBUH), whenever he was faced with a choice
between two things, would always choose the easier of the two; and this
had a great effect on 'Umar. Indeed, he well understood that the Shari'ah
has purposes and aims which must be discerned and considered; and that
there are grounds for, and reasons behind, these judgments; some of which
are made clear in the primary texts while others are only alluded to. He
felt it the duty of scholars to discover those reasons which are not
specified in the texts, so that legal judgments may be applied to new
issues and developments, and everything brought under the judgment of
Allah so that people will not become accustomed to seeking remedies and
legal rulings on their problems outside the law of Allah.
Hence, when we look at 'Umar's practice of Ijtihad, we will find clear
methods of arriving at judgments. Anyone who studies his Fatawa will
readily see that the reasoning behind them is based on the public
interest, on taking precautions to prevent wrong-doing or to combat
corruption, and on adopting the easiest and most expedient course under
the law.
'Umar, for example, declared some judgments invalid because the reasons
for enforcing them no longer applied, or because some of the conditions
for following them no longer prevailed. Among those judgments: his request
to the Prophet (PBUH) that the prisoners of the battle of Badr should be
killed; his suggestions about Hijab, and that the Prophet (PBUH) should
not tell the people that whoever said "there is no god but Allah" would
enter Paradise, in case they relied only on that and made no further
effort; his suggestion to Abu Bakr that he should no longer give an extra
share from the public treasury to those who had recently embraced Islam;
and his decision not to share out the conquered land among the army.
THE TIME OF UTHMAN IBN 'AFFAN (RA)
When allegiance was given to 'Uthman, it was done on the condition that he
work in accordance with the Book of Allah, the Sunnah of His Prophet, and
the precedent set by the first two Khulafa'. This, he promised to do.
'Ali, however, indicated that when he became Khalifah he would be prepared
to work according to the Book of Allah and the Sunnah of His Prophet, and
then to do the best that his own knowledge and energy would allow. Because
'Uthman showed that he was willing to undertake to work in accordance with
the precedents set by the first two Khulafa' he was supported by Abd al
Rahman, who had the casting vote. Thus, a third source of legislation, the
precedent set by the first two Khulafa'; was added at the time of the
third Khalifah, and was approved by him.
Since 'Ali had reservations about this, when he himself became the
Khalifah he acted according to his own Ijtihad in matters for which the
earlier Khulafa' had already produced Ijtihad. For example, 'Ali
reconsidered the issue of whether slave women who had begotten children
for their masters could be sold.
'Uthman ibn Affan was one of the Sahabah who did not produce a great
number of Fatawa, probably because most of the matters he came across had
already been dealt with by Abu Bakr and 'Umar, and he preferred to adopt
their opinions. But in some cases, he had to make Ijtihad, just as his
predecessors had done. Once, before 'Uthman had become Khalifah, 'Umar
asked him about a legal matter. In reply, 'Uthman said: "If you follow
your own opinion, that will be right. But, if you follow the opinion of
the Khalifah before you (i.e. Abu Bakr), that is better, because he was so
good at passing judgment!"
He also performed his own Ijtihad when, during the Hajj, he did not
shorten Salah in Mina; though certainly it is permitted to do so. There
are two possible explanations for this: the first is that he had been
married at Makkah, and thought that the people of Makkah were not
permitted to shorten their Salah in Mina; the second explanation is that
he was afraid that some bedouins might be confused when they watched him
do so, and so he did not.
'Uthman also formulated the Ijtihad that all people should read the Qur'an
according to Zayd's way of recitation, because he thought that this was
the most sound, and the most likely to forestall the occurrence of
disagreements.
THE TIME OF 'ALl IBN ABU TALIB (RA)
'Ali was like 'Umar ibn al Khattab in the way he understood and applied
the texts of the Qur'an and in his deep concern with linking particular
issues to general principles. Prior to his assuming the office of Khalifah,
he was considered the best judge in Madinah.
When the Prophet (PBUH) appointed 'Ali judge in Yemen, he (PBUH) prayed
for him, saying: "0 Lord! Guide his heart and make him speak the truth."
Indeed, 'Ali proved to be an excellent judge, and resolved many difficult
cases.
'Ali described his own knowledge by saying: "By Allah, no verse of the
Qur'an was ever revealed except that I knew concerning what it was
revealed, and where and why it was revealed. My Lord has bestowed upon me
a heart that is understanding and a tongue that is articulate."
Whenever a matter was referred to Ali for judgment, he would accept it
without hesitation. And if he was asked to give a Fatwa, he would do so by
citing from the Book of Allah, and then the Sunnah of the Prophet (PBUH).
Indeed, the extent of his knowledge of the Qur'an and Sunnah was very well
known.
'A'ishah said: "In regard to the Sunnah of the Prophet (PBUH), he was the
most knowledgeable of all people."
'Ali used to formulate his own opinion by means of Ijithad based on al
Qiyas, al Istishab27, al Istihsan28 and al Istislah29, always basing his
opinion on the broader aims of the Shari'ah. when consulted concerning a
possible increase in the Hadd-punishment for one found guilty of drinking
alcohol, he compared drunkenness to the false basis that drunkenness could
lead a person to make such an accusation.
During his Khilafah, 'Umar consulted 'Ali concerning the punishment of a
group of people who jointly conspired to commit premeditated murder. 'Ali
said, "0 Commander of the Faithful! If a group of people joined together
in stealing, would you not cut one hand off of each of them?" when 'Umar
replied in the affirmative, 'Ali said, "Then the same applies in this
case." Consequently, 'Umar uttered his famous saying: "If all the citizens
of San'a were to join together in murdering one man, I would execute the
lot of them."
The analogy between murder and robbery was made because in each case there
is a criminal motive shared between all who commit these acts, and it is
this which requires rebuke and deterrent punishment.
Moreover, 'Ali preferred to burn alive those overzealous apostates and
heretics who defied him, although he was well aware that the Sunnah ruling
was merely to put such disbelievers and apostates to death. In this
ruling, 'Ali showed himself keen to establish the strictest possible
deterrent from the worst kinds of apostasy, because he considered this to
be a very serious matter. Thus, he established the harshest punishment for
such an act, so as to deter people from committing it. Moreover, to
emphasize this, he recited the following verses of poetry
extemporaneously:
"when I realized how grievous the matter was, I lit my bonfire and called
for Qanbar."
Once 'Umar heard of a woman whose husband was away on a military
expedition, and who was receiving strangers in her home. He therefore
decided to send a messenger to her that she should not receive strangers
while her husband was absent. when the woman heard that the Khalifah
wanted to speak to her, she became fearful and, as she was pregnant, she
miscarried the child on her way to see 'Umar.
'Umar, greatly disturbed by what had occurred, consulted the Sahabah about
the matter. Some of them, including 'Uthman ibn 'Affan and 'Abd al Rahman
ibn 'Awf, assured him: "You were merely attempting to educate her; you
have done nothing wrong."
Then 'Umar turned to 'Ali, asking his opinion. 'Ali replied, "These men
have spoken, and if this is the best opinion they can come up with, then
fair enough. But, if they have spoken only to please you, then they have
cheated you. I hope that Allah will forgive you for this sin, for He knows
that your intention was good. But, by Allah, you should pay compensation
for the child."
'Umar said, "By Allah, you have spoken sincerely to me. I swear that you
should not sit down until you have distributed this money among your
people."
THE FUQAHA' AMONG THE SAHABAH AND THE TABI'UN (RA)
This period is considered to have begun with the passing of the period
that preceded it, in 40 AH, when the period of the "Rightly Guided"
Caliphs ended. Thus began a new era, that of the Fuqaha' from among the
Sahabah and the elder Tabi'un. Legislation at this stage was still very
much as it had been during the previous stage, as the sources of that
legislation, ie. the Qur'an, the Sunnah, al Ijma' and al Qiyas, remained
the same. Nonetheless, legislation at this stage differed in many aspects
from what had gone before.
Among the more significant changes were the following:
-
Scholars had become more interested in delving into
what lay beyond the explicit meanings of the texts.
-
Their ways of dealing with the Sunnah underwent a
great deal of change. Essentially, this difference was the outcome of
political differences that accompanied the emergence of various
sectarian and philosophical factions, such as the Shi'ah and Khawarij,
whose attitude to the Sunnah was different. The Shi'ah refused to accept
Hadith which were not narrated by their own followers; and the Khawarij
refused to accept Hadith if, anywhere in the chain of the Hadith's
narrators there was no more than a single narrator30. The Khawarij also
rejected all Hadith not supported by a text from the Qur'an.
-
Owing to the divisions which had arisen, al Ijma' was
no longer a possibility in this period. Basically, this was because
every group mistrusted the scholars of every other group, and would no
longer accept any of their opinions, whether they agreed or disagreed
with them. In addition, the Fuqaha' from among the Sahabah had become
scattered all over the Islamic world, so that it was no longer possible
for them to meet in order to discuss matters.
-
Also in this period, the narration of Hadith and
Sunnah became popular, whereas this had not previously been the case.
-
The fabrication of Hadith, for many well-known
reasons which we do not need to discuss here, became widespread. In this
respect, Muslim reported that Ibn Abbas said: "We used to narrate many
Hadith from the Prophet (PBUH) without ever having to worry about
fabrication. But when people started to be careless in narrating things
attributed to the Prophet, we stopped narrating Hadith.
Article taken (with Thanks) from MSA-USC
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