CHAPTER TWO


THE SAHABAH WHO GAVE FATAWA DURING THE PROPHET'S LIFETIME

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 (s) 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

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 (s): "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 (s). 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 (s) 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

  1. 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.
  2. 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

'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 (s) and Abu Bakr, and he did not change when he himself became the Khalifah.

'Umar learnt a great deal from the Prophet (s). 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 (s) 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 (s), 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 (s) that the prisoners of the battle of Badr should be killed; his suggestions about Hijab, and that the Prophet (s) 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

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

'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 (s) appointed 'Ali judge in Yemen, he (s) 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 (s). 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 (s), 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

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:

  1. Scholars had become more interested in delving into what lay beyond the explicit meanings of the texts.
  2. 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.
  3. 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.
  4. Also in this period, the narration of Hadith and Sunnah became popular, whereas this had not previously been the case.
  5. 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 (s) 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."