“Abu Bakr Ibn al-Mundhir, Amputation, and the Art of Ijtihad,” International Journal of Middle East Studies, 39.3 (2007): 351-68. (original) (raw)
Ijtihad Methods of The Prophet’s Companions and Its Influence on Islamic Legal Traditions
AHKAM : Jurnal Ilmu Syariah, 2021
This study examines the influence of the ijtihad methods of the Prophet’s companion on two major schools of thought in Islamic legal tradition. These are the rational thinking of Abu Hanifah, known as ahl al-ra’y and Malik ibn Anas, known as ahl hadith. This study is a historical enquiry by critically analyzing significant events in the past around the lives of those two figures. Various historical resources are used, tarikh tashri’ and fiqh (Islamic jurisprudence) literature, etc. This study finds out that there is a positive influence of the Prophet’s companions’ ijtihad methods with the legal thinking of Abu Hanifah and Malik ibn Anas. This implies that the method significantly influences the formulation of Islamic jurisprudence by those two figures. Abstrak:Penelitian ini mengkaji pengaruh metode ijtihad para sahabat nabi terhadap dua mazhab besar dalam tradisi hukum Islam. Metode tersebut yakni pemikiran rasional Abu Hanifah yang dikenal dengan ahl al-ra'y dan Malik bin An...
Bridging the Gap: Two Early Texts of Islamic Legal Theory
This article presents two short but complete treatises on legal theory (uṣūl al-fiqh). The first was written by Ibn Surayj (d. 306/918) as an addendum to his compendium on Shāfiʿī law, al-Wadāʾiʿ, and the second by Abū Bakr al-Khaffāf (fl. early fourth/tenth century), who included it as an introduction to his legal text al-Aqsām wa-l-khiṣāl. An analysis of these texts reveals the existence of a self-conscious legal-theoretical discourse around the turn of the fourth/tenth century that connects al-Shāfiʿī's (d. 204/820) Risāla with the so-called mature uṣūl tradition known from the late fourth/tenth century onward. The analysis also sheds considerable light on developments in legal theory in this period, such as the emergence of the term ʿilla (cause), the parallel rise of legal dialectics (jadal), the consequences of adopting the idea of waḍʿ (linguistic coinage), and generally the inclusion of theological concerns in legal theory.
2016
Muslims both in the past and present are concerned with the legal validity of their religious devotion and worship, especially in view of their increasing interactions with other civilizations, cultures, behaviors, economies, sciences, legislation, and politics. Confusion however arises in regards to which legal doctrine (madhhab) Muslims need to follow today; what should Muslims do to cope with contemporary problems and challenges of life; and where should they draw lines of distinction between the revealed and profane, as well as between jurisprudence and secular law and legislation in the Muslim world. Some contemporary Muslim scholars have raised serious concerns regarding such issues because of the interaction between the East and West. Muslim scholars and reformers responded to these concerns through a number of legal reform initiatives, and also through alignment and integration of Muslim faith with contemporary needs. This article discusses whether Islamic jurisprudence can ...
Journal Article, 2024
Sharia law represents a profoundly diverse and adaptable legal system with ᶜilm al-ikhtilāf (the science of juristic disagreement) as the most prominent manifestation of its comparative and pluralistic nature. While modern scholarship acknowledges the diverse origins of Islamic law, the pivotal role of foundational discords in its development remains understudied. This article unravels the intricate fabric and consequential implications of ikhtilāf by examining the emergence of Sharia law through the lens of juristic disagreements. It argues that a deeper historical understanding of the pluralistic bases and inherent social dynamism of Islamic law is essential for fostering nuanced discussions of the Muslim legal tradition and reinforcing the notion that diversity and flexibility are integral to its identity. This study is structured into three main sections. The first two sections explore the status and function of ikhtilāf across two historical phases: before and after the age of taqlīd. The third section retraces ikhtilāf as articulated in some of its key classical works.
The Role of Ijtihād in Progressing Islamic Law in Modern Times
US-China Law Review, 2013
While new and complicated legal issues continuously come to the fore, Islamic sacred texts that deal with legal issues are finite. Ijtihad is an interpretive tool that applies legal reasoning based on sacred texts to derive new legal rules that meet emerging legal problems. This paper will elucidate the nature of Ijtihad and comment on the status of Ijtihad today. The paper will also explain why it is necessary to replace macro-Ijtihad with micro-Ijtihad, and will highlight the importance of the continuance of Ijtihad by Islamic jurists despite Islamic law’s reduced application.
2009
All praise is due to Allah who in His mercy has endowed me with the ability to complete this work on Islamic Jurisprudence. The Prophet Muħammad (may the peace and blessings of Allah be upon him) is reported to have said, "He who does not thank man has not thanked Allah." With these words in mind I am grateful to the following people. • I thank my supervisor Professor Yousuf Dadoo for his support and guidance. • I thank the immediate members of my family, my wife and parents for their support. • I am grateful to my teachers and colleagues. May Allah reward you greatly. Shoayb Ahmed 14 1.5. Validity of Ijtihād 15 Notes to Chapter One 17 Chapter Two The First Stage in the Development of Fiqh-The Period of the Prophet Muħammad (Developmental and Foundational Phase) 18 2.1. The first source, the Qur'ān 18 2.2. The second source, the Sunnah 19 2.3. Al-Ijmā‛ 23 2.4. Qiyās 23 A historical account of some of the rules that occurred before and after Hijrah Some Muftīs in the Prophets time. 31 Notes to Chapter Two 34 Chapter Three The Second Stage in the Development of Islamic Jurisprudence (From the death of the Prophet until the end of the second century) 37 3.1. Islamic Jurisprudence during the period of the rightly guided Khalīfs 38 3.1.1 Other jurists during the period of the Khalīfs. 40 3.1.2 Salient features of Islamic Jurisprudence at the time of the Khalīfs 41 3.2. The period of the senior and junior contemporaries of the Prophet's companions. 42 Some renowned Muftīs from among the companions in this period. 44 3.3. Were the companions all Mujtahid's? 45 3.3.1 Famous jurisconsults among the Tābi‛īn. 46 3.4. The classification of the jurists in two groups namely the Iraqis and the Ħijāzis. 48 6 3.5. The second century after Hijrah. 52 3.5.1 Some famous scholars (Mujtahids) in this era. 55 3.5.2 Other established judges and muftīs. 62 3.5.3 Some of Imām Abū Ħanīfah's students. 63 3.5.4 Some of Imām Mālik's students. 64 Notes to Chapetr Three 66
2014
Author(s): Temel, Ahmet | Advisor(s): Ahmad, Ahmad A | Abstract: The 3rd/9th and 4th/10th centuries witnessed significant developments in Islamic intellectual history. Most of the hadith collections that later came to be recognized as canonical were compiled in this period and the major schools of law and certain theological schools also completed their formation during the same period. Despite this continuous progress in other fields of religious sciences, there is an unusual lapse of time between what is widely considered the first work in usul al-fiqh (Islamic legal theory) al-Risala by al-Shafi`i (204/819), and what is recognized as the second work al-Fusul fi-al-usul by al-Jassas (370/981). Due to the absence of a major work devoted solely to usul al-fiqh from this period, the majority of contemporary scholars considered it as a period of history during which there was little or no intellectual activity in the field of usul al-fiqh and where no significant developments took pla...
The Origins of Islamic Legal Theory: The Traditionalist and Western Perspectives
Islamic law is both immensely important to those living in the modern Middle East and consistently misunderstood by those living outside of it. The way that individual Middle Eastern nations interpret and apply Islamic law directly impacts the lives of their citizens, but for years the origins of Islam (and Islamic law) closely mirrored the narrative presented in the Qur’an. While it is odd that the origins of Islamic law escaped scrutiny for years, the current state of scholarship is one of tension and excitement. Western scholars (primarily from Germany) have applied rigorous historical methodology to ancient sources and have challenged the traditional narrative. Traditionalist scholars (primarily from the Middle East) have noted that Western attempts to define the Middle East often mirror the pattern laid out by Edward Said’s Orientalism, and counter with Arabic sources ignored by the West. The end result is a tense academic standoff, as Western scholars attempt to duck charges of Imperialism and repeatedly point to the intriguing questions brought up by their sources, while Traditionalist scholars give ground on some pieces of the Qur’anic narrative but not others. This paper breaks down the research and arguments of key scholars from each group. Wael Hallaq’s work represents the most nuanced of the Traditionalist school, and his research is placed alongside the combined work of Joseph Schacht, Patricia Crone, and Benjamin Jokisch. It is important to note that these two schools should not be viewed as oppositional, despite the natural inclination to do so. This paper will show that they are, in effect, arguing with very specific goals in mind. The Traditionalist approach demands that Middle Eastern scholars be allowed to participate in the creation of their own historical narrative, and rightfully bristle at Western attempts to place Islam in a larger context, as this contextualization often places Islamic culture in a position subservient to the West. The Western approach attempts to bring new sources into the discussion of Islamic legal origins and, if it is done correctly, carefully separates this research from the historia sacra of Islamic tradition.
Ijtihād Holds Supremacy in Islamic Law: Muslim Communities and the Evolution of Law
Religions, 2022
While the traditional view of Islamic law (sharīah) and jurisprudence is to consider the Qur’an as the starting point for legal matters, followed by the prophetic tradition, and then resorting to various forms of “ijtihād”, it is argued here that the Qur’an was not really held in a position of legal supremacy. Since the time of the earliest Muslim community, it is “ijtihād” that has created the criteria by which Qur’anic and even prophetic rules are to be kept, suspended, and contradicted. Therefore, the Qur’an is not viewed historically as having legal supremacy for Islamic law and is not considered similar to some constitutions, against which laws are measured. Hence, in modern-day Islamic legal discourse, it would not be unreasonable to argue that “ijtihād” has supremacy in Islamic law, giving some flexibility to Muslim communities in the evolution of such laws.
Conflict of law and the methodology of Tarjīẖ : a study in Islamic legal theory
1993
In the treatment of this question, it is useful to identify two major elements in order to draw a proper view of the development of usul al-figh. These two elements are the emergence and the developmental aspects of this science. Only through this historical approach is it possible to gain an understanding of a long-established legal system, that is the Shari `ah, the revealed law of Islam, and to appreciate the issues with which the present work will be concerned later. A. The Emergence of `rim Usul al-figh `Ilm usul al fqh or simply `ilm al-usul or usul al figh or just usul 1, like other sciences and fields of scientific study developed gradually. Although modern scholars have made extensive and valuable contributions to the history of Islamic law in most of its aspects, there remains room for further inquiry and investigation about the early history of usul al figh and its development (particularly of the chronological developments of concepts and doctrines within usul al-figh). 1 The main terms preferred by Muslim bio-bibliographers and historians are the first three terms. Ai-usus, unlike the others, reveals the difficulty of deciding whether it is meant to refer to usul at-figh or to kalam (theology principles) since the same word i. e. al-usul, was also used to describe usul aldin (the principles of religion). The present work however, has used all these terms to indicate usul al-figh. For the principles of religion, the phrase u-: Eul al-din will be adopted. 3 As far as the emergence is concerned, al-Shafi'i (d. 204 A. H.) has been credited with having been the first scholar to write systematically on the subject of usul al figh. Muslim and Western scholars are alike in assigning to al-Shafi'i the role of father of Muslim jurisprudence. 2 However, Abu al-Wafa' al-Afghani in his introduction to Usul al-Sarakhsi has credited Abu Hanifah (d. 150 A. H.), the founder of Hanafi school of law, as the first who spoke about this discipline in his book entitled Kitab al-Ra'y. 3 On the other hand, however, al-Khaib al-Baghdadi believed that Abu Yusuf (d. 182 A. H.) was the first to complete a book on usul atfigh. 4 The same primacy was credited to Imam al-Bagir (d. 114 A. H.) by the Shi'is. 5 Having established that the starting point of Muslim jurisprudence lies in the practice of the late Umayyad period, some Westerns scholars led by Professor Schacht have suggested that usul al figh as a discrete discipline did not exist during the life time of the Prophet or for the greater part of the first century of Hijrah. 6 To this effect, it is said that the Qur'an contains comparatively little legal matter and that which it
Ijtihad and a Modernist Perspective towards Islamic Law and Thought
Journal of Islamic Law Studies , 2008
The concept of ijtihâd is a main mechanism for development of Islamic law. Thus, it has to reactivate its role for the present era. As these ra’y and qiyās are the supplementary components for ijtihâd, new occurrences have inspired the idea of sharī‘ah reform. This chapter will investigate the kinds of sharī‘ah reform that are related to ijtihâd, starting from the core foundation of ijtihad and leading to its development throughout history. Times constantly change, and with these changes, human thought evolves. To deal with this man needs to build a social structure in which he is able to live in harmony. As history has revealed, it is the belief of Muslims that God has responded to support this human revolution by sending prophets with revealed laws, thus, giving aim and direction to the human race. Man is considered as being guided towards certain purposes
The History and Development of Islamic Law
The endeavor to understand the origins and evolution of Islamic law can be daunting. This subject -whether from the standpoint of a historian or theologian -is largely fraught with complexities and inconsistencies. Many traditions and opinions exist as to how and when Islamic law actually developed in its entirety. It should be noted that the intention is not to blaspheme Islam as a religion, but rather analyze some of Islamic law's possible origins. This history of law spans over thirteen centuries and much could be said on the matter. However, in order to focus on the early origins of Islamic law, our scope of interest will not extend beyond the 9 th century CE. Therefore, a necessary cross-examination of a variety of early sources, coupled with an elaboration on the traditional historicity of Islamic code, will provide for a thorough exploration of Islamic legal theory and its origins.
The framing of Islamic law in the first four centuries of Islam is of great significance to scholars. During this period, the Islamic diaspora was in the earliest part of its development, establishing its identity and developing the foundations of its knowledge principles. These times were tumultuous; yet, at the same time, what occurred during these early centuries formed the bedrock upon which a further millennium of growth has taken place in this global religion. Many forces were interplaying during these early years in the context of Islamic law. "Independents," who formed a majority of Islamic theorists, gradually disappeared and gave way to "Muqallidȋn" and there was discourse and allegiance amongst "Rationalists" and "Traditionalists." There was a shift away from early regional schools (of thought) to personal schools and tremendous debate raged about Ijtihȃd and Taqlȋd. In more recent times, over the past century, orientalist commentators on the period, who have painted a picture of these early centuries of the Islamic legal system and jurisprudence as being somewhat cut and dry, have begun to be challenged. Schacht for example, who wrote in the early to mid-twentieth century, later had his views nuanced by scholars such as Hallaq and others. This paper thus examines the early formation of the four schools of Islamic law, recounts brief biographical accounts of their founders, and discusses the challenges faced during those early years of Islamic legal history, which are a source of disagreement among contemporary scholars.