( Dr. Nazeer Ahmed is the Director of the American Institute of Islamic History and Culture, located at 1160 Ridgemont Place, Concord, CA 94521. Dr. Nazeer Ahmed is a thinker, author, writer, legislator and an academician. Professionally he is an Engineer and holds several Patents in Engineering. He is the author of several books; prominent among them is "Islam in Global History." He can be reached by E-mail: drnazeerahmed1999@yahoo.com )


In the dialogue between Islam and other civilizations, the role of the Shariah takes center stage. At a recent conference of Islamic scholars in Jakarta, Indonesia, an American professor from the University of Arkansas argued that the development of Islamic jurisprudence must step out of the fold of the Shariah for it to be relevant to modern times. In this series of articles, this writer submits that far from scuttling the Shariah, it must be broadened and judiciously applied not just to jurisprudical issues but also to the sciences of nature and the sciences of man.


The process of ijtihad must be strengthened, ethics based on the Shariah evolved for Muslim minorities, and the fold of divine law expanded to embrace natural science and history. In this series of articles, we summarize the historical development of the sciences of fiqh, and articulate the fundamentals of a Shariah of Nature and a Shariah of History.


Some definitions of the terms Shariah, fiqh and secular law are in order at the outset. Shariah (origin: shara’a, meaning to prescribe) is the constant, unchanging, basic dimension of Islam. It has its basis in the Qur’an and it derives its legitimacy from Divine sovereignty. In its most pristine form, it is stated in the shahada “la ilaha il Allah”, the literal translation of which is “there is no god but God”. But in its esoteric sense, it also means “there is no reality but the Reality”. Shariah defines not just the relationship of man to man, but also the relationship of man to God and of man to the cosmos. As such, it is all embracing and it includes the sciences of nature and the sciences of man.


Secular law, on the other hand, deals only with the relationship of man to fellow human beings and does not concern itself with the relationship of man to the Divine. It is finite, changeable and subject to the vagaries of history and geography. It derives its legitimacy from the proclaimed sovereignty of kings, rulers and nations. The terminology is important because too often the term Shariah is used loosely to connote Fiqh. A great deal of confusion can be avoided, if the precise differentiation between Shariah and its application in various schools of fiqh is kept in mind.


Fiqh is the historical dimension of the Shariah and represents the continuous and unceasing struggle of man to live up to divine commandments in time and space. It is the rigorous and detailed application of the Shariah to issues that confront humankind as it participates in the unfolding drama of history. As such it embraces the approach, the process, the methodology as well as the practical application of the Shariah. It defines the interface of an individual with himself, his family, his society, his community, as well as the civilizational interface between Islam and other faiths and ideologies.
We will summarize here the historical origins and practical developments of the five major schools of fiqh that are currently followed by the vast majority of Muslims. These are: Hanafi, Maliki, Shafi’i, Hanbali and Ja’afariya. There are other schools of fiqh such as Zaidi and Ismaili, which are practiced by a relatively small number of Muslims today and we will refer to them only in their historical context. We will also summarize the Mu’tazilah and Asharite schools of thought that have left a profound, perhaps decisive imprint on Islamic thought, culture and civilization.


The triumphant advance of Muslim armies across the interconnecting landmass of Asia, Europe and Africa in the seventh and eighth centuries brought into the Islamic Empire large masses of people who were previously Christian, Zoroastrian, Buddhist or Hindu. Conversion to the new faith was slow. The conquering Muslims left the people of the territories alone as long as they paid the protective tax, and did not interfere with freedom of choice in religion. Mass conversions to Islam took place in the reign of the Umayyad Caliph Omar bin Abdul Aziz (717-719 CE) who abolished unfair taxation on Persia and Egypt, tolerated dissent and treated Muslim and non-Muslim alike with justice and dignity. Responding to his initiatives, people in the former Persian and Byzantine territories embraced Islam in droves.


The new Muslims brought with them not only their ancient heritage and culture, but methods of looking at the sublime questions of life in ways fundamentally different from that of the Arabs. Historical Islam had to face the rationalism of the Greeks, the stratification of the Zoroastrians, the Gnosticism of the Hindus, the abnegation of the Buddhists and the secular but highly refined ethical codes of the Taoist and Confucian Chinese. Add to it the internal convulsions in the Islamic world arising out of the conflicting claims of the Umayyads, the Hashemites, the Ahl-al Bait and the partisan and fractious approach of the many parties to legal issues, one has a good idea of the challenge faced by the earliest Islamic jurists. Fiqh was the doctrinal response of the Islamic civilization to these challenges.


The codification of fiqh solidified the foundation of Islamic civilization and was the cement for its stability through the turmoil of centuries. As long as the process of fiqh was dynamic, creativity and ideas flowed from Islam to other civilizations. When this process became static and stagnant, historical Islam increasingly turned inwards and became marginalized in the global struggle of humankind.


The Qur’an was revealed as the dynamic, spoken Word of God to the Prophet Muhammed (pbuh) who arranged and organized it in accordance with divine commandments. Many among the Companions memorized the entire Qur’an (the hafizun or hufaz). Those who knew and recited the Qur’an trained and taught others. These were called the qura’a (plural of qaree, meaning, one who recites the Qur’an). As many of the Companions migrated from Hijaz to Iraq, Persia, Syria and Egypt, the mantle of local leadership fell to the qura’a. Most Arabs were illiterate in the pre-Islamic era but they were proud of their language and anyone with the ability to recite and teach the language was held in high honor. Civilization was as yet ruled by the spoken word and the qura’a were received in distant lands with well-deserved honor and respect.


The need for producing a written copy of the Qur’an was felt after the Battle of Yamama, in which a large number of hufaz and qura’a perished. Concerns arose that sooner or later all the hufaz who had learned the Qur’an from the Prophet would die. Upon the advice of Omar ibn al Khattab and other Companions, the Caliph Abu Bakr had the Qur’an written down. This copy is known as Mashaf-e-Siddiqi. Written Arabic does not have vowels attached to it. During the Caliphate of Omar (r) Islam attracted newcomers, first in the Arabian Peninsula and then beyond its borders, and local accents showed up in the pronunciation of the Qur’an. Arabic is a rich, powerful, dynamic and subtle language. Mispronunciation of a word can alter its meaning. To preserve the Qur’an as the Prophet recited it, the third Caliph Uthman (r) ordered the preparation of a standard copy with the vowels included in the text. Seven copies of this text were reproduced, annotated to accommodate different accents, and were sent to different parts of the extensive Islamic Empire. This writer had the privilege of witnessing one of the original copies in the museum in Samarqand.


A century after the Prophet, all of the Companions who had learned first hand from the Prophet, and the Tabeyeen who had learned from the Companions, had passed away. The Companions had known the Qur’an, as well as the context in which it was revealed, from the living example of the Prophet. The Companions were so close to the source of revelation, so suffused with the radiance of the Divine Word and its universal impact on history that they responded to its imperatives with unbounded zeal. Theirs was a world of action, not of words. They created history with their deeds, leaving others to follow in its trail. It was left to later generations to study, understand and argue about what they had done. As the time-line from the Prophet increased, it became necessary to collect, sort out and pass on the traditions of the Prophet. This was the beginning of the science of hadith. Although, the collections of hadith that are best known today (Bukhari, Sahih Muslim, etc.) came into existence a few centuries later, the tradition of collecting and passing on hadith was continuous and active throughout the interim period. Next to the sciences of the Qur’an (Ulum ul Qur’an), the authenticated Prophetic traditions (Ulum ul Sunnah) provided the most important source for the development of the principles of fiqh (Usul al fiqh). A serious student of history must also note that the Prophet also imparted spiritual knowledge to his Companions, each according to his station, heart to heart, which has been passed on through the generations as the authentic Sunnah of the Prophet.


The development of fiqh was an historical process. As long as the Prophet was alive, his example was necessary and sufficient for the guidance of the community. The Qur’an presents the doctrinal principles and ethical underpinnings of the Shariah. The Prophet clarified, substantiated and implemented the principles of the Qur’an. His death presented an historical challenge to his Companions to continue the process of realizing God’s will in the matrix of human affairs. The first generation of Muslims rose to this challenge. Where revelation was explicit or where the Prophet had given clear direction, they followed that direction. Where the Qur’an and Sunnah provided general principles but no directive for explicit implementation, they used the process of consultation and reasoning to find solutions to the pressing problems of the day. With time, this methodology developed into a broad tradition that was practiced by the first four Caliphs. This tradition is referred to as the Sunnah of the Companions, and their consensus the ijma of the Companions. Such consensus was sometimes universal. At other times, it was the consensus of only some of the Companions. Differences of opinion were not uncommon. Such differences were not only tolerated, they were respected. The subtle nuances of Arabic and the cosmic power of the Qur’anic language, made differences in emphasis inevitable. These differences had their impact on the historical development of different schools of fiqh.


A student of history cannot take the position that there is a single, universal Islamic position in applied jurisprudence. There are Islamic positions, not the Islamic position, collected and codified in different schools of fiqh, which are relevant in their historical context. The differences reinforced the resiliency of Islam; however, they have also been a source of friction among partisan groups.


Although the principles of Islamic jurisprudence were not documented until later centuries, we see the first full and complete implementation of the Shariah in a pluralistic society under Omar ibn al Khattab (r). It was Omar (r) who showed by his example that justice before the law was an Islamic duty. He established a full-fledged department of justice, appointed judges and gave them specific instructions. The edicts that were passed by Omar (r) became the principal foundation of the Maliki fiqh in later years.


Further challenges emerged with time. As the Companions passed away, intellectual leadership of the community passed on to the Tabeyeen. This was the second generation of Muslims. With time, this generation too passed away. Then came the Tabe-Tabeyeen, the third generation who had learned from the Tabeyeen. The infusion of non-Arab blood into the Islamic milieu in the 8th century presented additional challenges to the Islamic jurists. There emerged the Mujtahideen and the Fuqaha who successfully took on these challenges. In the process, choices had to be made and these choices modulated and transformed Islamic history. (To be continued).