Revival of Ijtihad necessary to remove Blind Following of Madhabs

 

Arabic script. Eghra, Read. The first Quoranic...

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Throughout 1400 years history Islamic law was adopted as the basis for judgment in the Islamic Khilafah. Adalah, a system of dispensation of justice through a legal entity – courts, was first instituted in Medina by the Holy Prophet swm after Muslims gained state authority to enforce Islamic Law, with legal power to correct lawbreakers.

 

Courts were not established in Makkah where Muslims did not have state authority to make or enforce laws. Islamic legal system of Adalah continued in the Islamic State under the Amir-al-Mumineen so long as the state existed. Today, there are shariah courts in Saudi, Pakistan and Iran, however, they lack Amiriyah or Sultaniyeh of the Khalifah to enforce their writ over the Muslim Ummah. Evidences are discussed below in brief.

 

Charter of Medina: First instance of a legal process involving issues relating to Deen and Duniya, and between Believer and Disbeliever, came as a canonical law in the Charter of Medina. All disputes had to be referred to Allah and His Rasool swm. No one was allowed to take law in his hands. The Prophet swm was the Chief Judge and the madhab during nubuwah was the madhab of the Nabi swm.

 

He swm sent Muadh ibn Jabal ra to Yemen as governor, to teach them Islam, collect zakah and to defend them. He swm sent Syedena Ali ra as the Chief Qadi of Yemen. All disputes were to be resolved through the Adalah under the Qadi.

                             

Khulafae Rashidin:

Sydena Abu Bakr ra judged declaration of war on the rebels and apostates of Arabia. Umar ra debated with Abu Bakr ra but later admitted to the Caliph’s judgment. The state machinery acted upon that judgment to enforce his ruling. Surely, none but the legal head of state can sanction the state military to go to war.

 

Syedena Umar disallowed mutah (temporary marriage) which was prevalent earlier. He ra also judged that divorce in one seating was invalid. Marriage and Divorce are central to muslim family law, the most basic social unit in a state, and Caliph Umar‘s ra judgments were followed up by their implementation throughout the vast Islamic Khilafah through courts of Qadis. His rulings still applies today.

 

There is a letter from Amir Muawiyah ra to Amir al Mumineen Ali bin Abi Talib ra, where an inheritance issue came up. Syedena Ali ra judged on the matter and it became law in the Islamic State (including Syriaunder Amir Muawiyah). The issue was regarding inheritance law for eunuchs. Again we see that the madhab of the Caliph was the state madhab, although we know that the battle of Siffin was a time of fitnah.

 

Umayyads:

They followed mostly Maliki madhab. Caliphs sent their children to study Islamic Law in Medina. Umayyads in Andalusia adopted the maliki madhab for state courts.

 

Abbasids:

Two Caliphs, al Mansoor and Haroon ArRashid, failed to convince Imam Malik to make his madhab the state madhab.

 

Imam Abu Hanifa was offered the position of Chief Qadi but he refused. He was jailed and tortured. Imam Abu Hanifa’s student Imam aby Yusuf Ibn Ibrahim was appointed the Chief Judge of Baghdad by Caliph al-Mahdi (775-785) and by Caliph Haroon ar Rashid (786-809). He in turn appointed judges for various parts of the Islamic State from the Hanafi school, which became an important reason for the spread of Hanafi madhab.

 

Imam Al Haadi elaa el Haqq was made Imam of Yemen, which resulted in making Zaydi madhab the state madhab of that country. Till todayYemen’s majority population follows Zaydi madhab.

 

Imam Ahmed ibn Hanbal was persecuted by Caliph al-Mamoon for his refusal to accept the Mutazilite madhab adopted by the Caliph as state madhab. Caliph al-Mutawakkil lifted the inquisition, released Imam Ahmed, aborted Mutazilite madhab from state courts and expelled Mutazilite judges and scholars from his capital.

 

Ottomans:

After Baghdad was sacked by the Mongols Khilafah’s central authority weakened. To safeguard Islamic Law from corruption by incompetent people scholars came up with Taqleed or blind following, closing the doors of ijtihad. Islamic State’s provinces adopted different madhabs according to regional bases. Egypt followed Shafii, Spain Maliki, TurkeyHanafi, India Hanafi and Iran Jafari madhabs.

 

Ottomans setup a panel of 7 top ranking scholars of Fiqh to codify Islamic Law in 1876. Majallah al Ahkam al Adiliah (the Just Code) was the result of this undertaking, which codified Islamic Law according to the Hanafi madhab and it was enforced all over the Islamic State under the Ottomans. It made Hanafi madhab the state madhab in all Ottoman courts. Similarly, Fatwae Alamgiri of the Mughals made Hanafi madhab the state law for Islamic Hindustan. It is currently the legal document for Muslim family law in the Sub-Con.

 

Current Situation:

Islamic Law is lacking its legal vehicle Adalah for its enforcement in the Muslim world. Adalah can only be implemented by a State, through its Constitution and obviously under the command of a Head of State who will appoint Jurists (Qadis) for courts of law. An individual can disagree and dispute with other members of the community but he is not allowed to take the law in his own hands. Only an appointed court Qadi is permitted to pronounce judgment as per law.

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3 thoughts on “Revival of Ijtihad necessary to remove Blind Following of Madhabs

  1. Pingback: Classes of Heirs in Hanafi Law of Inheritanc « My Night Dreams

  2. Salaam, your explanation on the ottoman law system is inaccurate. The Ottoman law book, Majallah was written based on Shari’a which means firstly Holy Qur’an and also all other earlier Islamic texts. Additionally Ottoman family law of 1917 contains many rules according to Maliki school which means there is no strict Hanafi madhab understanding the ottoman society. However, more importantly Ottoman State sent many qadi ( Muslim jurist) to different part of the empire according to what majority Of Muslim people follow.Therefore, even after the decline of the Ottoman Empire, inhabitant muslims had used Majallah in their countries up until 1950s, such as Lebanon, Jordan, Suriye, Palestene etc.

    • Salaam Abu Bakr. Thank you very much. Yes that does make sense. Palestine uses the Shafi code which must have been protected by the Ottoman Qadis. Similarly the code in Hijac was Maliki so the Ottomans also protected that. We should therefore ask, when we are in a particular land, say Palestina which is following the Shafii madhab, then we should follow the code of that land or not? I think the key issue in my article was to show that because of the disappearance of the Islamic Adalah and its Qadi the learning of madhabi codes becomes a theoretical one. Family Law being the only exception, I suppose. Would like to hear more from you…

      Wa salam,
      Abu Zaed

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