Toward A New Unified Madhdhab

 MINHAJ AL-MAQAASIDIYYAH

          Before we begin our discussion of any fiqh issue, we should have an understanding of the basic methodology necessary to tackle any issue in fiqh – what we call Usool al-Fiqh.  Nine schools of thought or madhdhaahib present their manaahij or methodologies to the world today;  the Sunni schools of Abu Hanifa, Imam Malik, Imam Shafii, and Ahmad ibn Hanbal; the modern schools of the Jamhuriyya, and the Salafiyya; the Shia Ja'afai schools, Aakhbari (textual) and Usooli (rational); and the emerging school based on the work of Al-Shatiibii, the Maqaasidiyya.  This last school is emerging and is best exemplified by the work of Ibn Ashur, Tariq Ramadan and Jasser Auda.  

          The Maqaasid ash-Shariah are the objectives of the Law.  They form the basic purposes for which the Law is sent down by Allah SWT.  The Maqaasid are;  promotion and protection of deen, promotion and protection of life, promotion and protection of aql, promotion and protection of dignity (lineage and honor), and promotion and protection of property.  Other scholars have cited other objectives, but they generally fall into one of these five categories.  For a thorough discussion of the Maqaasid please consult Jasser Auda's book, Maqasid Al-Shariah as Philosophy of Islamic Law: A Systems Approach, published by IIIT.

            While the Maqaasidiyya are mostly Sunni in aqeedah, the school has at least one Shia adherent, Sayed Muhammad Baqir Al-Sadr.  Although he has generally been seen as a rationalist due to his focus on presenting rational arguments against dialectic materialism, the philosophical foundation of Communism, he was known to be very interesting in the work of Ibn Ashur, and his works, particularly in Islamic Economics, (Iqtisaduna, Bank al-Ribawi), reflect an approach to usool that is neither solely textually based nor solely usooli based, but looks to the themes and spirit of the law expressed in the text to aid in the practical application of Divine Law in a particular environment. 

            Unlike Sunni thought, which due to the emphasis on text (Nuss), as well as classic interpretation of that text, as binding, Shia thought has long posited the necessity of “Nur al-Aan,” the Present Light.  While Sunni thought became mired in the closing of the proverbial “Doors of Ijtehad,”  Shia thought held that the decisions of the Marja’ or Mujtahid were only binding during his lifetime.  Once he was no longer present and was out of touch with reality, the mukhallif was no longer obliged to follow him, and was required to turn to a new, present marja'. 

            As a point of Islamic history, this difference began early in our Ummah.  From the early days, Abu Bakr and Umar (RAA) adopted a “common law” understanding of Shariah law.  The decisions of Muslim judges and rulers, especially the Khalif, became binding on the community, just like the decisions of judges in the American common law system.  Common law decisions become the law itself, apart from the legislation upon which it ideally is based.  Hence, we hear things in America like “judge-made law,” versus the statutes and laws passed by the legislature. 

            Ali ibn Abi Talib opposed this common law position, and posited what we refer to today as a “civil law” system, based on the code itself.  Judges’ decisions are not binding, although they may be highly persuasive.  The law is the legislation.  Judges are charged to apply the law to particular cases.  The only thing that is binding is the law, not the application of the law.  Today, Europe and many Middle Eastern countries have civil law court systems.

            The new Usool of the Maqaasidiyya reflects a more realistic understanding of legal systems, one that is capable of staying true to the Shariah Law, the Divine Law laid down by Allah in the Qur’an and Sunnah, and one that is also capable of remaining fresh and elastic so as to be able to meet all this forever changing world can demand. 

            The minhaj I have found best meets the needs of a united Ummah – one that is capable of carrying forward an Ummah envisioned by Shaheed al-Sadr – is one based on the Qur’an, the Authentic Hadith, and the Maqaasid al-Shariah, with highly persuasive secondary evidence from the opinions of the People of Madina, and the Judgments of Imam Ali and Qadi Shuraih.  

ULOOM AL HADITH

            The biggest issue to be resolved on the road to this minhaj is in the determination of authentic hadith, as well as the determination of authentic aathar and the judgments of Imam Ali and Qadi Shuraih.  Admittedly, this area will take time to consider and develop.  However, one thing is certain, the laudable attempt by Shaikh Nasruddin al-Albani, despite its momentous effort and sincerity, falls well short of its goals.  Both Shaikh bin Bazz and Shaikh Uthaimeen informed Shaikh al-Albani that his minhaj of looking solely to the Ilm al-Rijal, the Knowledge of the Narrators, was not sufficient to be able to call a hadith, sahih.  Not only can an isnad or chain of narrators be faked, but the books of Ilm al-Rijal come in two flavors, Sunni and Shia.  The great scholar and author of the authoritative book on Uloom al Hadith, Kitab Ma'arifat Anwa 'Ilm Al Hadith, Shaikh Shahrazuhri, notes that even in his time (1100 AD) it was not possible to correctly determine authenticity of a hadith by Ilm al Rijal alone.  How then, would it be possible for a modern scholar like Shaikh al-Albani to do this?

            For now, I will put forth the following criteria for determination of a sahih hadith.  The hadith should be found in substantial form in either the Muwatta of Imam Malik, the Kitab al Kafi of Muhammad Ya'qub Kulayni, the Sahih of Imam Bukhaari, or the Sahih of Imam Muslim.  It must meet the criteria of Imam Bukhaari as to isnad – in other words all the narrators should have actually met one another.  Its matin must meet the requirement of: "whatever (hadith) agrees with the Book of God (the Qur'an), accept it. And whatever contradicts it, reject it" It must not favor of any particular sect, nor should it be overly predictive or critical of future sectarian divisions.  Material that should have been known to more than one person should be reported by more than one person. For example, prayers and communal actions should have been reported by many people, not just one.  Ahad hadith are only acceptable if the matin contains material that only that person could have or should have known. 

           

            All other hadith books and other material, be it Seerah, Tafsir, Tarikh, etc may be persuasive, but are not binding.  Only the Qur’an and verifiably Sahih Hadith are binding.  As for aathar and the opinions of Imam Ali and Qadi Shuraih, they are highly persuasive, but require careful study to firstly determine authenticity, and secondly to determine applicability in the current context.  

THE ROLE OF REASON

            However, our law is not solely textual.  In order to apply Divine Law in the present light, we have many tools which Allah SWT has given us.  He instructs us to use reason, aql.  It is most unfortunate that the excesses of the Mu’tazillah led Sunnis to abandon reason, and so leave us to either emotions and whims or absurd literalism.  Allah gave us reason, aql; unless you deny this, then He meant us to use it.  For this reason, in the absence of a clear text (nass), I agree to the use of rational methods, including Qiyas, and Maslahah al-Mursalah.  However, I also feel there is a great role for Mantiq or Logic.  As noted by Shia scholars, Qiyas can have its limits and should not be stretched too far.  Sometimes the two methods give the same results, but the two should be used together to produce the best results.  So any new ruling should take into consideration both methods in its dalil.  As for Maslalah or Public Policy, this is important and should be taken into account; however, it should not be overused or stretched too far either.  

MASLAHAH

           

            Many arguments for certain fiqh positions, including those regarding the permissibility of eating commercial meat or for the calculation of the hilal that signals the start of an Islamic month, seem to revolve around perceived Maslahah, either the Maslahah of our wallets or the Maslahah of our non-Muslim bosses.  In perfect reflection of Jalal Al-e-Ahmed's Gharbzedegih, our people scream about injustice in such and such a country. and then turn into red-faced quaking cowards before their Western overlords when it comes to fear of losing their flow of green paper.  It is not for our own Maslahah.  How many of us end up working on Eid?  How many of us even bother to go to Eid prayer, or stay for the khutbah?  We would rather celebrate Halloween – Samhain in the old Pagan calendar -,and Christmas.  So we dress our kids up as witches and black cats, instead of Ali Ibn Abi Talib or Umar ibn Khattab. (The permissibility of the later is not the issue here.)

            Maslahah is important, but it must be balanced against the Maqaasid al-Shariah.  When we do so, we will achieve results that best meet our individual needs, our collective needs, and our duties and obligations to each other, and most importantly to Allah SWT.