Misuse of Maqasid al-Shariah (3)

The modernist explanations of Umar’s Ijtihad (Critical Reading) (3) by Dr. Sultan al-Umayri.

The advantage of Islamic thought is that it is a religious thought and that it has deep religious dimensions; accordingly, ideas and thoughts cannot be attributed to it except if they have a religious background or basis. This explains the conflict between the positions within the Islamic thought trying hard to create their own historical, religious dimensions, and directions.

The modernist discourse has realized after several experiments that their ideas will not have any acceptance unless they are based on a religious background and historical extension in the Islamic thought.

They have attempted several times to achieve their desires by relying on few historical and religious bases.

One of the historical events that the modernist discourse has attempted to rely on are some Ijtihad of Umar b. al-Khattab (رضي الله عنه) when he and some of the companions took the societal changes of the time into account; for example, Umar (رضي الله عنه) stopped giving Zakah to those who were inclined (towards Islam), he didn’t apply the punishment for theft in the year of drought, when he did not divide the open land to give it to those who were entitled to the war-booty, when he increased the punishment for drinking alcohol, when he killed nine against the life of one, and many other fiqhi Ijtihadaat.

The modernist discourse has been relying extensively on these efforts with a special focus on it. They say that he did such actions only because of the benefit (Maslaha); he disposed off the textual limits and its related rules because of the change in the context and peoples’ needs; therefore, the Maslaha has to be the only principle that we need to consider.

Using this point, they confirm the core idea of the modernist approach i.e. to limit the Islamic Shariah to historical context; moreover, they claim that its rules are only rational and that this thought is considered as the most important part in their approach.[1] Accordingly, the modernist approach started disposing off the religious text and replaced its rules, limits, and purposes by other benefits that go along with the historical context, as they say.

One of those who cite Umar (رضي الله عنه)’s efforts excessively is Nasr Hamed Abu Zaid. He justifies his opinions by relying on Umar b. al-Khattab (رضي الله عنه)’s efforts as he says:

ونرجع إلى مواقف عمر بن الخطاب من نصِّ المؤلَّفة قلوبهم؛ فلو تعامل مع النص تعاملاً حرفياً ولو لم يستطع أن يضعه في سياقه لما استطاع أن يكشف علَّته التي إذا انتفت انتفى الحكم، والذي هو هنا إعطاء المؤلَّفة قلوبهم نصيبهم من الصدقات مقرراً لهم بالنص؛ إذن عمر بن الخطاب لم يتعامل مع النص كسلطة دائمة عندما وضعه في سياقه

If we treat the position of Umar b. al-Khattab of dealing with those whose hearts were inclined, he did not deal with the religious text as an authority when he looked at the Maslaha and the context.[2]

And when he tried to neglect this rule that says: ‘The ruling is based on the general word not on the specific meaning’, he utilizes Umar (رضي الله عنه)’s situation as a justification.[3]

It is concluded that Umar b. al-Khattab (رضي الله عنه) was not subject to the authority of the text, nor was he subject to its contents, but rather dealt with it in a restrictive manner. He eliminated the provisions that did not conform to the social situation.

The same is the case with Tayyab Tizini. He thinks that religious text is controversial in the social and economic reality (of today) when he says:

في ضرورة امتثال الدين للوسط الجديد عبر تكيُّفه معه وتحوله إلى بُعْد من أبعاده، وتخليه عن المنطقة التي نشأ النص فيها

The reality of today is changing and adapting (to times); the religion has to change and adapt with the modern era, it needs to be converted to one of its dimensions, ignoring its era in which the text originated.

According to this, the religion would only remain as a follower; he states:

أحدثه عمر بن الخطاب من ترسيخ للحركة الاجتهادية والتأويلية المستنيرة حيال النص القرآني والحديثي

Umar b. al-Khattab established an enlightened and luminous movement towards the Qur’an and the religious text in general.[4]

Muhammad Sa’eed al-Ashmaawi concluded that removing and neglecting the rulings of the Shariah is not a matter of Shariah but it is more related to the nation and the people. Since the rulings of the Shariah are not absolute, as he says, but are rather rational, time-bound, and subjected to place and time, this is the reason why Umar (رضي الله عنه) changed some of it such as Zakah on those whose hearts were inclined to Islam, and refrained from the distribution of open land as spoils of war.[5]

One of those who rely on such efforts in advancing the Maslaha over the religious text and using it in all situations is Muhammad Abid al-Jabri. He asserts that the Islamic thought that calls for the application of Shariah needs to build a solid reference to pass the doctrinal differences, and says:

أن المرجعية الأصل السابقة على كل المرجعيات في التجربة التاريخية العربية الإسلامية هي عمل الصحابة على عهد الخلفاء الراشدين

The original reference of the Islamic experiment is the Prophet’s companions in the time of the rightly guided caliphs.[6]

Moreover, he says that the only principle used by them is the Maslaha alone and that it is superior to everything including the Qur’an and the Sunnah. He says:

المبدأ الوحيد الذي كانوا يراعونه دوماً هو المصلحـة ولا شـيء غيـرها، وهكذا فكثيراً ما نجدهم يتصرفون بحسب ما تمليه المصلحة، صارفين النظر عن النص حتى ولو كان صريحاً قطعياً؛ إذا كانت الظروف الخاصة تقتضي مثل ذلك التأجيل

The only principle they have always respected is the Maslaha and nothing else, so we often find them acting in accordance with Maslaha regardless of the text, even if it is absolutely explicit and whether or not the special circumstances require such a postponement.[7]

Al-Jabri calls for the need to renew the fundamental rules on the grounds that they were subject to historical contexts related to the social conditions, and concludes that it is necessary to establish other bases that meet the requirements of our time and cover its needs. One of the rules that he has been calling to change is:

الحكم يدور مع علته وجوداً وعدماً

The rule goes along with its reason whether it has existed or not.

He wants to replace it with:

الحكم يدور مع المصلحة وجوداً وعدماً

The rule goes along with Maslaha.

He cites Umar (رضي الله عنه)’s example and states:

إذا كان عمر بن الخطاب (المشرع الأول في الإسلام) قد اعتبر المصلحة ومقاصد الشريعة فوضعها فوق كل اعتبار، لماذا لا يقتدي المجتهدون والمجددون اليوم بهذا النوع من الاجتهاد

If Umar b. al-Khattab (the first legislator in Islam) considered the Maslaha and advanced it over and above something, then why didn’t the scholars do the same and take his Ijtihad as an example?[8]

He also criticized this rule:

العبرة بعموم اللفظ لا بخصوص السبب

The ruling is based on the general meaning not on the specific reason.

He also stresses the need to link the provisions of the Shariah with its causes so that the Shariah appears more realistic and more in line with the interests of the people and their different situations; he also cites some of Umar’s Ijtihadaat.[9]

Thus, Ijtihadaat of Umar have received special attention from the modernist project which has become a tradition in many of its intellectual products and has become a prominent anchor in a number of contemporary writings.[10] This benefit has been present since the early pioneers of the secular trend, and shares with them a number of adaptations from the modernist trend in Islamic thought. Many attempts have been made to show the Ijtihadaat of Umar as the reference of the Shariah like Khalid Muhammad Khalid says:

ترك عمر بن الخطاب النصوص الدينية المقدسة من القرآن والسُّنة عندما دعته المصلحة لذلك؛ فبينما يقسم القرآن للمؤلَّفة قلوبهم حظاًَ من الزكاة، ويؤيده الرسول صلى الله عليه وسلم وأبو بكر، يأتي عمر فيقول: لا نعطي على الإسلام شيئا

Umar b. al-Khattab left aside the religious texts from the Qur’an and the Sunnah when there was a benefit; the Qur’an says that Zakah can be given to those who have been inclined (towards Islam); The Prophet (ﷺ) confirmed this but then Umar comes and says we won’t give anything.[11]

The first thing they do is to advance the Maslaha to anything. Their explanation is considered the most appropriate way to deal with the revealed texts, whether it is conclusive or interpretative; all the religious rulings have to be judged through the point of view of Maqasid and the solution to any text contradicting the Maslaha is either to cancel it or remove it; whether it is interpretative or conclusive.

If we look at and analyze the Maqasid approach in the modernist discourse and judge it according to the correct methodologies, we see that it has significant and deep problems; these problems strike them deep and disrupt their statements tremendously.

If we look at the modernist theory of Maqaasid and turn to the core of the research (the modernist employment of Umar’s Ijtihadaat), we find that it also suffers from severe problems, deep rooted methodological errors and irregularities on historical and legal basis. Its analysis, introduction, and the results are clarified in the following matters:

The first matter: the misconception: The modernist approach neither understands the facts of these Ijtihadaat nor its details. A number of contemporary scholars and thinkers have endeavored to clarify their truths, clarify their circumstances, and explain their factual, temporal, and legal qualities. They have reviewed all the examples on which the modernist discourse is based on and displayed how they do not conform to their descriptions. There is nothing that advances the Maslaha over the legal text.

They have been researching extensively and have written a lot and have taken considerable amount of time writing about it until their voice has become ill and their pens have become damaged while trying to prove how it is mandatory to have the backing of the correct evidences and references.[12]  It is strange that the modernist discourse continues to be repeated as-it-is in the same way as if it has not been heard or seen.

We will not dwell here on all the examples provided by the modernist discourse; rather, we will limit ourselves to the most repeated and employed ones so as to discuss the gaps in modernist understanding of jurisprudence of Umar, the evidence of history, and circumstantial evidence:

The first example: Halting the punishment of theft in the year of the drought

The view of the modernist discourse is that Umar b. al-Khattab (رضي الله عنه) went against the text when it came to cutting off the hand of the thief which is:

وَالسَّارِقُ وَالسَّارِقَةُ فَاقْطَعُوا أَيْدِيَهُمَا جَزَاءً بِمَا كَسَبَا نَكَالاً مِّنَ اللَّهِ واللَّهُ عَزِيزٌ حَكِيمٌ

[As for] the thief, the male and the female, amputate their hands in recompense for what they committed as a deterrent [punishment] from Allah. And Allah is Exalted in Might and Wise [Q.5:38].

This provision was not implemented in the year of the drought for the benefit of the emergency that was imposed on the society in that historical context which required the hand to not be cut off. This is Umar who eliminated the decisive judgment for the Maslaha. Here, Umar annulled the prescribed ruling for the benefit (Maslaha).

If we go back in history to verify the truth of what Umar did and to see how correct the modernist discourse of the incident is, we find that it differs from the picture they present for the incident.

Before clarifying this, it must be pointed out that some Hadith scholars have doubted the authenticity of the occurrence of this incident and said that it is a weak Hadith.[13]

Even if we assume that the Hadith is authentic, it does not contradict the Shariah as modernists claim. It is well known to the Muslims that the Hudood are not applied unless the prerequisites and conditions are met. The Sunnah stresses on the need to ensure the integration of the boundaries and urges to prevent the implementation of Hudood on the Muslims. The Prophet (ﷺ) said:

ادرؤوا الحدود عن المسلمين ما استطعتم؛ فإن وجدتم لمسلم مخرجاً فخلوا سبيله

Avert the infliction of the prescribed punishment on the Muslims as long as you find a way out (i.e. to avoid their infliction).[14]

Islam prevents from application of any Hudood if there is any doubt. This is why the companions such as Abu Hurayra, Ibn Mas’ood, Ali, and Aisha (رضي الله عنهم) spoke about this point as well saying that the rulings should not be applied if there was any doubt. This is one of the rulings of the Muslim scholars and there is no difference on it except in the case of the Zahiris only; this consensus was narrated by Ibn al-Munzir, Ibn Qudaamah and others.[15] This meaning indicates that the ruling in the verse of theft is restricted by other restrictions that were revealed in the Sunnah of the Prophet (ﷺ).

It is narrated that Umar b. al-Khattab (رضي الله عنه) said that (this decision of his) was intended to avoid the punishment of theft since there was a doubt, which was the famine in his time. This is what he literally said when a thief was taken to him in the year of the drought:

لا قطع في عام سنة

No cutting off in the year of starvation.

This indicates that the cutting off is a fixed proven ruling but it is not implemented during famine because of the suspicion related to it.

Umar (رضي الله عنه) then did not approve of the punishment of theft because the conditions were not met and not because the original ruling was set in a different social context.

This is evidenced by the fact that he refrained from establishing the Hudood in other scenarios than what happened in the year of the drought including what happened with the slaves of Hatib b. abi Balta’ah when they stole the shoes of someone from Muzaina. Umar (رضي الله عنه) ordered him to cut off their hands but later turned it down when he looked at their situation and said:

لولا أنكم تجيعونهم حتى إن أحدهم أتى ما حرَّم الله لقطعت أيديهم، ولكن – والله – لئن تركتَهم لأغرِّمنَّك فيهم غرامة توجعك

I turned it down because you are starving them and if you leave them like that again, I will impose on you a very heavy fine.[16]

This situation was not in the year of the drought.

These facts indicate that Umar did not violate the text contained in the Hudood of theft; rather, he acted within the limitations in other texts. As for the assumption that he violated it, he did not do so to provide benefit to him but he based it on another legal text. In all of the cases, he had been referring to the religious text and not the Maslaha.

The second example: he didn’t give Zakah to those who were inclined (towards Islam)

Its known that those who are inclined (towards Islam) are one of those to whom Zakah may be given as Allah says in the Qur’an:

إنَّمَا الصَّدَقَاتُ لِلْفُقَرَاءِ وَالْـمَسَاكِينِ وَالْعَامِلِينَ عَلَيْهَا وَالْـمُؤَلَّفَةِ قُلُوبُهُمْ وَفِي الرِّقَابِ وَالْغَارِمِينَ وَفِي سَبِيلِ اللَّهِ وَابْنِ السَّبِيلِ فَرِيضَةً مِّنَ اللَّهِ وَاللَّهُ عَلِيمٌ حَكِيمٌ

Zakah expenditures are only for the poor and for the needy and for those employed to collect [Zakah] and for bringing hearts together [for Islam] and for freeing captives [or slaves] and for those in debt and for the cause of Allah and for the [stranded] traveler – an obligation [imposed] by Allah. And Allah is Knowing and Wise [Q.9:60].

Their share is fixed in the conclusive text and indeed, the Messenger (ﷺ) had given them Zakah as well. However, in the time of Abu Bakr al-Siddiq, Umar advised to stop it. Some of them, including Uyayna b. Hussain and al-Aqra’ b. Haabis, complained to Abu Bakr (رضي الله عنه) but Umar (رضي الله عنه) responded:

إن رسول الله صلى الله عليه وسلم كان يتألفكما والإسلام يومئذٍ ذليل، وإن الله قد أعز الإسلام فاذهبا فاجهدا جهدكما

The Prophet (ﷺ) did so when Islam was weak but now Allah has made it great, now go and work.[17]

The modernist discourse took this event and considered it as something that advances their theory of the Maslaha cancelling the legal text.

If we return to the story to read it again, taking into account the circumstances surrounding them and look at the reasons of Umar’s opinion, we see that Umar did not contradict the text but only followed it. The descriptions of the eight categories mentioned in the verse do not accompany these people forever but may change according to the situation. A person might be poor at some time and he deserves the Zakah then; when he is in a good situation, he does not deserve Zakah; not giving Zakah to him neither contradicts the text nor neglects the ruling but that since the reason for giving Zakah does not exist anymore, it is not paid. The same is with those who were inclined (towards Islam);  this characteristic changed and no longer described them later on and hence, they were not entitled to be given Zakah. Umar did not neglect the rule but he only withheld it from some people who did not have a reason to take it.

This was understood in a similar way by Umar b. Abdul Aziz (who was an ardent follower of his ancestor Umar b. al-Khattab) and which is why he did the same thing again.[18] This shows that Umar b. al-Khattab did not cancel the share of the mentioned category permanently.

This explanation reveals the amount of error that occurs in the modern discourse in their perception and portrayal of Umar’s jurisprudence. This error is general and comprehensive of all the jurisprudence that has been said before.

The second matter: selective logic: The modernist discourse has been very selective in their dealing of the Ijtihadaat of Umar; they neglect all of Umar b. al-Khattab (رضي الله عنه)’s rulings and his ways of dealing is other situations and only pick a few scenarios.

This approach contradicts the correct methodology of scholarly research and could lead to contradictory conclusions. If we take the same approach, we could prove the opposite since Umar said about the black stone:

أَمَا إني أعلم أنك حجر لا تضر ولا تنفع ولولا أني رأيت رسول الله صلى الله عليه وسلم يقبِّلك ما قبَّلتك

I know that you are a stone that does not benefit or hurt and I only kiss you since the Prophet (ﷺ) did the same.[19]

Another example is when he (رضي الله عنه) said:

ما لنا وللرَّمَل؛ إنما راءينا به المشركين وقد أهلكم الله، ثم قال: شيء صنعه رسول الله صلى الله عليه وسلم لا نحب أن نتركه

Why do we do the Ramal (walking fast during circumambulation of the Ka’abah)? Allah has already perished the polytheists. We saw the Prophet (ﷺ) do this and we do not like to leave it.[20]

Assuming that Umar b. al-Khattab (رضي الله عنه) made superior the Maslaha over the legal text, using selective logic, we can arrive at an opposite conclusion to the modernist one. They say that he neglected the Shariah to make it better for the people but we can see that he did the opposite such as when he increased punishment of drinking alcohol. Another example regarding this point is a Hadith narrated by al-Sa’ib b. Yazid who says:

كنا نؤتى بالشارب في عهد رسول الله صلى الله عليه وسلم وفي إمرَة أبي بكر وصدراً من إمرَة عمر فنقوم إليه فنضربه بأيدينا ونعالنا وأرديتنا حتى كان صدراً من إمرَة عمر فجلد فيها أربعين حتى إذا عتوا فيها وفسقوا جلد ثمانين

In the time of the Prophet (ﷺ), we used to beat those who drank alcohol with our hands and shoes. In the time of Abu Bakr as well (we did the same) but in the time of Umar we flogged them 40 times and 80 times if they continued to do this repeatedly.[21]

Another example is his intensity in the matter of divorce. It was narrated from Tawoos that Abu al-Sahba’ said to Ibn Abbas:

هات من هنَّاتك، ألم يكن الطلاق الثلاث على عهد رسول الله صلى الله عليه وسلم وأبي بكر واحدة ؟ فقال: قد كان ذلك فلما كان في عهد عمر تتابع الناس في الطلاق فأجازه عليهم

Was it not that the three divorces (pronounced at one and the same time) were treated as one during the lifetime of Allah’s Messenger (ﷺ) and Abu Bakr? He said: It was in fact so, but when during the caliphate of ‘Umar people began to pronounce divorce frequently, he allowed them to do so (to treat pronouncements of three divorces in a single breath as one).[22]

All these deductions are undoubtedly wrong; they are not based on the correct way of deducing conclusions. The correct methodology is not used to arrive at straight conclusions.

Practical methodology rejects all of this, and the truth-seeker has to collect as many models as possible to analyze everything that is right to arrive at common principles that have an impact on the rulings.

A number of researchers have carried out a wide-ranging, in-depth process, in which they have collected all that has been narrated from Umar b. al-Khattab (رضي الله عنه). They studied the authenticity of these statements whether they are rightfully attributed to Umar or not and then analyzed and clarified. These studies include examples from different branches in fiqh (jurisprudence) such as Taharah (purification), the prayer, Zakah, judgments, Hudood, marriage and so on.[23] This collection has helped in understanding the real mazhab of Umar (رضي الله عنه); however, the modernist approach does not look at these studies at all and they only look at one-tenth of what Umar did and derive major conclusions. Is this not a major fault in methodology? Doesn’t this mean that they don’t care about the truth but care a lot about reaching some conclusions no matter what route they take? This makes us say like Abbas al-Aqaad:

ضخامة الخطأ مع سهولة العلم بالصواب خليقة بأن تفتح باب الاتهام في سلامة المقصد قبل الاتهام في سلامة التفكير

The great fault in the process of knowledge is trouble in objectivity before a trouble in the thought.[24]

The third matter: Exaggerating historical facts: As a result of selective logic, the modernist discourse concluded that Umar – may Allah be pleased with him – was not subject to the authority of the text, that he was able to get rid of his prestige, and that he presented an ideal model in flexible handling with the text.

The modernists claim that Umar (رضي الله عنه) did not subject himself to the religious text; he was able to dispose off its authority and he was a great example of handling the text since he didn’t consider superior anything over the Maslaha, not even the religious text.

If we go back in history to investigate this conclusion reached by the modernist discourse, we find nothing in it that is consistent with that conclusion. On the contrary, we find passages narrated from Umar (رضي الله عنه) where he surrendered to the prestige and dominion (of the Shariah) with total acceptance of its sanctity. This is clear from the contents. This has become so famous for Umar (رضي الله عنه) that he was given the title of ‘The most careful about the Book of Allah’ (الوقاف عند كتاب الله).[25]

The narrations that confirm this meaning are plenty. He wrote to his judge explaining the methodology to adopt in constructing legal provisions saying:

إذا حضرك أمر لا بد منه؛ فانظر ما في كتاب الله فاقضِ به، فإن لم يكن ففي ما قضى به رسول الله صلى الله عليه وسلم، فإن لم يكن ففي ما قضى به الصالحون وأئمة العدل، فإن لم يكن فأنت بالخيار؛ فإن شئت أن تجتهد رأيك فاجتهد رأيك، وإن شئت أن تؤامرنِي

When you come upon any matter, look at the Quran and judge using it; if you don’t find it there, then use the Prophet (ﷺ)’s sayings and if you do not find it there either, then rule by what the righteous and the Imams rule by and finally (in the absence of any other means), use your judgment and exert your efforts (make Ijtihad) to arrive at a conclusion.[26]

There are many situations where he discarded his judgment based on Qiyas (analogy) and Ijtihad when text was presented to him on the contrary such as when he ruled that women do not inherit from their husbands; however, when al-Dahaak told him that the Prophet (ﷺ) did so, he left aside his judgment and confirmed the Prophet (ﷺ)’s saying.[27]

Moreover, he changed his Ijtihad of blood money on fingers after he heard the statement of the Prophet

في كل إصبع عشرة من الإبل

Each finger has ten camels.[28]

These historical examples show how Umar (رضي الله عنه) subjected himself to the religious text, respecting it and accepting it; therefore, it is impossible that he did this on one hand and neglected one of its rules for the sake of Maslaha or Ijtihad on the other. How come we believe what he wasn’t known for?

It is really strange that the modernist discourse builds its perceptions of the position of Umar (رضي الله عنه) on the legal text without paying attention to these reports and without discussing them or even providing a convincing answer to them. We have to say that the sanctification of the legal text and submission to it is not specific to Umar (رضي الله عنه) only but such is known from all the companions (رضي الله عنهم); they are from those who adhered the most to the meanings of the Qur’an and Sunnah and the most committed to them. They accepted compromise on themselves (their Ijtihadaat) and such examples are extensively found about them from their behavior, their rulings (fatwas), and their positions.

It will take a long time to talk about them; however, one of the examples is that of Ibn Mas’ood (رضي الله عنه) where he said:

إذا حضرك أمر لا تجد منه بداً فاقض بما فيه كتاب الله، فإن عييت فاقض بسنَّة نبي الله، فإن عييت فاقض بما قضى به الصالحون، فإن عييت فأومئ إيماءً، فإن عييت فافرر منه ولا تستحِ

If there is any difficult matter, then look at the Quran and use it to judge; if you don’t find a solution for it there, then look at the Sunnah. (If nothing found there) then look at the righteous and the Imam, and finally if you do not find any solution, then leave it and do not be ashamed}.[29]

Ibn Abbas (رضي الله عنه) also condemned anyone who contradicted the religious text saying that Abu Bakr or Umar said such and such. He answered them:

يوشك أن تنزل عليكم حجرة من السماء؛ أقول لكم: قال رسول الله. وتقولون: قال أبو بكر وعمر

You are about to have an agony from Allah (stone from the sky) fall upon you; I say the Prophet (ﷺ) said and you say: Abu Bakr and Umar.[30]

One of the strongest examples about this point that the Sahaba did not prioritize Maslaha over the text to annul the rulings of the Shariah even for minor issues is the matter between Marwan b. al-Hakam and Abu Sa’eed al-Khudri (رضي الله عنهم) when he (Marwan) made the Khutba before the Eid prayer (instead of after it) claiming that there was benefit in it as the people did not stay for the Khutba after the prayer. Abu Sa’eed condemned this action and said that this is considered changing the religion of Allah.[31]

Such reports, and many others, show how the Prophet (ﷺ)’s companions dealt with the religious texts.

If we compare this situation with what Muhammad Abid al-Jabri attributed to the companions – that they prioritized the benefit (Maslaha) over everything, even on the categorical text – we find that he has indulged in intellectual dishonesty and portrayed history in a different form than it actually is; he did not mention even a simple reference to all of this which conveys to the reader the extent of the methodological faults employed by al-Jabri in analyzing the traditions of the Sahaba. It also shows the amount of intellectual loose-ends in the perceptions and conclusions that they have arrived at.

The fourth matter: jumping on historical stretches: It is known to whoever is interested in Islamic history that Umar (رضي الله عنه) is considered one of the masters and the major teachers of fiqh in the city of Madina during the time of the tabi’een (i.e. followers/students of Sahaba); the Madinan scholars were interested in learning from his rulings and worked to contextualize them, extract the rulings and principles.

One of those is Sa’eed b. al Musayyab. It is narrated that he narrated the most to the people about reports from/of Umar b. al-Khattab (رضي الله عنه). Seven other fuqaha learned from him namely Urwa b. al-Zubair, al-Qasim b. Muhammad b. Abi Bakr, Ubaydullah b. Utba, Kharija b. Zaid, Sulaiman b. Yasar, Saleem b. Abdullah (Umar’s grandson (رضي الله عنه)).[32] It is not known about any of these or any of their students that they reached the same conclusions as the modernist discourse, that Maslaha has superiority over the legal text or that it cancels the legitimate rulings. They – without a doubt – knew more about the matters of Umar (رضي الله عنه) and were more aware of his actions and rulings in the historical and social context in which he lived. Is it acceptable to leave the understanding of the people close to Umar (رضي الله عنه) and follow those who are farther and ignorant?

The conduct of the modernist discourse has been a flagrant leap forward in history without taking into account evidences; they do not consider the historical aspects that have a clear influence on the development of thought.

After this long journey, we see the extent of methodological flaws in the modernist approach towards the Ijtihadaat of Umar, the greatness of crisis in research experienced by its possessors and the discovery of practices contrary to the correct scholarly approach. This makes it mandatory upon the Arab researchers to be more critical in their approach to get rid of the cognitive damage caused by them in contemporary Arab and Islamic thought.

Indeed, Allah knows best.

References and footnotes:

[1] Refer: Islam al-Mujaddideen, Muhammad Hamza (56)

[2] Jaridat al-Arabi 26/6/1995, biwasitah: manhaj Umar al-Khattab fi al tashree’, Muhammad Biltaji.

[3] Refer: Mafhoom al-Nass, Abu Zaid (104)

[4] Al-Nass al-Qur’ani, Tayyab Tizini (219)

[5] According to: al-tajdeed fi al-fikr al-Islami, Adnan Umama (446)

[6] Al-Deen wa tatbik al-Shariah, al-Jabri (9)

[7] Al-Deen wa tatbik al-Shariah, al-Jabri (12-42)

[8] Wajhatu Nazar al-Jabri (63)

[9] Refer: Wajhatu Nazar al-Jabri (pg. 58, 69)

[10] Refer: Mazeedan min al-tawzeef al-hadathi lil Ijtihadaat al-Umariyyah: Al-almanyoon wal-Qur’an al-Kareem, Ahmad al-Ta’an (393)

[11] Al-Dimoqratya abdan, Khalid Muhammad Khalid (pg. 150)

[12] Refer to the statement: Nazarat fi fiqh Umar al-Farooq, Muhammad Al-Madani, and (manhaj Umar b. al-Khattab fi Al-tashree’) Muhammad Biltaji, and (Al siyasa al Shariah fi Nusoos al-Shariah wa maqaasiduha) Youssaf al-Qaradawi, (pg. 169-222), and Dawaabit al-Maslaha Muhammad Sa’eed al-Bouti (pg. 152-175)

[13] See: Irwaa al-ghaleel, al-Albani (80/8)

[14] Al-Hakim is his al-Mustadrak (8163) (426/4) and he say that it is authentic

[15] See al-Mughni, Ibn Qudamah (55/9)

[16] Al-Bayhaqi in al-Sunan (17749)

[17] Al-Bayhaqi in al-Sunan (12968)

[18] Al-Tabaqat al-Kubra, Ibn Sa’d (558/5).

[19] Sahih Muslim (3126)

[20] Al-Bayhaqi in al-Sunan (9544)

[21] Al-Bukhari (6281)

[22] Sahih Muslim (1472)

[23] Refer to some of these studies: al-Nizam al Maali fi ‘ahd Umar b. al-Khattab, Ahmad al-Shafi’i. Siyyastul maal fi al-Islam fi ‘ahd Umar b. al-Khattab wamuqaranatuha bil-anzima al-hadithah, Abdullah al-Sa’di. Awlawiat al-Farooq al-Siyasia, Ghalib al-Qarshi. fiqh Umar b. al-Khattab fi al-jinayaat wa’ahkamiha mawaznan bi-fiqh ashhur al-Mujtahideen, Rowai’i al-Rahili. Fiqh Umar b. al-Khattab fi al-nikah muqaranan biara’ ashhur al-Mujtahideen, Jamaan al-Ghamdi. Fiqh Umar b. al-Khattab fi al-taharat mawazanan bi-fiqh Ashhur al-Mujtahideen, Tariq al-Sabi’i. Fiqh Umar b. al-Khattab fi al-mu’amalat al-maliat muqaranan bi-fiqh ashhur al-Mujtahideen, Adil al-Fakhri. Nazaraat fi fiqh Umar al-Farooq, Muhammad al-Madani. Manhaj Umar b. al-Khattab fi al-tashree’, Muhammad Biltaji. Mawsu’at fiqh Umar b. al-Khattab, Muhammad Rodus Qale’ Ji, and many others.

[24] Maza yuqaal ‘an al-Islam (73)

[25] Sahih Al-Bukhari (4276)

[26] Al-Nasa’i (5414), al-Darami in al-Musnad (1/165) and its chain is authentic

[27] Al-Tirmizi (1036), Abu Da’ood (2558) and its chain is authentic

[28] Abdul Razzaq in his Musannaf (17698) and Ibn abi Shayba: (9/194)

[29] Abdul Razzaq in his Musannaf (15295)

[30] Ahmad (3121)

[31] Sahih al-Bukhari (956) and Sahih al-Muslim (2090)

[32] Refer: al-Fikr al-Saami fi tareekh al-fiqh al-Islami, al-Hajwi (253/1), and tareekh al-fiqh al-Islami, Ilyas Drodor (398/1)

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