Orientalism and Fiqh: Knowledge, Reflection and Interpretation

Orientalism and Fiqh: Knowledge, Reflection and Interpretation&

Dr. Chafiah Sedeeq**

Independence of sciences from philosophy is not irrevocable and exclusive. According to science historians, this independence was just for the procedural methodological necessities. In fact, philosophy has reserved its right in observing the essence of objects, themes and methodologies.

Nowadays, it is hard to find a researcher who follows a unidisciplinary approach because the nature of research, especially for the humanitarian sciences, requires an ongoing contact with various sciences. In addition, the nature of topics under study in the field of humanitarian sciences cannot achieve the unity of theme without methodological approaches from various sources.

Being in the frontline, Muslims are suffering from fear and even stress which hinder the mind’s ability to accomplish its mission, the Divine purpose of creation.

The discussion, held among religious individuals themselves and that held among the religious and the atheists with various dogmas, the global openness as well as the scientific studies on modern societies[1] participate in making religion a central axis. This does not mean that religion is sacred and guarded against any analytical criticism.

The western research does not differentiate between religion, being a set of principles, and piety, being efforts applying those principles. In fact, all axes unrestrictedly are under study.

In the scientific field, both history of religion and comparative religion extend the scopes of resources and branches. Thus, the features of each religion under study do not depend on absolutes set by the followers of a certain religion.

For instance, studying Islam with its principle sciences in universities and international research centers relies on some methodological approaches unpopular to its followers. To face this battle imposed by the scientific tendency, it is necessary to follow up human mind outcomes and even to be eager in seeking that, because defensive model answers inspired by the refutations of the classical orientalists have been out of date a long time ago.

Fiqh and Usul* are among the significant sciences in the Islamic system. It is a field of modern methodological analogies mainly originated from the West and most of its elements do not comply with Muslims’ absolutes. Thus, this is an obstacle in the path of an effective contribution in investing the utmost levels of mind powers to clear doubts. In addition, this diverts attention away from some neglected or omitted topics.

Usul Al-Fiqh: A Positive Acculturation in Seeking Wisdom.

In his book entitled المستصفى من علم الأصول “Al Mustasfa Min I’lm Al Usul: On Legal theory of Muslim Jurisprudence”, Abu Hamed Al-Ghazzali said: “The most honorable sciences are those who depend on both mind and transmitted narrations; rational discretion (Ra’y) and legislation (Shar’), and Fiqh and Usul Al-Fiqh are among those sciences.”[2]

Regarding the raised question about the designation of Fiqh and whether it is a religious or a worldly science, a book entitled الفكر السامي في تاريخ الفقه الإسلامي “Al-Fikr As-Samy Fe Tareekh Al-Fiqh Al-Islamy” answers: “Regarding the worshiping acts, it is a religious science focusing on the afterlife. Regarding all acts relevant to relationships and dispute settlements, it is both a worldly and afterlife science[3].”

Balancing between intellectual desires and religious pillars is a central issue for intellectual movements, but it also reflects the deepness of the human vitality which attracts both sides.

Some supports the notion of the authenticity of Usul Al-Fiqh considering it as the methodological clue for deducing Rulings. On the other hand, others consider this issue as a holy war which represents the heritage of Usul as a thorough program. Depending on a comprehensive understanding of the Divine Objectives in building its components, this program fails to benefit from the available beneficial methods of using intellectual and sentimental skills which are evenly distributed by the Creator among all human beings. However, we notice many counterarguments like what is explicitly mentioned by Muhammad Al-Khuḍarī:

Some fundamentalists (Usulyyun) stated that Usul Al-Fiqh has some borrowed principles from other sciences. This fact does not underestimate its position because fundamentalists studied different sciences useful and relevant to their research, then compose it and set it as a science which its objective is transmitted narration (hearing) [4].

This vision allows researchers of history and sociology of religious knowledge in Islam to seek knowledge neglecting the world of equations and pre-condemnations by the guards of the fake Templars. In fact, the researcher, in this regard, does not go beyond the ordained fundamentals of the fixed knowledge. He is keen on following the ways of Muslim intellect in manifesting succession and establishing the principles of independent reasoning (Ijtihād) welcomed by this flexible religion.

A modern fundamentalist, devoted for the Moutoun combating westernization advocates, stated:

The example of Usul Al-Fiqh according to Fiqh is like logic for all the philosophical sciences because it is a balance which controls the mind[5].

The principles of this balance are originated from the main religious sources at the top of which is the Quran. In this regard, Abu Zahrah also asserted:

“Quran is not a book of law that follow one declarative approach but a book of moral lessons[6].”

Understanding the previous quote in the light of the approach that depends on the Quran in the political battles and the trial of presenting it sometimes as a book of eloquence or anatomy, astronomy or of other sciences, Muslims lose the chance of understanding the Quranic discourse as a power of human’s skills in all fields and an influential motive that encourages the spirit of positive development. Quran is not meant to be used as a shelter in the real battlefields: between work and death; the flow of the hard effort being exerted and the stillness of the fantasy world.

Taha Abdul-Rahman said:

Thus, Usul Al-Fiqh appears as a scope of science that do not focus only on the Islamic sciences, but reasonable sciences inspired by other cultures and civilizations that have cognitive or methodological similarity[7].

Usul Al- Fiqh is a tool that helps in understanding the Legislative Discourse prescribed in the original sources. In order to reach the most accurate results, Muslims depend on the outcomes of a well-trained human mind that can exert its utmost effort. Such ideas from such individuals refute the arguments of some orientalists who believe that this concept underestimates its (Usul Al-Fiqh) value, especially after a vast group of Muslims assures that Usul Al-Fiqh is free from any foreign influence.

These issues attract the attention of researchers of specialized cognitive history. Thus, it is necessary to follow up the updated views and positions and the effective production based on new innovations, different analysis or creative visions in comparison and conclusion. Rodwan As-Sayed said, in the scope of an ongoing follow up of the active circles, in an article entitled “إنجازات الشافعي ومآخذ نقاده ” (The Contribution of As-Shafi’i and the views of his critics): “Hardly a month passes without the publication of a new reflection on Imam As-Shafi’i’s writings, particularly his book Al-Resalah.[8]“

Reflection on Al-Resalah by researchers from different schools and contradictory backgrounds refers to the activeness of the scientific subject particularly when connected with the surrounding political and scientific environment before turning to be like a milestone of a new cognitive structure which some trials insist on making it inoperative.

Researchers are inspired by the basic concepts set explicitly by Abu-Zahrah in 1958:

Usul-Al-Fiqh is the science which explains the methodology set by the most influential learned scholars (Mujtahidin) through their deduction. In fact, Legislative Rulings are deduced from (Divine) texts. The deductive analogy is by extracting the causes of the Rulings and understanding the interests which are the Divine Objectives….the transmitted Fiqh being in itself an enormous wealth….lightens the path of Ijtihād for the seeker of Fiqh if he intends to enrich its wealth.[9]

Being based on a specialized scientific reference, this clarification refers to the fragile warnings of some specialists about teaching the standards of Fiqh and Usul as close and fixed templates like chemical equations. One of the dynamics approaches, to compare between both sciences, is to dismantle both systems to reach their basic elements such as searching for the Greek logic influence or the history of ancients throughout the Terminological Dictionary, and the same is for settings the Rulings.

Orientalists realized, at the suitable time, that the significance of Fiqh and Usul in understanding Islamic societies is not due to the mutual similarity between them but the methodological control of the reasoning principles. This is despite the fact that their Ijtihād and devotion in expanding the scope of research lead them to conclude likely reasonable results thanks to the intelligent selection and Muslim enlightened mind. For example, the jurist surrenders to customs (U’rf) in some fields leading him to tackle the issue outside its context. Thus, customs of the previous heavenly or pagan beliefs help the jurist in filling the wide gaps imposed by the rapid ongoing life changes and gradually replace the “out-dated” Sharia’h.

Orientalism: The Other and Our Code

Orientalism is not a temporary stage in the history of Islamic thought but a factor of profound influence. Its influence is imposed by exceptional circumstances, revealing new secrets from the unique manuscripts’ treasury, and methodological provocations of the western mind tsunami which is blind except for the vocation: addiction- to- knowledge gene.

Orientalism was associated with the religious view of Jews, Christians or even atheists towards Islam. However, recognizing its dimensions was an essential factor whether to serve the armed crusades, gentle evangelization, occupation or pure scientific research.

Orientalists’ writings reflect different views. The feeling of sympathy interprets its demonization as a kind of satisfying surrender for the one who is unable to face it by the sword of knowledge.

‘Aishah Abdul-Rahman said: Orientalists are human beings like us who deeply believe in their religion and nationality just like us. Thus, it is unfair to blame them for their devotion or feel angry at their failure to abandon their whims. Dealing with a scientific and historical issue, we should be aware that the deviation of most orientalists was inevitable due to their primary objective which is serving the Church[10].

Being armed with wise realism in facing this scientific issue was subjected to many pre-accusations that start with acknowledgement.

Muhammad Kurd Ali said: “if the Mozarabs*were not keen on reviving our heritage, rich knowledge would not be transmitted to us[11].”

This hurting acknowledgement also can be interpreted in the light of the following:

Granada Square witnessed the burning of million books in one day. Some books also were burnt during the crusades, for example, while only in Levantine Tripoli three million manuscripts were burnt[12].

In fact, some Muslims hailed the act of burning as a way to prevent orientalists from reaching those manuscripts[13].

Therefore, Muslims resorted to burn the books of Ibn Rushd, Ibn Hazm, At-Tabaree and others. It seems that the fate of this nation, the addressee of the imperative verb “Read” without specifying an object as a symbol of a prepared mind to receive wisdom, is to suffer from Pyromania*.

A methodological step to break the dullness of hostility and a methodological recognition of orientalists’ participation in building and classifying the Islamic Encyclopedia:

Orientalists’ contribution to the Islamic Heritage in five fields:

• Seeking manuscripts; organizing expeditions searching for them and preserving and maintaining them.
• Setting a glossary for manuscripts; its documentation, bibliographical correction and, sometimes, summarization.
• Authenticating the ancient books.
• Undertaking studies on Classical books.
• Translating heritage into European languages[14].

According to statistics, the outcomes of Muslim mind are infinite in the battle of searching for it with true spiritual security. Edward van Dike, in the preface of his book اكتفاء القنوع بما هو مطبوع “Iktifā’ Al-Qanū’ Bimā Huwa Maṭbū’“(The Satisfaction of Frugality according to what is Written), mentioned a list saying:

75% of the manuscripts are almost confined to the collections of the european libraries, while 25% of them only are spread all over the Arab and Islamic countries…these information are dated back to the beginning of the 14^th century AH; the end of the 19^th century AC (1313 AH-1896 AC). In fact, those locations are determined approximately. Nowadays, arab manuscripts reach or exceed three million distributed in more than two thousand (2000) libraries across the globe[15].

Another researcher declared that the National Library of Paris includes six million books and manuscripts among of which are seven thousand arab manuscripts including scientific, literal, historical masterpieces as well as anecdotes[16].

Some researchers stated that only 5% of the Islamic Heritage have survived. Wise people are searching for an answer to the raised question: “What is the impact of losing 95% (of our heritage) on awareness, intellect and sentiment? How can a muslim individual survive with this severe disability which increases when relating to the religious knowledge?

The question will be more difficult when recalling some reservations such as:

During their research on heritage, some orientalists focused on movements which opposed the prevailing tendency in the arab muslim society. They regarded the insurgents as individuals with a liberal revolutionary thought[17].

Topics chosen or highlighted by orientalists relate to the scientific reaction, the complexity of the texts and even personal tendencies and choices, as proved by the relative results in general.

A quantitative study by Abdul-A’dheem Ad-Deeb proved that the percentage of the publications in the field of Sufism, philosophy and theology reaches 43% of the total amount of the ancient publications by orientalists. About 30% is published in the fields of history and biographies, while 4,3% is published in the fields of Quranic interpretation (Tafseer), language, arabic grammar, literature, geography, Fiqh, sciences, voyages and anecdotes[18].

Thus, understanding our heritage is affected by the preferences of those who captured the treasuries of our manuscripts unfortunately, yet fortunately. They draw our cognitive map depending on choices that rarely fit our needs.

We do not have the map clues of our manuscripts. Islam and sound instinct push us to re-acknowledge that orientalists honestly dealt with our heritage, which most of it is still in the darkness, and also to highlight the offense of distortion undertook by some of them. Orientalists provided us with thousands of organized, written and documented arab masterpieces which are collections of our libraries, subjects at our universities and a reference for our scientists. Orientalists took the initiative to publish them for our nation and translate most of them into their different languages. Keen on applying their scientific methodology, they published some of them in more than seven editions to compare them with the discovered copies, correct the errors of the first editions and explain them. When printing them, some of our publishing houses neglected the names of orientalists and their prefaces and lexicons…their commentaries, explanations and glossaries were distorted. Our manuscripts represented by some of their authenticators did not have a better chance with us.[19]

Strict comments of muslim specialists clear them from any accusation. These acknowledgments are the most important step to solve the conundrum and evaluate one’s self.

We and Heritage

Procedural Definition of Heritage:

It is what we inherited from our parents including faith, culture, values, etiquettes, arts, craftsmanship and all other spiritual and material deliverables. These inheritances also include the Divine Revelation; the Quran and Sunnah (Prophetic Tradition).

This significant structure in the entity of any nation was exposed to loss. Muslims become aware of the dangerousness of this matter after meeting other nations that believe that the soul of a nation is its roots. Among those Muslims are the following:

Mohamad Ali Pasha, in 1820, launched a project to revive the publication of the islamic heritage in Egypt, within the framework of the renaissance project and the establishment of the Al-Ameriah Print House in Beaulac. Thanks to the efforts of Rifa’a At-Tahtawi and his supervision, Ar-Rrazee’s Tafseer and other masterpieces of our heritage were published. During the era of the Khedive Ismael, Dar-Al-Kutub (egyptian national library) was established under the supervision of Ali Mubarak in 1870. This library contributed in summing up the ancient manuscripts and collecting them from corners (of Sufis), houses and mosques.

Furthermore, universities contributed in authenticating and studying the heritage from the beginning of the 1930s, depending on the orientalists in particular.

The followed tools and methods to save the heritage depended also on external factors, the west, orientalists and even occupation. Muslims’ hesitation almost raves their trial of returning to the track of the civilized nations:

Historian sources state that arabic script printing, appeared at the beginning of the 16^th century in Europe, started in Italy at the discretion of Pope Julius II in 1514. The first book published in Arabic there, at the same year, was a religious book entitled “صلاة السواعي“ (The Book of Hours and Prayer). In 1546, a book entitled “سفر الزبور“ (The Psalms), was published. Then, the printing house of Venice published the Holy Quran for the first time. In 1547, the first translation of the Quran in Italian language was published.

Turkey, the capital of Caliphate, was the first to establish print houses compared to the countries of the near and far east. Muslims were hesitant to print the books of wisdom, language, history, medicine, astronomy which no one dared to print except after the issue of the verdict of Sheikh ul-Islam Abdullah Afandy. They followed the claim that proves that such act (printing) lead to the distortion of the religious books[20].

During the dark ages, studying mathematics, exact sciences and language was forbidden in the Islamic world. This virus was about to extinguish the flame of awakening. If the following verdict had not been issued, Muslim nation would have deprived from the light of printing houses:

Ottoman Sultans called for a verdict to print the religious books depending on the jurisprudential rule: “Things are of its purposes[21]“, (during the highest military strength and regarding the intellectual and cultural aspect of the Ottoman empire, Sheikh Sa’dullah had a moderate view in this regard).

On the other hand, the orientalists, whether in their countries or during their stay in the muslim countries, were keen on guaranteeing the ultimate level of precautions to decrypt and understand the Islamic texts correctly. For example, they sought the help of arabs in recording and publishing the arab heritage texts after launching at their universities classes for studying oriental languages and arab literature…They also established departments for arab heritage studies. They also assigned a text reader as an assistant to the professors and lecturers[22].

In addition, a detailed dramatic scene can be noticed through researchers’ testimonies:

The servants of mosques were, until the beginning of the 20^th century, the guards of those treasures….They sold them in bulk to the traders of lupine, beans and pumpkin seeds to use them in packing their goods before the spread of newspaper and magazines.

Count Philippe de Tarrazi narrated a story of a servant called Ibn Al-Solemanee at the middle of the 19^th century who assigned with a monthly salary as librarian for three large libraries inside mosques at Egypt. This assigned man used to earn a living by selling sugar cane. He used to sell with his goods bulks of manuscripts from the three libraries for those who pay him one or two piasters[23]. Had apprehension over orientalist’s production turned into a positive challenge? Had the wise nation changed its stance of the intellectual discipline?

What has been presented in the international book fairs across muslim countries and the cancerous growth of publication houses that reprint heritage books depending on fake authentication committees; leading to the distortion of the scientific subject, assures that muslim nation, in general, had not retain its compass.

An Arabian said: Compare between the arab manuscripts published by the western scientists and those published by us. Compare between the edition of Tarekh At-Tabaree (The history of At-Tabaree) published in Egypt and the one published in London, and the same for Tareekh Al-Maso’ody or A-Shahrastany. In fact, our printings are almost invalid due to the poor material of the papers, the presence of many errors and the lack of glossaries, annotations, commentaries and critical analyses[24].

The orientalist studies have faced accusations and doubts in various situations due to the defensive tendency of the exhausted muslim mind. Thus, no agreement has been reached in setting a referred definition of this prepared cognitive “enemy”.

Arab intellectuals (and non-arab writers composing in arabic) did not agree upon a certain definition for the concept of orientalism or even its first appearance. Thus, there are four concepts about orientalism, starting with the general concept till the specific one. In addition, there are more than twelve opinions about its launch and first appearance.

According to the Arab researchers (and non-Arab researchers searching in Arabic), the first appearance of orientalism is not accurate; dating back to a period of more than six hundred (600) years. Some believe that its beginning was at Mo’tah battle, during the era of the Prophet (ﷺ). According to some muslim scholars and intellectuals, the year of 1312 AC witnessed its official launch by the declaration of the Ecumenical Council of Vienne. This issued declaration aimed to establish a number of arabic classes as well as other languages in some european universities[25].

Nowadays, the term “Orientalism” is not mentioned in the western academic field except in few contexts. This is because life lasts with the activeness provided to humanity and terms like their connotations are living organisms.

Orientalists: Fiqh and Usul

According to the orientalist system, just few orientalists, who had devoted their lives in studying Fiqh and its branches, focused on the jurisprudential studies field. Most of the orientalists just transmitted the studies of their (specialized) colleagues and benefited from the conclusions of their researches. Yet, they focused on general issues such as checking its authenticity and validity for muslim societies[26].

Judaism is a doctrine which does not accept coverts as it was sent specially for few groups who regard themselves as the “Chosen People” and believe in the immutability of the Jewish jurisprudence as well as the interpretation of its rulings. On the other hand, Christianity is a lifestyle, or a doctrine, which relies, according to our scholars, on character development; aiming to purify man’s heart from any weakness. Jesus said, according to the canonical Gospels, that his aim is not to violate the “Law”. However, Paul’s teachings did not follow the footsteps of Jews in formulating juristic rulings but set its own special system.

Some orientalists believe that Islam is the closest religion to the Jewish paradigm, while others adopt a totally different view. In fact, orientalists, while reading the heritage of Fiqh, were affected by the tendency which does not depend on the absolutes represented in fundamentalists’ writings. Most of the orientalists tend to support the notion that the Shari’ah (Islamic legislation) was affected by the Roman law, but they disagree upon the degrees of this influence. Some of them, such as Goldziher, Von Kremer and Sheldon Amos, argue that the Shari’ah is derived from the Roman law on which Muslim jurists depend as a source of the islamic legislation. Sheldon Amos explicitly said: “Mohammedan Law*a is the Roman law of the Eastern Empire adapted to fit the political situations in Arabs lands” he also added: “Islamic Law, is the Roman Justinian law in (an) Arabic veil.*b“

Those orientalists set their allegations according to different evidences. First and most important, the Prophet (ﷺ) was well-acquainted with the Roman law. Second, Muslim jurists also knew the views of the jurists of the Roman law scholarships and the Roman court rulings at countries where those schools and courts were still operating after the Islamic conquest. In addition, both the Shari’ah and Roman law have some similarities regarding their legal regulations, rulings and principles. Thus, this reflects that the Shari’ah quoted those regulations and rulings from the Roman law, being the antecedent [27].

On the other hand, Muslim scholars refuted these arguments and proved its incoherence. Some researchers referred to the methodological way adopted by orientalists in dividing the juristic heritage into rulings and fundamentals. This is their way to reach the rulings which the fundamentalist system keen on protecting them against any mistake, whim or even weakness in investing the utmost intellectual powers. However, orientalism, in its analogy regarding this significant field of Islamic cognitive structure, depends on weak hypothesis as follows:

While studying Fiqh, orientalists followed the same approach applied for studying the Roman law. They believed that it had been a traditional legal system but did not maintain the same level of power and effectiveness. Thus, they assumed that Fiqh is an invalid legal system too. They focused on the aspects of the common traditions and customs in Muslim societies which sometimes contradict the Islamic teachings. In fact, they aim, by this approach, to prove that Fiqh is inapplicable at all ages and places[28].

Most orientalists spread this idea through their writings. Some researchers mention that Dominico Gatteschi, an Italian orientalist. In his book entitled “Manuale Di Diritto Pubblico E Privato Ottomano” (Ottoman Public and Private Law), published in Alexandria in 1856, he is the first one to claim that the Islamic law in its essence is derived from the Roman law[29].

This Italian orientalist strongly defended his claim that shows that the Islamic law in his essence is derived from the Roman law. He was a lawyer at the Mixed Court of Appeal and a member in The Egyptian Institute. He linked between his scientific background and field experience in Egypt. With an exotic way, he explained the deep influence of the Roman law on Fiqh; the idea which was adopted later by many orientalists. He claimed that the Roman principles found their way to Islam through the fabricated Hadiths (Prophetic Sayings) which was falsely attributed to the Prophet Muhammad (ﷺ)[30].

Muslim scholars refuted some of these arguments depending on historical sources. Yet, this strong orientalist argumentative tool requires an up-to-date research on the historical facts which specialists agreed upon. Unfortunately, some believe that this (up-to-date research) is a kind of luxury or aims to weaken the Islamic cognitive and religious structure. They forgot that each battle has its own abiding rules; as catapult cannot defeat missiles.

Some doubts aroused by the orientalist means, depending on a special reflection on the historical data, relate to the feature of constancy and the unity of the main source:

Wilfred Cantwell Smith categorized the religion of Islam into three types: the religion of Quran, scholars and populace[31].

This categorization is applied also by some researchers who divided Islam into the religion of jurists, theologists, population and others. These divisions cannot be judged by its own titles without analyzing its elements. In fact, their opinions clearly are echoes of orientalism and an implicit declaration of its spread among the most important areas in the field of authentication and deep inquiries.

Orientalists reflected on the change of the juristic status within the framework of various issues and searched for its fundamental structure. Then, they reached a suitable conclusion and their assumptions, therefore, are set as historical facts:

Duncan Black MacDonald believed that the nation’s consensus can be legislation even if it contradicts the Quran or Sunnah. Similarly, Morroe Berger said: “Religion is affected by the surrounding environment, so what was suitable in the past cannot be suitable nowadays. What works today is not necessarily to be valid in the past[32].”

In Encyclopedia of Islam and through the term Ijma’a*c (Consensus), Duncan Black MacDonald, an american orientalist, mentions that what had been regarded as innovation (Beda’h) became acceptable, abrogating the basic rulings, by consensus. For example, supplicating Allah through a dead pious person (*as an intermediary) becomes practically part from the Sunnah. Surprisingly, believing that the Prophet (ﷺ) is sinless makes Ijma’ deviates from clear Quranic texts. Consequently, Ijma’ does not focus only on deducing the rules of undiscussed issues but totally changes very significant fixed doctrines. Thus, they believe that Muslims can formulate Islam according to their wishes under the condition of consensus. On the other hand, Snouck Hurgronje believed that Fiqh is fixed, so consensus has no function[33].

Through obtaining the original texts and depending on reasoning in understanding and interpreting them and tracing their development or change, the orientalists reached some results irrelevant to the features of the religious Islamic structure:What are the shortcomings of their methodology and the weakness of Muslims Ijtihād? Those raised questions refer to major issues concerning the juristic thinking such as renewing the fundamentals, the conditions witnessed the beginning of the religious knowledge, intervals between the constant and the flexible, the lack of the juristic philosophical studies and other modern pressing dilemmas apart from the tendency towards Al-Motoun. This arena should welcome real questions. No one can give a satisfactory answer unless he deeply studied the texts and Motoun and responded to the pressing mind appeal in understanding the spirit of the era with its major challenges.

The archeological tracking of orientalists’ thoughts helps in understanding the imbedded viruses in our central system.

Wael Hallaq, whom English writings deal with Usul and his main writings are inspired by orientalist references in its context and approach, declared that his intellectual project aims to combat the injustice of orientalism without denying the role of orientalism in shedding the light on some undiscovered topics. He noticed the high esteem that As-Shafi’i gained by orientalists regarding him the “Master Architect” (exceeding his prominent position in the Islamic history). In fact, this is the first step towards forming a historical cognitive system that led to the decline of both the Islamic history and Islam as a whole.

As a complement to the first step, the second step is to continue praising As-Shafi’i. It is a certain concept which makes the first two centuries of Hijri year a significant period that developed and comprehensively articulated the Shari’ah. Islamic Shari’ah is a mere copy of the Greek, Roman and Jewish legislations[34].

Our scholars were aware of such important elements in the issue of the history of Usul Al-Fiqh regarding its methodology and themes. For example, Shiekh Abu Zahrah, since the previous century, asserted:

“We could not declare that As-Shafi’i reached the ultimate knowledge in all aspects leaving no one to exert more efforts after him. Yet, scholars, after him, added, developed and wrote many issues in this field[35].”

Some orientalists use As-Shafi’I’s views to underestimate the other scholarships (Mazaheb). Some regard the differences among scholars in the issues of Usul Al-Fiqh as an evidence that prove some contradictions in Islam which put its followers in an embarrassing situation. In addition, they intentionally quote some statements to present such argument as verbal and moral battles apart from virtues at any way and an evidence of weakness of the fundamental structure pillars (accusing Islam in a scientific way).

For example, the views of R.Brunschwig meanly support As-Shafi’i as being one of the big opponents of issuing verdicts via civil consensus in favor of tradition neglecting Fiqh, or more precisely in favor of customs neglecting religion.

Orientalists adopted a historical postulate as a historical fact to construct the backbone of the orientalism system:

Classical orientalists believed that the light of culture had never visited the Arabic region, during the era of the Prophet (ﷺ). They also believed that Arabs did not depend on their ineffective cultural sources to build their developed cities and empires and formulate their legislative systems. Instead, Arabs adopted with no shame some elements from cultures of societies they conquered especially the Byzantine, Roman, Persian and Sassanid. Thus, Syria and Iraq became the beacon of the legislative knowledges[36].

Acculturation in history of sciences is a natural process. Yet, describing the Islamic environment as poor and infertile can be refuted only by a historian who depends on all the historic impacts, materialistic and non-materialistic, and views the results of his researchers boldly as a specialist, apart from delusion.

Paradigms of Orientalist Views:

The following paradigms are extracted from books written by devoted orientalists on whom others depend such as Goldziher through his book “Introduction to Islamic Theology and Law: the development of Islamic theology and law[37]“.

To present the whole notions of Goldziher and other orientalists, all their writings should be read thoroughly. In fact, they deliver all their central ideas through all their writings. For example, Goldziher’s book “Die Richtungen der islamischen Koranauslegung” (Schools of Quranic Commentators) shows some ideas about legislation and Fiqh and his view about the Quran and the types of its explanation (Tafseer). This has a direct relationship with his view towards the authenticity of Fiqh and Usul. Here, we tackle just a sample from his famous book about theology and Shari’ah.

Goldziher was born in 1850 and died 1920. His lifespan had a very significant and critical impact on the life of Muslim nations. In fact, this period witnessed the trials of distorting the Islamic heritage and desecrating the Muslim soil through one organized attack and a comprehensive plot developed by the allied civilized counties. Their aim was to divide the legacy of the last Islamic empire (caliphate*).

Being a specialist in Semitic languages, Goldziher traveled to Syria with Taher Al-Jazae’ry and visited Palestine and Egypt. In Egypt, he became well-versed in Arabic through his study in the Mosque-University of Al-Azhar. He became one of Al-Azhar’s followers and met Muhammad A’bduh. He collected the books of Dawod Al-Zahery and Ibn Hazm Al-Andalusy and other books in various European languages. He wrote about Islam in the field of Fiqh and literature and he also wrote about Jews. Among his masterpieces are: “Hebrews,” “Beitrage zur Literaturgeschichte der Shi’a“, “Mythology Among the Hebrews” and “Islam” (written in German and translated into French with the title “Le Dogme et la Loi de l’Islam, Histoire du développement dogmatique et juridique de la religion musulmane”), “Abhandlungen zur arabischen Philologie“. He also authenticated and studied ديوان الحطيئة “Diwan Al-Hatea’h” and composed other books in theology, Fiqh, Hadith, Quran, prophetic biography, history, arabic poetry and literature as well as some books about religions such as his study in “The Calf of the Samaritan.”[38]

Goldziher used to update and revise his reasonings. He stated in the preface of his book that receiving invitations for delivering lectures supporting the Academic movement in the West requires ongoing update and revision. He said: “The American Committee invited me to deliver lectures on the history of religions during the spring of 1908[39].”

His Significant Notions:

It seems that the final image of Islam is a result of different impacts. Some impacts appeared by regarding it as a moral concept of the world and a legal and theological system[40].

Islam is somehow pigmented with the Hellenistic ideas and its accurate jurist system is affected by the Roman law. In addition, the Islamic political system, formulated during the Abbasids, is a reflection of the Persian political ideas and theories. The Islamic Sufism reflects the modern Indian and Platonism philosophical ideas[41].

Thus, Goldziher depicts Islam as an intersection point between the philosophical and religious movements. He does not reflect the notion of “wisdom is the lost property of the Believer” but aims to show that Islamic heritage is just a mere fabricated process.

Goldziher misleadingly says: Islam, in all these fields, asserts its eagerness and potential in adopting and representing those views. It also asserts its capability to merge all these foreign elements into one source. Thus, the nature of those elements is not obvious unless by a deep analysis and an accurate critical research.

In detailing his idea, he adds: During its second expansion and by the influence of the foreign impacts, Islam opens the door for the jurists and their verdicts and for the theologians. The insertion of wisdom-based thinking into the principles of the obedience and faith (a true belief) in Allah was the reason behind its distortion[42].

Goldziher’s notion is regarded as a postulate which almost spread among the writings of orientalists who are interested in forming the Islamic Shari’ah. They believe that Islam is incomplete and does not provide its followers with all the necessary pillars to lead their lives. According to this concept, the upcoming development could not be achieved without “snooping on” the previous civilizations during the journey of expansion.

Goldziher says: Muslim thinkers allowed the application of thinking approach on the religious issues which were fixed, at that time, in the Arab countries while the legalization of practical life issues and the worshipping acts categorized in a set of necessary fundamentals were unfixed. The developments of Islamic thinking, setting the practical forms and establishing systems were achieved by the next generations. This achievement was but a result of an inner devotion and success. Therefore, it is not true that Islam, as a general, “came to the whole world with one comprehensive approach”. On the contrary, Islam and Quran are not integral as its integrity is achieved by the contributions of the next generations[43].

According to Goldziher, the natural development of the jurist reasoning (Ijtihād in Fiqh) is free from established principles, as the historical Islam that is inspired by many sources almost does not reflect the first original Islam. This norm is the core of the orientalism absolute system.

The development of the Fiqh and Islamic thought is natural as it reflects the role of the Muslim intellect in establishing the cognitive and moral system that paves the way towards a successful succession. Yet, Goldziher, through his analysis, reached different conclusions.

Due to its necessity for the public life, the development of the Islamic jurisprudence began directly after the death of the Prophet (ﷺ)[44].

It seems that Goldziher views, in an objective way, the path of the jurist reasoning regarding the modern issues and pressing contemporary issues. While contemporary issues are like an ongoing stream in humans’ life authentic Ijtihād requires thoughtfulness and deep study. Tackling this socio-intellectual phenomenon, he aims to reach a conclusion that proves his principle absolutes. In this regard, he added:

In Levant, Egypt and Persia, all people are harmonizing the traditions and customs of these multicultural countries with these modern laws. In general, the Islamic juristic life, regarding religious or worldly life, has been subjected to legalization. The Quran itself does not set but few rulings, as its rulings cannot include all those unpredicted relationships resulted from the Islamic conquests. The Quran focuses on Arabs simple lifestyle in a way that allows no space for this new situation[45].

The internal development and movement of Fiqh is an agreed reality as it is the nature of the religion as a fulfiller of human needs anytime and anywhere. Yet, the background of the religious epistemology and adapting reasoning, according to Goldziher, deviate towards secularization being a way for denying religion itself. In this regard, he explains:

Those rulers, seeking worldly life, who boosted their new state, did not give big attention to these needs if not abandoned them. Yet, they were interested more in the religious legal systems that strengthen the state and call for capturing what had been conquered by sword for the sake of Arabs[46].

Injustice monarch, tyrant rulers and dominant power cannot negate the independence of many judges and jurists. The detailed study of the history parallel to the history of kings and Caliphs reveals many enlightened pages of a free Muslim mind. Yet, Goldziher has a different view:

Regarding the religious matters of daily life, they simply depended on legal traditions. To settle the disputes, they depended on the aspirations of their wit. Thus, I believe that they, by this way and according to their desires, did not really follow those rules set during the era of the Rightly Guided Caliphates[47].

The approach of establishing the fundamentals of the fixed rulings in Fiqh was not that easy as described by Goldziher. He intentionally forgets this reality as he adds:

Any deed or ruling was regarded to be sound if proved to be attributed to a lengthy chain of transmission back to the Companions who witnessed and heard it from the Prophet*d. These Hadiths replace traditions, regarding worshipping or legal affairs, as sacred after being authenticated[48].

Regarding Hadith, Goldziher says: Hadith contributed in transmitting to Islam some quotes from The Old Testament, The New Testament, Rabbis’s*e sayings, the fabricated Gospels, Greek philosophical teachings or Persian and Indian proverbs.

Describing the Hadith as an arena for fabrications from different sources is similar to the science fiction, but it raises it to a higher level. In this regard, Goldziher adds:

Skepticism leads to the appearance of an approach prevailed since the beginning of Fiqh by which its followers use, beside the sound Hadith, fixed tools to deduce the religious principles. It was believed that these renewable relationships were better to be legalized by Qiyas (deductive analogy)[49].

According to the history of Usul Al-Fiqh, Qiyas is a study field of positively open research. Some scholars compare it with the logical analogy, while others show its Islamic approach regarding the principles and outcomes. Ancient books narrate the story of the fundamental argument in this regard. Thus, the door is still open for refuting Goldziher regarding the nonscientific and subjective issues. It is necessary also to retain the authenticity of research, regarding such issues, back to the field of specialists apart from any limited reliability delaying confrontation which its absence is in favor of orientalists and their followers.

In his book, Goldziher represents the falsified Roman law as a historical fact:

Unsurprisingly, these applied juristic teachings and preferences were also affected by foreign cultures. In addition, the Islamic Juristic knowledges, for example, according to a verified modern research, have some undenied impacts from the Roman jurisprudence; whether in its approach or sub-rulings[50].

The term approach means the tool used to reach the Rulings which exactly means in Islamic expression Usul Al-Fiqh. Goldziher sets the timeline of the history of Fiqh in a way that serves his principle theory. In general, Muslims follow a strange way in guarding this cognitive field, regarding Fiqh and Usul-Al-Fiqh as sacred sciences and not resulted from human reasoning that sought certainty but failed. The wisdom of Allah the Creator appears in this regard. Beside allegations of some orientalists almost trying to deprive Fiqh and Usul-Al-Fiqh from its authenticity and wet, we notice, sometimes, some writings which are presented as flawless. Yet, some authenticated and thoughtful writings started to find their place within Islamic Academic writings which regain the position of the issues of Fiqh and Usul-Al-Fiqh to the field of the living Islamic genuineness.

Goldziher details the conclusions of his absolutes saying:

Whatsoever, these scientific jurist writings which flourished during the second year of Hijrah added to the Islamic intellect a new subject called “The Science of Fiqh,” a religious law which is degenerated after focusing on various details in the religious life and knowledge in a negative way. The political change had a huge impact in its development as it directed the Islamic soul to a new path; the downfall of the Umayyad empire and the rise of the Abbasid empire[51].

The link between the history of Fiqh and Islamic judiciary with the ruling systems is crystal clear in the historical writings. Orientalists aim to direct this data to serve their preconceptions aiming to combat any authenticity or reasoning in the Islamic structure.

As if his aim is to impress a naïve recipient, Goldziher adds:

Generally, the Hadith of “The difference of opinions among my nation is a mercy” urges all to reconcile with each other. We have many evidences that prove that this principal represents the successful resistance against enemies’ attacks inside and outside on those various jurist writings in their unfixed forms.

The difference in the Islamic system mentioned in some writings of orientalists refutes the flawless of the sources and the possibility to establish a united structure for the principles, especially in relationships.

Goldziher’s view about Qiyas does not differ from his view on Ijma’ which has been controversial among scholars but not in a way that serves the orientalists’ objective.

The circle of Ijma’ at the beginning referred to the spirit of general consensus more than an exact religious one. They tried but in vain to limit it to a certain time and place to prove that it refers to the consensus of the Companions or the ancient dwellers of Al-Madinah. In fact, this limitation cannot be achieved due to the recent developments. On the other hand, it is not appropriate for the religious systems also to leave Ijma’ unrestricted depending only on the innate feelings of the group…In fact, this approach is applied by the revivers of Islam nowadays as being the way through which the factors of youthful strength insert into the structure of Islam[52].

The schools of renewal in the Islamic world do not follow one principle. Some norms categorized as renewal movements spread among the orientalists. They are eager to destroy the Islamic fundamentals sometimes under the supervision of occupation which honored their advocates like what happened in the British Raj*f.

Goldziher’s General View: Flexibility in Fiqh

Some complicated matters were simplified or tackled by spending more efforts in explaining texts and providing interpretation setting the permissible and prohibited in Fiqh. According to Fiqh, the term permissible or prohibited refers to the desire and recommended or the undesirable. The orders and the forbidden mentioned in the texts are not punishable and are not consider to be illegal[53].

Differentiating between the Islamic ruling and the legal content is necessary for an objective observation. Their combination is achieved due to the abovementioned absolutes set by orientalists.

Goldziher’s Judaism appears through the following observation which seems to be a mere criticism but with no harm towards Islam; the religion that respects Moses, Peace be upon him, in such cases:

Eating animals is allowed only if Allah’s name is mentioned. This may refer to the Jews tradition called Berakha[54] *gwhich is performed before the slaughtering and eating. It is forbidden to abandon this tradition.

According to the sociological explanation of the Jurist Rulings tackled by Muslim historian explicitly:

We want to notice, in this regard, that the collected Wine poems (Khamriyyat) in Islam as well as the role played by drinking wine in affecting jurists, who were the rulers of the believers and the governors of the state, do not reflect the group following the tradition of “Wine is the mother of all evils.**h” Yet, this was due to freedom and the easiness in neglecting recognized Legal Rulings….Some deduced that all beverages are allowed except the grape wine only if it causes the one to get drunk. They, by this verdict, fabricated many Hadiths like the Hadith of A’ishah: “Drink but do not become intoxicated “[55]*i.

The authenticity of this quote attributed to A’ishah, may Allah be pleased with her, is discussed by scholars in the section of beverages. Orientalists’ understanding of this saying proves the permissibility of twisting the forbidden depending on some parts of fundamental Islamic Heritage. Whoever reads narrations about breaking the taboos, which are not few in the Islamic history writings, will not suffer a heart attack when reading Goldziher’s. He mentions that Sharyk, the judge of Kufa during the era of the Caliphs Al-Mahdi, used to utter the Prophetic Hadith while there is a smell of Nabeez*jout of his mouth[56].

Adapting the jurist verdicts to fit the real life and people’s keenness on abiding the religious values and duties can be analyzed in an objective way. Goldziher intentionally exaggerated when considering Fiqh as serving one’s whims without referring that the books of Fiqh were free from human flaws that twist the orders. Jurists’ mutual criticism allows the ongoing update of the program of purification and protection of Muslim guided intellect. For Goldziher, Fiqh and Usul Al-Fiqh can be a twisting tool for achieving whims,

Similarly, different opinions regarding permissibility depended on this artistic skill according to the quantity and quality, a major section of teachings of difference among Muslim Jurist Scholarships appeared across the Muslim world. According to the historical theory of Islam, it is enough to prove that the majority of those scholarships, in many situations, consider the principle of Ta’weel*k(interpretation) to balance between the life in the light of Fiqh and the real social situations as well as matching between the limited law of Mecca and Al-Madinah and the modern universal variable conditions. This need emerged after conquering the foreign countries and the direct contact with totally different lifestyles[57].

Goldziher’s analysis of an unknown phenomenon in the history of Fiqh leads to results adopted nowadays by those who attribute the decline of Muslim status to such phenomena:

As a result of these extraordinary efforts described, Iraq witnessed the spirit of accuracy and elaboration. Due to this boring accuracy, futile annotations, imagination of unreal possibilities, keenness to grasp issues of legalistic trickery (Ḥiyal)*l with bold imagination and extraordinary accuracy, the commentary on Allah’s word and life legalization become on the margin[58].

It is normal for the jurist to react with the real life, and people to search for ways out of their mistakes due to their weakness. However, the expanded role of the jurist may predict a flaw in the Islamic conscience. Muslim researchers noticed this matter by focusing on other fields to develop the conscience such as Sufis’ approaches. The presence of some unaccepted cases such as those mentioned by Goldziher does not require a denial especially when they are scattered among the books of verdicts and contemporary issues:

In an affirmative and negative form, popular superstitions and jurists seriously discussed the permissibility of including some members within the quorum necessary for Friday Prayers; showing the necessity of this matter to be discussed in the light of Fiqh…. The issue of marrying a jinni and the offspring resulted from such kind of marriage and the relevant domestic rights.

In addition, the jurist explanations inserted legalistic trickery to twist the rule for one’s own benefit. In fact, they are juristic verdicts which reflect a necessary part in Fiqh and are used widely in the issues regarding faith to soften one’s conscience in asking the jurist about his opinion for a Makhraj (legal exit*m)[59].

Goldziher depicts Fiqh as a giant who swallow the details of Muslim’s life. In fact, this depiction reflects his superficial understanding which neglects other wide areas of Muslims’ life:

The religious life itself focused on the juristic view which absolutely could not be useful for strengthening the sound piousness and Divine knowledge[60].

These are some of Goldziher’s ideas which he deduced from some principles and absolutes that negate objective historical research and its conclusions as a researcher in the Islamic knowledges described by specialists as incoherencies and real controversial issues.

The Paradigm of Joseph Schacht:

Joseph Schacht was born in 1902 and died in 1969. He was interested in manuscripts especially those found in Istanbul, Cairo, Tunisia and Fes. He studied in many international universities among which is the University of Algiers in 1952. He was devoted to the study of Islamic legislation, its history and influence. He also authenticated and studied Al-Khassaf’s   كتاب الحيل والمخارج“Kitab Al-Hiyal wal Makharej“, Al-Qazwini’s  كتاب الحيل “Kitab Al-Hiyal” (Buch der Rechtskniffe), Al-Shaybani’s المخارج في الحيل “Al-Makharej fel Hiyal“, two books of Al-Tahawi in Shufa’ah*n, rights and mortgages and الرسالة الكمالية “Al-Risalah Al-Kamaleah” (Theologus Autodidactus) of Ibn al-Nafis. He also sectioned the Shari’ah Rulings of Ḥanafīs, written by the orientalist Bergsträsser. In addition, he composed a book in the beginning of Fiqh and another one as a summary on Fiqh. He also participated in publishing the new edition of the lexicon of Hadith terminology by Wensinck. He presented and commented on Al-Maturidi’sكتاب التوحيد  “Kitab al-Tawhid”. He contributed in publishingدائرة المعارف الإسلامية “Dā’irat Al-Ma‘ārif Al-Islāmīyah” (Encyclopedia of Islam). He was interested in what he named “Islamic renewal” by studying the Shari’ah and law of modern Egypt. He was known for the theory of narration fabrication which he called “Back-Projection”. He, like many orientalists, adopted the central notion that shows that Fiqh is a result of  historical development[61].

Examples of his notions from his book “Usul Al-Fiqh“[62]:

At the preface of the translated version of this book in Arabic, written by the editor in chief of Dā’irat Al-Ma‘ārif Al-Islāmīyah (Arabic Edition), the plot around translating and commenting on the book is obvious. Yet, while reading the book we can notice the arrogant dull rigorousness of the orientalist and the deep affection of Al-Shiekh Ameen Al-Kholy, the commentator, who was Schacht’s colleague when the latter was a visiting professor in the faculty of Arts at the Egyptian University in 1934.However, the absolute value of the scientific knowledge for both sides declares that it is a rude battle. It expects from an exhausted mind to reach scientific achievements with outdated mechanisms compared to those available for the opponent.

Schacht built his view depending on some partial issues in the Islamic history without considering the refutations of Muslim scholars such as:

Criticizing the Prophet (ﷺ) for: in (p.23) forgetting some Quranic verses depending on verse no. 100 and the following one of Surat Al-Baqarah ( the Cow) and verse no. 6 of Surat Al-A’la (the Most High).

In addition, (p. 36) mentioning the abrogation of older verses by new verses such as verse no. 103 of Surat An-Nahl (The Bees) and verse no. 100 of Surat Al-Baqarah (the Cow)[63].

He believes that some Quranic Verses contradict each other and exegetists, to find a resolution, used Ta’weel and the techniques of abrogator and abrogated particularly in rulings:

“Exegetists themselves were responsible for clearing the contradictions found in some Quranic verses”[64].

The central notion of orientalists in underestimating the Sunnah too is apparent as follows:

Muhammad (ﷺ) did not intend to establish a system for organizing the life of his followers or at least to set the rules of this system. The Arab pre-Islamic custom, which was affected by many foreign elements borrowed from regional Rome, Babylon and Yemen, allowed the normal pace of Islam which encountered some changes to adapt with the Bedouin regional conditions[65].

Schacht supports the notion that the juristic ideology and its results were dependent and parasitic on the human heritage by saying:

The Arab pre-Islamic custom, which includes many foreign elements borrowed from Rome, Babylon and Yemen, lasted. Islam was affected by some changes to adapt with the regional conditions of Bedouins, the dwellers of Mecca, as a center of trade, and dwellers of Al-Madinah, as an agricultural country. Regarding legislation, Muhammad*oonly focused on addressing some issues depending on religious considerations. This is because the rulings relevant to the social life depend also on religion. In this regard, external motives were the reason behind addressing most of them[66].

Through his writings, Schacht supported a notion adopted by many orientalists which states that all the Juristic rulings found in the heritage of Fiqh do not depend on one sound Hadith. In addition, orientalists did not depend on Revelation in showing the role of the Prophet (ﷺ) and as a result the Companions are not regarded as distinctive:

In (p.56) after the death of the Prophet (ﷺ), the Caliphates tried to rule the nation following the footsteps of the Prophet Muhammad (ﷺ) and the opinions of the Senior Companions. When they tried to expand these somehow limited principles, they widen the scope of its interpretation; deducing meanings apart from the original one, which may be the reason behind the appearance of fabricated Hadiths. The custom law lasted as it is without encountering any change even after being affected by many foreign influences due to the great conquests in Iraq, Levant and Egypt[67].

The development path of both judiciary and Fiqh can be tackled by linking the political environment of the Islamic state and several challenges facing Muslim mind due to conquests and cultures, which became an integral part of the internal challenge especially in the battle of reviving the faith of Muslims with different backgrounds. Scholars refuted the issue of Hadith and orientalists’ allegations doubting its authenticity. For example, Muhammad Al-A’dhamy and others analyzed the methodological path adopted by Schacht in his view on Hadith recording[68].

The discussion of the equation of Fiqh and customs or religion and traditions is similar to Goldziher’s:

The custom law was prevailing across different regions of Muslim Caliphate without any obstacles and was developing altogether with the actual judiciary system. That is because the successors of Umayyad Caliphate till the era of Umar ibn Abdel-Aziz did not pay much attention to change this custom law and establish standards on religion basis[69].

Schacht criticizes the authenticity of the Companion’s saying when discussing the efforts of Muslim jurists, whom he calls pious men, to harmonize such laws and set them with the principles of Islam in a special system. In deducing their religious views, they depend on the Quran and Hadith, their canonical sources, and the sayings and deeds of the Companions (whether sound or fabricated); regarding themselves as their successors[70].

Depending on the fabricated sayings of the Companions to support their argument is due to the dependence on the fabricated Sunnah which, according to his opinion, are not regarded in the Quran as flawless:

“Fiqh mainly depends on the Prophetic Tradition (whether sound or fabricated). Muslims regard the Sunnah as flawless although this view is not explicitly prescribed in the Quran”[71].

Regarding the Hadith, Schacht explains its expansion due to the interference of some foreign elements such as the Isra’iliyyat*p (Israelite Traditions) through which Sunnah based legislation becomes a bridge for Jewish jurisprudence and ideology:

The overwhelming growth in the subject of Hadith coming from other sources inserts different new elements especially those of Israeli reference into the Islamic Shari’ah [72].

Studying and authenticating Ash-Shaybānī’s masterpieces, Schacht compares between the impacts of his classified collections (Musanafat) in Iraq and those of Malik in Al-Madinah. This comparison is based on the orientalists’ approach in analyzing the relationship between custom and Fiqh and their interpretation of the issue of the traditions of Al-Madinah’s dwellers or the Madinese consensus (Ijma’ Ahl ul-Madinah). They, also, highlight from the fundamental controversy among scholars what underestimates the value of Sunnah. They achieve this by refuting the principle of the Madinese consensus as most of them focus on Al-Shafi’i’s opinion in this regard.

Schacht states:

“The Madines consensus does not in any way reflect the exact Sunnah. Consensus presents the custom law with an Islamic garment. Some Ash-Shaybānī’s classified collections in Iraq have the same impact of Malik’s in Al-Madinah[73].”

Schacht mentions the role and view of Al-Shafi’i regarding the Qiyas (reasoning analogy) and Istehsan*q and the influence of the different opinions around Ijma’. Adding some critical commentaries on some Schacht’s views which are published in the same book, Shiekh Al-Kholy does not mention any of this significant historical narration. In fact, this is an implicit acknowledgement of the objective cognitive value of Schacht’s views, as an authenticator, examiner and collector of Islamic Juristic heritage, aiming for freeing those various manuscripts from the cage of negligence or seizure, if they were not destroyed, In addition to his conclusions as a non-Muslim and without abiding by absolutes which are the core of the religion for a Muslim.

Shiekh Al-Kholy did not comment except in refuting the notion showing the stance of the Twelver Shi’ah (Ithna ‘Ashari) on the Sunnis books of Hadith.

The Paradigm of T. J. De Boer:

Boer is a Dutch orientalist who died in 1942. He studied Arab literature and, being a specialist in Islamic philosophy, he recorded its history in his significant book “Geschichte der Philosophie im Islam*r” written in German language in 1921.

De Boer presented a thematic chronological reflection on the contributions of Muslim mind. Muhammad ‘Abd al-Hādī Abū Rīdah, one of the prominent scholars in philosophy and Sufism of the 20^th century, translated and commented on his (De Boer’s) book. Yet, it is obvious that the commentaries do not doubt, in general, the historical material on which the reflections and views depend, but focus on the orientalist’s conclusions which are apart from the pillars of the Islamic religious system.

De Boer believes that Muslims dependence on the Roman law was inevitable due to the state expansions:

In (p: 79) he states:”After conquering many countries with ancient civilizations, totally new requirements which Islam never witnessed appeared in many fields …Then, the number of partial events, which have no reference in the Texts, increases daily. Thus, Muslims had to find rulings for them depending whether on the inherited customs or Ijtihād. Indeed, the influence of the Roman law on this lasted for a long time across Levant and Iraq; among the states of the old Roman Empire.[74]“

De Boer was interested in the adherents of the Ra’y*sin Al-Madinah and Malik’s scholarship. He attributes its development to the issue of Hadith fabrication. He believes that Muslims were interested in the chain of transmission not the narration. Goldziher[75] mentions, in his abovementioned book, Muslims’ eagerness towards addressing the Hadith contradictions through the science of impugnment and justification, as an example, as well as addressing the contradictions among the Quranic verses:

According to De Boer, jurists of Al-Madinah, before the era of Malik, used to depend on their reasoning properly but in limited cases and so as the followers of Malik themselves. However, when people started to reject reasoning gradually after being a justification for whim-based rulings, the view of those adherent to Hadith which represents the Sunnah found many supporters. Thus, Prophetic Hadiths were collected from all quarter, and incorrectly interpreted, and in large numbers even fabricated. As a result, a system of criteria to distinguish between the authentic and fabricated Hadiths was formed. These criteria focus on the chain of transmission (Sanad) of Hadith and its adequacy with its purpose more than focusing on the soundness of the Hadith regarding any logical contradiction or its attribution to the Prophet[76].

De Boer sets an analogy between the juristic system in Islam and the class of clergymen in Christianity regarding its transformation during the empire stage. In his analogy, he does not put into consideration the obvious hindrances, the most important of which is the absence of the concept of clergymen in Islam and that the jurist really is not entitled to observe consciences or set himself an intermediate between the individual muslim and his Lord: “The consensus of the congregation or, particularly, the consensus of the most influential learned men, who may be compared to the fathers and the teachers of the Catholic Church *t…[77]“

De Boer also believes that the beginning of Fiqh was not much welcomed as many groups in the Islamic society rejected it because of its essence: Similar to reactions towards every innovation, Fiqh at first encountered violent opposition; turning the commandments into doctrinal theories and believing obedience into abstruse pursuit of knowledge; that called for protestation alike from plain pious people and from wise statesmen. But gradually the “knowing” men or men “learned” in the Shaira’h (known in West as Fuqaha’) were recognized as the true heirs of the Prophets*t[78].

De Boer supports the norm of that Fiqh, in its essence, is an ideal theoretical system that can never be applied, in all its purity, in our imperfect world[79].

This spirit of despair is originated from the one-sided view which regards Fiqh as just a law like the Roman one, only observing, through the sentimental development sources for a Muslim, rules that treat man as a robot.

Getting acquainted with the other through international relationships is based on a detailed knowledge of his sentimental and mental map. Orientalism was a peaceful army which invaded Muslims’ minds and legacy. Through its accurate mechanism, it established a database which becomes a reference for the politician, researcher, tourist and journalist. It also launched specialized academic departments and research centers to enrich and update this database. Furthermore, some great online financial foundations, like The Rockefeller Foundation and Ford Foundation, funded such kind of studies. Specialists in orientalist studies, as an academic subject, deliver their lectures at the highest legislative and executive authorities like the congress and military. No doubt that intelligence operation, which is a part of the national security, can never dare to undertake a mission without depending on accurate data and information prepared by a well-established scientist. This scientist is the one who can perfectly present the scientific material based on the original authenticated texts and also suggest his appropriate consultation and opinion depending on an observation serving his country’s interest. A’ishah Abdul-Rahman stated: “Orientalists are human beings like us; they adhere to their religion and nationalities like we adhere to our religion and nationality.”

Fiqh and Usul encountered the battlefields of sound and ideologized knowledge. Muslim individual could not reach a part of the treasury of his heritage unless by contacting with its robbers, researchers or guardians. The views of orientalists regarding Fiqh and Usul are free from any absolutes orienting the Muslim mind.

Some of their views are naturally rejected by the Muslim mind, while others require the efforts of some specialists to undertake an analytical study and follow up the sound scientific views. This can be achieved especially by realizing the earliest interaction of orientalists with our heritage, as they participated in the processes of collection, classification, appliance of the scientific methods as well as its investment in serving the strategies of the conflict among the civilized nations.

Translated by: Rehab Jamal Bakri***

Revised by: Prof. Neamat Mashhour****

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&  The article was Published in Al muslim almuasser Magazine. Issue 153. PP. 29- 72

** A Professor of Islamic Thought and Religions, Islamic Studies, University of Algiers

*  [Remark: (*) & (Alphabetic Letters) refers to a note by the translator]

“Fiqh” here refers to Islamic Jurisprudence while “Usul” or “Usul Al-Fiqh” refers to Islamic Jurisprudence Principles.

* Mozarabs (The Arabized): are, in modern historical terms, the Iberian Christians who lived under the Islamic rule in Al-Andalus

* an impulse control disorder in which individuals repeatedly fail to resist impulses to deliberately start fires

*a a phrase used to refer to Islamic Law, but it is actually inaccurate

*b Retrieved from: (https://kardan.edu.af/data/public/files/KJSSH-v2i1-320112019114050.pdf)

*c is an Arabic term referring to the consensus or agreement of Islamic scholars on a point of Islamic law

*d (ﷺ)

*e Jewish spiritual leaders or religious teachers

*f The British empire in India

*g בְּרָכָה: an expression of praise or thanks directed to Allah

*h according to the Prophetic Hadith: “Avoid Wine for it is the mother of all evils” (Sunan an-Nasa’i)

*i Retrieved from: https://sunnah.com/nasai/51/141

*j Nabeedh: is a beverage prepared by soaking dates and grapes in water and can easily become fermented, and therefore become unlawful to drink.

*k to take something away from its apparent meaning, and give it an incorrect meaning instead

*l Hiyal (sg. hīla) are “Ingenious devices” or tools used to achieve a certain objective, lawful or not, through lawful means (Retrieved from: https://www.researchgate.net/publication/233711012_Rreconsideration_of_legal_devices_hiyal_in_islamic_jurisprudence_the_hanafis_and_their_exits_makharij)

*m to escape from the unlawful to the lawful.

*n it means “preemption” and it is an Islamic concept in Fiqh similar to the right of first refusal in Western law

*o (ﷺ)

*p Judeo-Christian Traditions of Scriptural Commentary passed on by converts

*q It is one of the secondary sources in Islamic law. It means the abandonment of one legal Ruling (Hukm) for another which is considered better.

*r English Translation: History of Philosophy in Islam. Retrieved from: https://books.google.com.eg/books?id=1hcVf_i5Ua4C&printsec=frontcover&dq=de+boer+philosophy+in+islam+pdf&hl=en&sa=X&ved=0ahUKEwjb8a7NmoHpAhULzhoKHSwYC2MQ6AEIJzAA#v=snippet&q=roman&f=false

*s Those jurists who are attributed to their opinions (Ra’y)

*t Retrieved from: https://books.google.com.eg/books?id=1hcVf_i5Ua4C&printsec=frontcover&dq=de+boer+philosophy+in+islam+pdf&hl=en&sa=X&ved=0ahUKEwjb8a7NmoHpAhULzhoKHSwYC2MQ6AEIJzAA#v=onepage&q=Catholic%20&f=false

References

[1] See, for example, studies on the North African societies and the orientalists’ views on the customs, contemporary issues and the principles of the Maliki School of Fiqh.

Georges-Henri Bousquet:

1-Précis de droit musulman: principalement mâlékite et algérien.

2-Les Berbères: (histoire et institutions)

3-Justice française et coutumes kabiles

4-Le Droit musulman

5-Abrégé de la loi musulmane selon le rite de l’imâm Mâlek

6-Le droit musulman par les textes

7-La Mudawwana: Index (avec la table générale des matières

8-Le droit musulman: nature et evolution

See also some writings of Jacques Berque:

1- Structures sociales du haut atlas

[2] المستصفى

[3]A-Tha’albi, Muhammad ibn Al-Hasan El Hajoui (1918). الفكر السامي في تاريخ الفقه الإسلامي (1^st Vol). An-Nahdah Print House, Tunisia, University of Al-Qarawiyyin.

[4] Al-Khuḍarī, Muhammad (1969). أصول الفقه. Al-Maktabah At-Tujarehah, p.17.

[5] Abu Zahrah. أصول الفقه. Dar Al-Fikr Al-Arabi. p.8.

[6] Ibid. p. 93.

[7] Abdul-Rahman, Taha. تجديد المنهج في تقويم التراث. Le Centre Culturel Arabe (2^nd Ed.), Casablanca. p.93.

[8] As-Saed, Redwan. إنجازات الشافعي ومآخذ نقاده. Asharq Al-Awsat (No.12313). 14 August 2012.

[9] Abu Zahrah. Ibid. p. 4.

[10] Abdul-Rahman ,A’ishah (1969/1968).  تراثنا بين ماض وحاضر. Dar Al- Ma’aref, Cairo. p.53.

[11] Eid, Ad-Desoqy As-Sayed Ad-Desoqy (1989). استقلال الفقه الإسلامي عن القانون الروماني والرد على شبه المستشرقين. At-Tawe’ah Al-Esalmiah Library (1^st Ed.)

[12] Namlah, ‘Alī ibn Ibraheem (1417/ 1996). إسهامات المستشرقين في نشر التراث العربي الإسلامي: دراسة تحليلية ونماذج من التحقيق والنشر والترجمة. Riyadh (1^st Ed). p. 21.

[13] Ibid. p.32

[14] Ibid. p. 24

[15] Ibid. p. 27

[16] Afifi, Najeeb (1964). المستشرقون. Dar Al-Ma’aref, Egypt. (1^st Vol), 3^rd ed., enl. and rev., p. 155

[17] Namlah, ‘Alī ibn Ibraheem. إسهامات المستشرقين. p.31

[18] Ibid. p. 31

[19] Afifi, Najeeb (1965). (3^rd  Vol.) المستشرقون. p. 803

[20] Dyab, Abdul-Majeed (1993). تحقيق التراث العربي: منهجه و تطوره (2^nd ed.). Dar Al-Ma’aref, Cairo. p.104

[21] Ibid. p. 105

The author mentions some examples one of which is that an orientalist may devote his life for publishing one book on Islamic Heritage. For example, Krachkovsky spent twenty years of his life in ratifying a book of Abū al-‘Alā’ al-Ma’arrī entitled “رسالة الملائكة”. Flügel spent 25 years in collecting the manuscripts of the book of Ibn An-Nadeem entitled “الفهرست كتاب” from various libraries and died before its authentication. Anthony Bevan authenticated “نقائض جرير والفرزدق” through 1102 pages, and he was very upset when he found a mistake in one of the rhymes of its lines after publication.

[22] Ibid. p. 184

[23] Ibid. p. 193

[24] Ibid. p. 194 & 195.

[25] Namlah, ‘Alī ibn Ibraheem. أعمال المستشرقين مصدرًا من مصادر المعلومات عن الإسلام والمسلمين. Journal of Imam Muhammad bin Saud Islamic University (7^th Ed.-Year 7). pp 519-564.

[26] A’zozy, Hassan (03 Sep. 2010). أصول المذهب المالكي في دراسات المستشرقين المعاصرين. Islamic Awareness Magazine, Ministry of Awqaf and Islamic Affairs- Kuwait (No. 534).

[27] The definition of the Roman Law, see, for example:

Cours de droit romain henri STAEDTLER TOME PREMIER PARIS L.LAROSE.LOUVAIN A.UYSTPRUYST, 1910.

The Roman Law: is a set of principles, rules and legal systems applicable in the Roman empire and the occupied countries since the establishment of “Rome” in 754 BC till the death of the King Justinian in 565 AD.

Terminology in the field of similarity with Fiqh (Islamic Jurisprudence):

Verdict: JURIS BRUDENTINA

Ijma’: CONSENSUS

Customs of the People of Al-Madinah: CONSUETUDO POPULI ROMANI (Customs of Roman People).

Among those who viewed and discussed this issue: As-Sanhuri, Shafeeq Shehatah, Dr. Muhammad Yusuf Mosa, Muhammad Salam Madkour, Ali Al-Badawy and Muhammad Al-Ghazaly.

See for example: The refutation of Sufi Abu Talib in his book “بين القانون الروماني والشريعة الإسلامية”

[28] A’zozy, Hassan. Ibid.

[29] Ad-Desoqy, As-Sayed Ad-Desoqy (1989). استقلال الفقه الإسلامي عن القانون الروماني والرد على شبه المستشرقين. Islamic Awareness Magazine (1^st Ed.). p. 11.

Du Droit international public et privé en Egypte, par Domenico Gatteschi

[30] Ibid. p. 48

[31] Namlah, ‘Alī ibn Ibraheem (1993/ 1414). مصادر المعلومات عن الاستشراق والمستشرقين: استقراء للمواقف. Riyadh. p. 9

[32] Namlah, ‘Alī ibn Ibraheem (1993/ 1414). أعمال المستشرقين مصدرًا من مصادر المعلومات عن الإسلام والمسلمين Riyadh. p.9

[33]Ibid.

[34] Halaq, Wael (2007). نشأة الفقه الاسلامي وتطوره. Dār al-Madār al-Islāmī. (Ryad Al-Mylady, Trans.). Al-Hamody, (Fahd ibn Abdul-Rahman, rev.) (1^st Ed.). p.14.

[35]. Abu Zahrah, أصول الفقه. Ibid. p. 16.

[36] Halaq, Wael. نشأة الفقه الإسلامي. p.25

[37] Goldziher, Ignác العقيدة والشريعة في الإسلام: تاريخ التطور العقدي والتشريعي في الدين الإسلامي .. (Mosa, Muhammad Yusuf, AbdulQader, Ali Hassan and Abdul-Haq, Abdul-Aziz, Arabic Trans.), (2^nd Ed.), rev. and enl. Dar Al-Kutub-Egypt, Al-Muthanna library-Bagdad and Dar Al-Kitab Al Arabi-Egypt.

[38] Al-A’qyqy. p.906

[39] Goldziher. العقيدة .Ibid., p.7

[40]. Ibid., p.10

[41]. Ibid., p.11

[42] Ibid., p.32

[43] Ibid., p.44

[44] Ibid., p.45

[45] Ibid., p.47

[46] Ibid., p.48

[47] Ibid., p.49

[48] Ibid.

[49] Ibid., p.55

[50] Ibid., p.56

[51] Ibid., p.59

[52] Ibid., p.63

[53] Ibid., p.67

[54] Ibid., p.68

[55] Ibid., p.70

[56] Ibid., p.72

[57] Ibid., p.73

[58] Ibid.

[59] Ibid., p.74

[60] Ibid., p.76

[61] Zuhayli, Muhammad (2005/ 1426). الجهود المبذولة في حجية السنة في القرن الرابع عشر الهجري. University of Sharjah.

[62] Schacht, Joseph. أصول الفقه. (Ibraheem Khorshed, Abdul-Hameed Yunus and Hassan Othman, Trans.) (1981). Dar Al-Kutub-Lebanon, Beirut.

See also among the collection of A’lam Al-Ma’arefah: “تراث الإسلام” (Vol.1) classified by Joseph Schacht and Clifford Bosworth. p.27.

In “تراث الإسلام”, the part written by Joseph Schacht is entitled “”القانون والدولة (Muhammad Abdel-Hady Aby Redah, rev.) p.85.

[63] Ibid., p.23

[64] Ibid., p.39

[65] Ibid., pp. 48 & 49

[66] Ibid., p.50

[67] Ibid., pp. 56 and 57

[68] See, for example: Muhammad Mostafa Al-A’dhamy (1980): “Studies in early Hadith Literature” published by Al-Maktab Al-Islami- Damascus and Beirut. This book is his doctoral thesis at the University of Cambridge in 1966 presented in English language.

[69] Schacht, Joseph. أصول الفقه. Ibid., p.58.

[70] Ibid.

[71] Ibid., pp.61 & 62

[72] Ibid., pp.63

[73] Ibid., pp.84

[74] Boer, T. J de. تاريخ الفلسفة في الإسلام. (Muhammad Abdul-hady Abu Ridah, Arabic Trans.). Tunisian House for publication and National Book Foundation.

[75] Goldziher, Ignaz. العقيدة. Ibid., p.50.

[76] Boer, T. J de. تاريخ الفلسفة في الإسلام. p.80.

[77] Ibid., p.82.

[78] Ibid.

*** Egyptian Researcher and Translator.

**** Professor of Islamic Economics and Islamic Finance. Faculty of Commerce, Al-Azhar University.