FIQH

Islamic Jurisprudence

Decorative Lines

Fiqh (Arabic: فقه‎ [fiqh]) is Islamic jurisprudence. Fiqh is an expansion of the code of conduct Sharia, expounded in the Quran, often supplemented by tradition (Sunnah) and implemented by the rulings and interpretations of Islamic jurists.

Fiqh deals with the observance of rituals, morals and social legislation in Islam. There are four prominent schools (madh’hab) of fiqh within Sunni practice and two within Shi’a practice. A person trained in fiqh is known as a Faqih (plural Fuqaha).

Etymology:

The word fiqh is an Arabic term meaning “deep understanding” or “full comprehension”. Technically it refers to the body of Islamic law extracted from detailed Islamic sources (which are studied in the principles of Islamic jurisprudence) and the process of gaining knowledge of Islam through jurisprudence.

The historian Ibn Khaldun describes fiqh as “knowledge of the rules of God which concern the actions of persons who own themselves bound to obey the law respecting what is required (wajib), sinful (haraam), recommended (mandūb), disapproved (makrūh) or neutral (mubah)”. This definition is consistent amongst the jurists.

In Modern Standard Arabic, fiqh has come to mean jurisprudence in general, be it Islamic or secular. It is thus possible to speak of Chief Justice John G. Roberts, Jr. as an expert in the common law fiqh of the United States, or of Farouk Sultan as an expert in the civil law fiqh of Egypt.

Introduction:

The Qur’an gives clear instruction on many issues, such as how to perform the ritual purification (Arabic: wudu) before the obligatory daily prayers (Arabic: salat), but on other issues, some Muslims believe the Qur’an alone is not enough to make things clear.

For example the Qur’an states one needs to engage in daily prayers (Arabic: salat) and fast (Arabic: sawm) during the month of Ramadan but some Muslims believe they need further instructions on how to perform these duties. Details about these issues can be found in the traditions of Islamic prophet Muhammad (Arabic: Sunnah), so Qur’an and Sunnah are in most cases the basis for (Arabic: Shariah).

With regard to some topics the Qur’an and Sunnah are silent. In those cases the Muslim jurists (Arabic: Fuqaha) try to arrive at conclusions by other means. Sunni jurists use analogy (Arabic: Qiyas) and historical consensus of the community (Arabic: Ijma).

The conclusions arrived at with the aid of these additional tools constitute a wider array of laws than the Sharia consists of, and is called fiqh. Thus, in contrast to the sharia, fiqh is not regarded as sacred and the schools of thought have differing views on its details, without viewing other conclusions as sacrilegious. This division of interpretation in more detailed issues has resulted in different schools of thought (Arabic: madh’hab).

This wider concept of Islamic jurisprudence is the source of a range of laws in different topics that govern the lives of the Muslims in all facets of everyday life.

Islamic Law:

Islamic law (fiqh) covers two main areas:

  • rules in relation to actions, and,
  • rules in relation to circumstances surrounding actions.

Fiqh can also be grouped as:

  • Worships (Ibadaat)
  • Dealings & transactions (Mua’malaat)

Rules in relation to actions (‘amaliyya — عملية) comprise:

  • Obligation (fardh)
  • Recommendation (mustahabb)
  • Permissibility (mubah)
  • Disrecommendation (makrooh)
  • Prohibition (haraam)

Rules in relation to circumstances (wadia’) comprise:

  • Condition (shart)
  • Cause (sabab)
  • Preventor (mani)
  • Permit/Enforced (rukhsah, azeemah)
  • Valid/Corrupt/Invalid (sahih, faasid, batil)
  • In time/Debt/Repeat (adaa, qadaa, i’ada)

Fields of jurisprudence

  • Islamic economical jurisprudence فقه المعاملات
  • Islamic political jurisprudence فقه السياسة
  • Islamic marital jurisprudence
  • Islamic criminal jurisprudence فقه العقوبات
  • Islamic etiquettical jurisprudence الآداب
  • Islamic theological jurisprudence
  • Islamic hygienical jurisprudence
  • Islamic military jurisprudence فقه الجهاد

Methodologies of jurisprudence usul al-fiqh (أصول الفقه)

Usul al-fiqh:

The Modus operandi of the Muslim jurist is known as usul al-fiqh (principles of jurisprudence).

There are different approaches to the methodology used in fiqh to derive sharia from the Islamic sources. The main methodologies are:

The four classical Sunni schools are, in chronological order: the Hanafi school, the Maliki school, the Shafi’i school and the Hanbali school. They represent the generally accepted Sunni authority for Islamic jurisprudence.

Jafari fiqh, or the Shi’a fiqh

Other minor schools are the Zaidi, Zahiri, Sufian Al’thawree, Sufian bin O’yayna, Layth bin Sa’ad, Tabari and Qurtubi schools.

The four schools of Sunnis

The four schools (or Madh’hab) of Sunni Muslims are each named by students of the classical jurist who taught them. The Sunni schools (and where they are commonly found) are

Hanafi: (The Levant, Iraq, Turkey, the Balkans, Central Asia, Indian subcontinent, Iran, Pakistan, Afghanistan, Jordan, China and Egypt)

Maliki: (North Africa, the Muslim areas of West Africa, Kuwait, the United Arab Emirates and Bahrain)

Shafi’i: (Yemen, Somalia, Djibouti, Eritrea, Ethiopia, Southern Iran, Muslim Southeast Asia, Jordan, Egypt, Swahili Coast, Maldives and southern parts of India)

Hanbali: (Saudi Arabia and Qatar).

These four schools share most of their rulings, but differ on the particular hadiths they accept as authentic and the weight they give to analogy or reason (qiyas) in deciding difficulties.

The Hanafi school was the earliest established under the jurist Imam Abu Hanifa, who was born and taught in Iraq. Imam Abu Hanifa (80A.H.–150A.H.), whose real name was Nu’man ibn Thabit, was born in the city of Kufa (modern day Iraq) in the year 80 A.H (689 A.D). Born into a family of tradesmen, the Imam’s family were of Persian origin.

Under Imam Abu Hanifa, the witr prayer was considered to be compulsory and the Hanafis also differed with other sects in relation to methods of taking ablution, prayers and payment of tithe or zakat. Imam Abu Hanifa also differed with the other three schools in many areas including the type of punishments meted out for various crimes in Islam. On the whole, the Hanafi school of jurisprudence could be said to have the most differences with other three schools.

Students of Imam Malik established the Maliki school of which a majority now can be found in North Africa and some Persian gulf states . Imam Malik, whose real name was Abu Abdullah, Malik bin Anas, was born in Medina in the year 715 AD. His ancestral home was in Yemen, but his grandfather settled in Medina after embracing Islam. He received his education in Medina, which was the most important seat of Islamic learning, and where the immediate descendants of Muhammad’s followers lived.

Imam Malik was attracted to the study of law, and devoted himself to the study of fiqh. His principal book, the Kitab al-Muwatta, is one of the earliest surviving books on hadith and fiqh. Differences under the Maliki school included the fact that those following the Maliki school could state their purpose (or niat) once only for compulsory fasting which is valid for the whole month of Ramadhan whilst for the Shafi’i.e. school (see below), one would have to state his purpose every day of the month of Ramadhan for his fast to be valid the next day.

Ja’fari jurisprudence:

The Ja’fari school (Iran, Iraq, Azerbaijan, Lebanon, Afghanistan, Bahrain, India and Saudi Arabia) is associated with Imam Jafar-as-Sadiq. The fatwas, or time and space bound rulings of early jurists, are taken rather more seriously in this school, due to the more hierarchical structure of Shia Islam, which is ruled by the Imams. But they are also more flexible, in that every jurist has considerable power to alter a decision according to his opinion.

The Jafari school uses ‘aql “intellect” instead of qiyas in the Sunni schools, when establishing Islamic laws.

Ismaili Fatimid jurisprudence:

Daim al-Islam is a book on the rulings of Islam followed by Ismaili Muslims who adhere to the Shi’a Ismaili Fatimid fiqh. It describes manners and etiquette, including Ibadat in the light of guidance provided by the Ismaili Imams. The book emphasizes what importance Islam has given to manners and etiquette along with the worship of God, citing the traditions of the first four Imams of the Shi’a Ismaili Fatimid school of thought.

Arguments for and against reform:

Each school reflects a unique al-urf or culture (a cultural practice that was influenced by traditions), that the classical jurists themselves lived in, when rulings were made. Some suggest that the discipline of isnad, which developed to validate hadith made it relatively easy to record and validate also the rulings of jurists. This, in turn, made them far easier to imitate (taqlid) than to challenge in new contexts.

The argument is, the schools have been more or less frozen for centuries, and reflect a culture that simply no longer exists. Traditional scholars hold that religion is there to regulate human behavior and nurture people’s moral side and since human nature has not fundamentally changed since the beginning of Islam a call to modernize the religion is essentially one to relax all laws and institutions.

Early shariah had a much more flexible character, and some modern Muslim scholars believe that it should be renewed, and that the classical jurists should lose special status. This would require formulating a new fiqh suitable for the modern world, e.g. as proposed by advocates of the Islamization of knowledge, which would deal with the modern context.

This modernization is opposed by most conservative ulema. Traditional scholars hold that the laws are contextual and consider circumstance such as time, place and culture, the principles they are based upon are universal such as justice, equality and respect. Many Muslim scholars argue that even though technology may have advanced, the fundamentals of human life have not and is in the scope of current laws.

Sharia:

Early history: Islamic economics in the world

The formative period of Islamic jurisprudence stretches back to the time of the early Muslim communities. In this period, jurists were more concerned with issues of authority and teaching than with theory and methodology.

Progress in theory and methodology happened with the coming of the early Muslim jurist Muhammad ibn Idris ash-Shafi`i (767–820), who codified the basic principles of Islamic jurisprudence in his book ar-Risālah. The book details the four roots of law (Qur’an, Sunnah, ijma, and qiyas) while specifying that the primary Islamic texts (the Qur’an and the hadith) be understood according to objective rules of interpretation derived from scientific study of the Arabic language.

Secondary sources of law were developed and refined over the subsequent centuries, consisting primarily of juristic preference (istihsan), laws of the previous prophets (shara man qablana), continuity (istihsab), extended analogy (maslaha mursala), blocking the means (sadd al-dhari’ah), custome urf and saying of a companion (qawl al-sahabi).

Possible links with Western law

Sharia: Classic Islamic law

A number of important legal institutions were developed by Muslim jurists during the classical period of Islam, known as the Islamic Golden Age. One such institution was the Hawala, an early informal value transfer system, which is mentioned in texts of Islamic jurisprudence as early as the 8th century. Hawala itself later influenced the development of the agency in common law and in civil laws such as the aval in French law and the avallo in Italian law. The “European commenda” (Islamic Qirad) used in European civil law may have also originated from Islamic law.

The Waqf in Islamic law, which developed during the 7th–9th centuries, bears a notable resemblance to the trusts in the English trust law. For example, every Waqf was required to have a waqif (settlor), mutawillis (trustee), qadi (judge) and beneficiaries. The trust law developed in England at the time of the Crusades, during the 12th and 13th centuries, was introduced by Crusaders who may have been influenced by the Waqf institutions they came across in the Middle East.

The Islamic lafif was a body of twelve members drawn from the neighbourhood and sworn to tell the truth, who were bound to give a unanimous verdict, about matters “which they had personally seen or heard, binding on the judge, to settle the truth concerning facts in a case, between ordinary people, and obtained as of right by the plaintiff.” The only characteristic of the English jury which the Islamic lafif lacked was the “judicial writ directing the jury to be summoned and directing the bailiff to hear its recognition.”

According to Professor John Makdisi, “no other institution in any legal institution studied to date shares all of these characteristics with the English jury.” It is thus likely that the concept of the lafif may have been introduced to England by the Normans, who conquered both England and the Emirate of Sicily, and then evolved into the modern English jury.

Several other fundamental common law institutions may have been adapted from similar legal institutions in Islamic law and jurisprudence, and introduced to England by the Normans after the Norman conquest of England and the Emirate of Sicily, and by Crusaders during the Crusades. In particular, the “royal English contract protected by the action of debt is identified with the Islamic Aqd, the English assize of novel disseisin is identified with the Islamic Istihqaq, and the English jury is identified with the Islamic lafif.”

Other English legal institutions such as “the scholastic method, the licence to teach”, the “law schools known as Inns of Court in England and Madrasas in Islam” and the “European commenda” (Islamic Qirad) may have also originated from Islamic law. The methodology of legal precedent and reasoning by analogy (Qiyas) are also similar in both the Islamic and common law systems. These influences have led some scholars to suggest that Islamic law may have laid the foundations for “the common law as an integrated whole”.