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Introduction
Islamic Law
Fiqh
Sources
Maqasid Shariah
Ijtihad
Methods
Case Study

Bibliography

:: In the name of Allah, the Most Merciful, the Most Kind ::

 

What is Fiqh?

Linguistically, fiqh means understanding, comprehension, knowledge, insight.

faqiha : to understand, comprehend.
faqaaha : to have knowledge, especially legal knowledge, to teach, to study the fiqh, to apply oneself to the acquisiton of knowledge, to get a clear picture.
fiqhi : juristic(al), relating to jurisprudence in Islam.
faqih (pl. fuqaha') : legist, jurisprudent, expert of fiqh.

  (Taken from the Hans Wehr Dictionary of Modern Written Arabic).

In early days of Islam, it was rare for the term fiqh to be taken to mean Islamic Jurisprudence. The term more extensively used then was fahm or "comprehension" of the predetermined purpose and wisdom of the command of God. In more complex issues that involved closer examination, some would use instead of the term fiqh, or "understanding". [1] In his book, Al-Muqaddimah, Ibn Khaldun presented his definition of fiqh in more detail.

Fiqh is the knowledge of God's rule, ahkam, regarding the behavior and actions of adult individuals, be they obligatory, forbidden, recommended, abhorrent or permissible. These rules are received from the Quran and the Sunnah and the means God has established to ascertain them. The formulation and articulation of these rules, using those means, is what is referred to as fiqh. [2]

 -Ibn Khaldun, "Al-Muqaddimah".

Al Alwani (1988, p.33) classified  fiqh into three categories:

  1. Wahi:  the Quran and Sunnah

  2. Al ‘aql: reason

  3. Al tajarub wa al a’raf wa al masalih: experience, tradition, and public good.

 

Rulings of Sacred Law
1. Prescribed 2. Recommended 3. Permissible/Allowed 4. Disliked/Offensive/Detested 5. Unlawful/Prohibited
Other terms:
- Obligatory
- Mandatory
- Required

 

Personally obligatory, communally obligatory

Performance: rewarded
Non-Performance: punished
Other terms:
- Sunnah
- Preferable
- Meritorius
- Desirable

P: rewarded
NP: not punished
P: not rewarded
NP: not punished
P: not punished
NP: rewarded
P: punished
NP: rewarded

 

Read more on fiqh :

  1. Fiqh us-Sunnah by Sayyid Sabiq.
  2. Islamic Fiqh and Fatwas. The Fiqh According to Five Islamic Schools:  Ja'afari, Hanafi, Maliki, Shafi'i, and Hanbali

 

Fuqaha'

The term fuqaha, jurists or fiqh practitioners was also uncommon in the early days of Islam. To differentiate them from their uneducated or illiterate colleagues, the Prophet's companions who committed themselves to deduction and the analysis of religious rules were identified as "student" or "readers."[1]

Then the lands of Islam expanded and illiteracy among the Arabs receded due to the spread of literacy. The practice of deduction took hold, fiqh flourished and became a vocation and a science. Thus, "readers" and "students" became jurists, or fuqaha [3]

 -Ibn Khaldun, "Al-Muqaddimah".

 

Usul al-Fiqh

The term 'usul al-fiqh' is a composition of two words. The first word is translated as 'principles' and the second one can be translated as 'jurisprudence'.

This branch of knowledge discusses the sources of the science of jurisprudence itself and does not deal with the topics of Islamic worship, rituals or transactions which are the subject matter of the Islamic jurisprudence (fiqh).

The sources of Islamic law, or usul al-fiqh in Islamic legal terminology, are divided into two categories [4] :

  1. Al nass (the text) i.e., the Quran and the Sunnah.

  2. Human judgment in several forms e.g., ijma’ (the consensus of the fuqaha’) and qiyas (analogical reasoning).

Therefore, theoretically, there are two kinds of issues in the Shariah, as indicated in al Nadi’s writing [5]:

  1. Deals with qat’iyat or definitive-conclusive rules (i.e., rules that are certain and not changeable in Islam, for example, times of prayer, fasting, alms-giving etc)

  2. Deals with dhanniyat or issues that allow for thought and speculation (i.e., issues that are open to ijtihad and that change with time and place -  especially those pertaining to interpersonal relationships). Such interpersonal relationships include the relation between governments and peoples; therefore, ijtihad or the extrapolation of legal principles is admissible, if not encouraged.

Usul al fiqh according to The Concise Encyclopedia of Islam (Glasse 1989, p.  441) means.

Literally roots of jurisprudence. The bases of Islamic law. Among the Sunnis these are: the Koran, the Sunna (acts and statements of the Prophet), al qiyas (analogy), and al-ijma (popular consensus or agreement). Al ijtihad (effort) is the extrapolation from these principles to specific cases.

Some of the more articulate definitions provided by Masud [6] says;

Usul al fiqh is the formal science in which Muslim jurists have dealt with legal theories, the principles and interpretations of legal texts, methods of reasoning and of deduction of rules and other such matters.

 

Read more on Usul al-Fiqh :

  1. USUL AL FIQH AL ISLAMI. Source Methodology in Islamic Jurisprudence:Methodology for Research and Knowledge by Taha Jabir Al 'Alwani.

  2. Usul al-Fiqh by Shah Abdul Hannan.

  3. On the Principles of Islamic Jurisprudence

 

Theoretical Fiqh - irrelevant?

Though varied and rich, the volumes of theoretical fiqh bequeathed to us dealing with relations between Muslims and non-Muslims were closely associated with the historic circumstances in which it was developed. It, therefore, is part of its own time and space and none of it can be applied to other substantially different situations. I can only be considered as a precedent to be examined, noted and studied in order to discern the principles upon which it was based and which guided our predecessors to produce it. As a precedent, this wealth of jurisprudence is of value to today’s jurists to provide them with the skills and methods to respond to the needs of the times. The aim should not be to apply the old fatwas literally, but to use them as a guide, learning how to obtain the original principles, the “roots” or usul, from which earlier jurists derived and articulated them.

Our pioneering jurists bequeathed to us a golden rule which supports this approach. It states: the changing of rulings should not be censured by the change of time. Many jurists, such as Imam al-Shafi’e and others, were flexible with certain rulings and opinions, changing them according to the realities of a particular situation or specific reason which arose as they moved from one country to another, or when certain conditions pertaining to the earlier situation had changed, or simply because times had changed. Several innovative jurists indicated that their differences with their own teachers over certain issues were simply due to “the changing of times and situations, rather than to new evidence or reasoning.”

A study of cases dealt with by the Prophet’s contemporaries and their followers clearly shows that they had understood very well the specific purpose, wisdom, reasons and causes underlying the Shari’ah. The study, interpretation, comprehension and application of all religious text should take place within the framework of the purposes and reasons of the Shari’ah and their underlying wisdom. Insistence on mere linguistic or literal interpretation would not relieve jurists from their responsibility until the ultimate objectives of the Shari’ah are served. The need to go beyond the limited fiqh inherited from past generations remains strong for several reasons, some of which relate to methodology and others to the ultimate objectives(maqasid) of the Islamic Shariah.

 

 

[1] Al-Alwani, Towards a Fiqh for Minorities, International Institute of Islamic Thought, 200), p 1

[2] Ibn Khaldun, al-Muqaddimah, p. 445

[3] Ibn Khaldun, al-Muqaddimah p 446

[4] Abdelkader,(2000, p 43)

[5] Nadis(1973, pp. 77-78).

[6]  Masud (1988, p. 24).



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