Fiqh

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Part of a series on the
Islamic Jurisprudence
– a discipline of Islamic studies
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Arabic
فقه
Transliteration
Fiqh
Translation
Islamic jurisprudence
Legal systems across the world.      civil law      common law      mixed civil and common law      customary law      fiqh
Legal systems across the world.      civil law      common law      mixed civil and common law      customary law      fiqh

Fiqh (Arabic: فقه) is Islamic jurisprudence. Fiqh is an expansion of the Sharia Islamic law—based directly on the Quran and Sunna—that complements Shariah with evolving rulings/interpretations of Islamic jurists.

Fiqh deals with the observance of Islamic rituals, the principles of the Five Pillars, and social legislation. There are four Sunni schools of fiqh (Madh'hab) and schools for Shia and Kharijites. A person trained in fiqh is known as a Faqih (plural Fuqaha).[1]

Contents

[edit] Etymology

The word fiqh is an Arabic term meaning "deep understanding" or "full comprehension". Technically it refers to the science of Islamic law extracted from detailed Islamic sources (which are studied in the principles of Islamic jurisprudence). The process of gaining knowledge of Islam through jurisprudence, and the body of legal advisements so derived, is known as fiqh.

[edit] Introduction

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), forbidden (haraam), recommended (mandūb), disapproved (makruh) or merely permitted (mubah)".[2]

There are cases where the Qur'an gives a clearly defined and concrete answer on how do deal with different issues. This includes how to perform the ritual purification (Arabic: wudu) before the obligatory daily prayers (Arabic: salat).

On other issues, the Qur'an alone is not enough to make things clear. For example, the holy book states that one needs to engage in daily prayers (Arabic: salat) and fast (Arabic: sawm) during the month of Ramadan, however, it does not define how to perform these duties. The details about these issues can be found in what is called the tradition of Muhammad (Arabic: Sunnah). This is true for most detailed issues, thus the Qur'an and Sunnah are the basis for the Islamic Divine Law (Arabic: Shariah).

However, the Muslim jurists (Arabic: Fuqaha) do not always agree on how to interpret the Qur'an and Sunnah to arrive at the sharia. This division of interpretation in more detailed issues has resulted in different schools of thought (Arabic: madh'hab).

And with regard to some topics, the Qur'an and Sunnah are simply silent. In those cases, the Muslim jurists (Arabic: Fuqaha) try to arrive at conclusions using other tools. 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 constitutes 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 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.

[edit] Islamic Law

Islamic law (fiqh) covers two main areas, rules in relation to actions and rules in relation to circumstances surrounding actions.

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

  • Obligation (fard)
  • Recommendation (mandoob)
  • Permissibility (mubah)
  • Disrecommendation (makrooh)
  • Prohibition (haram)

Rules in relation to circumstances (wadia') comprise:

  • Condition (shart)
  • Cause (sabab)
  • Preventor (mani)
  • Permit/Enforce (rukhsah, azeemah)
  • Valid/Corrupt/Invalid (sahih, fasad, batil)
  • In time/Debt/Repeat (adaa, al-qadaa, i3ada)

[edit] Muslim Jurist: Ulema

Main article: Ulema

The Muslim Jurists are called the ulema, from the Arabic ilm (knowledge). They are also called the faqeeh (pl. fuqahaa) from fiqh.

[edit] Fields of jurisprudence

[edit] Methodologies of jurisprudence usul al-fiqh (أصول الفقه)

Main article: 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.

Other schools are the Thahiri, Sufian Al'thawree, Sufian bin O'yayna, Layth bin Sa'ad. The four most famous schools mentioned go back to the schools as Sufian Bin Oyayna.[citation needed]

[edit] The four schools of Sunni Islam

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

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 the 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'ie 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.

[edit] Ja'fari jurisprudence

The Jaferi or Ja'fari school (Iran, Iraq, Azerbaijan, Lebanon, Bahrein, Pakistan, India and parts of Afghanistan and Saudi Arabia) is associated with Shia Islam. 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 uses 'aql "intellect" instead of qiyas in the Sunni achools, when establishing Islamic laws.

Each school reflects a unique al-urf or culture, 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, making them far easier to imitate (taqlid) than to challenge in new contexts. The effect is, the schools have been more or less frozen for centuries, and reflect a culture that simply no longer exists.

Early shariah had a much more flexible character, and many 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, and would deal with the modern context. This modernization is opposed by most conservative ulema.

[edit] Early history

Main article: Sharia
Further information: 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 pragmatic issues of authority and teaching than with theory.[3] Progress in theory 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.[4]

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.[5] The "European commenda" (Islamic Qirad) used in European civil law may have also originated from Islamic law.[6]

The earliest known lawsuits were described in the Ethics of the Physician by Ishaq bin Ali al-Rahwi (854–931) of al-Raha, Syria, who describes it as part of an early medical peer review process, where the notes of a practicing Islamic physician were reviewed by peers and he/she could face a lawsuit from a maltreated patient if the reviews were negative.[7] The Waqf in Islamic law, which developed during the 7th–9th centuries, bears a notable resemblance to the trusts in the English trust law.[8] For example, every Waqf was required to have a waqif (founder), mutawillis (trustee), qadi (judge) and beneficiaries.[9] 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.[10][11]

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.[6]

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 license 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.[6] The methodology of legal precedence and reasoning by analogy (Qiyas) are also similar in both the Islamic and common law systems.[12] These influences have led some scholars to suggest that Islamic law may have laid the foundations for "the common law as an integrated whole".[6]

[edit] See also

[edit] Notes

  1. ^ Glasse, Cyril, The New Encyclopedia of Islam, Altamira, 2001, p.141
  2. ^ Levy (1957). Page 150.
  3. ^ Weiss (2002), pp.3, 161.
  4. ^ Weiss (2002), p.162.
  5. ^ Badr, Gamal Moursi (Spring, 1978), “Islamic Law: Its Relation to Other Legal Systems”, The American Journal of Comparative Law 26 (2 - Proceedings of an International Conference on Comparative Law, Salt Lake City, Utah, February 24–25, 1977): 187–198 [196–8] 
  6. ^ a b c d (Makdisi 1999)
  7. ^ Ray Spier (2002), "The history of the peer-review process", Trends in Biotechnology 20 (8), p. 357-358 [357].
  8. ^ (Gaudiosi 1988)
  9. ^ (Gaudiosi 1988, pp. 1237–40)
  10. ^ (Hudson 2003, p. 32)
  11. ^ (Gaudiosi 1988, pp. 1244–5)
  12. ^ El-Gamal, Mahmoud A. (2006), Islamic Finance: Law, Economics, and Practice, Cambridge University Press, p. 16, ISBN 0521864143 

[edit] References

  • Doi, Abd ar-Rahman I., and Clarke, Abdassamad (2008). Shari'ah: Islamic Law. Ta-Ha Publishers Ltd., ISBN 978-1842000853 (paperback), ISBN 978-1842000878 (hardback)
  • Gaudiosi, Monica M. (April 1988), "The Influence of the Islamic Law of Waqf on the Development of the Trust in England: The Case of Merton College", University of Pennsylvania Law Review 136 (4): 1231–1261
  • Hudson, A. (2003), Equity and Trusts (3rd ed.), Cavendish Publishing, ISBN 1-85941-729-9
  • Levy, Reuben (1957). The Social Structure of Islam. UK: Cambridge University Press. ISBN 978-0521091824. 
  • Makdisi, John A. (June 1999), "The Islamic Origins of the Common Law", North Carolina Law Review 77 (5): 1635–1739