Fiqh ([fiqh];[1]Arabic:فقه) is the term forIslamicjurisprudence.[2]Fiqh is often described as the style of human understanding, research and practices of thesharia;[3] that is, human understanding of the divine Islamic law as revealed in theQuran and thesunnah (the teachings and practices of the Islamic prophetMuhammad and his companions). Fiqh expands and develops Shariah through interpretation (ijtihad) of the Quran andSunnah by Islamic jurists (ulama)[3] and is implemented by the rulings (fatwa) of jurists on questions presented to them. Thus, whereassharia is considered immutable and infallible by Muslims,fiqh is considered fallible and changeable.Fiqh deals with the observance of rituals, morals and social legislation in Islam as well as economic and political system. In the modern era, there are four prominent schools (madh'hab) offiqh withinSunni practice, plus two (or three) withinShi'a practice. A person trained infiqh is known as afaqīh (pl.:fuqaha).[4]
Figuratively,fiqh means knowledge about Islamic legal rulings from their sources. Deriving religious rulings from their sources requires themujtahid (an individual who exercisesijtihad) to have a deep understanding in the different discussions of jurisprudence.
The studies offiqh are traditionally divided intoUṣūl al-fiqh (principles of Islamic jurisprudence, lit. the roots of fiqh, alternatively transliterated asUsool al-fiqh), the methods of legal interpretation and analysis; andFurūʿ al-fiqh (lit. the branches of fiqh), the elaboration of rulings on the basis of these principles.[5][6]Furūʿ al-fiqh is the product of the application ofUṣūl al-fiqh and the total product of human efforts at understanding the divine will. Ahukm (pl.:aḥkām) is a particular ruling in a given case.
The wordfiqh is an Arabic term meaning "deep understanding"[7]: 470 or "full comprehension". Technically it refers to the body of Islamic law extracted from detailed Islamic sources (which are studied in theprinciples of Islamic jurisprudence) and the process of gaining knowledge of Islam through jurisprudence. The historianIbn Khaldun describesfiqh as "knowledge of the rules of God which concern the actions of persons who own themselves connected to obey the law respecting what is required (wajib), sinful (haraam), recommended (mandūb), disapproved (makrūh), or neutral (mubah)".[8] This definition is consistent amongst the jurists.
The commands and prohibitions chosen by God were revealed through the agency of the Prophet in both the Quran and the Sunnah (words, deeds, and examples of the Prophet passed down ashadith). The first Muslims (theSahabah or Companions) heard and obeyed, and passed this essence of Islam[11] to succeeding generations (Tabi'un andTabi' al-Tabi'in or successors/followers and successors of successors), as Muslims and Islam spread from West Arabia to the conquered lands north, east, and west,[12][Note 1] where it was systematized and elaborated.[11]
The history of Islamic jurisprudence is "customarily divided into eight periods":[14]
the first period ending with the death ofMuhammad in 11 AH.[14]
second period "characterized by personal interpretations" of the canon by theSahabah or companions of Muhammad, lasting until 50 AH.[14]
from 50 AH until the early second century AH there was competition between "a traditionalist approach to jurisprudence" inwestern Arabia where Islam was revealed and a "rationalist approach in Iraq".[14]
the "golden age of classical Islamic jurisprudence" from the "early second to the mid-fourth century when theeight "most significant" schools of Sunni andShi'i jurisprudence emerged."[14]
from the mid-fourth century to mid-seventh AH Islamic jurisprudence was "limited to elaborations within the main juristic schools".[14]
the "dark age" of Islamic jurisprudence stretched from thefall of Baghdad in the mid-seventh AH (1258 CE) to 1293 AH/1876 CE.
In 1293 AH (1876 CE) the Ottomans codifiedHanafi jurisprudence in theMajallah el-Ahkam-i-Adliya. Several "juristic revival movements" influenced by "exposure to Western legal and technological progress" followed until the mid-20th century CE.Muhammad Abduh andAbd El-Razzak El-Sanhuri were products of this era.[14] However, Abduh and El-Sanhuri were modernists. 19th century Ottoman Shariah Code was built on the views of the Hanafi school.
The most recent era has been that of the "Islamic revival", which has been "predicated on rejection of Western social and legal advances" and the development of specifically Islamic states, social sciences, economics, and finance.[14]
The formative period of Islamic jurisprudence stretches back to the time of the early Muslim communities. During this period, jurists were more concerned with issues of authority and teaching than with theory and methodology.[15]
Progress in theory and methodology happened with the coming of the early Muslim juristMuhammad ibn Idris ash-Shafi`i (767–820), who codified the basic principles of Islamic jurisprudence in his bookar-Risālah. The book details the four roots of law (Qur'an,sunnah,ijma, andqiyas) 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.[16]
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 (istishab), extended analogy (maslaha mursala), blocking the means (sadd al-dhari'ah), local customs (urf), and sayings of a companion of the Prophet (qawl al-sahabi).[17]
Main schools of thought within Sunni Islam, and other prominent streams.Major schools of thought and theology in the Islamic world
The Quran set the rights, responsibilities, and rules for people and societies to adhere to, such as dealing ininterest. Muhammad then provided an example, which is recorded in the hadith books, showing people how he practically implemented these rules in a society. After the passing of Muhammad, there was a need for jurists, to decide on new legal matters where there is no such ruling in the Quran or the hadith, example of Muhammad regarding a similar case.[18][19]
In the years proceeding Muhammad, the community in Madina continued to use the same rules. People were familiar with the practice of Muhammad and therefore continued to use the same rules.
Imam Jafar al-Sadiq, Imam Abu Hanifa and Malik ibn Anas worked together inAl-Masjid an-Nabawi in Medina, along with Qasim ibn Muhammad ibn Abi Bakr, Muhammad al-Baqir, Zayd ibn Ali and over 70 other leading jurists and scholars.
Key: Travelled extensively collecting the sayings of Muhammad and compiled books of hadith
Key: Worked in Persia
In the books actually written by these original jurists and scholars, there are very few theological and judicial differences between them. Imam Ahmad rejected the writing down and codifying of the religious rulings he gave. They knew that they might have fallen into error in some of their judgements and stated this clearly. They never introduced their rulings by saying, "Here, this judgement is the judgement of God and His prophet."[31] There is also very little text actually written down by Jafar al-Sadiq himself. They all give priority to the Qur'an and the hadith (the practice of Muhammad). They felt that the Quran and the Hadith, the example of Muhammad provided people with almost everything they needed. "This day I have perfected for you your religion and completed My favor upon you and have approved for you Islam as religion" (Qur'an 5:3).[32]
These scholars did not distinguish between each other. They were not Sunni or Shia. They felt that they were following the religion of Abraham as described in the Quran "Say: Allah speaks the truth; so follow the religion of Abraham, the upright one. And he was not one of the polytheists" (Qur'an 3:95).
Most of the differences are regarding Sharia laws devised throughIjtihad where there is no such ruling in the Quran or the hadiths of Islamic prophet Muhammad regarding a similar case.[31] As these jurists went to new areas, they were pragmatic and continued to use the same ruling as was given in that area during pre-Islamic times, if the population felt comfortable with it, it was just and they used Ijtihad to deduce that it did not conflict with the Quran or the Hadith. As explained in theMuwatta[21] by Malik ibn Anas.[22] This made it easier for the different communities to integrate into the Islamic State and assisted in the quick expansion of the Islamic State.
To reduce the divergence,ash-Shafi'i proposed giving priority to the Qur'an and the Hadith (the practice of Muhammad) and only then look at the consensus of the Muslim jurists (ijma) and analogical reasoning (qiyas).[22] This then resulted in jurists like Muhammad al-Bukhari[33] dedicating their lives to the collection of the correct hadith, in books likeSahih al-Bukhari (Sahih translates as authentic or correct). They also felt that Muhammad's judgement was more impartial and better than their own.
These original jurists and scholars also acted as a counterbalance to the rulers. When they saw injustice, all these scholars spoke out against it. As the state expanded outside Madina, the rights of the different communities, as they were constituted in theConstitution of Medina still applied. The Quran also gave additional rights to the citizens of the state and these rights were also applied. Ali, Hassan andHusayn ibn Ali gave their allegiance to the first three caliphs because they abided by these conditions. LaterAli the fourth caliph wrote in a letter "I did not approach the people to get their oath of allegiance but they came to me with their desire to make me their Amir (ruler). I did not extend my hands towards them so that they might swear the oath of allegiance to me but they themselves extended their hands towards me."[34] But later as fate would have it (Predestination in Islam) whenYazid I, anUmayyad ruler took power, Husayn ibn Ali the grandson of Muhammad felt that it was a test from God for him and his duty to confront him. ThenAbd Allah ibn al-Zubayr, Qasim ibn Muhammad ibn Abi Bakr's cousin confronted the Umayyad rulers after Husayn ibn Ali was betrayed by the people of Kufa and killed by Syrian Roman Army now under the control of the Yazid I.[35] Abd Allah ibn al-Zubayr then took on the Umayyads and expelled their forces from Hijaz and Iraq. But then his forces were depleted in Iraq, trying to stop the Khawarij. The Umayyads then moved in. After a lengthy campaign, in his last hour Abd Allah ibn al-Zubayr asked his motherAsma' bint Abu Bakr the daughter ofAbu Bakr the first caliph for advice. Asma' bint Abu Bakr replied to her son, she said:[36] "You know better in your own self, that if you are upon the truth and you are calling towards the truth go forth, for people more honourable than you have been killed and if you are not upon the truth, then what an evil son you are and you have destroyed yourself and those who are with you. If you say, that if you are upon the truth and you will be killed at the hands of others, then you will not truly be free." Abd Allah ibn al-Zubayr left and was later also killed and crucified by the Syrian Roman Army now under the control of the Umayyads and led by Hajjaj.Muhammad ibn Abi Bakr the son of Abu Bakr the first caliph and raised by Ali the fourth caliph was also killed by the Umayyads.[37]Aisha then raised and taught her son Qasim ibn Muhammad ibn Abi Bakr who later taught his grandson Jafar al-Sadiq.
The 45 Volumes/18,500 pages,Al Mausu'ah Al Fiqhiyah Al Kuwaitiyah, is the largest printed Fiqh Encyclopedia; it took 40 years to complete and was later translated into Urdu, Tamil, Persian, Malay & Bengali language.
During the early Umayyad period, there was more community involvement. The Quran and Muhammad's example was the main source of law after which the community decided. If it worked for the community, was just and did not conflict with the Quran and the example of Muhammad, it was accepted. This made it easier for the different communities, with Roman, Persian, Central Asia and North African backgrounds to integrate into the Islamic State and that assisted in the quick expansion of the Islamic State. The scholars in Madina were consulted on the more complex judicial issues. The Sharia and the official more centralized schools of fiqh developed later, during the time of the Abbasids.[38]
Qiyas, analogical legal reasoning by Islamic jurists.[40]
Majority ofSunni Muslims viewQiyas as a central Pillar ofIjtihad.[40] An example is the ruling ofMuhammad, that "a judge should not sit in judgement while angry", whereas reason adds that this extends to hunger or suffering from a painful disease.[39]Zahirites, rejectedQiyas unlike the Sunnis.[41] TheShi’a believed that all laws are implicitly mentioned in the Quran or the sunnah and can be discovered by the jurists of their tradition.[42]
TheQur'an gives instructions on many issues, such as how to perform the ritual purification (wudu) before the obligatory daily prayers (salat). On other issues, for example, the Qur'an states one needs to engage in daily prayers (salat) and fast (sawm) during themonth of Ramadan but further instructions and details on how to perform these duties can be found in the traditions of Muhammad, soQur'an and Sunnah are in most cases the basis for (Shariah).
Some topics are without precedent in Islam's early period. In those cases, Muslim jurists (Fuqaha) try to arrive at conclusions by other means.Sunni jurists use historical consensus of the community (Ijma); a majority in the modern era also useanalogy (Qiyas) and weigh the harms and benefits of new topics (Istislah), and a plurality utilizes juristic preference (Istihsan). The conclusions arrived at with the aid of these additional tools constitute a wide array of laws, and its application is calledfiqh. Thus, in contrast to thesharia,fiqh is not regarded assacred and the schools of thought have differing views on its details, without viewing other conclusions assacrilegious. This division of interpretation in more detailed issues has resulted in different schools of thought (madh'hab).
This wider concept ofIslamic jurisprudence is the source of a range of laws in different topics that guide Muslims in everyday life.
There are different approaches to the methodology used in jurisprudence to derive Islamic rulings from the primary sources ofsharia (Islamic law). The main methodologies are those of theSunni,Shi'a andIbadi denominations. While both Sunni andShi'ite (Shia) are divided into smaller sub-schools, the differences among the Shi'ite schools is considerably greater. Ibadites only follow a single school without divisions.
While using court decisions as legal precedents andcase law are central to Western law, the importance of the institution of fatawa (non-binding answers by Islamic legal scholars to legal questions) has been called "central to the development" of Islamic jurisprudence.[43] This is in part because of a "vacuum" in the other source of Islamic law,qada` (legal rulings by state appointed Islamic judges) after the fall of the lastcaliphate the Ottoman Empire.[14] While the practice in Islam dates back to the time of Muhammad, according to at least one source (Muhammad El-Gamal), it is "modeled after theRoman system ofresponsa," and gives the questioner "decisive primary-mover advantage in choosing the question and its wording."[14]
Each school (madhhab) reflects a uniqueurf 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 ofisnad, which developed to validatehadith 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.
Earlyshariah 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 theIslamization of knowledge, which would deal with the modern context. This modernization is opposed by most conservativeulema. 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.
Map of the Muslim world with the main schools of thoughts[44][needs update]
The schools ofSunni Islam are each named by students of the classical jurist who taught them. The Sunni schools (and where they are commonly found) are:
These schools share many of their rulings, but differ on the particularhadiths they accept as authentic and the weight they give to analogy or reason (qiyas) in deciding difficulties.
The relationship between (at least the Sunni) schools of jurisprudence and the conflict between the unity of the Shariah and the diversity of the schools, was expressed by the 12th century Hanafi scholarAbu Hafs Umar al-Nasafi, who wrote: "Our school is correct with the possibility of error, and another school is in error with the possibility of being correct."[46]
TheWaqf inIslamic law, which developed during the 7th–9th centuries, bears a notable resemblance to thetrusts in the Englishtrust law.[48] For example, everyWaqf was required to have awaqif (settlor),mutawillis (trustee),qadi (judge) and beneficiaries.[49] The trust law developed inEngland at the time of theCrusades, during the 12th and 13th centuries, was introduced by Crusaders who may have been influenced by theWaqf institutions they came across in theMiddle East.[50][51]
In classical Islamic jurisprudence, litigants in court may obtainnotarized statements from between three and twelve witnesses. When the statements of all witnesses are consistent, the notaries will certify their unanimous testimony in a legal document, which may be used to support the litigant's claim.[52] The notaries serve to free thejudge from the time-consuming task of hearing the testimony of each eyewitness himself, and their documents serve to legally authenticate each oral testimony.[53] TheMaliki school requires two notaries to collect a minimum of twelve eyewitness statements in certain legal cases, including those involving unregistered marriages and land disputes.[54][55] John Makdisi has compared this group of twelve witness statements, known as alafif, toEnglish Common Law jury trials underHenry II, surmising a link between the king's reforms and the legal system of theKingdom of Sicily. The island had previously been ruled by various Islamic dynasties.[56][57]
Several other fundamentalcommon law institutions may have been adapted from similar legal institutions inIslamic law and jurisprudence, and introduced to England by theNormans after theNorman conquest of England and the Emirate of Sicily, and by Crusaders during theCrusades. In particular, the "royal Englishcontract protected by the action ofdebt is identified with the IslamicAqd, the Englishassize of novel disseisin is identified with the IslamicIstihqaq, and the Englishjury is identified with the Islamiclafif." John Makdisi speculated that English legal institutions such as "thescholastic method, thelicence toteach", the "law schools known asInns of Court in England andMadrasas in Islam" and the "Europeancommenda" (IslamicQirad) may have also originated from Islamic law.[57] The methodology oflegal precedent and reasoning byanalogy (Qiyas) are also similar in both the Islamic and common law systems.[58] These influences have led some scholars to suggest that Islamic law may have laid the foundations for "the common law as an integrated whole".[57]
^for example, SunniHanbali scholar/preacherAl-Hasan ibn 'Ali al-Barbahari (d.941) who ruled the streets of Baghdad from 921-941 CE, insisted that "whoever asserts that there is any part of Islam with which the Companions of the Prophet did not provide us has called them [the Companions of the Prophet] liars".[13]
^أنیس, إبراهیم (1998).المعجم الوسیط. بیروت، لبنان: دارالفکر. p. 731.
^Maghen, Ze'ev (2003). "Dead Tradition: Joseph Schacht and the Origins of "Popular Practice"".Islamic Law and Society.10 (3):276–347.doi:10.1163/156851903770227575.JSTOR3399422.
^Lakhani, M. Ali (2017).Faith and Ethics: The Vision of the Ismaili Imamat. Bloomsbury Publishing. p. 4.ISBN978-1786733900.The place of the Ismailis within the theological pluralism of the Muslim community is best summarised by their Imam's statement to the International Islamic Conference held in Amman in July 2005: "Our historic adherence is to the Ja'fari madhhab and other madhahib of close affinity, and it continues, under the leadership of the hereditary Ismaili Imam of the time. This adherence is in harmony also with our acceptance of Sufi principles of personal search and balance between the zahir and the spirit or the intellect which the zahir signifies."
^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, 24–25 February 1977). American Society of Comparative Law: 187–198 [196–98].doi:10.2307/839667.JSTOR839667.
Calder, Norman (2009)."Law. Legal Thought and Jurisprudence". In John L. Esposito (ed.).The Oxford Encyclopedia of the Islamic World. Oxford: Oxford University Press. Archived fromthe original on 21 November 2008.
Doi, Abd ar-Rahman I., and Clarke, Abdassamad (2008).Shari'ah: Islamic Law. Ta-Ha Publishers Ltd.,ISBN978-1-84200-087-8 (hardback)
Cilardo, Agostino, "Fiqh, History of", inMuhammad in History, Thought, and Culture: An Encyclopedia of the Prophet of God (2 vols.), Edited by C. Fitzpatrick and A. Walker, Santa Barbara, ABC-CLIO, 2014, Vol I, pp. 201–206.
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