Fiqh | Wikipedia audio article

Fiqh | Wikipedia audio article

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Fiqh (; Arabic: فقه‎ [fɪqh]) is Islamic
jurisprudence. Fiqh is often described as the human understanding
of the sharia, that is human understanding of the divine Islamic law as revealed in the
Quran and the Sunnah (the teachings and practices of the Islamic prophet Muhammad and His companions). Fiqh expands and develops Shariah through
interpretation (ijtihad) of the Quran and Sunnah by Islamic jurists (ulama) and is implemented
by the rulings (fatwa) of jurists on questions presented to them. Thus, whereas sharia 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 political system. In the modern era, there are four prominent
schools (madh’hab) of fiqh within Sunni practice, plus two (or three) within Shi’a practice. A person trained in fiqh is known as a faqīh
(plural fuqaha).Figuratively, fiqh means knowledge about Islamic legal rulings from their sources
and deriving religious rulings from their sources necessitates the mujtahid (an individual
who exercises ijtihad) to have a deep understanding in the different discussions of jurisprudence. A faqīh must look deep down into a matter
and not suffice himself with just the apparent meaning, and a person who only knows the appearance
of a matter is not qualified as a faqīh.The studies of fiqh, are traditionally divided
into Uṣūl al-fiqh (principles of Islamic jurisprudence, lit. the roots of fiqh), the
methods of legal interpretation and analysis; and Furūʿ al-fiqh (lit. the branches of
fiqh), the elaboration of rulings on the basis of these principles. Furūʿ al-fiqh is the product of the application
of Uṣūl al-fiqh and the total product of human efforts at understanding the divine
will. A hukm (plural aḥkām) is a particular ruling
in a given case.==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
connected 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 Roberts as an expert in the common law fiqh of the United States, or of Egyptian
legal scholar Abd El-Razzak El-Sanhuri as an expert in the civil law fiqh of Egypt.==History==The
history of Islamic jurisprudence is “customarily divided into eight periods”:
the first period ending with the death of Muhammad in 11 AH.
second period “characterized by personal interpretations” of the canon by the Sahabah or companions
of Muhammad, lasting until 50 AH. from 50 AH until the early second century
AH there was competition between a “a traditionalist approach to jurisprudence” in western Arabia
where Islam was revealed and a “rationalist approach in Iraq”. the “golden age of classical Islamic jurisprudence”
from the “early second to the mid-fourth century when the eight “most significant” schools
of Sunni and Shi’i jurisprudence emerged.” from the mid-fourth century to mid-seventh
AH Islamic jurisprudence was “limited to elaborations within the main juristic schools”. the “dark age” of Islamic jurisprudence stretched
from the fall of Baghdad in the mid-seventh AH (1258 CE) to 1293 AH/1876 CE. In 1293 AH (1876 CE) the Ottomans codified
Hanafi jurisprudence in the Majallah 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 and Abd El-Razzak El-Sanhuri
were products of this era. 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.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 (istishab), extended analogy (maslaha
mursala), blocking the means (sadd al-dhari’ah), custome urf and saying of a companion (qawl
al-sahabi).===Diagram of early scholars===
The Quran set the rights, the responsibilities and the rules for people and for societies
to adhere to, like not dealing in interest. 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 Islamic prophet Muhammad regarding a similar case.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. The scholars appearing in the diagram below
were taught by Muhammad’s companions, many of whom settled in Madina. Muwatta by Malik ibn Anas was written as a
consensus of the opinion, of these scholars. The Muwatta by Malik ibn Anas quotes 13 hadiths
from Imam Jafar al-Sadiq. Aisha also taught her nephew Urwah ibn Zubayr. He then taught his son Hisham ibn Urwah, who
was the main teacher of Malik ibn Anas whose views many Sunni follow and also taught Jafar
al-Sadiq. Qasim ibn Muhammad ibn Abu Bakr, Hisham ibn
Urwah and Muhammad al-Baqir taught Zayd ibn Ali, Jafar al-Sadiq, Abu Hanifa, and Malik
ibn Anas. Imam Jafar al-Sadiq, Imam Abu Hanifa and Malik
ibn Anas worked together in Al-Masjid an-Nabawi in Medina. Along with Qasim ibn Muhammad ibn Abu Bakr,
Muhammad al-Baqir, Zayd ibn Ali and over 70 other leading jurists and scholars. Al-Shafi‘i was taught by Malik ibn Anas. Ahmad ibn Hanbal was taught by Al-Shafi‘i.
Muhammad al-Bukhari travelled everywhere collecting hadith and his father Ismail ibn Ibrahim was
a student of Malik ibn Anas. 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.” 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” Quran 5:3.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 through Ijtihad where there is no such ruling in the Quran or the Hadiths
of Islamic prophet Muhammad regarding a similar case. 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 the Muwatta by Malik ibn Anas. 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). This then resulted in jurists like Muhammad
al-Bukhari dedicating their lives to the collection of the correct Hadith, in books like Sahih
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 the Constitution of Medina
still applied. The Quran also gave additional rights to the
citizens of the state and these rights were also applied. Ali, Hassan and Hussein ibn Ali gave their
allegiance to the first three caliphs because they abided by these conditions. Later Ali 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”. But later as fate would have it (Predestination
in Islam) when Yazid I, an oppressive ruler took power, Hussein ibn Ali the grandson of
Muhammad felt that it was a test from God for him and his duty to confront him. Then Abd Allah ibn al-Zubayr, Qasim ibn Muhammad
ibn Abu Bakr’s cousin confronted the Umayyad rulers after Hussein ibn Ali was betrayed
by the people of Kufa and killed by Syrian Roman Army now under the control of the Yazid
I the Umayyad ruler. 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 Ummayads then moved in. After a lengthy campaign, in his last hour
Abd Allah ibn al-Zubayr asked his mother Asma’ bint Abu Bakr the daughter of Abu Bakr the
first caliph for advice. Asma’ bint Abu Bakr replied to her son, she
said: “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 Ummayads. Aisha then raised and taught his son Qasim
ibn Muhammad ibn Abu Bakr who later taught his grandson Jafar al-Sadiq. During the early Ummayad 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.==Components==The sources of fiqh in order of importance
are the Qur’an
Hadith Ijma, i.e. collective reasoning and consensus
amongst authoritative Muslims of a particular generation, and its interpretation by Islamic
scholars. Qiyas, i.e. analogy which is deployed if Ijma
or historic collective reasoning on the issue is not available.The Qur’an gives clear instructions
on many issues, such as how to perform the ritual purification (wudu) before the obligatory
daily prayers (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 (salat) and fast (sawm) during the month of Ramadan but Muslims believe
they need further instructions on how to perform these duties. Details about these issues can be found in
the traditions of Muhammad, so Qur’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 use analogy (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 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 (madh’hab). This wider concept of Islamic jurisprudence
is the source of a range of laws in different topics that guide Muslims in everyday life.===Component categories===
Islamic jurisprudence (fiqh) covers two main areas: Rules in relation to actions, and,
Rules in relation to circumstances surrounding actions.These types of rules can also fall
into two groups: Worship (Ibadaat)
Dealings and transactions (with people) (Mu`amalaat)Rules in relation to actions (‘amaliyya — عملية)
or “decision types” 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, fasid, batil)
In time / Deferred / Repeat (adaa, qadaa, i’ada)===Methodologies of jurisprudence===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 jurisprudence to derive Islamic law from the primary sources. The main methodologies are those of the Sunni,
Shi’a and Ibadi denominations. While both Sunni and Shi’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. FatawaWhile using court decisions as legal
precedents and case 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. 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 last caliphate the Ottoman Empire. 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 the Roman system of responsa,” and gives the questioner “decisive primary-mover advantage
in choosing he question and its wording.” Arguments for and against reformEach school
(madhhab) 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.===Fields of jurisprudence======
Schools of jurisprudence===There are several schools of fiqh thought
(Arabic: مذهب‎ maḏhab; pl. مذاهب maḏāhib) The schools 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 Hanafi (Turkey, the Balkans, the Levant, Central
Asia, Indian subcontinent, China, Egypt, and Russia’s Muslim community)
Maliki (North Africa, West Africa and several of the Arab states of the Persian Gulf)
Shafi’i (Kurdistan, Indonesia, Malaysia, Brunei, Egypt, East Africa, Southern Yemen, and southern
parts of India) Hanbali (Saudi Arabia) see Wahhabism
Zahiri (minority communities in Morocco and Pakistan)
Jariri, Laythi, Awza’i, Thawri, and Qurtubi are no longer exist.The schools of Shia Islam
comprise: Ja’fari (Twelver Shia: Iran, Azerbaijan, Iraq,
Lebanon, etc.) Isma’ili (minority communities in Central
Asia, India, and Pakistan) Zaydi (Northern Yemen)Entirely separate from
both the Sunni and Shia traditions, Khawarij Islam has evolved its own distinct school. Ibadi (Oman)These schools share many 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 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 scholar Abu Hafs Umar an-Nasafi,
who wrote: `Our school is correct with the possibility of error, and another school is
in error with the possibility of being correct.”==
Possible links with Western 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”.==See also==Ja’fari jurisprudence
Abdallah al-Harari Bahar-e-Shariat
Mizan, a comprehensive treatise on the contents of Islam written by Javed Ahmed Ghamidi. Palestinian law
Ma’ruf Sources of Islamic law
List of Islamic terms in Arabic Urf==Notes

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