Al-Fiqh

A Journey in Islamic Jurisprudence Ghiath Alahmad

Main PointsClarification of the concept of Islamic Jurisprudence The purposes of the JurisprudenceShariah & JurisprudenceJurisprudence & the man made lawThe Categories of Action rulesThe historical stages of the growth of the JurisprudenceThe major schools of the Islamic Jurisprudence

Jurisprudence-Fiqh accurately means to understand deeply .An example of this is found in the Quran in the Dua of Prophet Moses (as) when he asked Allah to remove the impediment from his speech so Pharaoh and his people could understand him very well.{ }.And loosen the knot from my tongue. That they may understand my speech.

Fiqh The Arabic word fiqh means knowledge, understanding and comprehension. It refers to the legal rulings of the Muslim scholars, based on their knowledge of the shari`ah; and as such is the third source of rulings. The science of fiqh started in the second century after Hijrah, when the Islamic state expanded and faced several issues which were not explicitly covered in the Qur'an and Sunnah of the Prophet ( ). Rulings based on the unanimity of Muslim scholars and direct analogy are binding. The four Sunni schools of thought, Hanafi, Maliki, Shafi'i and Hanbali, are identical in approximately 75% of their legal conclusions. Variances in the remaining questions are traceable to methodological differences in understanding or authentication of the primary textual evidence. Differing viewpoints sometimes exist even within a single school of thought.

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JurisprudenceThis usage is also found in the Hadith of the Prophet( ) who said, Whoever Allah intends good for. He gives him understanding of the Deen. Narrated by Muslim.

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Jurisprudence According to the Scholars Fiqh according to the scholars has the following meaning: The collection of rulings or laws, (taken from) Shariah, dealing with actions, by which every Muslim is required to live. It is important to know that these rulings deal with the individual as well as the society.

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The Comprehensiveness of JurisprudenceWorship this aspect of Jurisprudence is dealing with Prayer, Charity, Fasting, and Hajj.Family Issues- this aspect of Jurisprudence is dealing with the family from the beginning to the end. Such as the conditions for a sound marriage divorce and so forth.Transactions- this aspect of Jurisprudence is related to how we cooperate with each other in society. An example would be buying and selling goods.

The Comprehensiveness of Jurisprudence

Politics- this aspect of Jurisprudence deals with the organization of government and governmental organizations in regards to the Muslim nation.

Punishment of criminals

The Comprehensiveness of JurisprudencePeace and war- this aspect of Jurisprudence deals with foreign relations with other countries depending on the current condition that exist between the Islamic state and those countries.

Ethics and virtue

Al-Shariah in the Arabic Language A watering place; a resort of drinkers (both men and beast); a place to which men come to drink there-from and draw water.

Al-Shariah in Islamic TerminologyIt refers to the sum total of Islamic Laws which were revealed to the Prophet Muhammad { } which are recorded in the Quran and the Sunnah).

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The Differences Between Fiqh and ShariahFiqh.A body of laws deduced from the Shariah to cover specific situations not covered in the Shariah. ShariahShareah is the body of laws found both in the Qur`an and Sunnah.

The Differences Between Fiqh and ShariahFiqh.Fiqh changes according to the circumstances surrounding it. ShariahShariah is fixed and unchangeable.

The Differences Between Fiqh and ShariahFiqh.Fiqh laws tend to be specific: they demonstrate how the basic principles of Shariah should be applied in given circumstances. . ShariahThe laws of Shariah are, for the most part, general: they lay down basic principles.

Differences between the Islamic Shari`ah and Man-Made LawDivine origin against Human origin. Consequences in this world and the Hereafter against This world only. Development of personal accountability to Allah against Mere loyalty to the law Absolute criteria providing for the benefit of creatures against Popular opinion which may or may not be beneficial

ShariahMan-Made Law Divine origin Human origin Consequences in this world and the Hereafter Consequences this world only Development of personal accountability to Allah Mere loyalty to the law

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Rulings of Sacred Law

prescribed, recommended, permissible, disliked and unlawful 16

Rulings of Sacred LawPrescribed

Recommended/Permissible

Disliked

Forbidden

Other terms:Obligatory Mandatory Required

Performance:

rewarded

Non-Performance:

punished Other terms:

- Sunnah

- Preferable

- Meritorious

- Desirable

P: rewarded

NP: not punished Other terms:

- Allowed

P: not rewarded

NP: not punishedOther terms:

- Offensive

- Detested

P: not punished

NP: rewardedOther terms:

- Unlawful- Prohibited

P: punished

NP: rewarded

Rulings of the Shari`ahThe rulings of shari`ah for all our daily actions are five : prescribed, recommended, permissible, disliked and unlawful . The distinctions between the five categories are in whether their performance (P) and nonperformance (NP) is rewarded, not rewarded, punished or not punished (see the table). The prescribed (fard) is also referred to as obligatory (wajib), mandatory (muhattam) and required (lazim). It is divided into two categories : personally obligatory ( ), which is required from every individual Muslim (e.g. salah and zakah); and communally obligatory ( ), which if performed by some Muslims is not required from others (e.g., funeral prayers).The recomended (mandub) is also referred to as sunnah, preferable (mustahabb), meritorious (fadila), and desirable (marghub fih). Examples are night vigil (tahajjud) prayers, and rememberance of Allah (zikr).The performance and nonperformance of the permissible/ allowed (mubah) is neither rewarded nor punished. Nonperformance of both the disliked (makruh) and the unlawful/prohibited (haram ) is rewarded. Performance of the unlawful is punished, but that of the disliked is not punished.17

The Six Historical Periods of Islamic Jurisprudence

The Seven Historical Periods of Islamic Jurisprudence

1 FoundationEra of Prophet ( ) time.Two stages:Makka Madenah Criteria of Jurisprudence in this phase:Prophet ( ) was the only resource of rules.Rules used to be legislated according the events, or as answers to queries. Islamic Jurisprudence was put together step by step, and part by part through the followed Quranic verses and prophetic says.

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1 FoundationDifferences existed but were limited.The ideological foundations of Islam were laid down.The evolution of Jurisprudence and the foundations of its methodology were taught by the prophet ( ) to his companions.

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2EstablishmentRighteousCaliphsera

2 Establishment

The basis of deductive Jurisprudent principles were laid down during the time of the Righteous Caliphs.The sudden addition of vast new territories brought Muslims into sudden contact with many different cultures, and this produced a host of new issues which were not specifically covered in the Qur`an And Sunnah

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2 EstablishmentLegal rulings became increasingly needed, and the Righteous Caliphs developed certain procedures for arriving at a juristic decisionThe companions, in general, followed decision making procedures which helped them to avoid hard and fast rulingsThe Presence of the Righteous Caliphs and the companions provided a safe guard in legal rulings. This promoted unity and there was no factionalism within the Islamic Nation

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2 EstablishmentCriteria of Jurisprudence in this phase:Deliberation principle led to stop any conflict The consensus were easily availableNot many account of Prophetic Says due to Omar's banNot many events comparing with the events laterPiety of the Companions to give Fatwa

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3BuildingFrom the end of Righteous Caliphs time to the beginning of the 2nd Century

3 BuildingFrom the end of Righteous Caliphs time to the beginning of the 2nd CenturyThe Companions spread among different countriesScholars relied on frequent narration of Hadith and compiled the legal rulings of the most prominent jurist among the Companions ()

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3 BuildingSocial unrest and confusionFabrication of Hadith

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3 Building

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4FloweringFrom the beginning of the 2nd century to the mid of the 4th

4 FloweringFrom the beginning of the 2nd century to the mid of the 4th Jurisprudence took on a definite shape as an independent Islamic scienceCenters of learning increased and so did the different doctrines () of earlier scholarsJurisprudence became organized and divided into two parts: and the

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4 FloweringThe entire Sunnah was collected and recorded in booksWith regards to the issue of the Doctrines two distinct periods took place during this time:Exchange of ideas and sharing of ideas/first half of this period Factionalism, intolerability, rigidity, and argumentation /second half

Imam Abu Hanifa 80-150 (After Hijra) Imam Malik 93-179 (A.H.) Imam Shafi'i 150-204(A.H.) Imam Ahmad Ibn Hanbal 164-241 (A.H.) Others: Al-Thawri, Ibn Abu-Lail, Al Awza'i,and Al-Laith32

ImamsImam Abu Hanifa 80-150 (After Hijra) Imam Malik 93-179 (A.H.) Imam Shafi'i 150-204(A.H.) Imam Ahmad Ibn Hanbal 164-241 (A.H.) Others: Al-Thawri, Ibn Abu-Lail, Al Awza'i,and Al-Laith

5ConsolidationFrom the mid of 4th century to the mid of 7th.

From the mid of 4th century to the mid of 7th.

5Consolidation

5 ConsolidationFrom the mid of 4th century to the mid of 7th.Only FOUR jurisprudential doctrines were remainedThe jurisprudential doctrines reached their final form of systemization and organizationIjtihaad beyond the structure of the different doctrines was dropped and Ijtihaad within the only one doctrine took overJustification of the jurisprudent choices developed Comparative jurisprudence was born

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Hanifi Doctrine

743 861 855 969

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Maliki Doctrine 776 1066 1101 1189

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Shafii Doctrine 877 756 926 995

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Hanbali Doctrine 728 751

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6Stagnation

From the mid of 7th century

6 StagnationFrom the mid of 7th centuryIt was divided into 2 periodsTill the beginning of 10th century (Plenty of Scholars)From the 10th century Ijtihaad was put aside and the blind following of a doctrine took overThe four doctrines became more intolerable with each other, and finally broke into four sects

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6 StagnationScholarly activity became polarizedRevivers continued to work to bring the dynamics of jurisprudence backThe fanaticism of the doctrines lessened do to the Islamic Movement and the teaching of comparative jurisprudence

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7 InstitutionsLock of Ijtihad; It means that it is not allowed -any more (after the end of the fourth century)- to any scholar to contrive any jurisprudential rule straight beginning from Qur`an Sunnah and consensus, nevertheless it assumed to go back to one of the four Islamic doctrines.

7 Institutions There are three developments facilitate for calling for this closure:The jurists wanted to protect Sharia from some wiseacre men. Fanaticism of the followers of each doctrine Juridical position: the governors used to choose the judges from one doctrine, this push the student to study this doctrine only

7 Institutions Why a lot of scholars called for this closure?The jurists wanted to protect Sharia from some wiseacre men.

7 Institutions

7 Institutions Egypt, Tunisia, Algeria and Othman state used the French systemSudan and India used the British

7 Institutions

Consensus AnalogyEquitable preferencePresumption of ContinuanceCustom & TraditionPublic Interest and Welfare

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7 Institutions

7 Institutions Many conferences for Islamic Jurisprudence started to be hold A week of Islamic Jurisprudence (Damascus Shawal 1380 April 1961)Conference of Islamic research institute in Al-Azhar (1961)Conference in Al-Byidah City in Libya, hold by Libyan University Conference of Islamic Jurisprudence (Riyadh 1976)

7 Institutions Founding of many of the institutes of JurisprudenceAl Azhar's Islamic Research Academy 1961International Islamic Fiqh Academy Makah Safar 1405, November 1984Islamic Fiqh council, hold the first conference in Makah Shaban 1398, 1977The permanent Committee Fatwa in Kingdom of Saudi ArabiaEuropean Council for fatwa and research.

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7 Institutions Examples of Fatwas:Organ transplantationArtificial Fertilization/ IVF