FROM THE EDITORIAL DIRECTOR
Dr. Farida Khanam has been a professor at the Department of Islamic Studies at Jamia Millia Islamia in New Delhi. A Study of World's Major Religions, A Simple Guide to Sufism are two of the books amongst others, of which she is the author. She has also translated many books on Islam authored by Maulana Wahiduddin Khan. Currently, the chairperson of Centre for Peace and Spirituality (CPS International), an organization founded by her father Maulana Wahiduddin Khan, she is a regular contributor of articles to journals, newspapers and magazines. Dr. Khanam has edited Maulana’s English translation of the Quran and has also translated his Urdu commentary of the Quran into English. Under Maulana Wahiduddin Khan Peace Foundation, along with the CPS team, she has designed a series of courses on peace-building, countering extremism and conflict resolution.
AN INTRODUCTION TO ISLAMIC JURISPRUDENCE
Understanding the Basics
ISLAMIC JURISPRUDENCE or fiqh literally means an understanding and knowledge of something. The Quran has used the word fiqh in its general sense of ‘understanding’ on more than one occasion. In the early days of Islam, the terms ilm (knowledge) and fiqh were frequently used interchangeably to denote an understanding of Islam in general. This shows that in the Prophet’s time, the term fiqh was not understood in the legal sense alone, i.e. synonymous with law. The Prophet once blessed Ibn Abbas (d.68 AH) in these words: ‘Allahumma faqqih ho fiddin’, that is, ‘O God, bestow upon him understanding in religion’. By these words the Prophet did not mean exclusively knowledge of law. He meant a deeper understanding of religion. Technically, fiqh refers to the science of deducing Islamic laws from evidence found in the sources of Islamic jurisprudence. The sources of law are four and are explained in detail below; the Quran, the Sunnah, Consensus (Ijma) and Inference (Qiyas). But by extension of meaning, fiqh also means the body of Islamic law deduced in this way.
Shariah literally means a ‘route to the watering place’ or a ‘visible and well marked-out rail’. Hence in Islam it means a ‘clear path’ or a ‘highway’ to be followed by all the believers. The Quran uses the term Shariah with the meaning of ‘religion’, that is a way, ordained by God for man to travel on in the course of his life. The word shariah was used in the Prophet’s time for the essentials of Islam, that is, the sum total of Islamic laws that were revealed to the Prophet of Islam in the form of the Quran.
The Prophet, besides conveying the revelation, gave commandments as well. These orders and exhortations of the Prophet were firmly based on revelation, but did not form part of the Quran. They are called the Sunnah, which is the second source of Islamic law, the first being the Quran.
Fiqh is thus the name given to jurisprudence in Islam. In other words, fiqh or the science of Islamic law, is the study of one’s rights and obligations, derived from the Quran and the Sunnah of the Prophet, the consensus of opinion among the learned and analogical inference.
THE ORIGIN AND DEVELOPMENT OF FIQH
Fiqh, in its widest sense, covers all aspects of religious, political, and civil life. In addition to the laws regulating ritual and religious observances (stipulated prayers), it includes also the whole field of family law, the law of inheritance of property and of contract. In other words, it makes provisions for all the legal questions that arise in social life as well as for religious practices. It also includes criminal law and its procedure as well as constitutional law and laws regulating the administration of the state and matters pertaining to security issues. During the time of the Prophet, there was no such-well defined science as that which later came to be known as fiqh. The only ideal for the early Muslims was the conduct of the Prophet. They learnt ablutions, saying prayers, performing Hajj, etc., under the instructions of the Prophet and by observing his actions. On certain occasions, cases were brought to the Prophet for arbitration. The Prophet’s decisions were taken as models for other similar cases.
Fiqh refers to the science of deducing Islamic laws from evidence found in the sources of Islamic jurisprudence.
The Companions occasionally asked him questions relating to certain serious problems and the Prophet gave them suitable replies. People in his lifetime were not interested in unnecessary philosophical discussions or in hair-splitting details. The Companions generally asked the Prophet very few questions. On one occasion, when someone put unnecessary questions to him, the Quran asked the Companions to desist from doing so. The result was that the Sunnah remained mostly a general directive interpreted by the early Muslims in different ways. What the Prophet had done was to lay down certain regulations, but the jurists elaborated them with many more details. The reason for these further additions to the laws by interpretation is that the Prophet himself had made allowances in his commands. He left many things to the discretion of the community to be decided according to a given situation.
People in Prophet’s lifetime were not interested in unnecessary philosophical discussions or in hair-splitting details.
In the early days of Islam, the law was neither inflexible nor very rigidly applied. Different and even contradictory laws relating to many problems could be found acceptable on the basis of argument. It seems that the Prophet provided a wide scope for differences by giving instructions of a general nature, or by validating two diverse actions for the same issue depending on the circumstances. The Prophet aimed at providing opportunities for the application of his guidelines in a variety of circumstances in the future. Had the Prophet laid down specific and rigid rules for each problem, the coming generations would have been prevented from exercising reason and framing laws according to the need of the hour.
After the demise of the Prophet, the Companions spread out in different parts of the Muslim world. Most of them came to occupy positions of intellectual and religious leadership. The people of their regions approached them for decisions regarding various problems. They gave their decisions sometimes according to what they understood from the Quran and the Sunnah.
The interpretation of the Quran also caused differences of opinion among the Companions. The points on which the Quranic injunctions were silent or those points not dealt with in detail in the Quran were to be explained. The result was that these verses were sometimes interpreted in the light of the traditions of the Prophet, and sometimes on the basis of the jurists’ opinions. Moreover, since the traditions themselves were diverse, it was natural that there were differences. In some cases, a Companion did not know a particular Hadith; hence he decided the problem on the basis of his own opinion. When the relevant Hadith was brought to his notice, he withdrew his personal judgement. On this account, Umar, the second Caliph, changed his opinion several times.
On certain occasions, it so happened that the relevant Hadith was available but the reporter himself could not understand its real meaning. Ibn Umar is reported to have narrated a Hadith from the Prophet that a deceased person is punished on account of the mourning of his relatives. When this tradition came to the attention of Aisha, she rejected it saying that Ibn Umar might have been mistaken, or might have forgotten some relevant part of the tradition. She also observed that the Hadith reported by Ibn Umar goes against the Quranic verse: ‘No soul bears the burden of another.’
The Companions, however, tried their best to establish their decisions on the Quran and Sunnah. They aspired to keep their decisions and personal judgements close to those of the Prophet. Despite their differences, they did not deviate from the spirit of the Quran and Hadith.
In the early days of Islam, the law was neither inflexible nor very rigidly applied. Different and even contradictory laws relating to many problems could be found acceptable on the basis of argument.
The people who followed took their stand on the opinions expressed by the Companions. They retained in their memory the Hadith of the Prophet and the opinions of the Companions and made attempts to reconcile opposite opinions. They exercised independent reasoning (ijtihad) in two ways. First of all, they were not afraid to give preference to the opinions of one Companion over another, and sometimes, even to the opinions of a person who came after over those of a Companion. Secondly, they engaged in original thinking themselves. In fact, the real formation of Islamic law starts in a more or less professional manner with the people who came after the Companions (now known as Successors). With the Successors, Islamic law began to take its formal shape and develop into an independent subject of study. In this age, the principles that governed fiqh were the Quran, Sunnah and deductive reasoning. The Prophet himself introduced these principles.
As mentioned above, the practice of Islamic jurisprudence came into existence with the advent of Islam, but it developed into a regular discipline in the second century AH. Abu Hanifa played the leading role in this gigantic task of compilation and systematization of Islamic law. By Abu Hanifa’s time, the accepted rules of fiqh had not been collected and had not yet been systematized into a regular discipline, if they were perpetuated, it was by being passed on verbally. There were no strict methods of reasoning, no rules for derivation of orders, no grading of Traditions, and no principles of analogical deduction. Fiqh had a long way to go before becoming a system.
Finally, four orthodox schools of legal thought emerged. These are called madhhab in Arabic. These madhhabs were named after the famous jurists of the time: Abu Hanifa (AD 699-767), Malik ibn Anas (AD 711-795 ), Al-Shafi (AD 767-819), and ibn Hanbal (AD 780-855).
THE SOURCES OF FIQH
There are four sources of fiqh or Islamic law:
a) Quran b) Hadith c) Consensus (Ijma) d) Inference (Qiyas)
a) The Quran
The Quran is the fundamental and main source of Islamic jurisprudence
from which all other sources derive their authority. It consists of the
very word of God revealed to the Prophet Muhammad over a period of
twenty-three years (AD 610-632). That is why the law in Islam is divine
in origin.
The texts of the Quran which are concerned mainly with the rules of Islamic law occur in the following chapters: Al Baqarah, An-Nisa, AlImran, Al-Maidah, An-Nur, and Bani Israil. The rules pertain to:
Reform in unlawful heathen customs, such as gambling, drinking of intoxicants, usury, etc.
Social reforms dealing with matters such as marriage, the position of women, divorce, the chastity of men and women, slavery, etc. Criminal laws relating to punishment for theft, slander, murder, etc. International laws pertaining to defence and peace, and directions relating to people of other faiths and protection of their rights, etc.
b) The Hadith
Next in importance after Quran is Hadith. The Hadith itself derives its
authority and legal validity from the Quran.
Hadith means narration of the sayings, deeds and approvals of the Prophet. The Quran generally deals with the broad principles or essentials of religion, going into details in rare cases. The Prophet himself usually supplied the details, either by showing in his conduct how an injunction should be carried out, or by giving verbal explanation.
The Quran says,
“Obey God and obey the Messenger.” (4: 58)
“Whatever the Messenger gives you, take it; and whatever he forbids you, abstain from it.” (59: 7).
“You have indeed in the Prophet of God a good example for those of you who look to God and the Last Day, and remember God always.” (33: 21)
In the light of these verses, one can infer that following of the Hadith is binding on a believer. The Hadith collection provides us with guidance in matters of legislation. It does not deviate from the Quran. It is in compliance with it.
The Quran and the Hadith are the main sources, to which all other sources are secondary. The Book, however, is the first source. The authority of Hadith is increased by the fact that the Prophet Muhammad not only theorized, but also had the opportunity to put the Quranic teachings into practice in all affairs of life, both spiritual and temporal.
c) Ijma (Consensus of jurists)
Ijma is the third source of Islamic jurisprudence. It is derived from
the Arabic word jama (to add) and in Islamic legal terminology, ijma
signifies consensus of opinion among the jurists of a particular age
on a question of law. Jurists have defined ijma as an ‘agreement of the
Muslim jurists of a particular period on any matter or point of Islamic
law.”
Ijma derives its authority or legal validity from the Quran and Hadith. The Quran says: “Obey God and obey the Prophet and those amongst you who have authority” (4: 57) and also, “Ask the People of the Book, if you do not know. (16: 43) The Prophet Muhammad says: “My followers will never agree upon what is wrong.”
Ijma may be based on the Quran, Hadith or analogy. This is the view of all the Sunni schools. That ijma is an essential principle of Sunni jurisprudence, was proven by its use immediately after the death of the Prophet. The Muslim community acted upon it as soon as they were called upon to solve the first and most important constitutional problem that arose on the Prophet’s death. That is, the selection of the head of the community. The election of Abu Bakr to the Caliphate by the votes of the people was based, as is well known, on the principle of ijma. All the Sunnis accept it as a source of Islamic jurisprudence.
Consensus is responsible for the further development of Islamic law after the completion of the Prophet’s mission. Islam is a preserved religion and its Prophet is the last one. In the Quran, only fundamental principles of legislation are given and in the matters on which there is no explicit order, God has permitted the exercise of individual opinion. But a consensus of opinions of jurists is superior to individual opinions of experts on Islamic legal science as it is a collective opinion of a number of jurists. In the absence of any relevant order of the Quran or Hadith, consensus assumes the status of law.
d) Inference/Analogical Deduction (Qiyas)
Qiyas is an important source of Islamic jurisprudence and is regarded
as an instrument in solving legal issues on the basis of reasoning based
on original texts. All four schools of Sunni jurisprudence accept that in
matters which have not been provided for by the Quran or precepts of
the Prophet and Ijma, the law might be deduced from what has been
laid down by any of these three authorities through the use of qiyas,
which is generally translated as ‘analogy’.
Qiyas literally means ‘to weigh’ or ‘to measure’ but, as a term of Islamic jurisprudence, it denotes the process by which a rule of law is deduced from the original text in view of a common cause. As a source of law, qiyas is defined as “an extension of law from the original text. It is a process of deduction by which the law of a text is applied to cases, which, though not covered by the literal language of the text, are governed by the reasoning given in the text. This process is applied in such cases with legal effect which are not directly covered by the text. Qiyas may be used only in the light of the Quran and Hadith, otherwise it will be invalid. More than one example can be cited from the Prophet regarding his approval of qiyas as a source of fiqh.
One basic consideration that underlies every Islamic decree is that the believer, at all times and while doing any activity should be mindful of God. He should not forget that he is going to answer for his every deed before God.
Dr. Farida Khanam
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