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Fiqh

FIQH

Islamic jurisprudence.

Literally, fiqh means understanding; it refers to the study of the law in Islam and is usually defined in jurisprudence textbooks as the knowledge of the rights and duties whereby human beings are enabled to observe right conduct in this life and to prepare themselves for the world to come. Whereas shariʿa refers to the divine law itself, fiqh denotes the human interpretation of the divine commands; it constitutes the discipline of deriving and formulating positive law in a number of branches (furu), including worship (ibadat), contractual law (muʿamalat), criminal law (taʿzir and hudud), and family and personal law (ahwal shakhsiyya).

The discipline of fiqh relies on the process of interpreting positive law within a systematic body of rules and principles elaborated by the discipline of usul al -fiqh (principles of fiqh ), which constitutes as such the methodology of the law. Usul al-fiqh identifies the legal indicators or sources from which the law can be derived: the nass (textual sources; the Qurʾan and Sunna); aql or reason (expressed in ijtihad, individual reasoning); and ijma, (consensus.) The hierarchy and rules governing each of these are developed by usul al-fiqh along with the linguistic principles applicable in the legal criticism of the textual sources. Usul al-fiqh also categorizes the applicable legal norms (obligatory, recommended, permissible, reprehensible, and prohibited) and the declarative rules, as well as the principles regulating these. It defines the general legal principles that govern the goals and intent of the law (maqasid al-shariʿa), globally referred to as maslaha and defined as the promotion of public interest and exclusion of harm.

Although there is general agreement among the schools of law on the main principles of usul al-fiqh, differences exist on the legitimacy of some legal methods or sources, as for instance istislah, or maslaha mursala, in which law can be derived without reference to textual sources. Eventually, however, restrictions were introduced to reduce the possibility of arbitrariness and to legitimize these legal procedures.

The reform movements of the eighteenth century emphasized textual sources and turned away from consensus, which was considered to be the cause for the eventual lack of development in the law. The call by some contemporary jurists for the use of unrestricted ijtihad to resolve modern issues has caused tension and stalled attempts at reforming Islamic law. With the adoption of secular constitutions, most Muslim countries have stopped using fiqh except in the matter of family law.

See also Shariʿa; Sunna.


Bibliography

Kamali, Mohammad Hashim. Principles of Islamic Jurisprudence. Cambridge, U.K.: Islamic Texts Society, 1991.

Maysam J. al-Faruqi

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Fiqh

Fiqh (Arab., ‘intelligence, knowledge’). Jurisprudence, the science of the religious law in Islam. Fiqh covers all regulations of religious, political, civil, and social life; family, private, public, and criminal law. One who pursues the study of fiqh is a faqih.

Four main schools of law (madhāhib, sing. madhhab) have survived, based on the teachings of Shāfiʿī (d. 820 (AH 205)), Mālik b. Anas (d. 795 (AH 179)), Aḥmad b. Hanbal (d. 855 (AH 241)), and Abū Ḥanīfa (d. 767 (AH 150)). Mālik's Muwaṭṭa’ (The Path) is one of the earliest of all books of fiqh, and remained influential.

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Fiqh

FIQH

FIQH , the science of Islamic law. In the course of the eighth century, the term, which originally meant "knowledge" or "understanding," took on the meaning of Islamic jurisprudence on its two levels: certain knowledge, transmitted by the text of the Koran or a tradition relating to the Prophet (sunna); and legal conclusions derived by legal reasoning. The purpose of legal reasoning (ra'y), generally through analogy (qiy ā s), is to determine the ratio legis (motivation) for a legal rule. Consensus (ijmā'), the fourth source of Islamic law (after Koran, sunna, and qiyās), purports to ensure the truth of a rule or conclusion derived from textual sources. Those lawyers who deal with fiqh are known as fuqahā.

While sharīca is a general term for the totality of instructions and regulations in Islamic law, fiqh concentrates more on the legal aspect, though it too encompasses all areas of human behavior, religious as well as both private and public law. Accordingly, Islamic law recognizes five religious-ethical categories of human behavior (al-ahakām al-khamsa), ranging from obligatory (farḍ) to forbidden (haarām), with three intermediate categories: recommended (mandūb), reprehensible (makrūh), and indifferent (and permitted;mubāha). Parallel to this scale of religious-ethical qualifications is a scale of legal, rather than religious, validity of an action. While in theory the rules of fiqh, known as branches (furūc), are derived from the sources of Islamic law (usūal-fiqh) by the methodology prescribed in the usūlal-fiqh literature, some such rules actually stem from the customary law of pre-Islamic times (jāhiliyya) or the influence of other legal systems (Persian, Greek, Roman, Byzantine) or religions (Judaism, Christianity), whose full impact on Islamic law and its development have yet to be fully determined. Islamic law assimilated such influences in various ways, but not by way of custom (curf, cāda), which Islamic law in its initial phase did not recognize as an independent source of law; such recognition came at a later phase in the development of Islamic law.

One of the most salient characteristics of fiqh is its development by religious scholars (fuqahā, culamā) rather than judges. This at times led to divergences between theory and reality, with which the fuqahā had to deal by the application of, inter alia, legal devices and evasions (ḥiyal), as well as other legal principles, such as istihsān (discretionary decisions), or istislāh (consideration of the public interest). In some cases a special legal effort (ijtihād) was necessary to rule the law on the basis of the roots of the law, frequently by means of legal pronouncements (fatāwā, sing. fatwa) by high-ranking lawyers (muftī) – a phenomenon characteristic of the casuistic nature of Islamic law. In the mid-eighth century (758), ʿAbdullah ibn al-Muqaffaʿ proposed to the Caliph Al-Mansūr to draw up a codification of Islamic law, but his plan never came to fruition.

The legal oeuvre of the fiqh began to develop in the second half of the eighth century, beginning with the fiqh literature in all its variety, soon followed by the usūl al-fiqh literature. In addition to treatises devoted to detailed descriptions of specific areas of law, ranging from cabādat (ritual) to mucāmalat (pecuniary transactions), other literary genres of fiqh literature included works on differences between jurists and schools (ikhtilāf), which were a constant feature of Islamic law from its beginnings; legal formularies (shurūt); and works on legal devices (ḥiyal). The earliest work of usūl al-fiqh was the Risāla (that is, "epistle") of Idrīs Shāfiʿī (820), generally considered the founder of Muslim legal theory, which defined its terms and set its limits against the background of a controversy that broke out in the early Middle Ages between two currents of opinion: supporters of legal tradition (ahl alḥadīth) and supporters of legal reasoning (ahl al-ra'y). The first work of fiqh was the Muwaţţa' ("paved path") of Mālik b. Anas. In parallel to the official system of Islamic law, a secondary system of criminal law, known as al-naẓar fī'l-maẓālim ("investigation of complaints") developed as an alternative to the rigid system of evidence and procedure of official Islamic law.

Islamic law recognizes the existence of different opinions, granting them equal status. Accordingly, several different legal schools emerged in the main centers of Islamic law: Medina, Kufa, and Syria. Through the second half of the ninth century and the early tenth century, these ultimately became the main legal schools (madhhab), each named for prominent early scholars of the law: The Ḥānafi school, after Abū Ḥānafa (767); the Mālikī school, after Mālik b. Anas (795); the Shāfiʿī school, after Muḥammad ibn Idrīs al-Shāfiʿī (820); and the Ḥanbalī school, after Aḥmad ibn Ḥanbal (855). A few other schools were formed but did not survive. Some of the differences between these schools reflect the legal traditions of a specific locality and time as well as prevailing social conditions (mainly the Malikī and Ḥanafī schools); others reflect a different attitude to the sources of law or to other legal principles. Each school created its own fiqh literature and summarized its legal outlook in a work known as Mukhtaṣar ("compendium"). Each school dominated a certain geographical region of the Muslim world. There may have been some connection between the formation of the schools and the anthologization of ḥadīths (the documentation of the sunna) and development of the science of ḥadīth criticism, since the two developments are related in subject matter and contiguous in time: The anthologies were drawn up during the ninth century, and soon after them came the consolidation of the schools. Probably also the transition from ijtihād (legal struggle or effort) to taqlīd is related to the appearance of the schools, since the taqlīd (reliance on legal tradition) expresses loyalty to the legal heritage of a particular school and its leader. The evolution of legal terminology may also have been influenced by the emergence of the schools, since it expressed a certain hierarchy of opinions and in a way functioned as a substitute for legal decision rules, which Islamic law lacks. Common to the schools was their acceptance of the legal theory of usūl alfiqh, but this did not prevent the schisms of the seventh century, when the Shīʿ a split from the Sunna and the Khawārij seceded from mainstream Islam.

Muslim recognition of legal pluralism and the equal status accorded the legal schools created a degree of flexibility in Islamic law; thus, litigants were even permitted to shift from one school to another in a court composed of judges representing the four schools, and a judge could appeal to the ruling of a school other than his own. In modern times, Islam permits legislators to combine doctrines of more than one school in relation to specific clauses of the law (takhayyur), mainly in the context of protection of women's rights; this phenomenon blurs differences between the schools and promotes the unification of Islamic law.

Some characteristics of fiqh influenced Jewish law during and after the period of the geonim, in such areas as literary creativity, borrowing of legal terminology, and assimilation of legal principles and sometimes even of specific laws.

bibliography:

"Fikh," in: eis2, 2 (1965), 886–91 (includes bibliography); I. Goldziher, Introduction to Islamic Theology and Law (1981), 31–66; W.B. Hallaq, A History of Islamic Legal Theories (1977); J. Schacht, An Introduction to Islamic Law (1964), 57–85.

[Gideon Libson (2nd ed.)]

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Fiqh

FIQH

Jurisprudence, the science of Islamic religious law.

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