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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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