Tuesday, August 17, 2010

Islamic Shariah, Fiqh and Secular Law: Basic Definitions

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 (saas). 

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.

3-Fiqh (Islamic Jurisprudence)
Basis of Rulings
Imams of schools of thought
Unanimity of Muslim scholars
Direct and indirect analogy
Benefit for community
Associated rules
Original rules
Opinion of a companion of the Prophet
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.)
Imam Jafer as Sadiq
Others: Al-Thawri, Ibn Abu-Lail, Al Awza'i,
and Al-Laith

Rulings of the Shari`ah

The 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 (fard al-'ayn), which is required from every individual Muslim (e.g. salah and zakah);
and communally obligatory (fard al- kifaya), 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.

Fiqh was the doctrinal response of the Islamic civilization to challenges.

The codification of Fiqh solidified the foundation of Islamic civilization and was the cement for its stability through the turmoil of centuries. 

As long as the process of Fiqh was dynamic, creativity and ideas flowed from Islam to other civilizations.

When this process became static and stagnant, historical Islam increasingly turned inwards and became marginalized in the global struggle of humankind.

Some definitions of the terms Shariah, Fiqh and secular law are in order at the outset. 

Shariah is the constant, unchanging, basic dimension of Islam

It has its basis in the Qur’an and it derives its legitimacy from Divine sovereignty. Shariah defines not just the relationship of man to man, but also the relationship of man to God and of man to the cosmos. As such, it is all embracing and its dimensions are infinite. 

Secular law, on the other hand, deals only with the relationship of man to fellow human beings and does not concern itself with the relationship of man to the Divine. 

It is finite, changeable and subject to the vagaries of history and geography. It derives its legitimacy from the proclaimed sovereignty of kings, rulers and nations.

Fiqh is the historical dimension of the Shariah and represents the continuous and unceasing Muslim struggle to live up to divine commandments in time and space. 

It is the rigorous and detailed application of the Shariah to issues that confront humankind as it participates in the unfolding drama of history. As such it embraces the approach, the process, the methodology as well as the practical application of the Shariah. 

It [fiqh] defines the interface of an individual with himself, his family, his society, his community, as well as the civilizational interface between Islam and other faiths and ideologies.

We will attempt to summarize in this chapter 

...the historical origins and practical developments of the five major schools of Fiqh that are currently followed by the vast majority of Muslims. 

These are: Hanafi, Maliki, Shafi’i, Hanbali and Ja’afariya. There are other schools of Fiqh such as Zaidi and Ismaili, which are practiced by a relatively small number of Muslims today and we will refer to them only in their historical context. 

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