Thursday, 13 December 2018

Fiqh & Shariah, relationship inter-see and Usul al Fiqh


Fiqh & Shariah, relationship inter-see and Usul al Fiqh
Contents






Fiqh & Shariah, relationship inter-see and Usul al Fiqh

1.      Introduction

The discipline that tells us how law is derived from the text and how it is classified, understood and applied is called usul al fiqh. And when the term is broken up it is divided into two components; usul and fiqh.

The definitions of these two terms helps us to understand the role and function of the specialist within the Islamic legal system, nature of the sources from which the laws are derived and rules of Islamic law.

2.      Meaning of the term Fiqh & allied terms


a)      General Meaning

The original meaning of Fiqh is ‘the understanding and knowledge of something’. In more than one place the Quran has used the word fiqh in sense of ‘understanding’. Fiqh (religious learning) has now the meaning of the science of unusual legal cases, mystery of the minutest details of jurisprudence and excessive debates on them. The man who gives attention to such a science is called now Faqih or jurisprudent.

b)     Literal Meaning   

In its literal sense, the term fiqh means ‘understanding and discernment’. So fiqh and word fahm are synonymous. It may also mean, what a prudent person is likely to conclude from obvious evidences.

c)      In Quran

In the Prophet’s time the term fiqh was not applied in the legal sense alone but carried a wider meaning covering all aspects of Islam i.e. politics, economies, and legal.
______________________________________________________________________________
“What hath come to these people that they fail to understand a simple statement”. (Quran 4: 78)
______________________________________________________________________________
“They have hearts wherewith they understand not”. (Quran 7: 179)

d)     In Hadith

The same meaning is reflected in the words of Hadith;
______________________________________________________________________________
“He for whom Allah wills His blessings is granted the understanding of Din”.

 

 


e)      Definition of Fiqh

1.      As per Imam Abu Hanifa;
Fiqh means, “A person’s knowledge of his rights and duties”.
2.      Shafi jurists later defined the term in a very narrow and technical sense as;
“It is the knowledge of the Shari ahkam (legal rules) pertaining to conduct, that have been derived from their specific evidences”.  
In other words, Fiqh is a knowledge or understanding of Islamic law, it is not the law itself. So it can be understood as follows;
·         It is the knowledge of the rules of conduct and does not includes the tenets of faith.
·         It is knowledge that has been derived from individual texts or evidences i.e. Quran and Sunnah.
·         It is knowledge that has been derived from the texts by the specialist, i.e. Mujtahid who then give it to its followers.

3.      Prof. Dr. Ahmad Hasan, in his Principles of Islamic Jurisprudence, says:

“It appears that the term fiqh in the time of Imam Abu Hanifah (Allah’s mercy be on him) was used in the sense of the Shari`ah, comprehending dogma, law, morality, and rituals. Subsequently, dogma and morality became independent subjects and were dealt with in theology and mysticism or ethics. The term fiqh was confined to matters relating to law and rituals”.

4.      Wide definition of Fiqh;

It is too narrow to confine the activity of the jurist to a very strict method of interpretation. And then later Shafi Jurists, Imam Gazali and Al Razi define the Fiqh in much wider sense.

As per Imam Gazali;
Fiqh means “An expression for the knowledge of legal rules established specifically for human conduct”.

As an effect of wide definition of Fiqh, it takes into account the methodology of Ijtihad followed by the Hanafi and Maliki schools as well. This enables the reasoning from general principles like Istihsan and Maslahah Mursalah.

5.      Another definition of fiqh, is that “knowledge of the practical rules of Shari’ah acquired from the detailed evidence in the sources”.

f)       Allied terms

In early period we find a number of terms like fiqh ‘ilam, iman, tawhid, and hikmah’, that were used in a broader sense, but later on their original meanings changed and became more narrow and specific.

(i)     Ilam and Fiqh

In early days of Islam, the term Fiqh and Ilam were used for an understanding of Islam in general. In words of Hadith; the Prophet reported to have blessed Ibn Abbas, saying;
“O God, give him understanding in religion”.
But later on Ilam came to be applied in a narrow sense, in meaning of ‘knowledge of Ahadith’. And the term Fiqh on the other hand used for ‘knowledge of Law’. The term Ilam from the beginning carried the sense of Knowledge which came through an authority, and the term Fiqh involved the exercise of one’s personal thinking and intelligence. The companions of Prophet s.a.w, who gave legal judgments were known as ‘Fuqaha’.
In a book known as “Fiqh al akbar” Imam Abu Hanifa defined fiqh as;
“A person knowledge of his rights and duties”.
This definition is very wide includes all elements which are part of subject of Kalam, like the tenets of faith. But later on the term Fiqh came to be restricted to the corpus of Islamic Law alone.  

(ii)   Shariah and Fiqh

Alongside the term Fiqh, the term Shariah was also current among the early Muslims. And later, it was introduced to carry the specific meaning, i.e. the law of Islam.
Literally the word Shariah means, ‘course to the watering place’ and a ‘resort of drinkers’. So it means ‘clear path to be followed’. The Arabs used the word to a course leading to watering place, hence it means clear path.
The Quran used the word Shariah in the meaning of Din (religion). In the sense that it is the way ordained by Almighty Allah for man. And in the prophet’s time the term used as for the essentials of Islam only.
But Imam Abu Hanifa distinguished Din from Shariah on the ground that Din was never changed, whereas Shariah continued to change through history. By Din he meant basic tenets of faith e.g Unity of God, and by Shairah meant the performatory duties.
Al Shafi uses the term Shariah in sense of ‘institution’ which is unique. But today Shariah covers all aspects of Islam. A contemporary author defines Shariah and distinguish it from Fiqh in following words;
“Shariah is the wider circle, it embraces in its orbit all human actions, while Fiqh is the narrow one, and deals with what are commonly understand as legal acts. The path of Shariah is laid down by Almighty Allah and the edifice of Fiqh is human endeavour. Fiqh is the term used for the law as a science, and Shariah for the law as the divinely ordained path of rectitude”.
It is, however difficult to draw a sharp distinction between these two but it can be said that Shariah combines the law and tenets both, while Fiqh deals with the law alone, Shariah is the law itself and Fiqh is the knowledge of that law and its jurisprudence.

(iii) Qurra and Fuqaha

In Prophet’s time the term Qurra was also current among Muslims. And it was applied to those persons who could read the Quran. The seventy persons whom the Prophet s.a.w had deputed for teaching the Quran were known as the Qurra. Later when the Arabs came in contact with new cultures and civilizations, lslamic learning were further developed and the according to Ibn Khaldun, the Quranic readers were no longer called Qurra rather called Fuqaha and Ulama.

(iv) Mujtahid and Faqih

Earlier the person who derives law from the texts is called Faqih. But later on distinction was drawn between the terms Mujtahid and Faqih. The term Faqih came to be applied to those jurists who derived knowledge from the manuals of Fiqh. Those manuals contains the opinions of Mujtahids. The laws derived by Mujtahids become source of law for a Faqih. So Faqih follows the Mujtahid.
So a jurist (faqih) is a scholar who splits the laws and investigates the realities in them and opens the matters closed in them.

3. Meaning of the term Asl and Usul Al Fiqh

The second component of the title usul al fiqh, which is the plural of Asl.

a)      Literal meaning of Asl

The literal meaning of the term Asl is, “something from which another originates” or “something upon which another thing is built”. The former may means a source, while the latter may mean foundation.
Technically the term usul here means the principles, which are used for interpretation of the text i.e. Quran and Sunnah.

b)     Usul Al Fiqh

Thus the term usul al fiqh means the principles of interpretation used to derive the knowledge of the legal rules of conduct from the specific evidences. Muslim jurists define the term as follows;
“They are the principles by the use of which the mujtahid derives the legal rules of conduct from the specific evidences”.
For example as of usul;
·         Each time a hukam is discovered in the Quran it is said to be proved.

(i)     Definition of usul al fiqh

Usul al-fiqh, or the roots of Islamic law, expound the indications and methods by which the rules of fiqh are deduced from their sources. These indications are found mainly in the Qur'an and Sunnah.

Some writers have described usul al-fiqh as the methodology of law, a description which is accurate but incomplete, means accurate in the sense that the Qur’an and Sunnah constitute the sources as well as the subject matter to which the methodology of usul al-fiqh is applied. They provide the indications from which the rules of Shari’ah can be deduced.

(ii)   Fiqh and usul fiqh

Fiqh is the end product of usul al-fiqh. The main difference between fiqh and usul al-fiqh is that the former is concerned with the knowledge of the detailed rules of Islamic law in its various branches, and the latter with the methods that are applied in the deduction of such rules from their sources. Fiqh, in other words, is the law itself whereas usul al-fiqh is the methodology of the law. The relationship between the two disciplines resembles that of the rules of grammar to a language, or of logic (mantiq) to philosophy.

(iii) Principal objective

The principal objective of usul al-fiqh is to regulate ijtihad and to guide the jurist in his effort at deducing the law from its sources, and help the jurist to obtain an adequate knowledge of the sources of Shari’ah and of the methods of juristic deduction and inference.

(iv) Imam Shafi as the founder of Usul al Fiqh

One theory has it that usul al-fiqh has existed for as long as the fiqh has been known to exist. But it was through the work of al-Shafi'i, that usul al-fiqh was articulated into a coherent body of knowledge. And on the other hand it was open that Abu Hanifah resorted to the use of analogy and istihsan while lmam Malik is known for his doctrine of the Madinese ijma, albeit of all these When al-Shafi’i came on the scene, he found a wealth of juristic thought and advanced levels of methodological issues which he articulated in his legal theory of the usul and he devoted his Risalah exclusively to this subject.

(v)   Western Jurisprudence and Usul al Fiqh

Unlike its Western counterpart, Islamic jurisprudence is not confined to commands and prohibitions, and far less to commands which originate in a court of law. Its scope is much wider, as it is concerned not only with what a man must do or must not do, but also with what he ought to do or ought not to do, and the much larger area where his decision to do or to avoid doing something is his own prerogative. Usul al-fiqh provides guidance in all these areas, most of which remain outside the scope of Western jurisprudence.

(vi)  Two Approaches to the Study of Usul al-fiqh

Ulema of the various schools adopted two different approaches to the study of usul al-fiqh, one of which is theoretical and the other deductive. The main difference between them is that the former is primarily concerned with the exposition of theoretical doctrines, the latter is pragmatic in the sense that theory is formulated in light of its application to relevant issues.

a)      Theoretical approach

The theoretical approach to the study of usul al-fiqh is adopted by the Shafi’i school and the Mutakallimun, that is the ulema of kalam and the Mu'tazilah. Al-Shafi’i was mainly concerned with articulating the theoretical principles of usul al-fiqh, he enacted a set of standard criteria to be followed in the detailed formulation of the rules of fiqh without taking into consideration their practical application.

b)     Deductive approach

The Hanafis have on the other hand attempted to expound the principles of usul al-fiqh in conjunction with the fiqh itself and tend to be more pragmatic in their approach to the subject. In short, the theoretical approach tends to envisage usul al-fiqh as an independent discipline to which the fiqh must conform, whereas the deductive approach attempts to relate the usul al-fiqh more closely to the detailed issues of the furu al-fiqh.

c)      Combination of these two approaches

The attempt to combine the theoretical and deductive approaches into an integrated whole is reflected in the works of both the Shafi’i and Hanafi ulema of later periods. Al-Bazdawi's Usul and al-Amidi's Al-Ihkam was completed by Muzaffar al-Din al-Sa'ati (d. 694) whose title Badi' al-
Nizam al-Jami 'Bayn Usul al-Bazdawi wa al-Ihkam is self-explanatory.

(vii)                       Wider definition of Usul al Fiqh

When the definition of the term Fiqh is adopted in wider sense, then the meaning of usul al fiqh will be automatically. It is for this reason that Al Gazali and Al Razi defined usul al fiqh as follow;
“It is an expression that includes all the paths leading to fiqh when these are considered in a broad sense, and for the legal reasoning proceeding from, these paths, as well as the status (skill) of the person undertaking such reasoning”.

No comments:

Post a Comment