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.
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“What hath come
to these people that they fail to understand a simple statement”. (Quran 4: 78)
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“They have
hearts wherewith they understand not”. (Quran 7: 179)
d) In Hadith
The same
meaning is reflected in the words of Hadith;
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“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”.
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