FIQH - Islamic Jurisprudence

An Introduction

Definition
Fiqh literally means to comprehend Fiqh - The science of extraction of practical religious regulations from their detailed sources. Allah Almighty says in 9:122 Nor should the Believers all go forth together: if a contingent from every expedition remained behind, they could devote themselves to acquiring fiqh in religion, and admonish the people when they return to them, that thus they (may learn) to guard themselves (against evil). Shari`ah - Those doctrinal, practical and dispositional regulations which Allah has legislated through one of His Messengers.

Definition of Faqih
Literally, an expert in the science of Fiqh Plural form: Fuqaha "The faqih is the one who is frugal in this world, desirous of the Hereafter, a person who has insight into his religion, who is constant in the worship of his Lord, who keeps himself well away from [violating] the characters of and property of Muslims, and who is an advisor to them."[Hasan alBasri]

Sources of Fiqh
Primary Sources Qur'an Sunnah Secondary Sources Consensus (Ijma`) Analogy (Qiyas)

Differences between the Islamic Shari`ah and Man-Made Law

1) Divine origin vs. Human origin. 2) Consequences in this world and the Hereafter vs. This world only. 3) Development of personal accountability to Allah vs. Mere loyalty to the law 4) Absolute criteria providing for the benefit of creatures vs. Popular opinion which may or may not be beneficial.

Categories of Actions DOS

Fard Fard `Ayn Fard Kifayah

Wajib Sunnah Muakkadah / Sunan Al-Huda Mustahab / Sunnah Ghair Muakkadah/ Adab / Sunan Az zawaid / Sunan Adiyyah Mubah

Categories of Actions DONTS

Haram (totally forbidden) Makruh Tahrimi (highly reprehensible) Makruh Tanzihi / Khilaf Al-Awla (slightly reprehensible)

Branches of Fiqh
1. 2. 3. 4. 5. Aqaaid Beliefs, doctrine Ibadaat Worship rituals Muaamalaat Mutual dealings Muaasharaat Mutual conduct Akhlaaq Inner character

Branches of Fiqh

Ibadat
1. 2. 3. 4. 5. Taharah Purification Salah 5 times daily Prayer Zakah Annual Alms-giving Sawm Fasting in Ramadhan Hajj - Pilgrimage

Branches of Fiqh
Muamalaat
1. 2. 3. 4. 5. 6. Trade Commissioning Gifts Endowments Lost & Found Deposits 7. Agriculture 8. Interest 9. Manufacturing 10. Leasing & Hiring 11. Collaterals 12. Partnerships

Branches of Fiqh
Muasharaat
Marriage Divorce Custody Support Inheritance

Branches of Fiqh Penal Code

Murder Theft Adultery Slander Highway Robbery Drinking Oaths & Expiations Judgment Testimony Coercion

Evolution of Fiqh
Fiqh at the time of the Prophet (may Allah bless him and grant him peace). Fiqh in the time of the Sahabah. Fiqh in the time of the Tabieen Imam Abu Hanifah an-Nu`man ibn Thabit al-Kufi, (80-150 A.H.). Imam Abu `Abdillah Malik ibn Anas al-Yahsubi, (93-179 A.H.) Imam Abu `Abdillah Muhammad ibn Idris alShafi`i, (150-204 A.H.) Imam Abu `Abdillah Ahmad ibn Muhammad ibn Hanbal al-Shaybani, (164-241 A.H.) Agree on ~ 75% of material.

An Introduction to Fiqh
Part II

Sources of Legislation
Legislation primarily depends on two forms of Divine revelation Wahy: 1. Recited revelation Wahy Matlu; or the Qur'an with its absolute inimitability I'jaz 2. Non-recited revelation Wahy Ghayr Matlu; or the Sunnah of the Prophet (salla Allah alaihi wa sallam)

The Holy Quran

the words of Allah Almighty revealed to the Prophet peace be upon him through Jibreel alaihis salam, the only book guaranteed divine protection, the recitation of which itself constitutes an act of worship, the shortest Surah of which is a challenge to mankind to produce anything the like thereof, every letter of which has been transmitted to us via an indisputably authentic (Qati) chain of authority Tawatur; which is written between the two covers of the Mushaf beginning with Surat al Fatihah "The Opening Chapter" and ending with the Surat al Nas.

The Sunnah
This includes everything, other than the Qur'an, which has been transmitted from the Prophet (salla Allahu alaihi wa sallam); what he said, did, and agreed to. The ahdth (sing. Hadith), with regard to their linkage to us throughout the eras, are divided into three major kinds: 1. Mutawatir 2. Mashhoor 3. Khabar Al-Wahid

1. Mutawatir
a hadith narrated through tawatur i.e. in each era, from the days of the Holy Prophet salla Allah alaihi wa sallam up to this day, the Hadith was narrated by such a large number of narrators that it is impossible to reasonably accept that all of them have colluded to tell a lie. This kind of Hadith provides utmost yaqeen (conviction), and is thus qati ut thuboot ( definitive in its affirmation and reliability) This kind is further classified into three categories: (a) Mutawatir in words (b) Mutawatir in meaning (c) Mutawatir in practice

Mashhoor
A Hadith that was not mutawatir in the generation of the Holy Companions, but became mutawatir immediately after them. Such a Hadith falls under the category of dhanny ut thuboot ( semi definitive in its affirmation and linkage)

Khabar Al-Wahid
A hadith whose narrators have been less than three in all three generations i.e. the generation of the Sahaba, the Tabieen and Taba Tabieen The authenticity of this kind depends on the veracity of its narrators. If the narrator is trustworthy in all respects, the report given by him can be accepted, but if a single reporter is believed to be doubtful, the entire report subsequently remains doubtful.

Nas / Nusoos
In the context of the Principles of Jurisprudence the word Nas refers to the texts of the Quran or Hadith Nusoos is its plural

 - Thuboot
The texts in reference to the level of how well established/firm/reliable they are, can be categorized into two levels:
1. Texts reported to us through tawatur e.g. Quran and Mutawatir Ahadith are known as Qati ut thuboot i.e. 100% accurate, well-established, definitive and firm leaving no room for doubt. 2. Texts reported to us through non-tawatur means e.g. mashhoor and khabar wahid are known as dhanny ut thuboot i.e. not as well-established, definitive and firm as Qati but ~80% leaving room for slight doubt from the human perspective

Classification of the Texts / Quran & Hadith in terms of their thuboot/reliability 1. Qati ut thuboot = Entire Quran &
Mutawatir Ahadith

2. Dhanny ut Thuboot = All

Mashhoor & Khabar al-Wahid Ahadith

Thuboot
Qati Ut Thuboot Dhanny ut thuboot

Entire Quran All Mutawatir

Mashhoor Kabar Wahid

Classification of the Quran & Hadith in terms of their indication/denotation

Qati ud dalalah: ~80% of Quran & all
Ahadith i.e. the texts that are unambiguous/ unequivocal/express/explicit in the manner they relay their meanings. No ijtihad is required in detrmining their meanings. Dhanny ud dalalah: ~20% of Quran & All Ahadith i.e. those texts that are ambiguous/ equivocal in the way they relay their meanings. Ijtihad is required in determining their meaning and differences in opinion may occur.

Dalalah
Qati ud dalalah Dhanny ud dalalah

~ 80% of all Texts

~20% of all texts

The Four types of Texts

We may conclude that there are 4 types of texts:

Quran & Mutawatir Ahadith

Qati ut thuboot, Qati ud dalalah: ~80% of Qati ut thuboot, Dhanny ud dalalah: Dhanny ut thuboot, Qatiy ud dalalah:
~20% of Quran & Mutawatir Ahadith

~80% of Mushhoor & Khabar wahid Ahadith Dhanny ut thuboot, Dhanny ud dalalah: ~20% of Mashhoor & Khabar Wahid Ahadith

1. Qati ut thuboot, Qati ud dalalah

Issues related to Aqeedah without which a person cannot be a believer must be proven through this type of text e.g. belief in Allah, Angels, books, Prophets, Predestiny, Afterlife etc. Acts that are proven through the first type of text are classified as fardh (totally obligatory),unless proven otherwise. Its denier will not be a believer e.g. salah, zakah, hajj, sawm. Prohibitions that are proven through this type of text are classified as Haram (totally prohibited) and major sins, unless proven otherwise. Its denier will not remain a believer e.g. robbery, lying, backbiting, adultery, drinking wine etc.

2. Qati ut thuboot, Dhanny ud dalalah

Issues related to Aqidah proven through this type will not render its denier a non-muslim, but will be termed as deviant. Acts proven through this type are usually categorized as wajib, unless proven otherwise. Its denier will not become a non-muslim, but will be termed as deviant. Prohibitions proven through this type usually are categorized as Makruh Tahrimi unless proven otherwise. Its denier will not become a non-muslim, but will be termed as deviant.

3. Dhanny ut thuboot, Qatiy ud dalalah

Issues related to Aqidah (beliefs) proven through this type will not render its denier a non-muslim. Acts proven through this type are usually termed as Sunna Muaakkadah if consistently done by the Prophet salla Allah alaihi wa sallam. If accompanied by a warning against not doing it, then wajib. If it was not done consistently or was not emphasized, then sunnah ghair muakkadah. Prohibitions proven through this type if accompanied by warnings, then makruh tahrimi, otherwise tanzihi.

4. Dhanny ut thuboot, Dhanny ud dalalah

Acts proven through this type are usually subject to vast differences of opinions, therefore their rulings are lighter and more flexible. Prohibitions proven through this type are usually makruh tanzihi.

Introduction to Fiqh
Part III

Derivation of Rulings from Texts

Levels of Textual Indication & Methods of Derivation

Methods of Derivation

1. 2. 3. 4.

There are four levels & ways through which a ruling may be derived from any Nas:

Istidlal means to use as evidence / derive evidence or rulings from something

Al-Istidlal bi Ibaratin Nas Al-Istidlal bi Isharatin Nas Al-Istidlal bi dalalatin Nas Al-Istidlal bi Iqtidhain Nas

1. Al-Istidlal bi Ibaratin Nas

This means the derivation of a ruling through the explicit meaning of the text for which the text was primarily meant for. Ibarat un Nas is what is obviously perceptible from the text and also represents the principal theme of the text, if there are subsidiary themes also. Most of the Nusoos (legal texts) convey their rulings by way of Ibarah Al Nas. conveys a Hukm Qati (definitive ruling) on its own and does not require corroborative evidence.

Examples
Obligations of Salah, Zakah, Sawm, Hajj etc. Obligation of dowry to be given to wife in the following verse:
4:4 And give the women (on marriage) their dowry as a gift; but if they, of their own good pleasure, remit any part of it to you, take it and enjoy it with right good cheer.

2. Al-Istidlal bi Isharatin Nas

This means the derivation of a ruling that has been alluded to in the text, but not expressly mentioned, nor is it primarily meant. Isharatun Nas is the second level of textual indication. The ruling derived from it is Qati, but the first level will supersede it if it contradicts a ruling derived through the first level.

Examples
2:236 There is no blame on you if you divorce women before consummation or the fixation of their dowry; but bestow on them (a suitable gift), the wealthy according to his means, and the poor according to his means; a gift of a reasonable amount is due from those who wish to do the right thing.

It is not clearly mentioned that marriage can be contracted without prior fixation of a dowry, but it is alluded to in the verse. It must be known that the dowry is obligatory regardless of whether it is fixed before or after the marriage as proven from verse 4:4

And upon the one for whom the baby is begotten (the father) is their (the wives) provision and clothing according to what is common.

Examples

The Ibaratun Nas of this verse is obvious from the translation. Jurists derive from the Ibaratun Nas that it is the husbands responsibility to provide for the wife. At the same time, the usage of the words al-mawlood lahoo (the one for whom the child is begotten) instead of al-walid or al-ab (father) alludes that the lineage of the child is linked to the father.

3. Al-Istidlal bi Dalalatin Nas

This means the derivation of a ruling through a meaning inferred in the text even though it is not expressly indicated in the text. The ruling derived from it is Qati but, Dalalatun Nas is at the third level of textual indication, thus will be superseded by the 1st & 2nd in case of contradiction.

Examples

17:23 And do not say oof to them It is inferred from this verse that not only is it prohibited to say oof to your parents, but any type of verbal or physical means of abuse is also prohibited. Order of kaffara to the Bedouin Sahabi who deliberately broke his fast by having sexual intercourse with his wife. It can be rightfully inferred from this order that it was given because he had deliberately broken his fast and not because of him being a Bedouin, therefore this ruling will apply to all those that deliberately break their fast by committing intercourse and will not be restricted to that Bedouin only. It is also inferred that if a person commits any other violation of fasting e.g. eating and drinking, the same ruling will apply.

4. Al-Istidlal bi Iqtidhain Nas

This means the derivation of a ruling through a meaning regarding which the text is silent, yet it is required and must be assumed to properly fulfill the objective. A ruling derived from this is Qati, but Is at the 4th level of textual indication, thus will be superseded by the first 3 in case of contradiction.

Examples
And ask the town

We must assume that it means Ask the people of the town

4:22 Prohibited upon you (for marriage) are: your mothers, daughters, sisters

The text does not mention that marriage to the above relations is prohibited, but it must be assumed.

Examples
... Unlawful for you are the carcass and blood and pork(5:3)

The text does not mention that the above are unlawful for consumption, but the text requires the missing element to be supplied in order to convey a complete meaning.

Examples of Conflict
O you who believe! The law of equality in retaliation (qisas) is prescribed upon you in cases of murder: the free for the free, the slave for the slave, the woman for the woman. But if any remission is made by the brother of the slain, then grant any reasonable demand, and compensate him with handsome gratitude. This is a concession and a Mercy from your Lord. 2:178

The ibarah of this text provides that equivalent retaliation must be executed.

The ibarah of this text is that the punishment is hellfire. The isharah of this text is that no other punishment like retaliation is necessary.

And whoever kills a Believer intentionally, his recompense is Hell, to abide therein (forever): and the wrath and the curse of Allah are upon him, and a dreadful penalty is prepared for him. 4:93

There is a conflict between the ibarah of the 1st and

the isharah of the 2nd Thus, the ibarah of the 1st will be given preference.

And whoever erroneously kills a Believer, it is ordained that he should free a believing slave, and pay compensation to the deceased's family, unless they remit it freely. 4:92

The ibarah of this text is that expiation is necessary in the case of erroneous homicide. The dalalah (inference) of this text indicates that expiation should also be necessary in the case of intentional homicide because it is much more severe than the former

The ibarah of this text is that the punishment is hellfire. The isharah of this text is that no other punishment like retaliation or expiation is necessary.

And whoever kills a Believer intentionally, his recompense is Hell, to abide therein (forever): and the wrath and the curse of Allah are upon him, and a dreadful penalty is prepared for him. 4:93

There is conflict between the dalalah of the 1st text and the ishara of the 2nd text, therefore the isharah will take priority. And it has already been mentioned that qisas is necessary by the ibarah of 2:178