Datu, Johara D.

Unda, Fatimah Sahara O. Shariah I

The Science of Fiqh (Jurisprudence)

Shari’ah (Islamic Law)- is the totality of Allah’s commandments to men, whether it is in the
aspect of:
- Aqeedah (faith and belief)
- Ibadaat (worship), or
- Mu’amalaat (transactions) and
- Akhlaaq (relationships and ethics)

The universal objectives of Islamic law: To realize the protection and preservation of: Life,
Religion, Honor, Property and Intellect.

Sources of the Shari’ah

- The Glorious Qur’an
- The Sunnah of the Prophet Muhammad

Sources of Fiqh
- The Glorious Qur’an
- The Sunnah of the Prophet Muhammad
- Ijtihad
• Ijma’ (Consensus of Opinion)
• Qiyas (Analogy)
• Other Subsidiary Legal Principles

Fiqh defined – Literally, fiqh means “understanding” or “knowledge”. It is the true

understanding of what is intended. It is the deduction of Shariah values relating to conduct
from their respective particular evidnences.
Technically, it is the scientific study and explanation on Shari’ah. It is the knowledge of right
and obligation from the Qur’an and the Sunnah.

In older theological language, the word fiqh is applied to the independent exercise of
intelligence, the decision of legal points by one’s own judgement in the absence or ignorance
of traditions bearing on the case in question (‘Abd al ‘Ati, The Family Structure in Islam pp.13-
14)

When did start the compilation of Fiqh? How?

▪ The development of fiqh during the time of Abbaasid Dynasty – (spreading Madhaahib)
▪ Four schools of Islamic Legal Thought (Madh-hab)
1. Hanafie
2. Malikie
3. Shafi’e
4. Hambalie

- During the period of Four Righteous Caliphs (632 – 661 CE) Then the scholars of Fiqh
during this period followed two main trends in making their rulings:
• Ahl al-Hadeeth (the people of Hadeeth); and
• Ahl Ar-Ra’ie (the people of Opinion) – With the dispersion of the scholars there
was a marked increase in their individual Ijtihaads. The overall result was the
evolution of a number of new Madh-habs.

Imaam Abu Hanifah, a founder of Muhammadan science of law and a famous Mulim jurist,
defined fiqh as “a person’s knowledge of rights and obligation (with respect to his acts)” from
Qur’an and Sunnah” (Nyazee cit. Sadr al-Shari’ah). It includes three things:
 1. Knowledge of the tenets of faith (ilm al kalam) fiqh ul-akbar,
2. Knowledge of ethics (akhlaq) and mysticism (tasawwuf); and
3. Knowledge pertaining to acts (amal) fiqh ashgar

Imam Shafi’I defines fiqh in its technical sense as follows: “it is the knowledge of the Shar’i
akham (Shariah values/legal rules), pertaining to conduct, that have been derived from their
specific evidences (or detailed proofs)” (ibid, pp.19-20)

In other words, it simply means a scientific study and elucidation on Shari’ah.

Other important sources:

a. Legislative enactment
b. Legal maxims
c. Legal fiction
d. Customs

Stages of the Development of Shari’ah and Fiqh

a. The Period of Divine Legislation (The Legislative Period)

b. The Period of Four Rightly Guided Caliphs (The Republican Period)
c. The Period of the Umayyad Caliphate (The Dynamic-cum-Representative Period)
d. The Period of the Abbasid Caliphate (The Scientific Research Period)
e. The Period of Mustawjihun Jurists (The Research Fixation Period)
f. The Period of Mugallidun Jurists (The Transcription Period)
g. The Period of Commentators and Annotators (The Free-Will Period)

❖ Fiqh Distinguished from Shariah

Shari’ah and Fiqh may be distinguished as follows:

a. Shari’ah is the body of revealed laws found both in the Qur’an and in the Sunnah.
While fiqh is a body of laws deduced from Shariah to cover specific situations not
directly treated in Shari’ah Law.
b. Shari’ah is fixed and unchangeable. But Fiqh changes according to the circumstances
under which it is applied.
c. The Laws of Shari’ah are, for the most part general: they lay down basic principles. In
contrast, the law of Fiqh tend to be specific; they demonstrate how the basic principles
of Shari’ah should be applied in given circumstance.
d. Shari’ah covers all human action. However, fiqh deals only with what are commonly
understood as legal acts.
e. The path of Shari’ah is laid down by God and His Messenger. Conversely, the edifice
of fiqh is erected by human endeavor.
f. In Fiqh, an action is legal or illegal permissible or not permissible. Whereas, in
Shari’ah, there are various grades of approva; or disapproval (Philips, Evolution of
Fiqh, p.1 Alauya, Fundamentals of Islamic Jurisprudence p.2).

❖ Fiqh Distinguished from Jurisprudence as understood in the Philippine legal

system

a. Fiqh literally means the true understanding of what is intended, it is the knowledge
of law, while jurisprudence in Philippine legal system refers to the Philosophy of law,
or the science which treats the principles of positive law and legal relations.
b. Fiqh is the knowledge of the Shari’ahkam (shari’ah values/legal rules), pertaining to
conduct that have been derived form their specific evidences. On the other hand,
jurisprudence is the science of law.
c. Fiqh is the human understanding and elucidation of Shari’ah by a qualified Muslim
jurist. However, jurisprudence refers to the interpretation of law.
 d. To extend the law of Shari’ah, the application of analogy or Qiyas had been adopted
by the jurist whenever the common cause (‘illah) of the original case (asl) is found on
the new case (far’). Whereas thru the doctrine of stare decisis the Supreme Court may
apply the jurisprudence when there is a similar fact in the current dispute or case.

❖ Fiqh Distinguished from Ilm

a. Ilm came to be applied in a narrow sense to mean “knowledge that comes through
reports.” That is traditions (Hadith) and athar. The therm “fiqh,” on the other hand,
came to be used exclusively for a knowledge of the law.
b. Ilm and fiqh are, regarded as distinct qualities of theologians. Thus, one who is
knowledgeable of the Qur’an and Ahadith is called Alim (plur. Ulama), but not
necessarily faqih (plur. Fukaha), or one who is competent to give independent
decision, although both qualities may be present in the same person.
c. The term Ilm (Knowledge) also has the same literal meaning as Fiqh. During the time
of Prophet Muhammad (PBUH) there appears to be no difference in the two terms.
Later, the term “ilm” came to be applied in a narrow sense to mean knowledge that
comes through reports, that us, traditions; Alhadith (traditions) and athar.

DIVISIONS OF SCIENCE OF FIQH

Usul al-fiqh (Methodology of Jurisprudence)

➢ means roots of fiqh
➢ It is the science of the sources and methodology of law which studies the
methods of extracting practical rules from sacred sources.
➢ Technically, it means the science of the study of Muslim law and
jurisprudence, its fundamental and principles are based on the primary
sources of law, through the exercise of independent systematic deduction with
regard to its application to certain particular situation. This science has been
founded by Imam Shafi’i
➢ They are the principles by the use of which the Mujtahid arrives at the legal
rules through the specific evidences. It answers the nature of law and how
judge discovers and applies the law (Nyazee, Theories of Islamic Law, p. 29)

Principal Objective of Usul al-fiqh:

• To regulate ijtihad and to guide the jurist in his effort at deducting a law
from its sources.

Purpose of Usul al-fiqh:

• To help jurist to obtain an adequate knowledge of the sources of Shari’a
and of the methods of juristic deduction and inference.
• It also regulates the application of qiyas, istihsan, istishab, istislah, etc.
whose knowledge helps the jurist to distinguish as to which method of
deduction is best suitable for obtaining the Hukm Sharia of a particular
problem.
• It enables the jurist to ascertain and compare the strength and
weakness of ijtihad and to give preference to that ruling of ijtihad which
is in close harmony with the original text (nusus).

The subject matter of usul al-fiqh are the four shariah evidences, that is the
Quran, the sunnah (practices of Prophet Muhammad saw), ijma (consensus of
scholars) and qiyas. It provides for the fiqh certain general propositions to be used by
fiqh in deriving the provisions of the law applicable to particular cases.

Furu al-fiqh (Branches of Jurisprudence)

➢ which develop practical religious rules for Muslims
 ➢ In science of Furu, both legal manuals and collections of cases, discusses rules
for rituals (ibadat) and social relations (muamalat).
➢ Ritual topics include purity, prayers, alms (zakah), pilgrimage, fasting, and jihad.
➢ Social relations topic includes marriage, divorce, inheritance, buying, selling,
lending, firing, gifts, deposits, crimes, torts, penalties, compensations for injury,
judicial practice and procedure, rules relating to slaves, land ownership, land
holding, contractual partnerships, slaughter of animals for food, and oaths and
their effects.

Categories of Actions in Furu

1. Fardh or Imperative.
• The act whose value has been established by the Qur’an and Mutawatir
Hadith. Performance of Fardh acts lead to reward and its omission leads
to punishment in this world and hereafeter.
2. Wajib or Obligatory
• The acts whose value has been established by a Shari’ah evidence, other
than Qur’an and Hadith Mutawattir.
3. Mandub or Recommendable.
• The acts whose commission is rewarded although its omission does not
entail punishment. These acts are believed to have been performed by the
prophet habitually.
4. Mubah or Permissible.
• The acts whose commission is not rewarded but whose omission is not
punished. There is an option of the servant of Allah, like eating any
permissible food.
5. Makruh or Reprehensible
• The acts whose omission is preferable to their commission.
6. Haram or Forbidden
• The acts whose commission is punishable and omission is rewarded.

References:

Abdulrahman, Jashim A. (2019) Islamic Jurisprudence. A Comprehensive Reviewer.

KFCIAAS’ Research Coordination Office.

Arabani, Bensaudi I. Sr. (2022). Commentaries on the Code of Muslim Personal Laws of the
Philippines With Jurisprudence and Special Procedure. Rex Printing Company, Inc.

Radiamoda, Anwar M. (2014). Introduction to Shari’ah & Islamic Penal Law Enforcement.
Iligan City: Ivory Printing and Publishing, Inc.