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Fiqh

By:
Intisar A. Rabb
Source:
The Oxford Encyclopedia of the Islamic World What is This? Provides comprehensive scholarly coverage of the full geographical and historical extent of Islam

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Fiqh

Fiqh literally means “discernment,” “knowledge,” or “understanding.” It is used as such in the Qurʿān with legal, theological, and spiritual implications (e.g., Qurʿān 6:98, 7:179, 17:44). In its technical legal meaning, fiqh is a human attempt to know the sharīʿah, the divinely ordained “path,” which is known perfectly only by God. In this sense, sharīʿah is God's will expressed as an ideal reflecting perfect justice and equality. The human articulation of the ideal is a dynamic process that must constantly be worked and reworked to address new situations. Modern commentators often use fiqh and sharīʿah interchangeably, referring to both as “Islamic law.” (A similar collapse runs through Islamic texts, which often use sharīʿah when referring to fiqh rules.) The recent trend, especially among reformers, is to distinguish between the two.

Fiqh is constantly changing. During the Prophet Muḥammad's lifetime in the seventh century, it was an organic response to individual and community concerns. The Qurʿān directed the community to follow specific legal injunctions, and Muḥammad counseled his followers concerning issues of ritual practice and community relations. Some learned members of the community—such as Muḥammad's young cousin ʿAlī ibn Abī Ṭālib (later to become the fourth caliph and the first Shīʿī imam)—also helped resolve disputes. Others were deployed to areas to which Islam had recently spread; for example, Muʿādh ibn Jabal was assigned to Yemen.

Upon Muḥammad's death, four successor caliphs articulated public law and a scholarly class of family members and companions of the Prophet built upon his teachings, becoming the religious and legal specialists in the generations following his death. Though the caliphs formally appointed some of them as judges, there was a general and enduring split between the legal and governmental spheres in the Islamic system. The scholars and their students carried on juridical activity in the major Islamic centers through the first half of the eighth century. For example, ʿAbd Allāh ibn ʿUmar (d. 693 CE), Nāfiʿ (d. 735–738CE), and Muḥammad al-Bāqir (d. 733 CE) taught and applied early fiqh in Medina, Ibn ʿAbbās (d. 687 CE) and ʿAṭāʿ (d. 732 CE) in Mecca, and Qādī al-Shurayḥ (d. ca.695–700CE) and Ibrāhīm al-Nakhaʿī al-(d. ca.717 CE) in Iraq. Their legal teachings were termed raʿy (informed personal opinion) and were based on their understandings of local tradition and religious narratives rooted in Qurʿānic and prophetic teachings.

Formation of Legal Schools (Madhhabs).

This scholarly juristic activity continued throughout the reign of the Umayyad dynasty (661–750 CE), which took over leadership of the community after the four caliphs. During this time and through the early ʿAbbāsid dynasty (750–1258 CE), proto-schools of fiqh developed, composed of regional circles of students who self-consciously followed a principal teacher who was an accomplished, scholarly authority in their vicinity.

There was interaction between the teachers and accomplished students of each region. For example, Muḥammad al-Bāqir (the fifth Shīʿī imam) and his son Jaʿfar al-Ṣādiq (d. 765 CE) (the sixth imam) taught the eponymous founders of two of the Sunnī schools (Mālikī and Ḥanafī). Likewise Muḥammad ibn Idrīs al-Shāfiʿī (d. 819 CE)—eponymous founder of a third Sunnī school—learned from the leading Meccan jurist of his time, an Iraqi jurist, and the Medinan jurist Mālik ibn Anas (d. 795 CE).

Regional schools crystallized into formal legal schools (madhhabs) in the late ninth to mid-tenth centuries, each having developed a set of positive legal rules and a particular jurisprudential methodology. Each regional scholar had his own approach, but all agreed broadly on the sources of law. For Sunnīs, the principal sources include the Qurʿān, sunnah (prophetic practice), consensus (ijmāʿ), and analogical reasoning (qiyās). For Shīʿah, it is the Qurʿān, sunnah (prophetic practice and that of the imams), consensus, and reason (ʿaql). During this period, dozens of legal schools proliferated; it was only later that they coalesced around four major Sunnī schools and the Shīʿī school.

Sunnī legal schools.

The main Sunnī schools are the Ḥanafī, Mālikī, Shāfiʿī, and Ḥanbalī. Each later was named after the leading scholar from the developmental period. Thus Abū Ḥanīfah (d. 767 CE) is called the founder of the Ḥanafī school (initially followed in Kufa, Iraq), Mālik ibn Anas of the Mālikī school (initially followed in Medina), Muḥammad ibn Idrīs al-Shāfiʿī of the Shāfiʿī school (initially followed in Egypt), and Aḥmad ibn Ḥanbal (d. 855 CE) of the ḥanbalī school (initially followed in Baghdad, Iraq).

A fifth Sunnī school is the Zāhirī school, named after Dāʿud ibn Khalaf (d. 884 CE), who was nicknamed al-Zāhirī because of his insistence on looking at the apparent literal meaning (z.āhir) of the text. He distinguished himself from the other Sunnī schools by rejecting qiyās as a source or method for fiqh. This school is said to have faded out of existence in the late eleventh century with the death of its most prolific scholar, the Cordovan jurist Ibn Ḥazm (d. 475 AH/1082 CE). Today, laws from each of these major schools are applied across the Muslim world, though without uniform or exclusive distribution to any region. The Ḥanafī school is the majority school in former Ottoman lands (including Egypt, Iraq, Jordan, Lebanon, Palestine and Israel, Syria, and the Balkans) where it was the official state school before the collapse of the empire, as well as in South Asia, Central Asia, and western China. The Mālikī school dominates in North African countries with the exception of Egypt, is widespread in sub-Saharan West Africa, and has many followers in Bahrain and Kuwait. The Shāfiʿī school is followed in matters of ritual law in many of the former Ottoman provinces mentioned above; in parts of East Africa, South Asia, and Central Asia; among Sunnīs in Iran and Yemen; and in Southeast Asia (e.g., Malaysia and Brunei, where it is the official state school, as well as Indonesia, Singapore, the Maldives, and the southern Philippines). The Ḥanbalī school predominates in Saudi Arabia with followers in other parts of the Arabian Peninsula plus small pockets elsewhere.

Shīʿī Legal Schools.

The principal Shīʿī school is the Imāmī or Ithnā ʿAsharī (Twelver) school, so-called for the belief that twelve imams were the rightful successors to Muḥammad as leaders of the Muslim community. It has also been called the Jaʿfarī school, after the sixth imam, Jaʿfar al-ṣādiq, who is credited with articulating the law in its developing period. This is the largest and most fully developed system of law among the Shīʿah. Other schools include the Ismāʿīlī or “Sevener” school and the Zaydī or “Fiver” school.

Today, Imāmī Shiism dominates in Iran (where it is the official state religion), and has many followers in Iraq, Lebanon, Syria, India and Pakistan, with some followers in East Africa. Zaydī Shīʿah exist primarily in Yemen and northern Iran. Ismāʿīlī followers are concentrated in the Indian subcontinent with some followers in Iran, Central Asia, East Africa, southern Arab states, the Arab Gulf, and Syria.

There is also an Ibāḍī school, distinct from both Sunnī and Shīʿī schools, dominant in Oman.

Fiqh Books.

Fiqh books are divided into two major parts: ritual law or acts of devotion (ʿibādāt) and commercial transactions along with other matters (muʿāmalāt). Ritual law is associated with other-worldly matters. It addresses technical issues associated with ritual purity, performance of prayer, charity and almsgiving, fasting during the month of Ramadan and at other times, and performance of the pilgrimage (ḥajj). The other category is broad, focusing on worldly matters. In addition to commercial transactions and property law, other areas of law often are grouped in this category (though they sometimes appear as separate chapters). For example, there is personal status law (munākaḥāt), penal law (jināyāt or ʿuqūbāt), public law and political theory (siyar or aḥkām al-sulṭānīyah), and judicial procedure and evidence (qadāʿ or mukhāṣamāt). Some fiqh books that have been translated into English include the Mālikī work, The Distinguished Jurist's Primer: A Translation of Bidāyat al-Mujtahid by Averroës (translated by Imran Hasan Nyazee, 1994–1996); the Shāfiʿī work, The Reliance of the Traveler by Aḥmad ibn Naqīb al-Miṣrī (translated by Nuh Ha Mim Keller, 1991); and a compilation of the five major schools, Encyclopedia of Islamic Law: A Compendium of the Major Schools (compiled and translated by Laleh Bakhtiar, 1996).

Education of a Faqīh.

Historically, fiqh-practitioners ( faqīh, pl. fuqahāʿ) were typically part of a class that was distinct from state-appointed judges. Those who had attained a certain level of legal acumen were also called mujtahids, because they were to expend the utmost mental effort in finding solutions to legal questions (a process called ijtihād) (see Ijtihād). Islamic legal theory specifies several fields that an aspiring mujtahid had to master to become a full-fledged jurist. He or she was required to gain a comprehensive knowledge of the four principal sources (uṣūl al-fiqh, listed above) of Islamic law, a sophisticated capability for legal reasoning, Zand knowledge of Qurʿānic and other concepts that the principal sources of the law articulate in the Arabic language. Proficient knowledge of theology (kalām) is sometimes said to be an additional requirement, as the legal bases for the normative authority of revelation and other sources draw from theological precepts.

Traditionally, an Islamic legal education was “personalistic.” Teachers transmitted knowledge to students by explaining authoritative texts, which they learned from teachers who could trace their academic lineage back to the original author. In this way, teacher-jurists sought to impart a true understanding of a text, the nuances of which could not be gleaned from the written word alone. When a teacher determined that a student was sufficiently well-versed in the discipline, he would grant him permission (ijāzah) to teach others—the functional equivalent of a specialist degree in that subject. This activity was often carried out in university or seminary settings (madrasahs or ḥawẒah ʿilmīyah), mosques, and in teachers’ homes. In the tenth century, several such institutions of learning were established in Islam's eastern lands (in today's Iran and Central Asia). They proliferated exponentially in eleventh-century Iraq, most famously under the direction of the powerful Seljuk vizier Niz.ām al-Mulk (d. 1092 CE).

Degrees of Competence.

Jurists possessed varying degrees of competence and authority, based on their level of learning. Those who mastered all the core fields were deemed absolute mujtahids (mujtahid muṭlaq), meaning that they were qualified to derive fiqh rules based on the revealed texts and the early precepts of law articulated by the “founders.” Others were able to distinguish between rules that accorded with a particular legal school's precepts and ones that did not, while still others were qualified only to report on rules of a particular legal school as laid out in its books, without interpretation. Those who had no specialized knowledge were considered laypeople. They were obliged to practice taqlīd, to follow the reasoned opinion of a mujtahid. In the tenth century, some scholars said that the “doors to ijtihād” closed, based on the notion that the central issues of law had been elaborated previously. Indeed, no new legal schools developed after the tenth century, and the vast majority of Muslims followed one of the five main schools listed above. In reality, ijtihād did not cease, for novel situations demanded new solutions, and the fiqh enterprise continued. Mujtahids continued elaborating new rules through commentaries and super-commentaries on existing fiqh books. In addition, mujtahids served as legal consultants (muftīs) to judges (qāḍīs) and also issued legal opinions (fatwās) at the request of local governors or sultans. Collections of fatwās (legal opinions) emerged in the latter part of the tenth century and continue to be issued in the present day. To be sure, however, the qualifications of an independent mujtahid became more complex and the law more formalistic, and the community settled into a pattern of following precedents. This led several scholars in the eighteenth and nineteenth centuries to complain about the declining state of ijtihād and to argue for its renewal.

Modern Trends.

The calls for renewal or reform in-creased in the modern period, with the decline in Muslim learning. Muḥammad ibn ʿAbd al-Wahhāb (d. 1787), for example, founded the Wahhābī movement in Saudi Arabia, calling for the abandonment of taqlīd and the creation of a new form of ijtihād designed to return Muslims to the vitality of the formative age of seventh-century Arabia. ʿAbd al-Wahhāb argued that the teachings of the first generations of Muslims (the Salaf) could be gleaned through looking at the Qurʿān and certain ḥadīths directly—without the intervening juristic interpretations that he thought the fuqahāʿ had imposed on revealed texts. This view was similar to that of prominent Salafīs (as they came to be called) of the nineteenth and twentieth centuries, such as the Zaydī Shīʿī Muḥammad ibn al-Shawkānī (d. 1832) and the Sunnīs, Muḥammad ʿAbduh (d. 1905) and Rashīd Ridā (d. 1935). They too dismissed the body of juristic precedents in favor of a more direct approach to the Qurʿān and sunnah than that of classical fiqh. Their aim was to fashion a vision of Islam that could both withstand and accommodate modernity while preserving Muslim identity, particularly in the face of European colonialism.

The fiqh enterprise continues in the modern day, though its form has been altered from classical fiqh. While some institutions of learning persist in the traditional mode, others have changed to a university system (e.g., al-Azhar in Cairo). With the rise of the nation- state, fiqh is no longer the law of the land, having been replaced by legal codes composed primarily of European law. See also LAW, subentry onCIVIL LAW; and CRIMINAL LAW. Elements of classical fiqh persist only in family law and, in some countries, criminal law and finance. Fiqh rules of ritual law, personal transactions, and other areas of law that are not preempted by secular state laws also claim over a billion adherents worldwide.

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