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Basic introduction to fiqh terminologies تعريفات ومصطلحات فقهية . Abdullah Hasan An introductory lecture delivered to the students of ‘European Academy of Islamic Studies (London, U.K) 12/01/09. Fiqh? معنى الفقه؟. Linguistically: faqiha, yafqahu – فقه to understand, to comprehend, to

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Basic introduction to fiqh terminologies تعريفات ومصطلحات فقهية

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Basic introduction to fiqh terminologies تعريفات ومصطلحات فقهية

Abdullah Hasan

An introductory lecture delivered to the students of ‘European Academy of Islamic Studies (London, U.K)

12/01/09


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Fiqh?معنى الفقه؟

  • Linguistically:

    faqiha, yafqahu – فقه

    to understand, to

    comprehend, to

    discern.

    ‘A special understanding that comprises understanding the mind as well as in the heart and through one’s actions’

  • Technically:

    ‘Fiqh refers to the science of deducing Islamic Laws from evidence found in the sources of Islamic law.  By extension it also means the body of Islamic laws so deduced’


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Fiqh?معنى الفقه؟

  • Allah says: “Wherever you are, death will overtake you, though you are in lofty towers, and if a benefit comes to them, they say: This is from Allah; and if a misfortune befalls them, they say: This is from you (O Muhammad). Say: All is from Allah, but what is the matter with these people that they do not make approach to understanding what is told (to them)?” [Sûrah al-Nisâ’: 78]

  • Allah says: “They said: O Shu`ayb! We do not understand much of what you say and most surely we see you to be weak among us, and were it not for your family we would surely stone you, and you are not mighty against us.” [Surah Hûd: 91]


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Fiqh defined by Imam

Abu Hanifa:

"Fiqh is to know what is for and against oneself."

معرفة النفس ما لها و ما عليها

Fiqh?معنى الفقه؟


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What is Shari’ah?

Linguistic & Shari’ meaning:

How it achieves the well being

Worship and religious obligations

Modest behaviour and moral conduct

Business and social dealings

Marriage and divorce

Inheritance

Politics and economics

Penal laws.

  • Linguistic meaning:

    - The Arabic word shari'ah refers to a waterway that leads to a main water source. An analogy can be made where just as water is a necessary element of life, so is Shari'ah essential to the well-being of a Muslim.

  • Technical meaning:

    - Divine knowledge which is primarily obtained from the Qur’an and Sunnah.


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Sources of the Shari’ah

  • Primary sources:

  • The Qur’an

  • The Sunnah

  • Ijma’ (scholarly consensus of opinion that is authentic, ijma as saheeh)

  • Supplementary sources:

  • Qiyas (judgment based on juristic analogy

  • Istihsan (juristic preference)

  • Istishab al hal (presumption of continuity)

  • Maslaha Mursalah (extended analogy)

  • Sadd al Dharai’ (blocking the means)

  • Qawl as Sahabi (opinion of a Companion

  • Shar’ man qabala (previous scriptures


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Graph demonstrating Shari’ah in its whole


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Basic distinction

Shari'ah:

Fiqh:

Rulings and Judgments deduced from the sources

Subject to change (context, circumstance etc)

Specific and detailed rules

fiqh is a probable perception (ẓann) rather than confirmed knowledge (‘ilm), which is at a different level.’

  • The corpus of revealed Laws

  • Fixed and unchangeable

  • General principles

  • Shari’ah is confirmed ilm (or qati’)


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What is Tashri’?

  • Literal: It is the process of legislation

  • Technical: It is the establishment of laws

  • Allah says, “He has ordained for you of religion what He enjoined upon Noah and that which We have revealed to you, [O Muhammad], and what We enjoined upon Abraham and Moses and Jesus – to establish the religion and not be divided therein. (alQur’an, 42:13)

  • Who is Musharri’ (Lawgiver)?

  • Allah is the ultimate law-maker

  • The Messenger

  • Sahaba (they were given the capacity of Ijtihad

  • Fuqaha (they were also given the capacity to perform ijtihad)


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Basic comparison of the sources of Tashri’


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Overall Maqsad of Shar’iah

  • Imam Ibn al Qayyim wrote:

    “Shari'ah is based on wisdom and achieving people's welfare in this life and the afterlife. Shari'ah is all about justice, mercy, wisdom, and good. Thus, any ruling that replaces justice with injustice, mercy with its opposite, common good with mischief, or wisdom with nonsense, is a ruling that does not belong to the Shari'ah, even if it is claimed to be so according to some interpretations.”

    (Shamsuddin Ibn al-Qayyim, I`lam Al-Muwaqi`in, ed. Taha Abdul Rauf Sad, Beirut: Dar Al-Jeel, 1973)

  • الشريعة مبناها وأساسها على الحكم ومصالح العباد في المعاش والمعاد. وهي عدل كلها، ورحمة كلها، وحكمة كلها، ومصلحة كلها، فكل مسألة خرجت عن العدل إلى الجور، وعن الرحمة إلى ضدها، وعن المصلحة إلى المفسدة، وعن الحكمة إلى العبث، فليست من الشريعة، وإن أدخلت فيها بالتأويل


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Linguistically:

Taqleed: Verbal noun of the root قلد

to gird

to adorn with a necklace

Human being – necklace, pendant etc..

Technically:

‘The acceptance of a statement of another without demanding proof or evidence on the belief that the statement is being made in accordance with fact and proof’

What is Taqleed? تقليد؟


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Qur’an:

فـاسْئَلُوا أهْلَ الذّكْرِ إنْ كُنْتُـمْ لا

تَعْلَـمُونَ

{ وَمَا كَانَ ٱلْمُؤْمِنُونَ لِيَنفِرُواْ كَآفَّةً فَلَوْلاَ نَفَرَ مِن كُلِّ فِرْقَةٍ مِّنْهُمْ طَآئِفَةٌ لِّيَتَفَقَّهُواْ فِي ٱلدِّينِ وَلِيُنذِرُواْ قَوْمَهُمْ إِذَا رَجَعُوۤاْ إِلَيْهِمْ لَعَلَّهُمْ يَحْذَرُونَ }

‘Ask the people of knowledge if you do not know’ An-Nahl: 43

‘Not all the believers should go to fight. Of every section of them, why does not one part alone go forth, that the rest may gain knowledge of the religion to admonish their people when they return, and perhaps they may take warning’ Tawba: 122

Evidence of تقليد؟


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Evidence of تقليد؟

  • Hadith:

    Narrated by Aswad Ibn Yazid: ‘Mua’dh came to us in Yemen as a teacher and commander. We asked him about a man who had died leaving (as his heirs) a daughter and a sister. He decreed half the estate for sister. This was while Rasulullah was alive’

Two Principles from the Hadith:

  • Taqleed in practice – the people relied on the authority, integrity and knowledge of Mua’dh – they did not ask for evidence.

  • The prophet did not criticise the people for following Mua’dh – he himself appointed him to go to Yemen and teach them.


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Evidence of تقليد؟

From the Practice of the Sahabah:

  • Sahabas were at various levels of knowledge

  • Not all were capable of issuing legal rulings (as mentioned by Ibn Khaldun)

  • Suyuti mentions in Tadrib al-Rawi quoting Ibn Hazm that only from seven the legal opinions came: ‘Umar, Ali, Ibn Masud, Ibn Umar, Ibn Abbas, Zayd ibn Thabit, and Aisha.


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Taqlid part of daily life

  • Imam Malik is said to have permitted fourteen cases of taqlid (some of which include):

  • It is permitted to the layman to accept the opinion of a doctor (tabib)

  • It is permitted to accept the opinion of a trader in the valuation of property (as an expert)

  • The buyer is allowed to accept the opinion of the butcher that the meat he is buying has been properly slaughtered

  • The statement of a child bringing permission to the guest at the door that he is allowed to enter may be accepted by the guest


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Mufti? Ifta? Mustafti? الاستفتاء

Definitions:

Mufti: ‘the one who issues legal rulings’

Fatwa: ‘the actual ruling which the mufti issues’

Ifta: ‘is the act of giving legal rulings’

Mustafti: ‘the one seeking a legal ruling (questioner)’


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Who is the Mustafti?المستفتي؟

  • Mustafti is the one who seeks a legal ruling on a particular Islamic matter, which means that he or she is ignorant of that matter.

    Categories of the Mustafti:

  • Those on whom asking is not allowed – Alim, Mujtahid- a mujtahid has all the necessary equipment at his disposal to extract rulings himself from the sources.


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Who is the Mustafti?المستفتي؟

2. Those on whom askingis a must

Conditions of the obligations of istifta

(asking, questioning).

A. Those who are not mujtahids

  • The obligation of knowing a particular ruling on an issue – this differs from people to people, circumstance to circumstance.

    The ‘aami has to ask a scholar in matters that is

    obligated for him to know.


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Who is the Mustafti?المستفتي؟

3.Those on whom asking is allowed.

- It is allowed for the ‘aami to ask concerning the rulings of hajj (for example), while it is not obligatory for him to perform it at this time, hence it is not wajib upon him to find out the rulings of hajj, but it is allowed and recommended to find out and learn.


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Following a Madhhab?مذهب؟

  • Imam Ahmad ibn Hamdan al-Harrani’s opinion summarised:

    1- He (‘aami) affiliates himself to a particular madhhab. In this state there are two saying of the Scholars:

    A-that he’s affiliation to a particular madhab does not restrict him upon that madhhab.

    B-that the madhab that he belongs to is the truth and he has to fulfill what he believes in and abide by it.


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Following a Madhhab?مذهب؟

2- The ‘aami does not adhere to a particular madhab. In this state there are two saying of the Scholars:

A- it is not obligatory to follow a particular madhab, but he is allowed to follow and ask any Scholar he wishes.

B- it is obligatory (for the ‘aami) to adhere to a madhhab to avoid confusion and the following of desires and whims.


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Following a Madhhab?مذهب؟

  • Qawl al-Rajih:

    A- it is obligatory upon all Muslims to know the hukm of Allah in those matters that are obligated to them.

    B- as long as the Muslim has the ability to do ijtihad, he has to search and investigate for the rulings from the sources.

    C- the Muslim who has the ability to perform ijtihad has to follow the minhaj of the mujtahideen in his research for the truth.

    D- if the Muslim is unable to do the aforementioned, he has to ask the people of knowledge (‘ilm) and confirm (yuqallid) to what they rule because they inform him the rulings of Allah.


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Following a Madhhab?مذهب؟

E- if the Muslim is unable to perform ijtihad, he has to seek assistance from the authentic and trustworthy books of Scholars, such as the books of the madhaib.

F- when the Muslim studies from these madhabs and affiliates himself to one of them; he is called a Hanafi, Shafi’, Maliki, or Hanbali.

G- when after thoroughly studying a particular madhab he finds a issue in his school not to be authentic then he is allowed to follow another opinion, it actually becomes wajib upon him.


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END

  • References & Further reading:

  • Irshad al Fuhul: Imam Shawkani

  • Islamic Jurisprudence: Niyazi

  • Madkhal ila Shari’at Islamiyat: Al-Qaradawi

  • Maqasid ash Shari’ah: Ibn ‘Ashur

  • Tarikh Fiqh al Islami: Al-Ashqar

  • Usul al Fiqh: Al-Judai’

  • Usul ad Da’wa: Zaydan


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