Transcript Fiqh-ul-Iman - Abdullah Hasan

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?
• 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’
‫معنى الفقه؟‬
• 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’
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]
Fiqh?
‫معنى الفقه؟‬
Fiqh defined by Imam
Abu Hanifa:
"Fiqh is to know what
is for and against
oneself."
‫معرفة النفس ما لها و ما‬
‫عليها‬
What is Shari’ah?
Linguistic & Shari’ meaning:
How it achieves the well being
• 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.
• Worship and religious
obligations
• Modest behaviour and moral
conduct
• Business and social dealings
• Marriage and divorce
• Inheritance
• Politics and economics
• Penal laws.
Sources of the Shari’ah
• Primary sources:
1. The Qur’an
2. The Sunnah
3. Ijma’ (scholarly consensus of
opinion that is authentic, ijma
as saheeh)
• Supplementary sources:
1. Qiyas (judgment based on
juristic analogy
2. Istihsan (juristic preference)
3. Istishab al hal (presumption of
continuity)
4. Maslaha Mursalah (extended
analogy)
5. Sadd al Dharai’ (blocking the
means)
6. Qawl as Sahabi (opinion of a
Companion
7. Shar’ man qabala (previous
scriptures
Graph demonstrating Shari’ah in its whole
Basic distinction
Shari'ah:
 The corpus of revealed
Laws
 Fixed and unchangeable
 General principles
 Shari’ah is confirmed ilm
(or qati’)
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.’
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 lawmaker
• The Messenger
• Sahaba (they were given
the capacity of Ijtihad
• Fuqaha (they were also
given the capacity to
perform ijtihad)
Basic comparison of the sources of
Tashri’
Divine Legislation
The primary sources are
revealed
Human (conventional)
Legislation
The sources are man made
The Shari’ah (qati’) laws do
not change
The reward and punishment
is both in this world and the
next
They change according to
peoples whims and fancies
The punishment is only in
this world
The laws are universal
The laws are restricted
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
،‫ ورحمة كلها‬،‫وهي عدل كلها‬
‫ فكل‬،‫ ومصلحة كلها‬،‫وحكمة كلها‬
،‫مسألة خرجت عن العدل إلى الجور‬
‫ وعن‬،‫وعن الرحمة إلى ضدها‬
‫ وعن الحكمة‬،‫المصلحة إلى المفسدة‬
‫ وإن‬،‫ فليست من الشريعة‬،‫إلى العبث‬
‫أدخلت فيها بالتأويل‬
What is Taqleed?
Linguistically:
• Taqleed: Verbal noun
of the root
‫قلد‬
- to gird
- to adorn with a
necklace
- Human being –
necklace, pendant
etc..
‫تقليد؟‬
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’
Evidence of
‫تقليد؟‬
Qur’an:
• ‫فـاس َئلُوا أهْ ل َ ال ّذ ْك ِر إنْ ُك ْن ُتـ ْم ال‬
ْ
َ‫َت ْعلَـ ُمون‬
• ‘Ask the people of knowledge if
you do not know’ An-Nahl: 43
• { ‫َو َما َكانَ ٱ ْل ُم ْؤ ِم ُنونَ لِ َينفِ ُرو ْا‬
‫َكآ َّف ًة َفلَ ْوالَ َن َف َر مِن ُكل ِّ ف ِْر َق ٍة‬
‫ِّين‬
ِ ‫ِّم ْن ُه ْم َطآئِ َف ٌة لِّ َي َت َف َّق ُهو ْا فِي ٱلد‬
‫َولِ ُين ِذ ُرو ْا َق ْو َم ُه ْم إِ َذا َر َج ُع ۤو ْا‬
َ‫} إِلَ ْي ِه ْم لَ َعلَّ ُه ْم َي ْح َذ ُرون‬
• ‘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
• 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’
‫تقليد؟‬
Two Principles from the Hadith:
1.
2.
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.
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.
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
Mufti? Ifta? Mustafti? ‫االستفتاء‬
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)’
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:
1. 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.
Who is the Mustafti? ‫المستفتي؟‬
2. Those on whom asking is a must
Conditions of the obligations of istifta
(asking, questioning).
A. Those who are not mujtahids
B. 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.
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.
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.
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.
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.
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.
END
• References & Further reading:
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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