INTRODUCTION TO USUL AL-FIQH

INTRODUCTION TO USUL AL-FIQH
(ISLAMIC JURISPRUDENCE)

Asst. Prof. Dr. Mohamed Fadzli Hassan
Harun M. Hashim Law Centre
Ahmad Ibrahim Kulliyyah of Laws
International Islamic University Malaysia


SHARI`AH v. FIQH

Shari`ah has been loosely defined as “Islamic law” and so has fiqh. These terms are not synonymous either in the Arabic language or to the Muslim jurists.

SHARI`AH ISLAMIYYAH

1.Shari`ah literally means a waterhole, the source of life, or the straight path as in the Qur’anic verse:

“Then we put you on the straight path (shari`ah) in your affairs, so follow it and do not follow the desires of those who have no knowledge” (al-Jaathiyah, 45:18)

2. Terminologically, it refers to the sum total of Islamic laws which were revealed to the Prophet Muhammad (s.a.w), which are recorded in the Qur’an as well deducible from the Sunnah of the Prophet.

3. In short Shari`ah is the whole teaching of Islam itself that covers both matter of belief (aqidah) and laws (fiqh).

AL-FIQH

1. Fiqh literally means deep understanding about something, as in the Qur’anic verse:
2. “They have hearts wherewith they understand not”, (al-A`raaf, 7:179)
3. Terminologically it means, the knowledge or understanding of the laws or legal rules of Shari`ah that have been derived from their specific sources.
4. In short fiqh is Islamic law, that comprises all branches of law, public and private, substantive as well procedural law



THE DISTINCTION BETWEEN SHARI`AH AND FIQH

1. Shari`ah has wider meaning than fiqh which includes both laws and a tenets of faith.
2. Shariah is the whole teachings found in the Qur’an and sunnah, while fiqh is a body of laws deduced from the Shari`ah to cover specific situations not directly treated in both sources.
3. Shari`ah is fixed and unchangeable, whereas fiqh may change according to time and circumstances under which it is applied.
4. Shari`ah, in most part, are general. They lay down basic principles. In contrast fiqh is specific. It is developed by the exercise of ijtihad of the jurists. It demonstrate how the basic principles of Shari`ah should be applied in given circumstances.

THE SCOPE OF FIQH (ISLAMIC LAW)

1. Ibadat - religious observance
2. Muamalat - dealing with others
3. Munakahat - marriage, divorce etc -- family matters.
4. Jinayat - criminal law matters
5. Nizam al-Hukm wa al-qanuun al-dusturiyy – which includes constitutional and administrative law
6. Siyaar - International law
7. Qanun ijra’aat - Civil and criminal procedure law.

IBADAT

Specific religious duties to be adhered to such as:

1.salat
2.zakat
3.fasting
4.hajj, etc.


MUAMALAT (Law of Transaction)

Inclusive of laws governing transactions, such as sales and purchase, lease, loan, banking, state administration, etc.

MUNAKAHAT(Family Law)

1. Concerns with family matters; marriage, divorce and
2. Inheritance
3. Maintenance
4. Described as Islamic Family Law or Personal Law or Muslim Law of Personal Status


JINAYAT(criminal law)

Crime: consists in legal prohibitions imposed by Allah, whose infringement entails punishment prescribed by Him.

1.Hudud
2.Qisas
3.Ta’zir


NIZAM AL-HUKM WA AL-QANUN AL-DUSTURIYY (Constitutional and administrative law)

1• Law of Constitution.
2• Separation of powers.
3• Appointment of State’s officers and their duties.
4• Fundamental liberties.
5• Governement organs and their jurisdictions, etc.


AL-SIYAAR (International Law)

1• It includes law of treaties and conventions.
2• War and international crimes.
3• Law of space and sea.
4• Conflict of law.
5• International relations, etc.

QANUN AL-IJRA`AAT (Civil and criminal procedural law)

1• Deals with civil proceedings such as witnesses and courts procedures.
2• Criminal proceeding which include prosecutions, witnesses, evidences, and all court’s procedures.


USUL FIQH

INTRODUCTION

Usul al-fiqh or Islamic jurisprudence generally explains the origin and nature of Islamic law as well as the structure of its legal system. In Islamic legal system, a rule of law in order to be valid has to be derived from the sources of Islamic law. This is accomplished by acceptable system of interpretation. Usul al-fiqh imparts instruction about the available systems of interpretation and their proper use.

Brief comparison between Islamic and western jurisprudence

1) The Law-giver or legislator
2) The sources and objective of law
3) The roles and functions of jurists (fixed and flexible part of the Shari`ah)
4) Why do we obey the law
5) The punishments and sanctions
6) Law and morality
7) The validity and legality (positivism, utilitarianism, natural law, etc.)
8) Madzhab and schools of jurisprudence

Definition of Usul al-Fiqh (Islamic Jurisprudence)

The term usul al-fiqh composed of two terms, usul and al-fiqh.

1)Usul : Basis, origin, root, foundation and sources. Something from which another thing originates, or something upon which another thing is constructed.

2)Fiqh: Literally means understanding and knowledge of the law. Terminologically, fiqh means the knowledge of the legal rules (hukm or ahkam al-Shari`ah), pertaining to conduct, which have been derived from their specific sources for example; the five daily prayers are obligatory (wajib), usury (riba’) is prohibited (haram), and marriage is permissible (mubah). Wajib, haram and mubah here are the legal rules. These rules are derived from specific provisions in the sources or through ijtihad which is regulated by usul al-fiqh.


Rules of law in the Shari`ah can be generally divided into two types:

1) The rules relating to belief (i`tiqad) like the existence of God, the mission of the Prophet, Day of Judgment, sin and reward, hell and heaven and so on.
2) The rules relating to act (conduct) which includes physical acts, the acts which take place in the heart and mind (intention, love, hate, jealousy etc), and those that relate to speech or acts arising out of spoken words.

The word used in the definition is conduct (amaliyyah), which qualifies the rules of law to only those that pertain to acts or conducts. Thus rules with respect to belief is excluded from the scope of fiqh.


Definition and objective of usul al-fiqh

Usul al-fiqh has been defined as principles or methodology used by the jurists (mujtahid) to deduce the practical Shari`ah ruling from their sources.
Thus the purpose of usul al-fiqh is to regulate the prosess of adjudication (ijtihad) and to guide the jurist (mujtahid) in his effort at deducing the rules from the sources. This would explain the issue of how do Muslim judges and jurists discover and apply the law.

Example…
Allah says in the Qur`an:

“O ye who believe! Devour not each other’s property in defiance of the law, but let there be amongst you traffic and trade (sale) by mutual consent and good-will, nor kill or destroy yourselves for verily Allah has been to you Most Merciful” (al-Nisa’, 4:29)

- The Qur`an is the source of the Shari`ah and the text or verse is the specific provision which provide of the rule or law (hukm).

- Through the methodology of usul al-fiqh the jurists have concluded that it is prohibited (haram) to take, eat, use, and consume the property belong to others unless it is authorized by the law, such as getting his consent or true contractual agreement (buying and selling, etc) which is consented by both parties. To commit murder, suicide or genocide is similarly prohibited.




More examples…

1)Allah says:

“O ye who believe! Devour not usury, doubled and multiplied; but fear Allah ; that you may really prosper”
(Aali- `Imraan, 3:130)

2)The Prophet (s.a.w) said:

“I had forbidden you from visiting the graves. Nay, visit them, for they remind you of the Hereafter”.


Scope of usul al-fiqh

The study of usul al-fiqh generally covers the following subject matters:

1) the Law-giver or the legislator (al- Haakim)
2) the subject of law which includes the act and the actor (mukallaf).
3) the legal rules or laws (hukm or ahkam)
4) the jurists (mujtahidin); who are they and what are their qualifications.
5) the methods of deducing the law.


The Development of Usul al-Fiqh

1) Legislative period i.e the time of the Prophet Muhammad (s.a.w) (whether the Prophet practiced ijtihad?)
2) During the time of the Great Companions.
3) During the reign of Bani Umayyah and Abassiyyah.
4) The emergence of madzahib.
5) The growth of ijtihad and the codification of law.
6) Islamic law during Western colonization; the closing door of ijtihad (taqlid)?


Development of usul fiqh
• Why al-Imam al-Shafi’e was regarded as the father and founder of usul fiqh?
• Tariqah al-mutakallimin (the appoach of ) and tariqah al-fuqaha’ (the method of the jurists) or usul al-Shafi’eyyah and usul al-Hanafiyyah.


Al-Ahkam al-Shariyyah (The Shariah Rules)

1) Introduction, definition and brief comparison with modern legislation.

2) Pillars of hukm al-shar`ei-
a) al-Haakim (the law-giver)
b) al-mahkum fih (the act on which the law applies)
c) al-mahkum ‘alayh (subject or the legal personality) and al-ahliyyah (legal
capacity)

3) Divisions al-ahkam al-shar`iyyah:
a) al-hukm al-taklifi (defining law or obligations creating rules)
b) al-hukm al-wadh`ei (declaratory rules)


Al-Haakim (The Law-Giver)

• Allah as a true source of law. “The hukm belongs to Allah alone” as a fundamental or grundnorm.
• Issues:
a) If Allah alone makes law, then what is the function Muslim jurists?
b) If the law is for the interest of man (maslahah), can interest be the independent source of law?
• Are the Shari`ah and natural law compatible?
• Whether reason alone without revelation can discover the law (the question of good and bad)?


Mahkum fiih (the act)

For the existence of obligations (taklif) two important conditions need to be fulfilled:
a) the act that should be performed or avoided must be known.
(ignorance of the law is no excuse??)
b) the act should be able to be performed by the subject.

Mahkum `alaihi (the subject of the law)

• To acquires rights and accept duties.
• Types of al-ahliyyah:
a) ahliyyah al-wujub – capacity to acquire rights.
b) ahliyyah al-ada’ – capacity to execute.


AL-HUKM AL-SHAR`I (LAW OR LEGAL RULE)

1) Definition of al-hukm

“a communication of the Law-giver related to the acts of the subjects which consists a demand (to do or not to do), an option or declaration”.

2) Al-hukm al-shar`i is divided into two main varieties:

a) Al-hukm al-taklifi (primary rules/defining law)
b) Al-hukm al-wad`ei (secondary rules/declaratory law)



AL-HUKM AL-TAKLIFI (PRIMARY RULES/ DEFINING LAW)

1. Wajib/fard (obligatory)
2. Mandub (recommended )
3. Ja’iz (permissible)
4. Makruh (abominable)
5. Haram (prohibited)


WAJIB AND FARDH (OBLIGATORY)
• It is a binding demand of the Law-giver addressed to the mukallaf in respect of doing something.
• Acting upon something wajib/fardh leads to reward, while omitting it leads to punishment in this world or in Hereafter.
• Examples are five daily prayers, fasting in the month of Ramadhan, to pay zakat etc.


Divisions of wajib
• Ayni (personal) and kafa’i (collective)
• Muwaqqat (time-limit) and mutlaq or muassa` (absolute)
• Muhaddad (quantified) and ghair muhaddad (unquantified)



MANDUB (RECOMMENDED)

• A demand of the Law-giver which asks the mukallaf to do something which is, however, not binding.
• To comply with the demand earns the mukallaf a spiritual reward. No punishment, however, is inflicted for failure to perform it.
• Examples are give sadaqah to the needy, give salam, attending the sick, nawafil prayers etc.
• Mandub is also known as sunnah and nawafil.

JA’IZ OR MUBAH (PERMISSABLE)
• Optional; permissible, its concerning the conduct of the mukallaf which gives him the option, to do or not to do it.
• Generally no reward or punishment for the its commission or omission. However the hukm may change according to the intention of doing it or omitting it.
• Examples are eating or drinking lawful foods or water, entering into contracts, walking in the fresh air etc.

MAKRUH (DISLIKE OR ABOMINABLE)
• A demand of the Law-giver which requires the mukallaf to avoid from doing something but not binding.
• Does not constitute a binding law – omitting something makruh is preferable;
• Committing it is not liable to punishment
• Examples are avoiding unpleasant acts or foods such as raw onions and garlic before going to congregational prayers or attending the crowd. Talaq “The most abominable of permissible things in the sight of Allah is talaq.


HARAM (PROHIBITED OR FORBIDDEN)

• A binding demand of the Lawgiver in respect of abandoning something;
• Committing the haram is punishable either in this world or in the Hereafter, while omitting it is rewarded.
• Examples are riba, alcohol, theft, murder, adultery etc.
• Haram is divided into two types, lidhatihi and lighairi (haram for its own sake and forbidden because of something else).


HUKM AL-WADH`EI (SECONDARY OR DECLARATORY LAW)


1) Cause (sabab)
2) Condition (shart)
3) Hindrance (mani`)
4) Strict law (azimah) and concessionary lay (rukhsah)
5) Valid, irregular and void (sahih, fasid and batil)


1) SABAB (CAUSE)
• It is the cause on the basis of which a primary rule is invoked or established.
• Its presence necessitates the presence of the hukm, and its absence means the hukm is also absent.
• Examples are the setting of the sun is the cause for the obligatory of the evening prayer, the coming of the month of Ramadhan is the cause for the obligatory of fasting and the committing of a crime is the cause of implementing the punishment.


2) SHART (CONDITION)
• Its existence must take place before the invoking the related hukm.
• Its absence necessitates the absence of the hukm.
• Example: “There is no nikah without two witnesses”, the ablution (wudhu’) is a necessary condition of salah (prayer)


3. MANI` (HINDRANCE)
• Its presence means the absence of the hukm.
• Its existence prevent the hukm from being applied even if the cause is found and the condition is met.
• Examples: Menstruation hinders women from the obligatory of prayer, being in debt hinders the cause of zakat and etc.

4. AZIMAH AND RUKHSAH (STRICT AND CONCESSIONARY LAW)
• The Law-giver may indicate that one hukm is to be considered as an obligation imposed initially as a general rule (azimah). This may be followed by another rule that is exemption (rukhsah).
• Drinking of wine is prohibited as a general rule. In cases of duress, however, one is allowed to consume it if it saves him from dying of thirst.
• Similarly, it is allowed to shorten and combine between two prayers in traveling.


5. SAHIH, FASID AND BATIL (VALID, IRREGULAR AND VOID)
• An act may be required to be performed in certain manner by the Law-giver. When it is performed properly it is considered as valid (sahih), otherwise it might be irregular (voidable) (fasid) or null and void (batil).
• Only a valid contract of sale can give rise to its legal consequences. A contract is void when it is deficient in respect of any of its requirement. A voidable contract, although deficient in some respect, is still a contract and produces some of its legal consequences, but not all.