الحمد� لله و الصالة� والسالم� على رسول� الله

History of Fiqh

(Islamic jurisprudence).

  Objective:Objective:Insha’a Allah, by the end of this presentation you are Insha’a Allah, by the end of this presentation you are expected to know:expected to know:

  DDefinition of efinition of fiqh;fiqh;   Dividing Dividing Fiqh into Fiqh Al-Ibadat and Fiqh Al-Fiqh into Fiqh Al-Ibadat and Fiqh Al-

MoamalatMoamalat;; Different stages through which Different stages through which Figh Figh passed;passed; How the How the MadhhabsMadhhabs (schools of thought) came to (schools of thought) came to

existence; andexistence; and   FFactors that result in diverseactors that result in diverse Fiqh Fiqh opinions, and how opinions, and how

to deal with such diversity. to deal with such diversity.

Definition of Definition of FiqhFiqh::

Lexically: Lexically: the word the word FiqhFiqh is derived from the root word is derived from the root word faqihafaqiha which means “to understand”. which means “to understand”.

An example: An example: In the In the Qur’anicQur’anic AyahAyah 20:27, the present-tense 20:27, the present-tense

verb verb YafqahooYafqahoo ((وا �فق�ه �فق�ه واي derived from the same root , derived from the same root ,((يword word faqihafaqiha, , was used to mean: “understand” was used to mean: “understand”

�فق�ه واواح!ل ل ع قدة� م�ن ل�ساني واح!ل ل ع قدة� م�ن ل�ساني �فق�ه واي قولي قوليي “ “And And remove a knot from my tongue, that they remove a knot from my tongue, that they understandunderstand my speech.my speech.

As a technical termAs a technical term::

Fiqh is defined as: the knowledge of Fiqh is defined as: the knowledge of the practical rules of the practical rules of Shari’ahShari’ah (Islamic law) (Islamic law) acquired from the detailed evidence in the acquired from the detailed evidence in the sources.sources.

NoteNote: :

including “practical rules”, in the definition, excludes the including “practical rules”, in the definition, excludes the rules associated to the principles of faithrules associated to the principles of faith, , because those rulesbecause those rules are are discussed in the area of discussed in the area of AqeedahAqeedah not not FiqhFiqh..

In other words, the knowledge of In other words, the knowledge of the rules must be acquired directly the rules must be acquired directly from the sources (thefrom the sources (the Qura’an Qura’an and theand the SunnahSunnah), a requirement which implies ), a requirement which implies that the that the faqeehfaqeeh (Jurist) must be in (Jurist) must be in contact with the sources of contact with the sources of FiqhFiqh..

ExampleExample:: The The faqeehfaqeeh must know not only the rule must know not only the rule that unjustly eating up the property of an orphan that unjustly eating up the property of an orphan is forbidden, but also that the detailed evidence is forbidden, but also that the detailed evidence for it is the for it is the Qur’anic AyahQur’anic Ayah 4:10:4:10:

'م�ا �ن !م�ا إ �ام�ى ظ ل �ت !ي م!و�ال� ال� ل ون� أ !ك �أ 'ذ�ين� ي �ن3'� ال 'م�ا إ �ن !م�ا إ �ام�ى ظ ل �ت !ي م!و�ال� ال� ل ون� أ !ك �أ 'ذ�ين� ي �ن3'� ال إ

ا ع�ير� �و!ن� س� �ص!ل ي ا و�س� �ار� �ه�م! ن ط ون ل ون� ف�ي ب !ك �أ اي ع�ير� �و!ن� س� �ص!ل ي ا و�س� �ار� �ه�م! ن ط ون ل ون� ف�ي ب !ك �أ ي““Those who unjustly eat up the property of Those who unjustly eat up the property of

orphans, eat up a fire into their own bodies, they orphans, eat up a fire into their own bodies, they will soon be enduring a blazing fire”will soon be enduring a blazing fire”

Dividing Dividing FiqhFiqh into Fiqh into Fiqh Al-IbadatAl-Ibadat and Fiqh and Fiqh Al-Mua’malatAl-Mua’malat العباداتالعبادات المعامالتالمعامالت

The scholars used to divideThe scholars used to divide Fiqh Fiqh into two into two divisions: divisions:

1. 1. Fiqh Al-Ibadat Fiqh Al-Ibadat لعباداتلعباداتاا refers to refers to the acts of worship that are purely rights ofthe acts of worship that are purely rights of Allah Allah ((between Allah and his servant onlybetween Allah and his servant only).).

ExamplesExamples:: At-Taharh At-Taharh (purity),(purity), As-Salah As-Salah (prayer),(prayer), As- As-

syam syam (Fasting)(Fasting) , Hajj , Hajj (pilgrimage), (pilgrimage), etcetc

2.2. Fiqh Al-Mua’malat Fiqh Al-Mua’malat المعامالتالمعامالت (transactions):(transactions):

refers to the actions that involve, beside refers to the actions that involve, beside the rights of the rights of AllahAllah, the rights of people. , the rights of people.

ExamplesExamples::

Marriage, Divorce, Business Transactions Marriage, Divorce, Business Transactions (trade, loan, (trade, loan, etcetc).).

The different stages through The different stages through which Fiqh passed.which Fiqh passed.

Insha’a Allah, we will discuss:Insha’a Allah, we will discuss: Fiqh Fiqh during the lifetime of the Prophetduring the lifetime of the Prophetصلى الله عليه وسلمصلى الله عليه وسلم FiqhFiqh during the time of the during the time of the SahabaSahaba رضي الله عنهمرضي الله عنهم FiqhFiqh during the time of the during the time of the Tabi’een Tabi’een (the successors of the (the successors of the

SahabaSahaba). ). Fiqh Fiqh during the time of the during the time of the MujtahidMujtahid Imams ( Imams (Abu-Hanifah, Abu-Hanifah,

Malik, As-Shafe’iMalik, As-Shafe’i and and AhmadAhmad).).

Fiqh Fiqh during the lifetime of during the lifetime of the Prophet the Prophet صلى الله عليه صلى الله عليهوسلموسلم

During this time, the sources for legislation During this time, the sources for legislation were the were the Qur’an Qur’an and the and the Sunnah. Sunnah. Most of the Most of the rules were legislated without being related to any rules were legislated without being related to any specific event or occasion. specific event or occasion.

Examples:Examples:

Most of Most of Al-IbadatAl-Ibadat (the (the Salah, Zakat,etc Salah, Zakat,etc ) and ) and some of some of Al-Mua’malatAl-Mua’malat . .

However, However, other rules were legislated in reference other rules were legislated in reference to an event or occasion or a questionto an event or occasion or a question..

Examples:Examples: The The Qur’anic Ayah Qur’anic Ayah 2:2222:222::

!م�ح�يض� و�ل اء� ف�ي ال ]س� وا الن �ز�ل !م�ح�يض� و�لف�اع!ت اء� ف�ي ال ]س� وا الن �ز�ل ن�ااف�اع!ت �ط!ه ر! 'ى ي ت وه ن' ح� ب �ق!ر� ن� ت �ط!ه ر! 'ى ي ت وه ن' ح� ب �ق!ر� ت�لو نك� عن المح�يض� ق ل ه و أذ�ى �سأ �لو نك� عن المح�يض� ق ل ه و أذ�ىوي �سأ وي““And they ask you concerning menstruation, Say: that is a And they ask you concerning menstruation, Say: that is a harmful thing, so keep away from women in their harmful thing, so keep away from women in their menstruation, and do not approach them until they are menstruation, and do not approach them until they are cleanclean”.”.

The The Qur’anic Ayah Qur’anic Ayah 2:1892:189:: �لو نك� عن� األه�لة� ق ل ه�ي� مواقيت للناس� والح�ج] �سأ �لو نك� عن� األه�لة� ق ل ه�ي� مواقيت للناس� والح�ج]ي �سأ ي

““TThey ask you about new moons, Say: these are signs to hey ask you about new moons, Say: these are signs to mark fixed periods of time for mankind and for the hajjmark fixed periods of time for mankind and for the hajj””

During this timeDuring this time,, the the Sahaba Sahaba used to make used to make IjtihadIjtihad (an effort to infer the rules of (an effort to infer the rules of Shari’ah Shari’ah from from the source) based on their knowledge in the the source) based on their knowledge in the Qur’an Qur’an and theand the Sunnah. Sunnah. They might be correct in They might be correct in their their IjtihadIjtihad, or they might be mistaken!, or they might be mistaken!

However, when they related the matter to However, when they related the matter to the Prophet the Prophet صلى الله عليه وسلمصلى الله عليه وسلم he either approved he either approved their their IjtihadIjtihad or corrected them if they were or corrected them if they were mistaken!mistaken!

An Example:An Example:Narrated Narrated Abu Saeed Al-Khudri: Abu Saeed Al-Khudri: two men set out on a journey two men set out on a journey and when the time for the and when the time for the SalatSalat (prayer) came they had no (prayer) came they had no water. They performed water. They performed TayammumTayammum with clean earth and with clean earth and prayed. Later on they found water within the time of the prayer. prayed. Later on they found water within the time of the prayer. One of them repeated the prayer and ablution but the other did One of them repeated the prayer and ablution but the other did not repeat. Then they came to Allah’s Messenger not repeat. Then they came to Allah’s Messenger صلى الله صلى الله .and related the matter to him. and related the matter to him عليه وسلمعليه وسلم

The Prophet The Prophet صلى الله عليه وسلمصلى الله عليه وسلم said to the one said to the one who did not repeat: “You followed the who did not repeat: “You followed the SunnahSunnah and your prayer and your prayer is enough for you” and he said to the one who performed is enough for you” and he said to the one who performed ablution and repeated: “For you there is a double reward.” ablution and repeated: “For you there is a double reward.”

[[Reported by Reported by Abu Da’udAbu Da’ud and and An-Nasa’iAn-Nasa’i]]

Another example:Another example:Ammar Ibn Yasir Ammar Ibn Yasir said: the Prophet said: the Prophet صلى الله صلى الله

sent me on an errand, then I had sent me on an errand, then I had عليه وسلمعليه وسلمejaculation (in my sleep) and I did not find water. I rolled ejaculation (in my sleep) and I did not find water. I rolled on the soil like an animal, then when I returned to the on the soil like an animal, then when I returned to the Prophet Prophet and mentioned that to him. He and mentioned that to him. He صلى الله عليه وسلمصلى الله عليه وسلم said: “it was sufficient for you to do with your hand this said: “it was sufficient for you to do with your hand this way”. He then struck his hands once on the soil and then way”. He then struck his hands once on the soil and then rubbed the left hand on the right and the exterior part of rubbed the left hand on the right and the exterior part of his palms and his face.his palms and his face.

[agreed upon. This version is that of Muslim][agreed upon. This version is that of Muslim]

FiqhFiqh during the time of during the time of the the SahabaSahaba

During the During the KhilafaKhilafa of of AbubakrAbubakr, when an , when an issue arises, issue arises, AbubakrAbubakr looks in the book of Allah and looks in the book of Allah and the the SunnahSunnah that he knows. If he could not find any that he knows. If he could not find any thing, then he asks the thing, then he asks the SahabaSahaba if any of them have if any of them have a knowledge of a a knowledge of a SunnahSunnah related to the issue. If related to the issue. If non of them have that, then he consults them and non of them have that, then he consults them and makes his makes his Ijtihad.Ijtihad.

Afterwards, Afterwards, Omar, Omar, during hisduring his Khilafa, Khilafa, followed followed the same methodology.the same methodology.

An Example:An Example:جاءت الجدة إلى أبي بكر الصديق تسأله ميراثها فقال ما لك في كتاب الله

في سنة نبي الله صلى الله عليه وسلم شيئا تعالى شيء وما علمت لكفارجعي حتى أسأل الناس فسأل الناس فقال المغيرة بن شعبة حضرت

رسول الله صلى الله عليه وسلم أعطاها السدس فقال أبو بكر هل معك غيرك فقام محمد بن مسلمة فقال مثل ما قال المغيرة بن شعبة فأنفذه لها

أبو بكرA grandmother came to Abu Bakr As-Siddiq and asked him for

her inheritance. Abu Bakr said to her: “You have nothing in the Book of Allah, and I do not know that you have anything in the Sunnah of the Messenger of Allah صلى الله عليه وسلم. Go away therefore, until I have questioned the people.”. He questioned the people, and Al-Mughira Ibn Shuba said: “I was present with the Messenger of Allah when he gave the grandmother a sixth.” Abu صلى الله عليه وسلمBakr said: “Was there anybody else with you?”. Muhammad ibn Maslama al-Ansari stood up and said the like of what Al-Mughira said. Abu Bakr gave it to her. [Abu Daowed, At-Tirmizi, Malik]

FiqhFiqh during the time of the during the time of the Tabi’eenTabi’een (those who came (those who came after the after the SahabaSahaba))..

The The Tabi’eenTabi’een followed the footsteps of followed the footsteps of the the SahabaSahaba. They look in the . They look in the Qur’anQur’an and and SunnahSunnah, if there is nothing in the , if there is nothing in the Qur’anQur’an or or Sunnah Sunnah regarding the issue, they look if the regarding the issue, they look if the SahabaSahaba had an opinion on that issue, if not, had an opinion on that issue, if not, then they make their own then they make their own IjtihadIjtihad..

During the time of the During the time of the Tabi’eenTabi’een, two , two schools of schools of FiqhFiqh emerged: emerged:

The school of The school of Al-madinaAl-madina or the school of or the school of Hadith;Hadith; andand

The school of The school of Al-kuffaAl-kuffa or the school of or the school of Al-ra’ayAl-ra’ay..

The school of The school of Al-madina (Al-madina (the school of the school of Hadith):Hadith):ManyMany of the Sahaba of the Sahaba lived and stayed in lived and stayed in Al-madinaAl-madina, ,

because because Abubakr and OmarAbubakr and Omar used to ask the used to ask the SahabaSahaba not to not to leave leave Al-madina Al-madina ((because they need them for Shoorah or because they need them for Shoorah or consultationconsultation). This why the knowledge of ). This why the knowledge of HadithHadith was widely was widely spread in spread in Al-madinaAl-madina..

Prominent figures of this school are:Prominent figures of this school are: Saeed Ibn Al-mosa’ieb, Kharija Ibn Zayed Ibn Thabit, Saeed Ibn Al-mosa’ieb, Kharija Ibn Zayed Ibn Thabit,

Urwa Ibn Al-zobier, ...Urwa Ibn Al-zobier, ...

At the end, the leadership of this school came to At the end, the leadership of this school came to the hands of the hands of Al-imam Malik.Al-imam Malik.

The school of The school of Al-kuffaAl-kuffa (the school of (the school of Al-ra’ayAl-ra’ay))

The knowledge of The knowledge of Hadith, Hadith, in in Al-koffa,Al-koffa, was was not as strong as in not as strong as in Al-madinaAl-madina, for the following , for the following reasons:reasons:

The The SahabaSahaba lived in lived in Al-khuffaAl-khuffa were not as many as were not as many as those lived in those lived in Al-madina;Al-madina;

HoweverHowever, , later on, during the later on, during the KhilafaKhilafa of of Othman Ibn Othman Ibn AfaanAfaan, many of the , many of the SahabaSahaba moved to moved to Al-kuffaAl-kuffa, among them, among them: :

Ali Ibn Abee Talib (who moved his capitol from Al-Ali Ibn Abee Talib (who moved his capitol from Al-Madina to Al-Kuffa), Sa’ad Ibn Abee Wagas, Ammar Ibn Madina to Al-Kuffa), Sa’ad Ibn Abee Wagas, Ammar Ibn Yassir, Abdallahi Ibn Maso’od, …Yassir, Abdallahi Ibn Maso’od, …

The occurrence of forgery in the The occurrence of forgery in the HadithHadith literature, literature, i.e.i.e., attribution of false statements to the Prophet , attribution of false statements to the Prophet صلى الله صلى الله mainly by the enemies of Islam, owing to their , mainly by the enemies of Islam, owing to their , عليه وسلمعليه وسلمhatred of Islam, in that part of the hatred of Islam, in that part of the MuslimMuslim world at that time. world at that time. For that reason, the scholars in For that reason, the scholars in Al-kuffaAl-kuffa were very cautious were very cautious in accepting the in accepting the Ahadeeth, and instead they resort to Qiyas Ahadeeth, and instead they resort to Qiyas (analogical deduction)(analogical deduction). . Prominent figures of this school are:Prominent figures of this school are: Masrooq, Masrooq, Al-aswad Ibn Yazeed Al-nkha’aee, …Al-aswad Ibn Yazeed Al-nkha’aee, … At the At the end, the leadership of this school came to the hands of end, the leadership of this school came to the hands of Al-imam Abu-Haneefa.Al-imam Abu-Haneefa.

Fiqh during the time of Fiqh during the time of the the Mujtahid Imams Mujtahid Imams األئمة� األئمة�;as we mentioned earlier;as we mentioned earlier المجتهدينالمجتهدين The leadership of the school of The leadership of the school of Al-ra’ayAl-ra’ay came to came to Al-Al-

imam Abu-haneefaimam Abu-haneefa.. The leadership of the school ofThe leadership of the school of Hadith Hadith came to came to Al-Al-

Imam Malik.Imam Malik. Al-imam Ash-shafe’e Al-imam Ash-shafe’e was a student ofwas a student of Al-Imam Al-Imam

Malik, Malik, and later on, afterand later on, after Malik Malik passed awaypassed away, , he went to he went to Iraq and became a student of Iraq and became a student of Al-imam Mohammad Ibn Al-Al-imam Mohammad Ibn Al-hassan Ash-shibani hassan Ash-shibani the student ofthe student of Abu-haneefa. Abu-haneefa.

Al-imam Ahmad Ibn Hanbal Al-imam Ahmad Ibn Hanbal was a student ofwas a student of Al- Al-imam Ash-shafe’eimam Ash-shafe’e..

The major characteristics of this The major characteristics of this stage are:stage are:

Collecting and compiling of the Collecting and compiling of the Hadith.Hadith. The The first book in this art was first book in this art was Mota’a Al-imam Mota’a Al-imam Malik.Malik. Later on, other Imams ( Later on, other Imams (Ahmad, Al-Ahmad, Al-Bukhari, Muslim, …Bukhari, Muslim, …) followed him. ) followed him.

Writing down the the principles of Writing down the the principles of FiqhFiqh (the (the first to do so wasfirst to do so was Al-imam Ash-shafe’e Al-imam Ash-shafe’e), ), Fiqh, Tafseer Al-Qur’anFiqh, Tafseer Al-Qur’an, …, …

The factors that cause the The factors that cause the scholars to differ among scholars to differ among themselves.themselves.many factors contribute to this issue, among them:many factors contribute to this issue, among them:

The scholar might not be aware of the The scholar might not be aware of the Daleel Daleel (evidence). (evidence).

An Example:An Example: Al-imamAl-imam Malik Malik used to say it is permitted to observe fast on the day of Friday. used to say it is permitted to observe fast on the day of Friday. He was unaware of the He was unaware of the HadithHadith of of Abu-HurairaAbu-Huraira that the Prophet that the Prophet صلى الله صلى الله said: “none of you should fast on Friday unless he fasts (it said: “none of you should fast on Friday unless he fasts (it عليه وسلمعليه وسلمtogether) a day before or a day after it together) a day before or a day after it [agreed upon].[agreed upon].

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The scholar might be aware of the Daleel but he The scholar might be aware of the Daleel but he interprets it differentlyinterprets it differently..because the nature of the Arabic language may allow more because the nature of the Arabic language may allow more than one meanings of the same word.than one meanings of the same word.

Example:Example:In the Qur’anic AyahIn the Qur’anic Ayah (5:6): (5:6): ]ساء م الن ]ساءأو المست م الن أو المست

““or ye have been in contact with women”or ye have been in contact with women”The ward The ward LamastumLamastum م مالمست in this in this AyahAyah may mean may mean المستtouching or sexual intercourse.touching or sexual intercourse. Ash-shafe’e and others accept the first meaning and Ash-shafe’e and others accept the first meaning and hold that touching a woman nullifies ablution.hold that touching a woman nullifies ablution.

Abu Hanifa accepts the second meaning, and he Abu Hanifa accepts the second meaning, and he holds that touching a woman does not nullify the ablution.holds that touching a woman does not nullify the ablution.

AApparent conflicts between evidencespparent conflicts between evidences . . In reality, there is no conflict between the evidences of In reality, there is no conflict between the evidences of

Shari’ah. Shari’ah. However, it might appear to a Scholar that two However, it might appear to a Scholar that two evidence are in conflict with one anotherevidence are in conflict with one another

Example:Example:A A HadithHadith says: “whoever touches his sexual organ says: “whoever touches his sexual organ

needs to makes needs to makes WuduWudu”. In another ”. In another HadithHadith the Prophet the Prophet صلى صلى was asked about touching one’s sexual was asked about touching one’s sexual الله عليه وسلمالله عليه وسلمorgan, He said it is like touching any other part of the body.organ, He said it is like touching any other part of the body.

Ash-shafe’e , Ahmad and others are of the opinion Ash-shafe’e , Ahmad and others are of the opinion that the second Hadith abrogates the first, therefore that the second Hadith abrogates the first, therefore touching one’s sexual organ does not nullify Wudu.touching one’s sexual organ does not nullify Wudu.

Abu Hanifa regards the first Hadith to be authentic Abu Hanifa regards the first Hadith to be authentic and rules that Wudu is required after touchingand rules that Wudu is required after touching

The differences among the scholars in their The differences among the scholars in their approach towards the sources of approach towards the sources of Shari’ahShari’ah..Example:Example:

Al-imam MalikAl-imam Malik takes the practice of the people of takes the practice of the people of Al-Al-madinamadina as one of the sources of as one of the sources of Shari’ah,Shari’ah, other scholars other scholars disagreed with him.disagreed with him.

Another Example:Another Example:The vast majority of the Scholars regard The vast majority of the Scholars regard QiyasQiyas

((analogical deductionanalogical deduction) as one of the sources of Shari’ah, ) as one of the sources of Shari’ah, other scholars (other scholars (Dawood Al-zahiri and Ibn HazmDawood Al-zahiri and Ibn Hazm) do not ) do not regard regard Qiyas Qiyas as a source. as a source.

The principles we expected to follow The principles we expected to follow to deal with dito deal with diverse verse Fiqh opinions.Fiqh opinions. AvoidingAvoiding TagleedTagleed ( (blindly following one blindly following one Madhhab).Madhhab).

The great scholars did their best to teach people their The great scholars did their best to teach people their religion and offer them proper guidance, but they forbade people religion and offer them proper guidance, but they forbade people from following them blindly and told them: “It is not allowed for from following them blindly and told them: “It is not allowed for anyone to say what we have said without knowing the evidence for anyone to say what we have said without knowing the evidence for our position.” our position.”

They made it clear that their opinions was whatever the They made it clear that their opinions was whatever the authentic authentic Hadith Hadith stated. They did not have the intention of having stated. They did not have the intention of having the people follow them like they should follow the Prophet the people follow them like they should follow the Prophet صلى الله صلى الله

.who was protected from sin or mistake by Allah. , who was protected from sin or mistake by Allah ,عليه وسلمعليه وسلم

Following the opinion that has the stronger Following the opinion that has the stronger evidence and proof.evidence and proof.

However, regardless of the reasons that lead However, regardless of the reasons that lead to diverse to diverse FiqhFiqh opinions, the differences themselves opinions, the differences themselves should not be looked upon as being inherently evil; should not be looked upon as being inherently evil; on the contrary, they can be a great help in learning on the contrary, they can be a great help in learning as well as guarding us from the unyielding rigidity as well as guarding us from the unyielding rigidity that has stunted the growth and the contribution of that has stunted the growth and the contribution of the Muslim the Muslim UmmahUmmah in recent times. in recent times.

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