“Jurisprudence is the soul’s cognizance of its rights and obligations”.
– Abu Hanifa –
Islamic Law as it exists today is the result of a continuous process of development during the fourteen centuries of the existence of Islam. According to the classical theory, it consists of the express injunctions of the Koran; of the legislation introduced by the ‘practice’ (sunna) of the Prophet; and of the opinions of lawyers. In certain cases the opinion of jurists may coincide on a point, and this is known as ijma or consensus; in others, it may not – this is called qiyas or analogical deduction.
Islamic law is not a systematic code, but a living and growing organism; nevertheless there is amongst its different schools a large measure of agreement, because the starting point and the basic principles are identical. The differences that exist are due to historical, political, economic and cultural reasons, and it is, therefore, obvious that this system cannot be studied without a proper regard to its origin of Muslim law.
Coming to law proper, it is necessary to remember that there are two different conceptions of law. Law may be considered to be of divine origin or it may be conceived as man-made. The latter conception is the guiding principle of all modern legislation; it is the Greek, Roman, Celtic or Germanic notion of law. We may be compelled to act in accordance with certain principles because God desires us to do so, or, in the alternative, because the King or the Assembly of wise men or the leaders of the community or social custom demand it of us for the good of the people in general.
Now, what is the Islamic notion of law? There is in Islam a doctrine of certitude (‘ilm al-yaqin) in the matter of Good and Evil. We in our weakness cannot understand what Good and Evil are unless we are guided in the matter by an inspired Prophet. Good and Evil, technically as the Muslim doctors have it, husn, beauty and qubh, ugliness, are to be taken in the ethnical acception of the terms. What is morally beautiful, that must be done; and what is morally ugly must not be done. That is law or shari’at and nothing else can be law. But what is absolutely and indubitably beautiful, what is absolutely and indubitably ugly? There are the important legal questions; and who can answer them? Certainly not man, say the Muslim legists. We have the Koran which is the very word of God. Supplementary to it we have hadith, which are traditions of the Prophet – the records of his actions and his sayings – from which we must derive help and inspiration in arriving at legal decision. If there is nothing either in the Koran or in the hadith to answer the particular question which is before us, we have to follow the dictates of secular reason in accordance with certain definite principle.
The Shari’at is the central core of Islam; no understanding of its civilization, its social history or its political system is possible without a knowledge and appreciation of its legal system. Shari’at, as a technical term, means the Canon law of Islam, the totality of Allah’s commandments. Each one of such commandments is called hukm (ahkam). The law of Allah and its inner meaning is not easy to grasp; and shari’at embraces all human actions. For this reason it is not ‘law’ in the modern sense; it contains an infallible guide to ethics. It is fundamentally a doctrine of duties, a code of obligations. Legal considerations and individual rights have a secondary place in it; above it, the tendency towards a religious evaluation of all the affairs of life is supreme.
According to the shari’at, religious injunctions are of five kinds, al-ahkam al-khamsa. Those strictly enjoined are fard, and those strictly forbidden are haram. Between them we have two middle categories, namely, things which you are advised to do (mandub), and things which you are advised to refrain from (makruh), and finally there are things about which religion is indifferent (ja’iz). The daily prayers, five in number, are fard; wine is haram; the additional prayers like those on the ‘id, are mandub; certain kinds of fish are makruh; and there are thousands of ja’iz things, such as traveling by air. Thus the shari’at is totalitarian; all human activity is embraced in its sovereign domain. This fivefold division must be carefully noted; for, unless this is done, it is impossible to understand the distinction between that which is only morally enjoined and that which is legally enforced. Obviously, moral obligation is quite a different thing from legal necessity, and if in law these distinctions are not kept in mind, error and confusion are the inevitable result.
The law in Islam is called fiqh; it is the name given to whole science of jurisprudence because it implies the exercise of intelligence in deciding a point of law in the absence of a binding nass (command) form the Koran or sunna. Fiqh literally means ‘intelligence’, and faqih is a ‘jurist’, a person skilled in the law. There is thus a difference between ‘ilm, knowledge, and fiqh, which requires both intelligence and independent judgement. A man may be learned, alim (‘ulama, commonly called ulema), but to be a faqih (fugaha), he must possess the quality of independent judgment, the capacity to discern between the ‘correct’ and binding rule of law, and the ‘weak’ or unsupported opinion of a classical author. The terms fiqh and fuqaha may also have been suggested by the Latin terms (juris) prudentia and (juris) prudentes; for a study of the fiqh reveals that traces of Roman, Jewish and Persian laws have been incorporated in it.
We have now to see how Islamic lawyers have defined the term fiqh. Abu Hanifa definition stresses the moral aspect: fiqh is the soul’s cognizance of its rights and obligations. The Turkish Mejelle defines it as ‘the knowledge of pratical legal questions’. Most Islamic authorities, however, define it in terms of its four basic constituents, and we may therefore say that: Fiqh or the science of Islamic Law is the knowledge of one’s rights and obligations derived from the Koran, or the sunna of the Prophet, or the consensus of opinion among the learned (ijma), or analogical deduction (qiyas).
Possibly of late origin, this is an important tradition emphasizing the principle that the exercise of independent judgment, within certain limits, is not only permissible but praiseworthy. The Koran has to be interpreted, the actions and sayings of the Prophet duly considered, and judgment exercised in accordance with legal theory in case the Koran and sunna are silent on the question. A noteworthy feature of the hadith is that the Koran is given pre-eminence and next comes the practice of the Prophet. Although consensus in not mentioned specifically, it prepares the way for it, for ijma’ empahasizes the importance the Arabs gave to the ‘prevalent usage’ of the community. And finally, if all these sources fail, then the opinion of a distinguished jurist may also have the force of law.
The Koran according to this theory is the first source of law. Its importance is religious and spiritual, no less than legal, as it is, in Muslim belief, the Word of God. In interpreting the Koranic verses, one important principle has to be observed. Some verses are deemed to be the abrogating (nasikh) verses and some to be the abrogated (mansukh) ones. Generally speaking the earlier verses are deemed to be repealed by the later ones. The textbooks on Islamic law give a good deal of attention to problem of interpretation and discuss exhaustively the question of how the rule of law is to be deduced when several Koranic verses deal with the same or a similar problem, or when one verses affects another, directly or indirectly.
The second source of law is the sunna, the practice of the Prophet. The word sunna was used in pre-Islamic times for an ancient and continuous usage, well established in the community (sunnat al-umma); later, the term was applied to the Practice of the Prophet (sunnat al-nabi). The word sunna must be distinguished from the term hadith, for a promiscuous use of the two terms leads sometimes to confusion of thought. Hadith is the story of a particular occurrence; sunna, the rule of law deduced from it is the ‘practice’ of the Prophet, his ‘model behaviour’. The two sources, Koran and sunna, are often called nass (binding ordinance), and represent direct and indirect revelation.
The third source of law is ijma’, consensus of opinions among the learned of the community. Although the Muslim legists give it the third place in descending order, modern critics consider it to be the most important element in Islamic law, and an examination of the corpus of the fiqh reveals that a major portion of the law consist of the concurrent opinions of scholars on legal questions.
The fourth and last resource of law is qiyas, analogicaly deduction. It is derived from the Jewish term hiqqish, form an Aramaic root, meaning ‘to beat together’. In Arabic usage the word means “measurement’ and therefore ‘analogy’. The terms ra’y and qiyas are often used by lawyers and it is well know their exact significance. Ra’y means individual reasoning in general; ‘opinion’. When it is directed towards achieving systematic consistency and guided by the parallel of an existing institution or decision it is called qiyas. When it reflects the personal choice of the lawyer, guided by his idea of appropriateness, it is called istihsan or istislah, ‘preference’.
While we are discussing the nature of fiqh, it must also be pointed out that this science has been divided into two portions. The usul, literally the Roots of the law, and the furu, the Branches of the law. The science of usul deals with the first principles of interpretation and may be likened to our modern jurisprudence, while the science of furu’ deals with particular injunctions–ahkam–or the substantive lawm as we would call it, which really follows from the science of usul. The science of usul deals with sources of the law and its interpretation; the science of furu’ deals with the law as it is actually applicable in courts of justice; for instance, the law of marriage, the law of wakf or the law of inheritance. It is, therefore, necessary to realize that in Islamic law there is a very clear distinction between the first principles and the rules deduced from their application.
C. Post Scriptum
We have now seen what shari’at is and what, in essentials, is the definition of fiqh. What is the disctinction, if any, between them? Shari’at is the wider circle, it embraces in its orbit all human actions; fiqh is the narrower one, and deals with what are commonly understood as legal acts. Shari’at reminds us always of revelation, that ‘ilm (knowledge) which we could never have possessed but for the Koran or hadith; in fiqh, the power of reasoning is stressed, and deductions based upon ‘ilm are continuously cited with approval. The path of shari’at is laid down by God and His Prophet; the edifice of fiqh is erected by human endeavour. In the fiqh, an action is either legal or illegal, yajuyu wa ma la yajuzu, permissible or not permissible. In the shari’at, ther are various grades of approval or disapproval. Fiqh is the term used for the law as a science; and shari’at, for the law as the divinely ordained path of rectitude. It must, however, be candidly confessed that the line of distinction is by no means clearly draw, and very often the Muslim doctors themselves use the terms synonymously; for the criterion of all human action, whether in the shari’at or in the fiqh, is the same–seeking the approval of Allah by conforming to an ideally perfect code.
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