by Sheikh Ali Gomaa
The discipline of Islamic law has a distinguished place among the Islamic sciences. It contains an entire dictionary of terminology, and a comprehensive methodology to order the lives of Muslims in all its dimensions – ritual worship, commercial transactions, family relations, and social, economic and political matters.
The efforts of the jurists and scholars of Islam have played an important role in developing this science and explicating with precision its rulings, which clarify the Judgment of God with respect to the actions of legally responsible individuals in all aspects of their lives. These jurists established schools of thought based on sophisticated methodologies for understanding juristic matters, and for deducing rulings from the Qur’an, the Sunna, the consensus of the community, and proper analogizing in accordance with principles laid down in the books of legal theory.
The definition of fiqh:
Scholars have disagreed about the linguistic meaning of the word fiqh. Some have said it means simply “understanding”; while others have claimed it refers to “understanding what was intended by the speaker”; while yet others have said it refers to “understanding detailed matters.” The Maliki Scholar Al-Qarafi (d. 1285 C.E) preferred this last meaning.
Terminologically, fiqh is “knowledge of practical shari’a rulings deduced from their detailed proofs”. So since this knowledge is deduced from the sources of Islamic lawmaking, primarily the Qur’an and Sunna, this fiqh is called fiqh islami (Islamic law). That is to say, Islamic lawmaking is its source and basis.
Some also say fiqh is “knowledge of practical shari’a rulings which extend, or follow, from their detailed proofs”. Yet others define it as “the science in which the ruling for every action is sought”.
The subject matter of fiqh:
The subject matter of fiqh is the actions of legally responsible individuals with respect to that which they ought to do (e.g., prayer, fasting), that from which they ought to abstain (e.g., murder, improper sexual relations), and that which they are at liberty to choose (e.g., eating, drinking). As such, what is sought in fiqh is whether given actions are permissible, impermissible, obligatory, recommended, or disliked.
The conditions of a jurist:
1. Memorization of the Holy Qur’an; or at the very least, the ability to recall with ease the verses pertaining to rulings.
2. A study of the Prophetic Sunna, especially that which pertains to rulings. The hadiths having to do with rulings have been compiled in books such as Muntaqa al-Akhbar, which has been commented upon by Imam Shawkani (d. 1834 CE) in his Nayl al-Awtar; Makdisi’s (d. 600 H.) ‘Umdat al-Ahkam, which was commented upon by Ibn Daqiq al-‘Id (d. 702 H.) in his Kitab al-Ahkam; among others.
As well, he should be able to distinguish sound hadiths from weak ones, because scholars are unanimous that weak hadith are not admissible for rulings. This means that he must be well-versed in the books of takhrij, such as Nasb al-Raya and others. In short, he must be immersed in the hadith, especially those which pertain to rulings.
3. Knowledge of the Arabic language: a discerning knowledge of the meanings of words and idioms; the ability to distinguish the literal from the metaphorical, the explicated from connotations, the specific from the general, the restricted from the unrestricted, etc.
4. A study of legal theory, a knowledge of the Objectives of the shari’a, legal principles and maxims. This is important so that he may be able to understand analogies and their conditions, the ratio legis and its conditions.
5. A practice of fiqh itself, which is to say that he lives the fiqh and engages in a deep study of it in all its forms – the fiqh of the classical legal schools, general fiqh, comparative fiqh. At the very least, he should have studied one of the legal schools, be familiar with all of the chapters of fiqh, and have read works in comparative or general fiqh, such as Ibn Rushd’s (d. 595 H.) Bidayat al-Mujtahid, Ibn Hazm’s (d. 465 H.) al-Muhalla, Ibn Qudama’s (d. 620 H.) Mughni, Nawawi’s Majmu’, Ibn ‘Abd al-Barr’s Istidhkar, or others. It is not necessary that these books be read in their entirety, but rather what is necessary is that it be known how to use them as a reference when need be; that they be studied well such that the points of consensus, the reasons behind differing opinions, the principles of each school are well-known. This requires an engagement with these works over a lengthy period, the precise length of which may vary depending on what a given person requires to become an expert.
6. It is preferable that one study directly under jurists, so that their knowledge may be take up through direct companionship, for knowledge must be taken from people of knowledge.
The scholars have also stipulated that a jurist must have strong knowledge of the reality he lives in, so that he may issue fatwas, give judgments, and teach people in accordance with their circumstances. They gave this such importance that they would prohibit from giving fatwas anyone who did not have a firm grasp of social reality and customary practices. Imam Al-Qarafi (d. 1285 C.E)
7. mentioned this and emphasized that if someone comes to you for a fatwa, you must give him one in accordance with the customs of his land and not your own. This emphasizes the need for a mufti to know customary practices, in addition to the different legal schools, when issuing fatwas.
1. Obligatory (fard): That which is emphatically sought by the Lawgiver, via an unquestionable definitive proof (dalil qat’i) (such as the Qur’an, a mass-transmitted (mutawatir) tradition, or consensus) in a definitive manner. This is the highest level of obligation in the shari’a.
2. Mandatory (wajib): That which is emphatically sought by the Lawgiver, but through a probabilistic proof (dalil zanni).
3. Sunna: That which is sought by the Lawgiver, but is not binding. This is divided into two categories:
a. Sunna mu’akkada: That which the Prophet regularly practiced, but sometimes omitted or otherwise explained that it was not obligatory. Examples are the two rak’as before the dawn (fajr) prayer and congregational prayer in general.
b. Sunna ghayr mu’akkada: These are the actions that the Prophet did not regularly practice – though he did perform them, he would sometimes omit them. Examples include the four rak’as before the late afternoon (‘asr) and night (‘isha) prayers.
4. Recommended (mustahabb): This is also considered a sunna but at a level below the two mentioned above.
5. Prohibited (haram): That abstention from which has been sought emphatically by the Lawgiver via an unquestionable definitive proof.
6. Severely disliked (al-makruh karahat al-tahrim): That abstention from which has been sought emphatically and bindingly by the Lawgiver, but only through a probabilistic proof.
7. Slightly disliked (al-makruh karahat al-tanzih): That abstention from which has been sought by the Lawgiver, but is not binding.
8. Permissible (mubah): That action of which neither commission nor omission (abstention) is sought.
9. Condition (shart) and integral (rukn): In fard actions, we may distinguish between two: (i) That which is required outside of the action but must be performed before the action begins because the fard action is dependent on it. This is called a condition. (ii) That which is a part of the action itself, that is, the fard action cannot be realized without it. That is called an integral.
10. Ada’ and Qada’: With respect to obligatory and mandatory actions that are restricted to a given period of time, if they are performed within the time specified by the Lawgiver, they are considered ada’. If they are performed afterwards, they are considered qada’.
The difference between shari’a and fiqh
The ruling of the shari’a is taken from its foundational sources, unanimously agreed upon: the Qur’an, the sound Prophetic Sunna, consensus according to its conditions as stipulated in the field of legal theory, and valid analogies. As for fiqh, it is a human activity undertaken by specialists in the Shari’a in order to elucidate the shari’a rulings for all that concerns Muslims, indeed mankind.
The words of these jurists are not to be counted as Shari’a, and they are not to be understood as constituting religion. Rather, they are the jurist’s understanding of the texts, and his attempt to apply them to reality. This is the best means for understanding and applying these texts, but they are not infallible. They may be either correct or incorrect. The authentic jurist is rewarded in both cases – twice if he is correct, and once if he is incorrect.
For example, if we wish to know the Shari’a ruling on the matter of female circumcision, we will search in the Qur’an and the Sunna, then in consensus, and then through analogy. We may thus find in the fiqh that which aids us, so we are satisfied in our understanding which has been reinforced. But, we may not find in the fiqh that which benefits us in light of our present-day knowledge and medical advancements, so we leave the opinion, and do not rely upon that which is codified in the fiqh books.
The Qur’an does not contain any text on this matter, and there is no consensus on a ruling on it. Neither can we accept an analogy with regards to it. As for the Prophetic Sunna, there is no single hadith with a proper isnad in this serious matter. The hadith of Umm ‘Atiya and others are weak, and so are inconsequential as proofs. In this manner, we can clarify that the ruling in the matter of female circumcision is that it is neither mandatory nor Sunna. Neither is it a “dignifying practice” for women due to the weakness of the hadith on the matter. Rather, it is a custom, and not even in all nations. Circumcision is a medical matter, and its legal ruling is in accordance with the medical judgment of trustworthy doctors. The doctors’ judgment, therefore, is binding upon the people.
The sources of fiqh
There is no disagreement among jurists and legal theorists that the foundational shari’a texts – the Qur’an and the Sunna – are the primary source for fiqh. In this, fiqh differs from all other legal systems known to humankind, whether present-day or historic. Following from this source is ijtihad, the second source. It is nothing but a means of understanding the texts and applying them, and inspiring the spirit, objectives and principles of legislation in arriving at rulings not contained within the texts explicitly or clearly.
The sources of fiqh, then, are texts and ijtihad. The texts may be revelatory in both words and meanings – the Qur’an – or revelatory in meaning only – that is, the Prophetic Sunna. As for ijtihad, it calls for a text. It is not independent; rather it is constrained by the principles alluded to by texts either explicitly or implicitly.
Ijtihad: There are many means to ijtihad. Among the most important of these are consensus (ijma), analogy (qiyas), istihsan (equity), istislah (public welfare or interest), custom (‘urf), istishab (presumption of continuity), and cutting off the means (sadd al-dhara’i). The scholars deem ijtihad, performed in all these ways, sources (or proofs) of fiqh. This is because fiqh rulings are derived from them. Legally speaking, we are not bound to make recourse to them in terms of action.
Categorizations of the sources of fiqh by hadith scholars: The sources of fiqh were categorized in different ways by hadith scholars.
Some divided them into (1) foundational sources, i.e, the Qur’an, Sunna, consensus and analogy; and
(2) secondary sources, which consists of all other sources. They are often deemed “dependent sources” because they are based on the foundational sources. As such, they are not extraneous to the first category according to many scholars. The most important of these are istihsan, istislah, and custom.
Other researchers have said that the sources are either foundational or secondary. The first category is made up only of the Qur’an and the Sunna. The second category consists of consensus, analogy, istihsan, cutting off the means, custom, the position of a Companion, the heavenly laws of previous nations, and istishab.
The meaning of “theory” in this context is that which is established by a proof, or the set of complex conceptions arrived at by reason. It aims to link premises to conclusions. The term “juristic theories” refers to a general understanding which creates a legal system which determines all that linked to the topic of the theory, especially rulings scattered throughout the various chapters of fiqh books.
Our legal heritage recognizes the concept of juristic theories, and examples include the following:
1. The theory of legal capacity: In the terminological usage of the jurists, legal capacity refers to the capability of humans to satisfy the demands of the shari’a, whether they are for him or against him, and the capability of humans to perform actions in a manner recognized by the shari’a. Legal capacity can be divided into two: the capacity for mandatory actions, and the capacity to fufill actions. Legal capacity may be complete or partial. There are extraneous factors which may affect the capacity of humans to fulfill demanded rights, or to act as the audience for the Lawgiver’s address. These factors may be either heavenly or acquired.
2. The theory of invalidity: In the usage of the jurists, invalidity refers to the inadmissibility of a given action, and the legal effects proceeding from it. This depends on the fact that every action of mankind has two aspects: a sensory, material existence; and a conventional existence. The latter means that the Lawgiver deems it capable of being subject to relevant rulings and legal effects. Invalidity attaches to both actions and sayings. It is also capable of being applied to portions of an action, and not the whole. For example, it may be that in a single contract, part of it is invalid while another part of it is valid, due to one’s taking account of different dimensions.
3. The theory of custom: Custom is that which is regularly practiced by people in their lives, be it particular sayings or actions, or omissions of the same. There are many types of customs depending on different considerations. They may be divided, for example, into verbal customs and practice customs; or general customs and particular customs; or valid customs and corrupt customs. The theory of custom is based predominantly on a consideration of the needs and interest of people, facilitating matters for them and not causing undue difficulties, and repelling harm and corruption. As such, it is one of the most important theories in terms of expressing the vitality of legal thinking, its ability to develop, and its lack of rigidity.
The word qa’ida (principle) in Arabic refers to the foundation of a house. In the terminology of the jurists, it refers to a universal judgment that applies to all or most particulars. Through it, one is able to know the rulings associated with the particulars subsumed under the universal. The principle is distinguished by its concise wording and precise formulation, the generality of its meaning and its ability to encompass many particulars.
The stages of formation of the juristic principles: The juristic principles were not set out all at once. Its meanings were formed, and its textual referents were set out gradually from the period of revelation to the end of the period of ijtihad. It passed through three stages before arriving at its present form: formation; development and codification; settling down.
The period of formation began during the lifetime of the Prophet. Some rulings which were extensions of the Qur’an and the Prophetic hadiths were general principles for many rulings.
The period of development and codification: From the beginning of the fourth century, the juristic principles began to develop such that they became an independent science. This science reached maturation in the seventh and eighth centuries, and the eighth century is considered the golden period for the codification of the juristic principles and writings on the topic.
In the final period, the legal principles came to be stable. The jurists set out juristic principles in the Majallat al-Ahkam al-‘Adliyya in the Ottoman period, after gathering and summarizing them from the works of fiqh.
The intellectual value of the juristic principles: There is great intellectual value in the juristic principles, for they characterize the essential and decisive general rules of fiqh. Similarly, they represent a criterion for deciding on many individual rulings all connected by a single factor. If it were not for these principles, the rulings would remain scattered and uncategorized.
The primary principles: What are meant by the primary principles are those which are independent sources, not dependent on any others. They are broader and more comprehensive than the others. Others may be derived from them. Though there is some disagreement about the specific number, most agree on the following five:
1. Matters are by their objectives: This means that the behavior and deeds of people are subject to different rulings based on their intentions and objectives. The intention is the balance in which people’s deeds are measured.
2. Certainty is not overridden by doubt: This means that a sudden doubt about a matter should not be given precedence over a prevailing certainty.
3. Not causing harm, and not retaliating with harm: This means that it is not permissible to cause any harm to another, neither his body nor his wealth. For, this is oppression. It also means one must not respond to harm with harm. Rather, the matter should be brought in front of a judge.
4. Difficulty should give way to ease: What is meant by difficulty here is that which goes beyond normally acceptable bounds, that by which hearts are constrained and efforts are depleted. This principle is considered one of the bases of legislation by all legal schools. It is the basis for the dispensations and concessions in the shari’a.
5. Custom is determinative: This means that that which is customary among the people, and does not contravene an explicit text or a consensus, is given consideration by the Lawgiver, in that, it is something that can be resorted to in making rulings on matters unaddressed in the texts or by consensus.
The types of fiqh
Fiqh encompasses all the rulings which organize relations between people and their Creator, and amongst people themselves. Whoever examines the major works of fiqh of the different madhhabs will notice that there is a great deal of variance between their manner of categorization, and in their arrangement of topics.
This, however, does not impact the issues they take up. And despite these apparent differences, there is largely agreement that fiqh may be divided into two main areas: ritual worship (‘ibadat); and transactions and customs (mu’amalat). This division is based on the following: that which is concerned with drawing nearer to God is considered ritual worship (including prayer, fasting, and pilgrimage); and that which is concerned with achieving worldly welfare, or with organizing the relations between individuals or groups are considered “transactions” (such as sale, renting, agricultural contracts). There are also customs which resemble the latter.
Whoever undertakes a study of the Qur’anic and hadith texts will find that in the case of ‘ibadat, the rulings are discrete and isolated. This is because most of these rulings are not subject to arguments from reason, nor are they impacted based on changes in time or place. However, in the case of mu’amalat, the rulings usually come as general principles and universal statements. They rarely take up details, because the principle in these cases is subject to, and discernable through, reason. This opens up a large space for jurists to undertake Ijtihad, and not ignore the circumstances of the particular place and time within the framework and spirit of the Shari’a.
The early works of fiqh did not know this distinction between ‘ibadat and mu’amalat. The word ‘ibadat was not taken to refer to some chapters of fiqh and not others, even though it may have been used in this way by some early scholars. Along came the Imam Abu’l-Hasan al-‘Amiri (d. 393 AH), who alluded to the types of shari’a rulings in his Kitab al-A’lam bi Manaqib al-Islam. One of the chapters in that work was titled “Knowing the integrals of religion,” at the outset of which he writes, “It has been said before us that the religion centres on beliefs (i’tiqadat), rotual worship (‘ibadat), transactions and customs (mu’amalat), and penal code (mazajir).”
The legal schools are not restricted to the famous four
The correct opinion is that the legal schools are not restricted to the four Sunni schools well-known and predominant today (i.e., the Hanafi, Maliki, Shafi’i and Hanbali schools). Rather, they proliferate as a function of the number of mujtahids. For the four great scholars who founded these schools were contemporary to other notable personalities who were equally prominent jurists. In fact, it may be said that some of this latter group may be more learned than the famous ones. For example, Imam al-Shafi’I (d. 204 H.) said of the Mufti of Egypt, Layth b. Sa’d, (d. 175 AH) “Layth is more knowledgeable in fiqh than Malik (d. 179 H.), but his students did not undertake [his project].” That is to say, they did not take up his opinions and narrations the way Malik’s students did.
These four legal schools may not be taken to be infallible (nor may any others). Nor can we compel following (taqlid) them. In fact, all of these Imams prohibited this strongly. There is no proof in the Qur’an or the Sunna indicating the necessity of following them exclusively. The proper position is that people ask those of knowledge and piety among them rather than search for the answer in their madhhab or engage in partisanship.
The difference between the principles of Islam and its application
Many fall into confusion regarding the difference between the principles of Islam and its application. The principles of Islam are stable and fixed throughout eras. They do not change because they are extensions of the Qur’an and Sunna. These are texts and foundations binding on all Muslims. Opposition to them on the part of either rulers or the ruled do not imply that they are inapplicable, deficient or irrelevant to the current-day, for there is no law in the world that has not been opposed by some.
The truth in this matter is clear: It is incorrect to pronounce on Islam based on the behavior of its followers, but rather we must judge people based on how close they are to the shari’a, and the principles and values of Islam.
Another mistake people fall into is mixing between a proper understanding of Islam and the modern experience of Muslims. The harm in this greatly outweighs any imagined benefits. As a result of this, Islamic thought has lost the distinction it has known for centuries, and Muslims have become disturbed into explaining Islam. Among the consequences of this has been the emergence of extremists and radical of poor understanding and poor actions. They have opened the door to killing, and have reneged on agreements and contracts. People like these are in need of being reintroduced to correct religion.
Modern-day Trends in the “fiqh of women”
Among the most important issues related to the status of women in contemporary Islam are, first, the permissibility of her working; and, second, her ability to take up political posts.
Our examination of these two issues begins with the saying of God, “O people! Fear your Lord, Who created you from one soul, and created from it its spouse, and spread out from them many men and women.” (Al-Nisa: 1). This verse and others affirm that the unity of the source of all mankind, from which proceeds equality between men and women in rights and obligations, is a general rule from which deviations are only permissible in the presence of a specific text.
One of the most apparent cases of this equality between the genders in matters of rights and obligations has to do with the capacity of women to take up roles appropriate to her personal, rational, and intellectual capabilities.
The conventional fiqh on the question of the political role of women has settled on the view that women have no role to play in politics. All that can be asked of them is that they fulfill their role in their homes and in raising children. Some scholars who have held this view justify it with reference to an invalid hadith which contains the wording, “Consult with them, and then do the opposite.” This, despite the practice of the Prophet (peace be upon him) who would sometimes consult with women and act upon their advice. The authentic books of hadith are agreed that Umm Salama (d. 61 H.) advised the Prophet to slaughter and shave when many Companions advised against it. Acting on her consultation has indeed saved the entire Muslim community from falling into disputation and schism.
In truth, women are like men in political activity. They enjoy all the rights and are subject to all the duties that men are. There is no general contradiction between her taking up her political duty and her taking up her other duties, though there may be tensions in individual cases. There is no similarly no reason to think there are any principles which oppose women working, or to accept them when posited by others.
Those who oppose women taking up political posts use the hadith of the Prophet (peace be upon him):
“No people will prosper who has a woman responsible for their affairs ”. This hadith is not a definitive proof, for the “responsibility” (wilaya) intended here is the ultimate responsibility of the Caliph or the head of a unified Islamic entity comprising the entire Islamic world. Such an entity does not exist today.
Nor do the specific characteristics of such a person be found today. These latter include leading the prayer for the entire Muslim community, commanding the army, the capacity to undertake independent ijtihad, and heading the judiciary. The rulers of today are in fact only a portion of the entire institution, and their rule is simply one institution of many sharing powers that would be all wielded by the Caliph. As such, there is no problem with women taking up some of these powers if she possesses the relevant competencies, including that of the presidency of a modern state.
Furthermore, some of the Imams have permitted women to take up some of the central responsibilities of the Caliph. According to Abu Hanifa (d. 150 H.) , women may head the judiciary based on the position that their testimony is to be accepted. Al-Tabari said women may head both the judiciary and political affairs. This is also a narration from Imam Malik (d. 179 H).
Based on all this, we conclude that there is no shari’a objection to a woman taking up any position for which she is competent; and with regards to which electors place their trust in her (if it is an elected position), or authorities choose her for (if it is an appointed position).
Fiqh in the Modern Period
The beginning of the modern period of fiqh may be dated to the emergence of the Majallat al-Ahkam al-Adaliyya at the end of the 13th century AH – to be precise, 1293 AH/1876 CE. Fiqh studies began to gently move towards reform and development, addressing the day’s myriad problems in order to keep with the times. The factors that led to this development in the field, both in terms of content and style, are many. These include the emergence of many reformers who led a movement for reform and warned against stagnation and inflexibility; advancements over time; the development of human knowledge; tensions between civilizations; the ease of communication between nations; the spread of learning; and the emergence of newspapers and journals.
The nineteenth century witnessed a number of reformers and intellectuals who had a large impact on the modern awakening to their methods for reform. Among the most famous of these in the field of fiqh, calling for reform and confronting taqlid are Al-Shawkani (d. 1834 CE), Sayyid Jamal al-Din Al-Afghani (d 1897 CE), and Muhammad ‘Abduh (d. 1905 CE). These were preceded by many mujtahids and reformers, including Muhammad bin ‘Abdul Wahhab (d. 1206 A.H.) in the Hijaz, and Ahmad Sirhindi (d. 1624 )and Shah Waliullah Al-Dehlawi (d. 1762 CE) in India.
This fiqhi revival took many forms, among which the codification of fiqh was the first. This codification initially took place within the madhhab, with some opinions being chosen for implementation even though they were considered weaker. In this way, the movement freed fiqh from the constraints of taqlid, and attempted to keep up with the times and make the fiqh heritage easier to implement.
Codification: Codification means to gather together in one place the principles pertaining to a specific topic of law, organizing and categorizing them, resolving contradictions among them, and clarifying problems in them. This is then issued in a legal code that the state imposes in a manner corresponding to its legislative power, without regard for whether the source of these principles are the legislature, custom, the judiciary, or other sources of law. Codification is not new, for older systems of law recognized it.
In what follows, we discuss the first act of the codification of fiqh in the modern period, before taking up the spread of codification and the general tendency to engage in it today.
Majallat al-Ahkam al-Adaliyya: This code, issued in Turkey at the end of the last hijri century, was the first intellectual attempt at codifying fiqh. The reason for issuing it is that when the Ottoman state established the nizami or official courts, and came to be responsible for all sorts of suits that were previously the jurisdiction of the shari’a courts, it felt the need to make it easier for judges to refer to the judgments of fiqh, in particular those who were unfamiliar with fiqh, and unable to distinguish between strong opinions and weak ones often discarded. For this reason, the Sultan put together a commission called “the majalla commission”. This commission put together a book covering the mu’amalat, which was precise, easy to access, free of differences of opinion, and consisted of the strong opinions which were to be acted upon. It was also easy for non-specialists to make recourse to it. The commission started its work on this book, called the Majallat al-Ahkam al-Adaliyya, in 1285 AH/1869 CE, and upon its completion, it was officially promulgated in the month of Sha’ban 1293 AH. The courts of the state were bound to act upon it and implement its rulings.
The Majalla is made of 1851 articles summarizing the mu’amalat according to the Hanafi school, which was the school of the Ottoman state. Its discussions were arranged in the well-known chapters, but they were numbered in the manner of modern codes so that they may be referenced and cited easily.
The commission also added an explanatory notice when they published the Majallah, adding it as a preface comprising two articles: first, the definition and categorization of fiqh; and the second, in which they mention a set of universal principles, each of which is considered a source for fiqh, and upon which many rulings are based. They related 99 principles. The first is “matters are by their intentions” and the last is “whoever attempts to annul what he did, his attempt is rejected.”
The Majalla is a unique modern compilation in terms of its arrangement of chapters. The style and structure of its articles are simple and concise. It is restricted to the mu’amalat. It generally takes from the books of zahir al-riwaya, which contain the strongest opinions of the Hanafi school. And if there are differences of opinion between Imam Abu Hanifa (d. 767 H.) and his Companions, the Majalla selected the one that satisfied the public interest and welfare even if it had been deemed weak.
The Majalla was applied in Turkey and in most of the lands that fell under Ottoman rule, such as Syria, Lebanon, and Palestine. There were a number of studies on the Majalla were published thereafter. Its implantation was canceled in Turkey shortly after the first world war, and then gradually in the other nations.
The spread of codification: After this, all of the Islamic countries turned towards codifying the fiqh. They established commissions and conferences towards this end. They did not restrict themselves to one legal school, or to the dominant opinions of the school. Rather, they turned to the entire legal heritage. As well, they went beyond the mu’amalat and family law to take up criminal and administrative law.
Modern trends: In addition to codification, this revival of fiqh gave rise to a number of other phenomena, including:
1. Fiqh writing gradually took on a new style that differed from that which preceded it. Firstly, it usually took up the subjects of fiqh in independent monographs. This style came to be because of the formation of universities, and an increasing number of researchers and graduate students who took up studying fiqh in this manner in order to obtain master’s and doctoral degrees. Secondly, and in addition to the above, these studies took to comparing and weighing between the opinions of the legal schools and jurists without any partisanship to one school/jurist over the others, in an effort to secure the welfare of people, and with an eye towards the circumstances of the period and the difficulties of real life. These comparisons were not restricted to fiqh opinions; in fact, they made reference to opinions and points of view from codified law.
2. Legal encyclopedias. The legal tradition had previously produced encyclopedias which comprised the range of opinions on all the major topics in the fiqh, as we have already mentioned in our discussion of comparative fiqh and its major works. However, modern encyclopedias differed from their older counterparts in that they sought to present fiqh in accordance with a precise methodology in alphabetical order. They covered all the topics, limiting themselves to a presentation of the opinions as found in the fiqh works of each of the legal schools, as well as the researcher’s citations of these sources.
3. Fiqh conferences. For the past half-century or so, many conferences have been organized, some at the international level, some local or regional within the Islamic world and still others in Europe and North America . They often treat both matters specific to fiqh, and issues that confront Islamic civilization, fiqh being one of its central topics. These meetings have witnessed intellectual debates surrounding many issues relating to fiqh in contemporary life. Over the years, numerous studies and research papers on a variety of topics have been presented dealing with matters that concern the people and are thought to be in need of new opinions so that no one may doubt their legal status.
4. Fiqh councils and compendiums. Imam Muhammad ‘Abduh (d. 1905 CE) was the first to call for the creation of a council for fiqh. He was soon followed in this by some scholars and jurists, such as Muhammad Yusuf Musa a renowned scholar of fiqh and philosophy who died in 1964 CE. He wrote many articles emphasizing that in the present day, ijtihad was incumbent on jurists, and that the formation of a council was the way to accomplish this in an organized and beneficial manner. The Egyptian resolution 103 of 1961 which reorganized the Azhar included a provision to establish a Commission for Islamic Research. After this, a number of councils came into existence, including the Commission for Islamic Fiqh, associated with the Organization of Islamic Cooperation (OIC). This commission is notable for its activity in the past few years. Among its noteworthy projects is one to “make fiqh easier”, by which is meant a presentation of fiqh based on its spirit and general objectives, i.e., facilitation and easing difficulties for people. In addition, there have been a number of other councils which work on a number of different research areas, though they resemble the previous two in their aims.
In summary, it may be said that fiqh in the modern period did not stagnate, but rather it developed in both substance and style. It maintained a connection to the real world, and attempted a return to the sources of sharia, while still benefitting from the fiqh heritage and all of its great authors. The works produced, researches undertaken, articles written, conferences convened, and councils established are a clear proof that fiqh embarked on a new era in its history, namely a period of revival and development, and not of complete subservience to that which preceded it.
The future of fiqh
Despite the many institutions, conferences and writings, fiqh today remains in the realm of theory more than the realm of application. This is in large part due to meddlesome pseudo-scholars who regard themselves as capable of engaging in ijtihad, but in reality they pronounce on critical issues in a manner that betrays their lack of depth and precision, and their misunderstanding of the fundamentals of religion.
The future of fiqh depends on the following:
1. Cooperation and coordination among intellectual institutions and fiqh councils in the quest of issuing collective Ijtihad especially in sensitive community matters like that of wealth, society, and education.
2. The production of easy to read Fiqh manuals and guides which facilitate the implementation Fiqhi rulings rather than delving into sophisticated and scholastic theories
3. Leaving aside insignificant matters and controversial issues, and avoiding enlargening differences in uncertain questions.
4. Cooperation in reviving the legacy of fiqh in a scientific, modern way; studying it in a way that is not restricted to the madhabs, and in accordance with modern methodologies, so that it may cultivate the capacity to engage in research and ijtihad without partisanship towards some madhab or intellectual trend; and a regard for learning from all cultures and the contemporary state of knowledge.
On applying shari’a
There is no doubt that the issue of “ruling by the shari’a” has become the topic of the hour, being the central preoccupation of various Islamic movements. This necessitates us putting forth a few points, awareness of which will help the impartial reader arrive at an informed decision.
The meaning of applying the shari’a: The word shari’a refers to that which God has set out for his servants from the religion, commanding them to it and imposing it on them. This includes all that He has revealed, including beliefs, worship, transactions, ethics, etc. However, the current usage of shari’a refers to all practical rulings outside of the realm of doctrine. This is why some say “Islam is doctrine and shari’a”. The conjunction here indicates that these are two different things. The former Shaykh of Al-Azhar, Mahmud Shaltout (d. 1963 CE) has a book on this.
This second meaning is broader than fiqh, for the latter is used terminologically to refer to rulings arrived at through ijtihad. In contrast, knowledge of definitive matters that are known by all (“that which is necessarily known to be of the religion”) such as the obligation of prayer and the prohibition for sexual misconduct, is not known as fiqh . The first meaning of shari’a encompasses both these definitive matters and those rulings whose knowledge depends on speculation and proof.
With regards to the usage of the word in the formulation “applying the shari’a”, what is intended is more specific than the above, for it refers to the law of the sovereign , i.e., the set of rules that organize relations between individuals in a society, and whose compliance is subject to coercion from the government. Based on this meaning, we have a means of comparing between shari’a and law.
As for “application,” what they mean by it is that the shari’a becomes the reference for legal matters, such that all questions are subject to it .
Shari’a rulings and present-day laws: The example of Egypt
Does the call to apply the shari’a imply that we are to do away with the laws existing at present, in Egypt for example, and embark on a new codification?
Before responding to this question, we must become aware of the origin of these laws. In what follows, we restrict ourselves to the civil and criminal laws of Egypt.
The Egyptian civil law, initially promulgated in 1883, was set out by the great Hanafi scholar, Muhammad Qadri Pasha (d. 1888 CE). It was written in French, then translated into Arabic. Because of this, many people thought that Egypt simply applied the French law as is. However, this was not the case. The very first article stipulates that the code does not contradict any right found in the shari’a. This item remained in the code until 1908, when the laws were re-examined, and it was removed, as indicated by the minutes of the meetings. This means that a quarter of a century went by without any objection to any of the laws of the code.
Then, Dr Abd al-Razaq Sanhuri (d. 1971 CE) headed a commission to modernize these laws in 1949. He commented on it in his long encyclopedic work al-Wasit. In this ten volume work, he listed the source of each article in the shari’a. He mentioned in this work that he relied on sixteen different pieces of legislation for the wording. He believed that the books of fiqh were inappropriate for the wording of a modern code. This was not an objection to the shari’a itself, but rather to the style of writing and manner of organization of the works of fiqh, as well as a comment on their appropriateness for the time .
He writes in the Egyptian civil code, “Whatever is related here may be sourced in the shari’a rulings without too much difficulty, whether an actual text is found or not. For the judge has two choices: either he may apply a ruling that does not contradict the fundamental principles of the shari’a or he may apply the shari’a itself .”
Shaykh Sayyid ‘Abdullah Husayn al-Tidi authored a lengthy work called “Comparisons between positive civil law and Islamic law.” In it, he compared French civil law in its fundamentals and principles with the school of Imam Malik (d. 179 AH), believing the former to be the basis for all other positive legislation. He ended up concluding that 90% of this law is in accordance with the school of Malik. This is due to a very old influence which goes back to the period in which Islamic Spain was a beacon of knowledge to which Europeans would turn for knowledge. As such, the Maliki school became part of their codification processes .
Now turning to Egyptian criminal law: this has been subject to intense criticism due to the absence of the huddud punishments (for murderers, thieves and those who engage in sexual impropriety) recognized by the shari’a, as well as for the organization of other punishments. This criticism is so pronounced that the term “applying the shari’a” has become tantamount, in the minds of many, to executing these punishments. The truth is that the shari’a is greater and broader than simply the hadd punishments; these are only a portion of the shari’a.
Before we proceed to the often exaggerated criticisms of the criminal law, we must recall two things. First is the history related to it. There were many discussions about it at the end of the nineteenth century, many focused on the fact that the hudud had not been executed. A result of these discussions was the emergence of the term “an era of doubt”. Due to the changing circumstances and the infrequency of people who satisfied the classical requirements for testimony as set out by the jurists, our era came to be known as “the era of doubt .” The relevant principle in this regard was that the hudud are to be avoided in cases of doubt. The famous hadith says, “Avoid the hudud for the Muslims as much as you can. If you find a Muslim errant, let him to his way. It is better for the Imam to err in granting leniency and forgiveness than for him to err in punishing someone .” Also, Umar bin al-Khattab (d. 23 AH) said, “If I can cancel the hudud due to doubts, I prefer that to going through with the punishment in the face of doubt .”
There is obviously a huge difference between not applying these hudud because of a lack of belief in the shari’a and its appropriateness for legislation, on the one hand, and because of a shari’a-based objection, on the other. One can pursue this legislation in this manner while still believing in the criminality and sinfulness of these actions, and that the shari’a is true.
This suspension resembles what is related about Umar b. al-Khattab’s (d. 23 AH) moratorium on the punishment for theft during the year of famine. The general command is given in the Qur’an: “The thief, male and female, cut their hands.” (Al-Ma’ida: 38). But the Prophet (peace be upon him) said, “Do not cut in times of drought .” And it is related of him in a hadith that he said, “No cutting hands in times of famine .” Famine is mostly likely a time of necessity. As such, the presence of this likelihood was thought to be sufficient to suspend the hadd in deference to the protection of one’s bodily integrity, which is part of the objective (maqsad) of protecting the self .
This did not imply that Umar denied the truth of the hadd, nor that he annulled the shari’a. It is simply an indication that applying the shari’a comes with conditions. One of these conditions is the existence of a specific state of affairs. If that state of affairs is not present, the hadd is not to be imposed. This is in fact squarely part of the shari’a, not outside of it .
Whether this is a mistaken understanding or a correct one, and whether we agree with it or oppose it, it is incumbent upon us in any case to understand it, and to realize that that is what our forefathers judged by when setting out the criminal law.
Contemporary experiences with applying the hudud, and some important questions:
The second thing we must understand before discussing criminal law and the issue of applying the hudud punishments is the experience of other contemporary Muslim countries who have applied the hudud in their own lands.
The first is the Kingdom of Saudi Arabia, where the hudud are applied by shari’a judges directly without any legal wording in the form of a criminal law. The application of Saudi Arabia is ongoing and there is no call to cancel or suspend it, or subject it to restrictions. There are however a few voices from those
opposed to the regime calling it unjust and a violator of human rights.
The second case is that of Pakistan, Sudan, Iran and single states in each of Nigeria and Malaysia. They explicitly codified the hudud in their laws. In Pakistan, it has effectively been suspended in actuality. In Sudan, after the reign of Numeiri, it was subject to restriction. Similarly, the same has happened in Iran and Malaysia. In the Nigerian State, it is only used in extremely rare cases. It is common in each of these countries that discretionary punishments take the place of the hadd in cases where execution is not mandated.
Here, a number of questions come to mind:
Why is the matter stable and unquestioned in the first case, Saudi Arabia? And is this stability real?
In the experiences of the second case, what makes these countries include these hudud in their laws theoretically, but not enforce them in reality? Are their obstacles? Is the reason the inability to fulfill the conditions for enforcing the hudud? If this is so, is this also the case for all hudud in all countries for all accused? Or is the reason what we might call “national circumstances”? Or is it that there are factors associated with their enforcement which were measured, and not enforcing was thought to be the lesser of two evils?
Is it, as some contemporary thinkers say, that the present-day crisis which many Muslim countries are experiencing – in which the political regime is closed and repressive, the religious leadership is divided and scattered, demands are contradictory, and the people are deprived of education but cling to Islam in an emotional and reactionary way – constitutes a real obstacle to the application of hadd punishments?
If we rely on the first experience (i.e., Saudi Arabia), should we implement the hudud all at once or gradually? And what is meant by “gradually”? Is there a timetable in place or is this a subjective matter?
Is it possible to rely upon some contemporary opinions which say with regards to stoning/lapidation, for example, that it is a discretionary punishment, not a mandatory hadd punishment ; or that fining a thief is sufficient (Mustafa al-Zarqa); or that the Qadi has the right to choose between three options, only one of which is amputation of the hand (Shaykh Abd al-Muta’al al-Sa’idi “d. 1966 CE.” ); or that the apostate from Islam is not to be killed, but rather to be given an indefinite opportunity to repent.
And other questions may be directed to the Saudi experience: Do you disagree with the conditions for testimony which are the lone reason for arguing for suspending the hudud in our time? What if so many people testify that it is impossible they all agreed to lie? What if it is a case of confession?
Is the reason for the refusal of all other Muslim countries, fifty-six in total, to include hudud in their legislation simply that this is an “era of doubt”, or is there another reason?
Is it the case that we must achieve economic reform, solidarity, and social justice before we apply the hadd punishments, as some claim? Or are this all inconsequential? If they are to be considered, how do we do so in an objective way?
These are all questions that are in need of in-depth study from specialists, so that we may be able to learn from all of these experiences, and construct a shari’a position for the present-day.
The need for continual ijtihad and reform in the fiqh
We are in need of a new fiqh, and also of specialists to engage in a fiqh revival. These two demands have become necessities so that they may confront what has become a common refrain from some that fiqh has simply become a relic of Islam, unable to adapt or change, and that the people of fiqh are unable to confront the realities of present-day reality through rational or textual means.
We must not simply stop with the rulings produced by classical scholars, for the circumstances of people’s lives and cultures today are different. There are some matters which must be taken into account in any fiqh rulings: changes in people, circumstances, time and situation. The fiqh principle has it that texts are fixed, but situations change. As such, we must approach fiqh with new eyes, which balance between the truths of religion, and the reality of people.
Also among the settled principles agreed to by all mujtahids that knowledge of reality is an important part of fiqh. One may not issue fatwas if he is unaware of it. For such a person may err on the legal judgment, either making something permissible which should not be or constraining them unnecessarily. This is in defiance of the command of the Prophet (peace be upon him) who told his Companions, “Make things easy, not hard; give glad tidings, do not discourage .” Also related from him reliably is that he said, “I have not been given a choice between two things except I have chosen the easier of them, as long as it is not sinful .” So, a mufti, ignorant of the real world, may permit something which is impermissible properly considered, or he may prohibit something which is not prohibited.
Please visit Sheikh Ali Gomaa’s website http://www.ali-gomaa.com/ where you will find many such scholarly opinions on current issues of concern to Muslims from a mainstream Muslim view. Sheikh Ali Gomaa is the former Grand Mufti of Egypt.
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