Fiqh

• 1. Introduction

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  Fiqh is the Arabic term for Islamic jurisprudence, and the word itself means deep understanding or full comprehension. Muslims regard sharia, the divine law revealed in the Quran and the sunnah, as immutable and infallible. Fiqh is something different. It is the human effort to grasp that law, and so it is considered fallible and changeable. A person trained in it is called a faqih. One who exercises the independent reasoning known as ijtihad is called a mujtahid. How does fallible human reasoning come to govern rituals, morals, family life, economics, and politics? How did a handful of teachers working in a single mosque give rise to schools that now stretch from Indonesia to Tatarstan? And how might rulings made for the Roman, Persian, and North African worlds have crept into the English common law? The historian Ibn Khaldun once defined fiqh as knowledge of the rules of God concerning the actions of persons, sorting those actions into the required, the sinful, the recommended, the disapproved, and the neutral.

• 2. Roots And Branches

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  Usul al-fiqh translates literally as the roots of fiqh, and it covers the methods of legal interpretation and analysis. Its companion discipline, furu al-fiqh, means the branches of fiqh, the elaboration of actual rulings on the basis of those methods. The branches are the product of the roots. They are the total product of human efforts at understanding the divine will. A single ruling in a given case is called a hukm, with the plural ahkam. The vocabulary here matters because it draws a careful line. Sharia is sacred and one. Fiqh is human and many. Modern Standard Arabic has stretched the word so far that it now simply means jurisprudence, yet there are limits to that stretching. One cannot call Chief Justice John Roberts an expert in the common law fiqh of the United States, nor describe the Egyptian legal scholar Abd El-Razzak El-Sanhuri as an expert in the civil law fiqh of Egypt. The term carries its Islamic weight wherever it travels.

• 3. The Mosque In Medina

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  In Al-Masjid an-Nabawi in Medina, three figures worked side by side: Imam Jafar al-Sadiq, Imam Abu Hanifa, and Malik ibn Anas. They were joined there by Qasim ibn Muhammad ibn Abi Bakr, Muhammad al-Baqir, Zayd ibn Ali, and over 70 other leading jurists and scholars. Aisha taught her nephew Urwah ibn Zubayr, who taught his son Hisham ibn Urwah, who became the main teacher of Malik ibn Anas. The chain runs further still. Al-Shafi'i was taught by Malik ibn Anas, Ahmad ibn Hanbal was taught by Al-Shafi'i, and the hadith collector Muhammad al-Bukhari had a father, Ismail ibn Ibrahim, who studied under Malik ibn Anas. These men did not see themselves as Sunni or Shia. They felt that they were following the religion of Abraham as described in the Quran, which says, Say: Allah speaks the truth; so follow the religion of Abraham, the upright one. And he was not one of the polytheists. The Muwatta by Malik ibn Anas was written as a consensus of their opinion, and it quotes 13 hadiths from Imam Jafar al-Sadiq.

• 4. A Humble Authority

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  Imam Ahmad rejected the writing down and codifying of the religious rulings he gave. The original jurists knew they might have fallen into error in some of their judgements, and they said so clearly. They never introduced a ruling by saying, Here, this judgement is the judgement of God and His prophet. Very little text was actually written down by Jafar al-Sadiq himself. They all gave priority to the Quran and the hadith, the practice of Muhammad, feeling that these provided people with almost everything they needed. The Quran says, This day I have perfected for you your religion and completed My favor upon you and have approved for you Islam as religion. These scholars also acted as a counterbalance to rulers, speaking out whenever they saw injustice. Ali, Hassan, and Husayn ibn Ali gave their allegiance to the first three caliphs because those caliphs abided by the conditions set in the Constitution of Medina. Ali, the fourth caliph, later wrote, I did not approach the people to get their oath of allegiance but they came to me with their desire to make me their Amir.

• 5. The Price Of Conscience

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  Husayn ibn Ali, the grandson of Muhammad, felt that the rise of the Umayyad ruler Yazid I was a test from God and his duty to confront. He was betrayed by the people of Kufa and killed. Then Abd Allah ibn al-Zubayr, the cousin of Qasim ibn Muhammad ibn Abi Bakr, took on the Umayyads and expelled their forces from Hijaz and Iraq. His own forces were depleted in Iraq while trying to stop the Khawarij, and the Umayyads moved back in. In his last hour Abd Allah ibn al-Zubayr asked his mother, Asma bint Abu Bakr, the daughter of the first caliph, for advice. She told him, You know better in your own self, that if you are upon the truth and you are calling towards the truth go forth, for people more honourable than you have been killed. He left, and was killed and crucified by the forces led by Hajjaj. Muhammad ibn Abi Bakr, the son of the first caliph and raised by Ali, was also killed by the Umayyads. Aisha then raised and taught his son Qasim ibn Muhammad ibn Abi Bakr, who later taught his grandson Jafar al-Sadiq, carrying the thread of learning through the bloodshed.

• 6. The Architect Of Method

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  Muhammad ibn Idris ash-Shafi'i, who lived from 767 to 820, codified the basic principles of Islamic jurisprudence in his book ar-Risalah. The book details the four roots of law: the Quran, the sunnah, ijma, and qiyas. It insists that the primary texts be understood according to objective rules of interpretation drawn from scientific study of the Arabic language. Ash-Shafi'i proposed giving priority to the Quran and the hadith, then turning to the consensus of jurists, ijma, and only then to analogical reasoning, qiyas. This push to reduce divergence drove jurists like Muhammad al-Bukhari to dedicate their lives to collecting authentic hadith in works such as Sahih al-Bukhari, where Sahih means authentic or correct. Over later centuries secondary sources were refined: juristic preference, the laws of previous prophets, continuity, extended analogy, blocking the means, local customs, and the sayings of a companion of the Prophet. Not everyone accepted analogy. The Zahirites rejected qiyas, while most Sunnis treated it as a central pillar of ijtihad. One ruling of Muhammad held that a judge should not sit in judgement while angry, and jurists reasoned that this extended to hunger or a painful disease.

• 7. Mapping The Schools

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  Four prominent schools of fiqh exist within Sunni practice in the modern era, plus two or three within Shia practice. Each Sunni school is named for the classical jurist who taught it. The Hanafi school is found in Turkey, the Balkans, the Levant, Central Asia, South Asia, China, and beyond; the Maliki across North and West Africa and parts of the Gulf; the Shafi'i in Indonesia, Malaysia, Yemen, and East Africa; and the Hanbali in Saudi Arabia, Qatar, and several Emirates. The Shia schools are based on the Ja'fari school: the Twelver in Iran, Iraq, and Azerbaijan, the Isma'ili and Zaydi in scattered minority communities. Entirely separate from both traditions, Khawarij Islam produced the Ibadi school, found among minority communities in Oman, which follows a single school without internal divisions. The 12th century Hanafi scholar Abu Hafs Umar al-Nasafi captured the spirit of this plurality: Our school is correct with the possibility of error, and another school is in error with the possibility of being correct. Each school reflects a unique urf, or culture, that its founding jurists lived within when their rulings were made.

• 8. Echoes In The West

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  The Waqf, an Islamic charitable endowment that developed during the 7th to 9th centuries, bears a notable resemblance to the trusts of English law. Every Waqf required a settlor, a trustee, a judge, and beneficiaries, much like an English trust. That trust law took shape in England at the time of the Crusades, during the 12th and 13th centuries, introduced by Crusaders who may have encountered Waqf institutions in the Middle East. Older still is the Hawala, an informal value transfer system mentioned in texts of Islamic jurisprudence as early as the 8th century, which later shaped the agency of common law and the aval of French law. In classical Islamic courts, litigants could gather notarized statements from between three and twelve witnesses. The scholar John Makdisi compared this group of twelve, known as a lafif, to the jury trials of English Common Law under Henry II, tracing a possible link through the Kingdom of Sicily, an island once ruled by Islamic dynasties. Makdisi went further, identifying the English action of debt with the Islamic Aqd and the assize of novel disseisin with the Islamic Istihqaq, leading some scholars to suggest that Islamic law may have laid the foundations for the common law as an integrated whole.