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Course Name: Fiqh 1 Course Code: FQH 1 Instructor: Shaykh Sajid Umar
Student Details Name: Hassan Basarally Student ID: 1120020 Batch:
Assignment Question: Explain why the statement “Islamic law is outdated” is false using points 2 and 3 of the Introduction on the distinction between Fiqh and Shariah as your basis along with 2 practical examples.
Answer: Fiqh and Shariah play an important role in the life of a Muslim. It is through Fiqh and Shariah that one knows of the accepted ways of worshipping Allah, and how to perform acts of
worship. In recent years, there has been much debate about Fiqh and Shariah in which both are erroneously used synonymously. Many people contend that Islamic Law is outdated and not applicable to today’s needs of the individual and society. The Shariah is the Quran and the Sunnah, while Fiqh is the deduction of rules from the Shariah. Islamic Law cannot be termed as outdated as its methodology of arriving at ruling allows for set principles to be applied to different situations regardless of time or place.
The term Shariah linguistically means watering hole. It can also mean straight path as seen in the verse of Surah Jathiyyah (18): َ ُ َْ َ َ َ ِ ّ َ َ ْ َ ْ ِ ّ َ َ ِ َ ٍ ّ َ َْ ْ ِ َ ّ ِ ْ َ َل ثم جعلناك عل ٰىشريعة من المر فاتبعها و َ تتبع أهواء الذين ل يعلمون ََ َ َ ْ َ َ ّ ُ “So follow you that (Islamic Monotheism and its laws), and follow not the desires of those who know not.” It can also mean to decree or institute as seen in Surah Shura (21): َ ّ ُ َ ُ َ َ ُ َ َ ُ ْ ُ َ ْ َ ُ ّ ِ ِ َ َْ ْ َ َ ِ ّ الدين ما لم يأذن به اللـه أم لهم شركاء شرعوا لهم من “Or have they other deities who have ordained for them a religion to which Allah has not consented?” 1 2 However, in Islam it refers to the sources of Islamic Law, i.e. the Quran and the Sunnah . The Shariah is characterised by being revealed from Allah, it is unchangeable and general in
nature. The Shariah is divine, as it is found in the Quran, the speech of Allah and the Sunnah, the behaviour and methodology of the Prophet, that was revealed by Allah. It is fixed
as what was revealed in forever applicable and it is general as the commands and prohibitions are not specific to any particular group or time. From these characteristics the Principles of the Shariah are formed, for example, “From the outset the laws of the Shariah are stable and in existence.” This means that there is no longer any abrogation after the time of the Prophet. Some other Principles are “The rulings of the Sharia are general and applicable to everyone” and “From the outset the laws of the Shariah are applicable immediately.” Linguistically, Fiqh is from the verb “Faqiha” which means to understand, to comprehend and have 3 knowledge. Islamically, it refers to the deduction laws from its sources. Imam Sa’dee defined Fiqh as “the comprehension of the subsidiary Shariah rulings with the evidences that substantiates them 4 from the Book, Sunnah, Scholarly Unanimity and Valid Analogical Deduction.” From this definition is clear that Fiqh gives rulings based on evidences from the Shariah. Fiqh can be
1 2 3 4
The final revelation of Allah. It the Speech of Allah and not created. The sayings, actions, approvals and prohibitions of Muhammad, Hans Wehr Dictionary of Modern Written Arabic. Manhaj as Salikeen by Abdur Rahman As Sa’di .
characterised as being deduced from the Shariah, having specific rulings and able to change with circumstances. Being deduced from the Shariah means that it takes prohibitions and commands from the Quran and the Sunnah and uses them to form rulings. It being specific and changing with circumstances means that its rulings are about a certain situation and has conditions. For example the Quran and the Sunnah commands the chopping of the hand of the thief, but through Fiqh one knows the minimum value that must be stolen for this punishment to be applied. Another example is alcohol is prohibited according to the Shariah, but through Fiqh one learns that one can use medicine that contains alcohol if necessary. From the definition and characteristics of Shariah, it is evident that Islamic Law in not outdated. Even though the Shariah is fixed today it was not so at the time of the Prophet, . At
this time verses of the Quran were abrogated. The Quran was revealed over a period of thirteen years, divided between Makkah and Madinah. Abrogation occurred when the circumstances for a ruling in the Shariah no longer existed or was no longer necessary for the Muslim community. An example of the Shariah changing to meet the changing needs of the community can be seen in the prohibition of alcohol. Firstly, it was classified is of more harm than good. Allah Surah Baqarah (219): ٌَ ِ ِ ْ ّ ِ ُ َ ْ َ َ ُ ُ ْ َِ ِ ّ ِ ُ ِ َ َ َ ٌ ِ َ ْ ِ َ ِ ِ ْ ُ ِ ِ ْ َ ْ َ ِ ْ َ ْ ِ َ َ َ َُْ َ يسألونك عن الخمر والميسر ۖ قل فيهما إثمكبير ومنافع للناس وإثمهما أكبر من نفعهما They ask you about wine and gambling. Say, "In them is great sin and [yet, some] benefit for people. But their sin is greater than their benefit. The next stage in the Shariah was that those who consumed it not to approach Salah and that it nullifies Taharah. Allah says in Surah Nisa (43): يا أ ّۚيها الذين آمنوا َتقربوا الصلة وأنتم سكار ٰى حت ٰى تعلموا ما تقولون ول جنبال عابري سبيل حت ٰى تغتسلوا ُِ َ ْ َ ّ َ ٍ ِ َ ِ ِ َ ّ َ ّ َ َْ ُ َ َ ُ ُ َ َ َ ُ ُ ًإ ِ َ َ ُ ْ ُ ََ َ َ ّ َُ ْ ََ َ َ ّ ِ َ َُ ل O you who have believed, do not approach prayer while you are intoxicated until you know what you are saying or in a state of janabah, except those passing through [a place of prayer], until you have washed [your whole body]. Eventually alcohol was prohibited totally, thus fulfilling its purpose of protecting religion, life, mind, honour and wealth. Allah says in Surah Ma’idah (90): says in
ُ ُ ِْ ُ ْ ُ َّ َ ُ ُ ِ َ ْ َ ِ َ ْ ّ ِ َ َ ّ ٌ ْ ِ َ ْ َ َ ّ َ ّ ِ َ َ ُ ِ ّ َ ْ َ ْ ُ َ ْ َ ْ ِ ُ َ َْ َ ُ َ ل يا أيها الذين آمنوا إنما الخمر والميسر والنصاب وا َْزلم رجس منْ عمل الشيطان فاجتنبوه لعلكم تفلحون
O you who have believed, indeed, intoxicants, gambling, [sacrificing on] stone alters [to other than Allah], and divining arrows are but defilement from the work of Satan, so avoid it that you may be successful. From the definition of Fiqh one also sees that Islamic Law is not outdated. On the contrary, it responds to changes in society. An example is seen in the ruling on intoxicants in Islam. In the previously quoted verse about alcohol being permitted, one sees that intoxicants are impermissible in Islam. A Faqeeh will look at what is defined by the Shariah as an intoxicant. In Arabic the word 5 “khamr” is from the verb “khamara” which means to ferment, cover, hide, possess or overcome. Therefore, any substance that has this effect on the mind and body will be considered “khamr” or intoxicant and would be Haram. The intoxicants at the time of the Prophet, were
different than today. Hence, as long as it affects or overcomes the mind and body it will fall under the ruling of intoxicants. So today there is opium, heroin, cocaine which did not exist at the time of the Messenger, but fall under the ruling of intoxicants. Therefore, Islamic Law is
able to respond to any new substance today that has the same effect as the intoxicants at the time of the Prophet. Another example is seen in the ruling on smoking. This practice did not appear at the time of the Messenger. When it appeared there was not any direct reference to the act in the Shariah. It was through Fiqh that Islamic Law dealt with the new phenomenon. Initially, many Fuqaha classified it as Makrooh due to its smell. However, when it became established that it is dangerous to health, waste of money, danger to others etc. the ruling changed. So a ruling from the Shariah on causing harm to oneself as seen in Surah Baqarah (195): ِ َ ُْ ّ َِ ْ ُ ِ ْ َِ ُ ْ ُ َل و َ تلقوا بأيديكم إلى التهلكة Do not throw yourselves into destruction. As a result, Islamic Law was able to respond to new information and the ruling on smoking became Haram. In conclusion, it is definitely incorrect to say that Islamic Law is outdated. Islamic Law comprised of Shariah which is the revelation from Allah in the Book and the Sunnah and Fiqh which is
5 Hans Wehr Dictionary of Modern Spoken Arabic
deducing rulings from the revelations. The Shariah changed with societal change as seen in the abrogation of verses and Fiqh allows rulings to change with new information and applies principles in the Shariah to new circumstances. As such because of this ability to meet the changing needs of the individual and society Islamic Law is applicable form its inception on the Day of Judgement.
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