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History of Fiqh
(Islamic jurisprudence).
v



Insha¶a Allah, by the end of this presentation you are
expected to know:
! Úefinition of fiqh;
! Dividing Fiqh into Fiqh Al
Al--Ibadat and Fiqh Al
Al--
Moamalat;;
Moamalat
! Different stages through which Figh passed;
! How the Madhhabs (schools of thought) came to
existence; and
! jactors that result in diverse Fiqh opinions, and how
to deal with such diversity.
 Ú





Mexically: the word Fiqh is derived from the root word
faqiha which means ³to understand´.
An example:
In the Qur¶anic Ayah 20: 20:27,
27, the present
present--tense
verb Yafqahoo (΍Ϯ˵ϬϘ˴ ϔ˴ϳ), derived from the same root
word faqiha,
faqiha, was used to mean: ³understand´
ϲϟϮϗ˴ ΍Ϯ˵ϬϘ˴ ϔ˴ϳ ϲϧΎδ˶ϟ Ϧ˶ϣ Γ˱ ΪϘ˵ϋ Ϟ˵Ϡ˸Σ΍ϭ
³A
³And nd remove a knot
from my tongue, that they understand my speech.
As a technical term:
term:

Fiqh is defined as: the knowledge of the

practical rules of Shari¶ah (Islamic law)
acquired from the detailed evidence in the
sources.

Note::
Note
including ³practical rules´, in the definition, excludes the rules
associated to the principles of faith,
faith, because those rules are
discussed in the area of Aqeedah not Fiqh Fiqh..
 In other words, the knowledge of
the rules must be acquired directly
from the sources (the Qura¶an and the
Sunnah),
Sunnah ), a requirement which implies
that the faqeeh (Jurist) must be in
contact with the sources of Fiqh
Fiqh..
-xample::
-xample
The faqeeh must know not only the rule that
unjustly eating up the property of an orphan is
forbidden, but also that the detailed evidence for
it is the Qur¶anic Ayah 4:10: 10:
ϲ˶ϓ ϥ
˴ Ϯ˵Ϡϛ˵ ˸΄ϳ˴ Ύ˴Ϥϧ͉·˶ Ύ˱Ϥ˸Ϡχ
˵ ϰ˴ϣΎ˴Θϴ˴ ˸ϟ΍ ϝ
˴ ΍˴Ϯ˸ϣ΃˴ ϥ
˴ Ϯ˵Ϡϛ˵ ˸΄ϳ˴ Ϧ
˴ ϳ˶άϟ͉΍ ϥ
͉ ·˶
΍˱ήϴ˶όγ
˴ ϥ ˴ ˸ϮϠ˴˸μϴ˴ γ
˴ ϭ˴ ΍˱έΎ˴ϧ ˸ϢϬ˶ ϧ˶ Ϯ˵τΑ˵
³Those who unjustly eat up the property of
orphans, eat up a fire into their own bodies, they
will soon be enduring a blazing fire´
Ú
 
Ú
  
 
 ΍ΩΎΒόϟ΍ 



 

   ϣΎόϤϟ΍
The scholars used to divide Fiqh into two divisions:
1. Al--Ibadat  refers to the acts
Fiqh Al
of worship that are purely rights of Allah
(between Allah and his servant only).
only).
-xamples::
-xamples
At
At--Taharh (purity), As-
As-Salah (prayer), As-As-
syam (Fasting) , Hajj (pilgrimage), etc
©

  ϣΎόϤϟ΍


 

 


       


   '
  '


 
   





 Ú
  
 

  

   

D 


    
   

Insha¶a Allah, we will discuss:
m Fiqh during the lifetime of the Prophet ϢϠγϭ ϪϴϠϋ Ϳ΍ ϰϠλ
m Fiqh during the time of the Sahaba ϢϬϨϋ Ϳ΍ ϲοέ
m Fiqh during the time of the Tabi¶een (the successors of the
Sahaba).
Sahaba ).
m Fiqh during the time of the Mujtahid Imams ((Abu
Abu--Hanifah,
Malik, As-
As-Shafe¶i and Ahmad
Ahmad). ).

  





   ϪϴϠϋ Ϳ΍ ϰϠλ
ϢϠγϭ
During this time, the sources for legislation
were the Qur¶an and the Sunnah. Most of the rules
were legislated without being related to any
specific event or occasion.
-xamples:
Most of Al-
Al-Ibadat (the Salah, Zakat,etc ) and
some of Al-
Al-Mua¶malat .
 @
 other rules were legislated in reference
@
 other
to an event or occasion or a question.
-xamples:
` The Qur¶anic Ayah 2:222:
ϥ
˴ ˸ήϬ˵ ˸τϳ˴ ϰ͉ΘΣ
˴ Ϧ
͉ ϫ˵ Ϯ˵Αή˴ ˸ϘΗ˴ _˴ϭ ξ
˶ ϴ˶ΤϤ˴ ˸ϟ΍ ϲ˶ϓ ˯˴ Ύ˴δϨ͋ϟ΍ ΍Ϯ˵ϟΰ˶ Θ˴ ˸ϋΎ˴ϓ Ϧϋ Ϛ
˴ ϧ˵Ϯϟ˴΄δ˴ϳϭ
ϯ˴Ϋ΃ Ϯ˵ϫ Ϟ˵ϗ ξ ˶ ϴ˶ΤϤϟ΍
³And they ask you concerning menstruation, Say: that is a
harmful thing, so keep away from women in their
menstruation, and do not approach them until they are
clean´.
clean´.
` The Qur¶anic Ayah 2:189:
Ξ
͋Τ˴ ϟ΍ϭ α
˶ ΎϨϠϟ Ζ
˵ ϴϗ΍Ϯϣ ϲ
˴ ϫ˶ Ϟ˵ϗ Δ˶ Ϡ˶ϫϷ΍ Ϧ
˶ϋϚ
˴ ϧ˵Ϯϟ˴΄δ˴ϳ
³They ask you about new moons, Say: these are signs to
mark fixed periods of time for mankind and for the hajj´
hajj´


 the Sahaba used to make
Ú


Ijtihad (an effort to infer the rules of Shari¶ah
from the source) based on their knowledge in
the Qur¶an and the Sunnah. They might be
correct in their Ijtihad
Ijtihad,, or they might be mistaken!
However, when they related the matter to the
Prophet ϢϠγϭ ϪϴϠϋ Ϳ΍ ϰϠλ he either approved their
Ijtihad or corrected them if they were mistaken!
An -xample:
Narrated Abu Saeed Al-Al-Khudri: two men set out on a journey
and when the time for the Salat (prayer) came they had no
water. They performed Tayammum with clean earth and
prayed. Mater on they found water within the time of the
prayer. One of them repeated the prayer and ablution but the
other did not repeat. Then they came to Allah¶s Messenger
ϢϠγϭ ϪϴϠϋ Ϳ΍ ϰϠλ and related the matter to him.
The Prophet ϢϠγϭ ϪϴϠϋ Ϳ΍ ϰϠλ said to the one who did not
repeat: ³You followed the Sunnah and your prayer is enough
for you´ and he said to the one who performed ablution and
repeated: ³For you there is a double reward.´
[Reported by Abu Da¶ud and An
An--Nasa¶i]
Nasa¶i]
Another example:
Ammar Ibn Yasir said: the Prophet ϪϴϠϋ Ϳ΍ ϰϠλ
ϢϠγϭ sent me on an errand, then I had ejaculation (in
my sleep) and I did not find water. I rolled on the soil
like an animal, then when I returned to the Prophet
ϢϠγϭ ϪϴϠϋ Ϳ΍ ϰϠλ and mentioned that to him. He said:
³it was sufficient for you to do with your hand this way´.
He then struck his hands once on the soil and then
rubbed the left hand on the right and the exterior part
of his palms and his face.
[agreed upon. This version is that of Muslim]

 

 
 
During the Khilafa of Abubakr
Abubakr,, when an issue
arises, Abubakr looks in the book of Allah and the
Sunnah that he knows. If he could not find any thing,
then he asks the Sahaba if any of them have a
knowledge of a Sunnah related to the issue. If non
of them have that, then he consults them and makes
his Ijtihad.
Afterwards, Omar, during his Khilafa, followed
the same methodology.
 An -xample:
ΖϤϠϋ Ύϣϭ ˯ϲη ϰϟΎόΗ Ϳ΍ ΏΎΘϛ ϲϓ Ϛϟ Ύϣ ϝΎϘϓ ΎϬΛ΍ήϴϣ Ϫϟ΄δΗ ϖϳΪμϟ΍ ήϜΑ ϲΑ΃ ϰϟ· ΓΪΠϟ΍ ˯ΎΟ cc
ΓήϴϐϤϟ΍ ϝΎϘϓ αΎϨϟ΍ ϝ΄δϓ αΎϨϟ΍ ϝ΄γ΃ ϰΘΣ ϲόΟέΎϓ ΎΌϴη ϢϠγϭ ϪϴϠϋ Ϳ΍ ϰϠλ Ϳ΍ ϲΒϧ ΔϨγ ϲϓ Ϛϟ
ϙήϴϏ Ϛόϣ Ϟϫ ήϜΑ ϮΑ΃ ϝΎϘϓ αΪδϟ΍ ΎϫΎτϋ΃ ϢϠγϭ ϪϴϠϋ Ϳ΍ ϰϠλ Ϳ΍ ϝϮγέ ήπΣ ΔΒόη ϦΑ
ήϜΑ ϮΑ΃ ΎϬϟ ϩάϔϧ΄ϓ ΔΒόη ϦΑ ΓήϴϐϤϟ΍ ϝΎϗ Ύϣ ϞΜϣ ϝΎϘϓ ΔϤϠδϣ ϦΑ ΪϤΤϣ ϡΎϘϓ
A grandmother came to Abu Bakr As-Siddiq and asked him for
her inheritance. Abu Bakr said to her: ³You have nothing in the Book
of Allah, and I do not know that you have anything in the Sunnah of
the Messenger of Allah ϢϠγϭ ϪϴϠϋ Ϳ΍ ϰϠλ. Go away therefore, until I
have questioned the people.´. He questioned the people, and Al-
Mughira Ibn Shuba said: ³I was present with the Messenger of Allah
ϢϠγϭ ϪϴϠϋ Ϳ΍ ϰϠλ when he gave the grandmother a sixth.´ Abu Bakr
said: ³Was 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]

 

 
    


  
 

The Tabi¶een followed the footsteps of
the Sahaba
Sahaba.. They look in the Qur¶an and
Sunnah,, if there is nothing in the Qur¶an or
Sunnah
Sunnah regarding the issue, they look if the
Sahaba had an opinion on that issue, if not,
then they make their own Ijtihad
Ijtihad..
 During the time of the Tabi¶een
Tabi¶een,, two schools
of Fiqh emerged:

m The school of Al-

Al-madina or the school of Hadith;
and
m The school of Al-
Al-kuffa or the school of Al-
Al-ra¶ay
ra¶ay
The school of Al-
Al-madina ((the
the school of Hadith):
Many of the Sahaba lived and stayed in Al-Al-madina
madina,,
because Abubakr and Omar used to ask the Sahaba not to
leave Al-
Al-madina (because they need them for Shoorah or
consultation).
consultation ). This why the knowledge of Hadith was widely
spread in Al-
Al-madina
madina..
Prominent figures of this school are:
Saeed Ibn Al-Al-mosa¶ieb, Kharija Ibn Zayed Ibn Thabit,
Urwa Ibn Al-
Al-zobier, ...
At the end, the leadership of this school came to the
hands of Al-
Al-imam Malik.
 The school of Al-
Al-kuffa (the school of Al-
Al-ra¶ay)
The knowledge of Hadith, in Al- Al-koffa, was
not as strong as in Al-
Al-madina
madina,, for the following
reasons:
` The Sahaba lived in Al-Al-khuffa were not as many as those
lived in Al-
Al-madina;
later on, during the Khilafa of Othman Ibn




 later
@




Afaan,, many of the Sahaba moved to Al-
Afaan Al-kuffa
kuffa,, among them
them::
Ali Ibn Abee Talib (who moved his capitol from Al- Al-
Madina to Al-Al-Kuffa), Sa¶ad Ibn Abee Wagas, Ammar Ibn
Yassir, Abdallahi Ibn Maso¶od, «
` The occurrence of forgery in the Hadith literature, i.e.
i.e.,,
attribution of false statements to the Prophet ϢϠγϭ ϪϴϠϋ Ϳ΍ ϰϠλ
, mainly by the enemies of Islam, owing to their hatred of
Islam, in that part of the Muslim world at that time. For that
reason, the scholars in Al-Al-kuffa were very cautious in
accepting the Ahadeeth, and instead they resort to Qiyas
(analogical deduction).
deduction).
Prominent figures of this school are: Masrooq, Al Al--
aswad Ibn Yazeed Al- Al-nkha¶aee, « At the end,
the leadership of this school came to the hands of Al-Al-imam
Abu--Haneefa.
Abu

 



 





ϦϳΪϬΘΠϤϟ΍ Δ˶ Ϥ΋Ϸ΍



ϦϳΪϬΘΠϤϟ΍
as we mentioned earlier;
` The leadership of the school of Al-
Al-ra¶ay came to Al-
Al-imam
Abu--haneefa.
Abu haneefa.
` The leadership of the school of Hadith came to Al-
Al-Imam
Malik.
` Al-
Al-imam Ash-
Ash-shafe¶e was a student of Al-
Al-Imam Malik, and
later on, after Malik passed away
away,, he went to Iraq and became
a student of Al-
Al-imam Mohammad Ibn Al Al--hassan Ash
Ash--shibani
the student of Abu
Abu--haneefa.
` Al-
Al-imam Ahmad Ibn Hanbal was a student of Al- Al-imam
Ash--shafe¶e.
Ash shafe¶e.
 The major characteristics of this stage
are:
m Collecting and compiling of the Hadith. The
first book in this art was Mota¶a Al
Al--imam
Malik. Mater on, other Imams (Ahmad,
(Ahmad, Al Al--
Bukhari, Muslim, «) «) followed him.
m Writing down the the principles of Fiqh (the
first to do so was Al-
Al-imam Ash
Ash--shafe¶e
shafe¶e),
),
Fiqh, Tafseer Al-
Al-Qur¶an
Qur¶an,, «
 D 
   
  



   
many factors contribute to this issue, among them:
` The scholar might not be aware of the Daleel (evidence).
An -xample:
Al-
Al-imam Malik used to say it is permitted to observe fast on the day
of Friday. He was unaware of the Hadith of AbuAbu--Huraira that the Prophet
ϢϠγϭ ϪϴϠϋ Ϳ΍ ϰϠλ said: ³none of you should fast on Friday unless he
fasts (it together) a day before or a day after it [agreed upon].

ÿ
 
 ÿÚ
` The scholar might be aware of the Daleel but he interprets it
differently..
differently
because the nature of the Arabic language may allow more
than one meanings of the same word.
-xample:
In the Qur¶anic Ayah (5:6): ˯Ύδ͋Ϩϟ΍ Ϣ˵Θδϣ_ ϭ΃
³or ye have been in contact with women´
The ward Mamastum Ϣ˵Θδϣ_ in this Ayah may mean touching
or sexual intercourse.
Ash--shafe¶e and others accept the first meaning and
Ash
hold that touching a woman nullifies ablution.
Abu Hanifa accepts the second meaning, and he holds
that touching a woman does not nullify the ablution.
` Apparent conflicts between evidences.
In reality, there is no conflict between the evidences of
Shari¶ah. However, it might appear to a Scholar that two
evidence are in conflict with one another
-xample:
A Hadith says: ³whoever touches his sexual organ needs
Wudu´.´. In another Hadith the Prophet ϪϴϠϋ Ϳ΍ ϰϠλ
to makes Wudu
ϢϠγϭ was asked about touching one¶s sexual organ, He said it
is like touching any other part of the body.
Ash--shafe¶e , Ahmad and others are of the opinion that
Ash
the second Hadith abrogates the first, therefore touching
one¶s sexual organ does not nullify Wudu.
Abu Hanifa regards the first Hadith to be authentic and
rules that Wudu is required after touching
` The differences among the scholars in their
approach towards the sources of Shari¶ah
Shari¶ah..
-xample:
Al-
Al-imam Malik takes the practice of the people of Al-
Al-
madina as one of the sources of Shari¶ah, other scholars
disagreed with him.
Another -xample:
The vast majority of the Scholars regard Qiyas
(analogical deduction)
deduction) as one of the sources of Shari¶ah,
other scholars (Dawood
(Dawood AlAl--zahiri and Ibn Hazm)
Hazm) do not
regard Qiyas as a source.
The principles we expected to follow to
deal with diverse
diverse Fiqh opinions.
` Avoiding Tagleed (blindly following one Madhhab).
The great scholars did their best to teach people their
religion and offer them proper guidance, but they forbade
people from following them blindly and told them: ³It is not
allowed for anyone to say what we have said without knowing
the evidence for our position.´
They made it clear that their opinions was whatever the
authentic Hadith stated. They did not have the intention of
having the people follow them like they should follow the
Prophet ϢϠγϭ ϪϴϠϋ Ϳ΍ ϰϠλ, who was protected from sin or mistake
by Allah.
` Following the opinion that has the stronger
evidence and proof.
However, regardless of the reasons that lead to
diverse Fiqh opinions, the differences themselves
should not be looked upon as being inherently evil;
on the contrary, they can be a great help in learning
as well as guarding us from the unyielding rigidity
that has stunted the growth and the contribution of
the Muslim Ummah in recent times.
TH- -ND