FIQH: DEFINITION, SCOPE, SUBJECT MATTER, AND CHARACTERISTIC FEATURES

1. INTRODUCTION

This is a short assignment on the Islamic jurisprudence in which the definition, the scope, the subject matter and the
characteristic features are briefly discussed. In dealing with the matter, the attempt is made to cover only the salient
features and defining boundaries of this Islamic discipline. As a result, the treatise is meant to be lucid, precise and
condensed.

2. DEFINITION

Before proceeding directly to the technical meaning of the word ‘fiqh’, it is in order that a discussion of its literal
meaning is attempted in the light of the Quran and Sunnah of the prophet Muhammad( peace and blessings of Allah
be upon him).

2.1.LITERAL DEFINITION:

In Arabic, the word fiqh has more than one meaning though they are all correlated. Here we shall confine ourselves
to only two meanings.

Understanding or discernment. In the Holy Quran(11:91) it is narrated that when the prophet Shuaib tried to call
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his people to Islam through his verbal presentation of it his people replied by saying “we do not nafqah
(discern/understand) much of what you say”. Similarly when Moses was intent on going to invite his people to Islam
including the Pharaoh, he said among his many invocations “and remove the impediment from my speech so they
may yafqahoo (discern) what I say”.(Quran:20:27-28)

Religious knowledge in general. Attesting to this meaning the Prophet said “the best among you in Isalm are the
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best during the jahiliyyah if they faqihoo (acquire religious knowledge). Furthermore,the word tafaqqaha means
sought religious knowledge. (see Quran:9:122). The word yufaqqih means provides knowledge. The Prophet said
that “he of whom Allah has willed good Allah yufaqqihhu (provides him religious knowledge ).Thus from this literal
meaning, the word ‘fiqh’ can be understood to include all religious knowledge that sets man well on the right path and
which acquaints him with his Master, His Prophet and religion. In this sense it also encompasses the Islamic creed
(aqeedah) which basically deals with the names and attributes of Allah, the oneness of Allah, the manifestations of
shirk and tawheed and even eschatology. These elements are of foremost precedence and they are sometimes
referred to as alfiqh al akbar . However, they do not fall within the premises of fiqh in its technical meaning.

2.2.TECHNICAL DEFINITION

In technical/legal terminology, fiqh means the science of Islamic jurisprudence; and the person learned in it is called
faqeeh. In Article 1 of the Majallah( of the Ottoman state), fiqh is defined thus “ the knowledge of practical legal
questions.” To analyse the definition, the words knowledge and fiqh are used synonymously as has been stated in
the discussion of the literal meaning. And as fiqh deals with the Islamic law, the word ‘legal’ is made part of the
definition. ‘practical’ is a keyword here. It signifies the exclusion of the matters of aqeedeah(Islamic creed). Though
part of the fiqh in its general and literal sense, these matters are not considered practical as they mainly involve the
acts of the hearts.(see the literal definition).

Jurists defines it as “the science of the derived legal rules as acquired from their particular sources.” Let us take this
definition in detail. Fiqh is a ‘science’. It is true that jurists used the word science to mean comprehension or
knowledge, they no doubt studied fiqh as specific subject with specific principles, so that we can conclude that they
considered it a science in modern sense. However, some legal writers are reluctant to denominate it so because it is
often coloured with social opinions and affected by the circumstances of the environment and human life.
Secondly, fiqh is a science of ‘derived’(substantive) legal rules. The word ‘derived’ signifies that the legal rules
pertaining to the questions were designated to differentiate them from that which is fundamental. The latter studies
the principles of Islamic law and is denominated usul al fiqh in Islamic terminology. Etymologically, usul means the
rules and principles and usul al fiqh is discerned as the knowledge and science of law which deals with the sources
of law and matters relating to it as distinguished from ilm al furoo’ which is the name given to fiqh.

Thirdly, the phrase ‘acquired from their particular sources’ indicates the duty imposed upon the jurist to relate rules
to their sources by deduction.

Imam Abu Haneefah defines fiqh as the sole cognizance of the rights and obligations, thus emphasizing the moral
aspect. Asshafiee defines fiqh as the knowledge of laws of the shari’ah relating to man’s acts and which is derived
from specific sources. Imam Malik calls it the science of the commands of shai’ah in matters deduced by the
application of a process of reasoning.

3. SCOPE OF FIQH

Islamic fiqh is both a religious and legal system, which makes it come near synonymy with shari’ah, the meaning of
which is demonstrated in the Quran(42:13), (5:48) and (45:18). There Allah acclaims Himself the (the first and the
only) Legislator, Who revealed shar’ah including the religious as well as the legal system. It was therefore natural that
fiqh should deal with the religious observances along with the transactions. It was also natural that the problems of
transaction should be connected with the religious as regards sources, exegesis, and interpretation and other
avenues of thought, inquiry and deduction. In other words, it covers, in its widest sense, all aspects of religious,
political and civil life in addition to other laws regulating ritual and religious observances (ibadat such as prayer,
fasting, pilgrimage, zakat,etc.) as concerns performance and abstinence. It includes a whole field of family law, laws
of inheritance and contracts providing all questions that arise in social life (mu’aamalat). It also includes criminal law
and procedures and finally the constitutional law and the administration and regulation of the state and the conduct of
war and all aspects of public and personal life and business. All should be recognized and regulated by the Islamic
fiqh.

4. SUBJECT MATTER OF FIQH

The significance of fiqh is so great that it is a study of one’s rights and obligations derived from the Holy Quran,
sunnah of the Prophet, consensus or ijma’ and analogical reasoning or qiyas and the other sources of legislation in
Islamic jurisprudence. The protection of individual rights and obligations towards society is the aim of this legal
science. In it lies the foundation of justice, order and welfare of humanity. Man is bound by responsibilities and duties
towards his Creator and towards his fellow creatures. His knowledge of fiqh makes him aware of such obligations
and the way he can discharge them and through such knowledge he is able to evaluate the validity or otherwise of
his actions/performance.

In this connection we should be aware of the fact that fiqh rules or ahkam are divided into two categories:(1) those
concerned with the stating the degree of obligation (alahkam takleefiyyah—indicative) and (2) those concerned
judgments on the soundness or validity of done actions (alahkam alwdh’iyyah). According to the former category,
acts are classified into; mandatory, preferable, permissible, disliked and prohibited. As regards the other category,
acts are divided into sound and unsound as descriptions of ,for example, concluded contracts whether they be of
marriage, sale, transfer, etc. it looks into the conditions of such dealings and gives the verdicts concerning their
validity accordingly. For example, it examines the conditions of a concluded marriage such as the existence of a
guardian of the wife (wali), the availability of the witnesses and the mutual consent of the would-be-married couple. If
these are fulfilled then the verdict is that such contract is valid and therefore the marriage is legitimate, and vise
versa. Thus the subject matter of Islamic jurisprudence ranges within the boundaries of these two categories of rules
thus leaving no neglected area in human conduct.
5. CHARACTERISTIC FEATURES

Fiqh showed different characteristic trends during different periods of political and socio-economic development.
During the period of the righteous caliphs the following features are demonstrated.

First, we can discern that the outstanding characteristic of fiqh is its realism that it was based on real and actual
problems rather than on hypothetical problems.

Secondly,open-mindness. although the righteous caliphs tended to follow certain procedures to achieve legal rules,
neither they nor the sahabah prescribed set procedures to be followed throughout the Islamic nation; nor did they
record the laws resulting from their legal rules.

A third feature is the use of personal reasoning or ijtihad. Those of them who used it in areas not defined by the
Quran and sunnah, were extremely careful to attribute resulting errors entirely to themselves, so as to bring discredit
to Islamic law.

The fourth characteristic concerns the modification of some laws of shari’ah, owing to one or another of two factors:
the disappearance of the teason of the law’s existence, or a change in social conditions.

The fifth characteristic is that the madhab under each of the caliphs was that of the caliph himself since the caliph in
each case has the final say in all legal decisions envolving ijtihad or ijma’.

During the Umayyad Period, the scholars and students tended to divide into two groups. The first group avoided
making legal ruling on an issue if clearly defined texts from the Quran and the sunnah relating to the issue were not
available. The laws whose purposes were identified by Allah or His Prophet were used in analogical deductions,
whereas those left undefined were not. This group is called ahlulhadeeth. The centre of this group was Madina and
they mostly dealt with real problems. The second group felt that the all the various laws had identifiable reasons
behind them. They try to find them in texts or else they apply their mental powers to identify them and apply the
results to similar cases. This group was called ahlurray and they existed in Kufa in Iraq. They used to invent
problems work out solutions for them. They dealt with real as well as hypothetical issues.

Islamic jurisprudence was accorded great importance and during the Umayyad period until the fourth century of hijrah
it reached its zenith. The madhabs were abundant in the Muslim World. But the ones that had followers who
documented and developed them remained; others extinguished. Among the great achievements in this period is the
compiling of fiqh; this was the most prominent feature that characterized this era. The other was the initiation of
writing the usul of fiqh, the first attempt was that done by Ashafi’ee, who sought a medium way between the two
rivaling schools mentioned above. Another feature was that this period witnessed hot debates between the different
madhabs resulting in oceans of fiqh literature.

Fiqh of the early tenth century formally recognized that its creative force was spent and exhausted in the doctrine
known as the closing of ijtihad’. The right of ijtihad was replaced by the duty of taqleed. Henceforth, every faqeeh was
a muqallid and to follow and accept the established doctrines of his predecessors. As a result the jurisprudential
activities were confined to the elaboration and detailed analysis of established rules. From the tenth century onwards
the role of jurists was that of commentaries of the works of the past masters, further glossaries were appended to
these commentaries and different views and lines of development were allocated and amalgamated and concise
abbreviated compendia were produced.

After the fall of Baghdad fiqh started declining to the extent that it was claimed that the door of ijtihad was closed.
This notion was however obliterated later by scholars such as Ibn Taymia and others. At this period there was great
care accorded to analyzing and explaining the great references in Islamic jurisprudence. The rigid imitation was the
outstanding feature of this period.

Now it is believed that ijtihad will remain valid and the need for it is felt almost by all.