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Defining and Understanding Terms in Islamic Jurisprudence

In my study of Islamic Law, I decided to share my – hopefully – growing knowledge and understanding with you, as well as inviting you to discuss it and correct me, where and whenever you believe that I am wrong about a subject.

As it is with knowledge, this will be growing, having me adding to this post the more I study. As it is with my post about reflection on the Mishnah, I will be writing on this post whenever I spend time on the subject and the time allows me. Therefore you will experience that new parts are added during time, and I will –  of course – note when I do that.

So, please enjoy and participate in my study of Islamic Legal Terms.

When it comes to Islamic Law, then there are two terms that can create some form of confusion, namely Shari’âh and Fiqh. Both relate to Islamic Law, but where Shari’âh is more general, Fiqh is more specific. Professor Hasan Dani explains the term Fiqh, as having the meaning of understanding or knowledge of something, and in such form it was used by the Arabs about a camel expert, who distinguished the lusting she-camels from the pregnant ones. In that context the term Fiqh, should be seen as the knowledge or understanding of any given thing, in which the term is used in context to.

Originally the term was used in a more broad understanding in relation to the Qur’ân, not only in regards to the legal understanding or knowledge, but also theological, political and economical ditto. It seems like that it wasn’t used in the strict juristic understanding until the second Islamic century,[1] which Hasan Dani argues can be seen from the way the term is used, for example from the book “al-Fiqh al-Akbar,” by Abu Hanifah,[2] which deals with the basic tenets of Islam, such as faith, unity of God, etc. Hence, he argues, it can be argued that Kalâm[3] was also covered by Fiqh in the early years of Islamic history.

Fiqh and ‘Ilm[4] were used intertwined in the first decades, namely as the “understanding of Islam in general,” until and after the death of Muhammad,[5] but then facing new problems and having to use their personal judgment, the term Fiqh began to be used in relation to the exercise of the intellect, that is, the intellectual pursuit of knowledge. At the same time people began to collect the traditions being told through a chain of narrators, which was understood in the context of ‘Ilm. Hence the exercise of intellect and personal opinion was termed Fiqh, and the collection of traditions and sayings of Muhammad and his followers, and the exercise related to this, was termed ‘Ilm. These two terms seems to have been separated at the end of the first century AH, when specialist (in the traditions and saying) and jurists came into existence.[6]

As the legal activity was growing, Fiqh became more and more used about the legal knowledge based on the intellect study and understanding of the Islamic sources, and hence the meaning of the term became related to the narrow focus on legal acts, where “an action is either legal or illegal, yajûzu wa’mâ lâ yajûzu, permissible or not.”[7] That is, Fiqh became solely focused in dealing with the understanding of Halal or Harâm,[8] the clear legal decisions, not focused on ethics, behavior or theological principles. Hence the evolution let to Fiqh being “the term used for the law as a science.”[9]

 


[1] 800 – 900 CE.

[2] D. 772 CE.

[3] The philosophical search for theological truth through the method of dialectics.

[4] Normally being used as “knowledge of Islam,” but in a legal context it deals more with the Tradition of Qur’ân and Hadith.

[5] 632 CE.

[6] It is interesting in this respect to notice that the year 94 AH (712 CE) became known as “Sanat al-Fuqahâ’” (the year of the legal experts) a Faqih (Fuqahâ’ in singular) being an expert in jurisprudence, or Fiqh. This was so because of the death of some of the most esteemed legal experts of Medina, such as Sa’îd ibn al-Musayyib and Abû Bakr ibn ‘Abd al-Rahman.

[7] “Outlines of Muhammadan Law,” by Asaf A.A. Fayzee.

[8] Allowed (Halal) or Not Allowed (Harâm).

[9] Ibid.


1 Comment

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