Fiqh(Redirected from Islamic law)
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Fīqh (Arabic: اَلفِقه) is an Islamic science through which practical laws and religious duties of a person in his life are studied. Jurisprudential laws are extracted from four sources by means of reasoning and research; which are the Qur'an, Tradition, Consensus, and Reason. Fiqh has passed through many phases and periods in both Sunni and Shi'a schools of thought. The common period for both is the period of Tashri' (legislation) which took place during the lifetime of the Prophet (s).
The word "fiqh" is literally translated as understanding, science, knowledge, genius and acuteness; and conventionally known as a science or knowledge of detailed religious laws or a science of obtaining an understanding of the practical religious duties of a person during the lifetime which is attained through sources, detailed proofs and evidences.
- Main article: Hukm
Laws have various categorizations. Two most important types of religious laws are those "concerning duties" (al-hukm al-taklifi), and those "concerning situations" (al-hukm al-wad'i). Laws are also holistically categorized into primary and secondary. Provincial and governmental laws are another categorization.
- Main article: Four Sources of Fiqh
The origins of religious laws are called the sources of jurisprudence. The shi'a school of thought refers to four specific sources. However, the Akhbaris among the Shi'a only refer to two of these, which are the Qur'an and the tradition of the Infallibles (s) and disregard the authority of Consensus and Reason. The sources discussed in the Principles of Jurisprudence are four and are discussed below.
In jurisprudential terminology, the term "the Book" is used to mean the holy Qur'an, which is the first and most important source of legislation of laws and the origin of Islamic jurisprudence. The Qur'an has been, and will be the book of divine laws and the criterion of assessment of traditions and reports. For this reason, it is the first reference for Muslim jurists for law-making from the time of revelation until today.
The most important role of the Qur'an in jurisprudence comes from those parts of the Book which are known as Ayat al-ahkam. It is known that around 500 verses of the Qur'an fall in this category and they discuss legal or jurisprudential matters.
However, extracting religious laws from the Qur'an requires a mastery over many disciplines and expertise over linguistic and literary sciences (such as vocabulary and syntax), Qur'anic sciences (such as knowledge of the Abrogator and the Abrogated, the Decisive and the Metaphorical, and the occasion of the revelation, etc) and the science of the origins and Principles of Jurisprudence. The awareness of these sciences helps the researcher to understand, for example, that a clause in the Qur'an signifying an order or a positive imperative doesn't necessarily indicate Wujub (compulsion). Similarly, every obligatory act doesn't appear with a clause signifying command or a positive imperative. Likewise, a prohibition could be indicated by a negation or statement instead of a negative imperative.
- Main article: Tradition
In fiqh, the term "tradition" refers to the "sayings", "actions" and "confirmations" or consents of the Infallibles (a) (Prophet (s) and 12 Imams) . Amongst Ahl al-Sunna, tradition is confined to the sayings, actions and confirmation of the Prophet (s). However, since in the view of Shi'a, the Imams (a) are not only narrators of the Prophet's (s) tradition, but also appointed by God and the Prophet's (s) representatives, their sayings, actions and confirmations are treated as original sources in fiqh.
- Main article: Reason
Based on the popular opinion of the Shi'a faqihs, the "intellect" or the "reason" is one of the four sources of religious laws and has a high degree of influence or power in the process of law-making. The Shi'a jurists have used the reason to quite an extent in their quest for Ijtihad. Some of the areas of the utility of the reason in jurisprudence have been mentioned and noted down; However, there are many more areas which are yet to be compiled in an orderly fashion:
- Reason as a source of religious law in the same range with the Book and tradition.
- Reason as a measure to establish the reliability of religious texts.
- The influence of reason in deriving religious laws from the Book and tradition.
- The role of reason in obtaining the focus or basis of religious laws.
- Main article: Consensus
Consensus is known to be one of the four main sources of deriving religious law and as such its authority as a tenet of the Principles of Jurisprudence has been discussed from many angles. The school of Ahl al-Sunna considers it to be an independent, valid and reliable source of law; which is why they are also known as "Ahl al-Sunna wa al-Jama'a". However, the Imamiyya or Shi'a does not regard Consensus to be an independent source of law in the same line as the Book and Tradition. Instead, they believe that consensus holds authority only when it involves the view and opinion of an infallible (a).
- Main article: Chapters of Fiqh
Jurisprudential laws are mentioned in various books and are divided into various sections. Each of these sections is commonly called a "book", like "The Book of Tahara (purity)", or "The Book of Diyat". These classifications are mostly done by the taste and preference of the authors.
Al-Muhaqqiq al-Hilli's classification in his book Sharayi' al-Islam, mentions 52 books, starting by purification (tahara) and ending with monetary recompense (Book of Diyat). This classification was accepted by most of the later jurists to the extent that the practical books of law were also complied based on this categorization, i.e. they started from laws of purification and ended with laws of "monetary recompense" and "penalties" (hudud).
In general, the 52 books can be widely divided into four categories:
- Worship ('ibadat); laws of which appear in 10 books and includes purification, Prayer, alms, Islamic tax, fasting, taking seclusion (I'tikaf), Hajj, 'Umra, Jihad, and Enjoining Good and Forbidding Evil.
- Contracts ('Uqud); these are agreements whose fulfillment requires the presence of two parties. This branch of laws is spread across 19 books, some of which are the book of trade (Tijara), the book of Rahn, the book of punishment (Hajr) and the book of guarantee (Ziman).
- Unilateral Instigations (Iqa'at); these are agreements whose fulfillment requires only one party. Laws pertaining to unilateral instigations are spread across 11 books including divorce (Talaq), reward (Ju'ala), and oath (Nadhr).
- Laws which are neither worship, nor agreements requiring recitation of a clause; instead, the command of God is effective in these matters without the recitation of any clause. This group of jurisprudential laws appear in 12 books and cover matters like hunting and slaughtering, inheritance, penalty and financial recompense.
- Main article: History of Fiqh and Ijtihad
The Shi'a jurisprudence has passed many periods and each one of them has had its own specialties and characteristics. Each period witnessed the rise of jurists; each of whom played a decisive role in the progress of Fiqh. From the period after the death of the Prophet (s), when Shi'a jurisprudence mainly consisted of the narration of traditions by the Imams, to the present time, this science has been subject to many transformations in both style and content.
Age of Legislation (Tashri')
The period of Tashri' started from Bi'th of the Prophet (s) and ended with his demise. During this period, Islamic jurisprudence didn’t arise at once but rather developed gradually because the Prophet steadily acquainted the Muslims with the divine laws. Whenever a verse was revealed to him from God, he propagated it among the Muslims. And his followers directly referred to him without any intermediary. Sometimes, the Prophet (s) also sent a group of his companions to Muslim-settled places in order to explain Islamic laws to them. For example, he dispatched Ma'adh b. Jabal to Yemen in order to propagate the religion and present the divine laws to the people. The scope of Islamic jurisprudence didn't widen further than this at this stage.
The only written work during this era, or a little later, which was safe from distortion was the holy Qur'an. The Prophet (s) received all the laws that were needed by the people through Archangel Gabriel from God. Thus, the revelation framed the laws. The Prophet (s) narrated all that were needed in his lifetime, and explained to Imam Ali (a) what he knew would be required in future, and Imam 'Ali (a) noted them down in a book.
In this stage, ‘Fiqh’ was generally referred to all the religious issues including fundamentals, non-fundamentals, and even moral matters. And the one who was well-acquainted with the verses of the Qur'an and discussions concerning the same was called Qari (reciter), not a faqih (jurist). Since all the companions of the Prophet (s) were not experts or judges, this matter only concerned the reciters and retainers of the Qur'an who were completely cognizant of the verses of Qur'an and their relation to one another. After the expansion of Muslim territories, increase of literacy and learning amongst the Muslims and those who were knowledgeable about the Qur'an, gradually the term ‘faqih’ was used instead of Qari and Hafiz.
Era of Interpretation and Explanation
This period lasted from the death of the Prophet (s) to the end of the Minor Occultation (329/940-941). Owing to the presence of the Imams, the Shi'a, as opposed to the Ahl al-Sunna, did not feel the need for Ijtihad. However, people who lived in places far away from the Imams did resort to Ijtihad in a simple manner. They acted upon reliable traditions or the apparent meaning of the Qur'an and traditions of the Prophet (s) and the Imams (a).
Some of the jurists of this period are as follows:
- 'Ali b. Abi Rafi'
- Sa'id b. Musayyib
- Qasim b. Muhammad b. Abi Bakr
- Abu Khalid al-Kabuli
- Zurara b. A'yan al-Shaybani
- Ma'ruf b. Kharra Budh
- Burayd b. Mu'awiya al-'Ijli
- Abu Basir al-Asadi
- Muhammad b. Muslim b. Rubah
- Jamil b. Darraj
- 'Abd Allah b. Muskan
- 'Abd Allah b. Bukayr
- Hammad b. 'Isa
- Yunus b. 'Abd al-Rahman
- Safwan b. Yahya al-Bajali
- Muhammad b. Abi 'Umayr
- Hasan b. Mahbub
- Ahmad b. Muhammad b. Abi Nasr.
Era of Muhaddithun
This period approximately began from the Major Occultation and continued up to the first half of the 5th/11th century. The leaders of this era, who were amongst the most eminent scholars and jurists of Twelver Shi'a, mostly lived in the two most religious and cultured cities of the time i.e Qom and Rey. The books of tradition of this period formed the most fundamental and primary sources of Imamiyyah jurisprudence. The Shi'a rule of Buyids at the time played an important role in the foundation and growth of jurisprudence.
Some of the most famous jurists of this time are:
- 'Ali b. Ibrahim al-Qummi
- Muhammad b. Ya'qub b. Ishaq al-Kulayni
- Ja'far b. Muhammad b. Ja'far al-Qulawayh
- 'Ali b. Husayn b. Musa b. Babawayh
- Al-Shaykh al-Saduq
Beginning of Ijtihad
- Main article: Ijtihad
This period also was concurrent with the Major Occultation and was begun by two prominent jurists- Ibn abi 'Aqil al-'Umani and Ibn Junayd al-Iskafi and continued for half a century. Fiqh in this era, as opposed to the previous era, emerged in the shape of Ijtihad and vastly developed due to the science of Usul al-Fiqh. For the first time, Shi'a scholars issued Fatwas in their own words, instead of only narrating the texts of hadiths; and thus more secondary laws of jurisprudence were obtained. This technique and path reached its peak through al-Shaykh al-Mufid and continued to tread upon by al-Sayyid al-Murtada.
Era of Prosperity of Ijtihad
This period of Shi'a jurisprudence encompassed the entire lifespan of al-Shaykh al-Tusi. He was one of the most prominent and an influential jurist who was born in 385/995 in Khurasan and after the death of al-Sayyid al-Murtada, took up the authority of Shi'a religious leadership (Marja'iyya). He successfully made significant and important improvements in jurisprudence.
Period of Stagnation of Ijtihad
After the death of al-Shaykh al-Tusi (d. 460/1067), until the era of Ibn Idris al-Hilli (d. 598/1202) in the span of about one century, scholars withheld their opinion on Islamic law and mostly reiterated opinions of previous scholars. This was because of the great position of knowledge held by al-Shaykh al-Tusi and the incapacity of others of not being able to match up to his powerful reasoning and sources. Sometimes, expressing a new opinion, meant a form of disrespect to his educational position; thus, not many books were composed during this era. The first person to reopen the doors of Ijtihad was Ibn Idris al-Hilli. He called the scholars of this era "Muqallida" (ones who do Taqlid, instead of being Mujtahids) some of the most famous of who were:
Era of Regeneration of Ijtihad
The climate that was prevalent in the second half of the 5th/11th and throughout the 6th/12th century was not tolerable and pleasant for jurists like Ibn Idris al-Hilli. Therefore, he along with other contemporaries wanted to break the prevalent taboo of opposing al-Shaykh al-Tusi's view by expressing criticisms against his works. Ibn Idris, in his book Sara'ir presented all of al-Shaykh al-Tusi's views on the branches of jurisprudence and then proceeded to critique them. This course was gradually taken up by jurists like al-Muhaqqiq al-Hilli, al-'Allama al-Hilli and Fakhr al-Muhaqqiqin and through this avenue, Shi'a jurisprudence once again pursued the road of progress and evolution. This period lasted from the era of Ibn Idris up to the rise of the Akhbaris in the 11th/17th century.
The jurists of this period were:
- Ibn Idris
- Sayyid b. Tawwus
- Al-Muhaqqiq al-Hilli
- Al-'Allama al-Hilli
- Fakhr al-Muhaqqiqin
- Al-Shahid al-Awwal
- Al-Muhaqqiq al-Karaki
- Al-Shahid al-Thani
- Muhammad b. 'Ali al-'Amili al-Jabali
- Hasan b. Zayn al-Din al-'Amili
- Al-Shaykh al-Baha'i
- Al-Fadil al-Miqdad
- Ibn Fahd al-Hilli
- Ibn Abi l-Jumhur al-Ahsa'i
- Al-Muqaddas al-Ardabili
- Yahya b. Sa'id al-Hilli
- Nasir al-Din al-Tusi
Age of Akhbarism
- Main article: Akhbarism
In the 11th/17th century, some of Shi'a scholars, criticized the method of the Mujtahids, and suggested that the sources of Shi'a jurisprudence were only the Book and the tradition. According to idea, one must not adhere to rules of Usul al-Fiqh in the process of Ijtihad. One of the most important leaders of this group was Muhammad Amin Astarabadi, the author of Al-Fawa'id al-madaniyya. He criticized all the mujtahids of all the eras and considered all of them to be followers of the Sunni school of thought and authored this book for the very purpose of rejecting the mujtahids.
The most famous faqihs of this era were as follows:
- Akhbaris: Muhammad Amin Astarabadi, Mulla Salih Mazandarani, Mulla Muhsin Fayd Kashani, al-Shaykh Yusuf al-Bahrani, Muhammad Baqir al-Majlisi, and Sayyid Ni'mat Allah Jaza'iri.
- Usulis: Fadil al-Jawad, Muhammad Baqir Sabziwari, Aqa Jamal Khwansari, Al-Shaykh al-Bahai, Al-Fadil al-Hindi, Al-Muhaqqiq al-Khwansari and Mir Damad.
Defeat of Akhbarism
In the 13th/19th century and approximately a century after the spread of Akhbarism, Shi'a Ijtihad started to grow rapidly once again due to the efforts of a jurist called Wahid Bihbahani. In the beginning, Wahid Bihbahani along with his students, responded to questions and doubts of the Akhbaris as well as they proved the need to extract the laws from fundamental rules. For this purpose, he wrote the book Al-Fawa'id al-ha'iriyya. After the defeat of the school of Akhbarism, scholars of this period made significant efforts to develop and improve the method of deduction of religious law and wrote valuable books on the subject.
Some of the jurists of this period were:
- Sayyid Muhammad Mahdi Bahr al-'Ulum
- Shaykh Ja'far Kashif al-Ghita
- Mirza Abu l-Qasim Qummi
- Sayyid 'Ali Tabataba'i
- Shaykh Asad Allah Shushtari
- Sayyid Muhsin al-A'raji al-Kazimi
- Muhammad Sharif b. Hasan 'Ali known as Sharif al-'Ulama
- Sayyid Muhammad Mujahid
- Muhammad Salih Baraghani
- Sayyid 'Abd Allah Shubbar
- Mulla Ahmad Naraqi
- Muhammad Hasan al-Najafi.
New Age of Istinbat
This period followed the method and technique of the previous period and began from the end of the 13th/19th century and continued to mid-14th/20th century. In this period, Shi'a jurisprudence achieved a number of milestones with every stage it crossed, and at every stage, scholars stepped into the field of jurisprudence. This period was initiated by al-Shaykh al-Ansari and ended with the students of Muhammad Kazim al-Khurasani.
Some of the great jurists of this era were:
- Main article: Schools of Fiqh
A school or doctrine of jurisprudence is a collection of characteristics in the process of deduction of law depending upon the exclusive method of a jurist. The jurist brings about a transformation in the topics of Fiqh and Usul al-Fiqh. Characteristics of a school of jurisprudence can be refraining from Taqlid (emulating a jurist), gradual evolution of Ijtihad, and the influence on other jurists. In Shi'a jurisprudence, several schools of jurisprudence have emerged from the beginning of Fiqh, and each one has had a significant role in the growth and fruition of the process of Ijtihad. At a glance, some important schools of jurisprudence are as follows.
School of Medina
- Main article: School of Medina
This school of jurisprudence began with the formation of the Islamic government in Medina and continued up to the time of Imam al-Sadiq (a). The first school of jurisprudence emerged in this city where Shi'a jurists gathered. Besides Imam 'Ali (a), Lady Fatima (a), Imam al-Hasan al-Mujtaba (a) and Imam al-Husayn (a), this group consisted of Ibn 'Abbas, Salman al-Farsi, Abu Dhar al-Ghifari and Abu Rafi' Ibrahim.
Shool of Kufa
- Main article: School of Kufa
Toward the end of the lifetime of Imam al-Sadiq (a), Shi'a jurisprudence shifted from Medina to Kufa and a great number of Companions (Sahaba), companions of the Companions (Tabi'un) and jurists, migrated to this city. In this era, Imam al-Sadiq (a) spent a few years living in this city. War and unrest between Umayyads and Abbasids rendered a good opportunity for Ahl al-Bayt (a) to propagate the Shi'a ideology and jurisprudence.
School of Qom and Rey
From the time of the Major Occultation in the fourth century to the first half of the fifth century, center of jurisprudence shifted to the two cities of Qom and Rey. The reason for the shift from Iraq to Iran was that the Shi'a jurists in Iraq faced difficulty and torture from the Abbasid rulers while the cities Qom and Rey were considered safe. In this period, jurists and scholars like 'Ali b. Ibrahim, al-Muhaddith al-Kulayni, Ibn Qulawayh, 'Ali b. Babawayh, Muhammad b. Babawayh and his brother Husayn b. Babawayh rendered great service to the Shi’a jurisprudence.
School of Baghdad
- Main article: School of Baghdad
Towards the end of the Minor Occultation and the beginning of the Major one, Baghdad was the centre of knowledge and the axis of Shi'a jurisprudence. This condition was prevalent until the attack of Hulaku Khan. This centre boasted of many chief and prominent features such as the emergence of eminent jurists like al-Shaykh al-Mufid, al-Sayyid al-Murtada and al-Shaykh al-Tusi, emergence of contemporary jurisprudence, the ability of jurists of this era in discussing theological subjects, laying the foundation of the Principles of Jurisprudence (Usul al-Fiqh), legitimization of Ijtihad, and attention to the Eexegesis of the Qur'an (Tafsir).
School of Najaf
- Main article: School of Najaf
The seminary of Najaf was established in the fifth century and remains active till present. During these eleven centuries it has been through many ups and downs and at times was subject to decline and stagnation. Some of the jurists of this school were Shaykh Ja'far Kashif al-Ghita, Muhammad Hasan al-Najafi, al-Shaykh Murtada al-Ansari, Mirza Hasan Shirazi, Mirza Habib Allah Rashti, Mirza Muhammad Hasan Ashtiyani, Muhammad Hasan Mamaqani, Muhammad Kazim Khurasani, Muhammad Husayn Na'ini, Diya' al-Din al-'Iraqi and Muhammad Hasan Isfahani. In the last century, the Seminary of Najaf was kept alive by jurists like Sayyid Abu l-Qasim al-Khoei, al-Sayyid Muhsin al-Tabataba'i al-Hakim, Sayyid Ahmad Khwansari and Sayyid Muhammad Taqi Khwansari.
School of Hillah
- Main article: School of Hillah
Hillah is a city in southern Iraq that has been a centre of Shi'a jurists and jurisprudence from the last two centuries and has boasted of prominent jurists. Great jurists such as Muhammad b. Idris al-Hilli, al-Muhaqqiq al-Hilli, Fakhr al-Muhaqqiqin and Sayyid b. Tawus emerged in this city.
School of Jabal 'Amil and Jizin
The foundation of the school of jurisprudence in Jabal 'Amil was laid down with the migration of al-Shahid al-Awwal to southern Lebanon and with this; renowned jurists were introduced to the Shi'a world. Prominent jurists of this place were:
- Al-Shahid al-Awwal
- Al-Muhaqqiq al-Karaki
- Al-Shahid al-Thani
- Sayyid Muhammad al-Musawi al-'Amili
- Al-Shaykh al-Baha'i
School of Isfahan
- Main article: School of Isfahan
In the 11th/17th and 12th/18th lunar century, jurisprudence of the Seminary of Isfahan was propagated through the government. The jurists that blossomed in this seminary had a special tie with the government. Some of them had even reached the lofty position of Shaykh al-Islam and were in charge of important responsibilities like court judgement and the Friday service. Renowned jurists who emerged from this seminary and who had relations with the government were Muhammad Taqi al-Majlisi (d. 1070/1660), Muhammad Baqir al-Majlisi (d. 1111/1699), al-Shaykh al-Baha'i (d. 1031/1621-1622), Muhammad Baqir Mir Damad (d. 1041/1631), Mulla Isma'il Khwaju'i (d. 1173/1760), Muhammad Baqir Sabziwari (d. 1090/1679) and Aqa Jamal Khwansari (d. 1125/1713). An important feature of this seminary was the spread of Philosophy and the emergence and growth of important philosophers such as Mirdamad and Mulla Sadra.
School of Karbala
- Main article: School of Karbala
After the attack of Afghans to Isfahan and the rise of chaos and unrest in the region, the jurists of the seminary moved to Karbala. With the entrance of al-Shaykh Yusuf al-Bahrani (d. 1186/1772) in Karbala, its seminary took on a special light. He held a moderate approach towards Akhbarism. At around the same time, Wahid Bihbahani took on animated classes and gatherings in the city and nurtured remarkable students.
Sayyid Mahdi Bahr al-'Ulum (d. 1212/1797), Sayyid 'Ali Tabataba'i (d. 1231/1816), Sayyid Muhammad Mujahid (d. 1242/1827), Mulla Ahmad Naraqi (d. 1245/1829), Mulla Mahdi Naraqi (d. 1209/1795) and Mirza Abu l-Qasim Qummi (d. 1232/1815 or 1816) were amongst the jurists of this seminary.
Wahid Bihbahani's lessons had such characteristic qualities and methods that they could be considered a separate school of jurisprudence. Notable jurists arose from his seminary. The most distinct quality of his jurisprudential thought was the attention to the science of the chain of narration ('Ilm al-Rijal) and the science of the Principles of Jurisprudence (Usul al-Fiqh) which had severely come under attack by the Akhbaris and was subjected to seclusion.
School of Qom (Contemporary Era)
- Main article: School of Qom
The city of Qom has been a centre of knowledge and learning from the 3rd/9th century, but with the entrance of Shaykh 'Abd al-Karim Ha'iri in this city, the Seminary of Qom gained lustre and introduced renowned and worthy jurists to the Shi'a world. Amongst these lustrous personalities, Sayyid Husayn Burujirdi (d. 1281/1961), Sayyid Ruh Allah Khomeini (d. 1410/1989), Sayyid Muhammad Rida Gulpaygani, Muhammad Taqi Khwansari and Sayyid Shahab al-Din Mar'ashi Najafi can be noted. At present, this seminary boasts of a special splendour as numerous lessons and classes of jurisprudence and its principles take place in this city.
- The material for writing this article has been mainly taken from فقه in Farsi wikishia.