Fiqh is traditionally divided into the fields of
uṣūl al-fiqh (lit. the roots of
fiqh), which studies the theoretical principles of jurisprudence, and
furūʿ al-fiqh (lit. the branches of
fiqh), which is devoted to elaboration of rulings on the basis of these principles.
Principles of jurisprudence (uṣūl al-fiqh) Classical Islamic jurisprudence refers how to elaborate and interpret religious sources that are considered reliable within the framework of "procedural principles" within its context such as
linguistic and "
rhetorical tools" to derive judgments for new situations by taking into account certain purposes and mesalih. Textual phrases usually dealt with under simple antithetical headings: general and particular, command and prohibition, obscure and clear, truth and metaphor. It also comprises methods for establishing authenticity of hadith and for determining when the legal force of a scriptural passage is
abrogated by a passage revealed at a later date. The sources of judgment in classical fiqh are roughly divided into two: Manqūlāt (Quran and hadith) and Aqliyyāt (ijma, qiyas, ijtihad and others). Some of them (Aqliyyāt) are considered to be the product of
scholastic theology and
Aristotelian logic. It was an important area of debate among traditional fiqh scholars how much space should be given to rational methods in creating provisions such as extracting provisions from religious texts, as well as expanding, restricting, abolishing or postponing these provisions according to new situations, considering the purpose and benefit, together with new sociologies, in the face of changing conditions. In this context, in the Classical period, the ulema were divided into groups (among other divisions such as political divisions) regarding the place of "
'Aql" vis-à-vis naql: those who rely on narration (
Atharists,
Ahl al-Hadith), those who rely on reason (
Ahl al-Kalām,
Mu'tazila and
Ahl al-Ra'y) and those who tried to find a middle way between the two attitudes such as
Abu al-Hasan al-Ash'ari in theology (syncretists). In the classical age of Islam, there were violent conflicts between rationalists (aqliyyun;
al-muʿtazila,
kalamiyya) and traditionalist (naqliyyun, literalists,
Ahl al-Hadith) groups and sects regarding the Quran and hadith or the place of reason in understanding the Quran and hadith, as can be seen in the
Mihna example. Although the rationalists initially seemed to gain the upper hand in this conflict, with the rise of literalism, the Mutazila sank into history and literalism continued to live by gaining supporters. While traditional understanding strongly denies that Quran may have changed,(
Al Hejr:9) the authenticity of hadiths could only be questioned through the chain of narration, though some western researchers suggests that primary sources may have also been evolved. . •
Quran: in Islam, the Quran is considered to be the most sacred source of law. According to classical mainstream jurists, the verses of the Quran that were "revealed later" in Islamic language may have
restricted or abolished the earlier verses. Therefore, deciding which verses of the Quran will be used, in addition to other knowledge and skills, may be the job of
lawyers who know these issues in detail. Whether the Sunnah could limit the Quran remained a matter of debate.
Fiqh sects are schools of understanding that try to determine the actions that people should do or avoid based on the Quran and hadiths.
Hanafi sect requires that in order for something to be considered
fard, it must be clearly commanded in the Qur'an "according to logical and grammatical requirements such as addressee, order and scope, etc.", expressions that do not meet this condition are placed in the "wujub" class, which expresses a lower level of necessity. Some of these fiqh results (ahkam) may also indicate exaggeration of statements, generalizations taken out of context, and imperative broadening of scope. A small number of verses in the Quran are about general rules of governance, inheritance,
marriage,
crime and punishment. There are notable exceptions to some of these rules, as in
Al-Ahzab 49; jurists state that they are specific to Muhammad alone. Although the Quran does not impose
a specific legal-management system, it emphasizes
custom in nearly 40 verses and commands
justice. (
An-Nahl; 90) The practices prescribed in the Quran are considered as reflections of
contextual legal understandings, as can be clearly seen in some examples such as
Qisas and
diya. The following statement in the Quran is thought to be the general rule of testimony in
Islamic jurisprudence, except for crime and punishment – for example, debt, shopping, etc.; O believers! When you contract a loan for a fixed period of time, commit it to writing....with justice. Call upon two of your men to witness. If two men cannot be found, then one man and two women of your choice will witness so if one of the women forgets the other may remind her.... Rules of inheritance was also mentioned in the Quran, in regards to certain family members having their share.. In a different example, in
the necklace story of Aisha, called
Asbab al-Nuzul for surah
An-Nur :11-20 four witnesses were required for the accusation of adultery. In addition, those who made accusations that did not meet the specified conditions would be punished with 80 lashes. The jurisprudence of later periods stipulates that witnesses must be men, covering all
hadd crimes and people who did not have credibility and honesty in society (
slaves, non-adl;
sinners, infidels) could not testify against believers. In addition, the Islamic judiciary did not require proof of the issues defined as
tazir. The statement in the Qur'an that determines the status of slaves in community is;
ma malakat aymanuhum meaning "
those whom your right hands possess". Of the few criminal cases listed as crimes in the Quran, only a few of them are punished by the classical books of Sharia as determined by the verses of the Quran and are called
hudud laws. How the verse
Al-Ma'idah 33, which describes the crime of
hirabah, should be understood is a matter of debate even today. The verse talks about the punishment of criminals by killing, hanging, having their
hands and feet cut off on opposite sides, and being exiled from the earth, in response to an -abstract- crime such as "
fighting against Allah and His Messenger". Today, commentators – in the face of the development of the understanding of law and the increasing reactions to corporal punishment- claim that the verse determines the punishment of "concrete sequential criminal acts" – such as massacre, robbery and rape – in addition to rebellion against the legitimate government, and that the punishment to be given depends on the existence of these preconditions. •
Sunnah /
Hadith:Although hadiths have largely replaced the sunnah in
orthodoxy legislation today, according to some research, the opposite was true in the early Islamic society. Sunnah originally meant a tradition that did not contain the definition of good and bad. Later, "good traditions" began to be referred to as sunnah and the concept of "Muhammad's sunnah" was established. The value of customs (see also:
urf,
ma'ruf) manifests itself in the classification of food and drinks as
halal and
haram; Some jurists such as Al- Shafi'i and
Ibn Qudamah have determined the haram/halal criterion as "compatibility or contradiction with the Arab's customary habits and nature". Although for many
Muslim sects, hadith was second to that of the
Quran in authority, the majority of
Sharia rules derived from hadith rather than the Quran. The body of hadith provides more detailed and practical legal guidance, but it was recognized early on that not all of them were authentic. Early Islamic scholars developed personal criteria for evaluating their authenticity by assessing trustworthiness of the individuals listed in their transmission chains. These studies narrowed down the vast corpus of prophetic traditions to several thousand "sound (seeming to collectors)" hadiths, which were collected in several canonical compilations. The hadiths which enjoyed concurrent transmission were deemed
mutawatir; however, the vast majority of hadiths were handed down by only one or a few transmitters and were therefore seen to yield only probable knowledge. The uncertainty was further compounded by ambiguity of the language contained in some hadiths and Quranic passages. Disagreements on the relative merits and interpretation of the textual sources allowed legal scholars considerable leeway in formulating alternative rulings. In
Imam Malik's usage, hadith did not consist only of the words claimed to belong to Muhammad as is the case with
Shiite Muslims. While hadith does not appear to be an important source of decision for early fiqh scholars such as
Abu Hanifa, for later scholars, hadith is perceived as the words of Muhammad merely and is considered as a strong and separate source of decision alongside the Quran. Today,
Quranists do not consider hadiths as a valid source of religious rulings. •
Ijma: it is the consensus that could in principle elevate a ruling based on probable evidence to absolute certainty. This classical doctrine drew its authority from a series of hadiths stating that the Islamic community could never agree on an error. This form of consensus was technically defined as agreement of all competent jurists in any particular generation, acting as representatives of the community. However, the practical difficulty of obtaining and ascertaining such an agreement meant that it had little impact on legal development. A more pragmatic form of consensus, which could be determined by consulting works of prominent jurists, was used to confirm a ruling so that it could not be reopened for further discussion. The cases for which there was a consensus account form less than 1 percent of the body of classical jurisprudence. •
Qiyas: it is the Analogical reasoning that is used to derive a ruling for a situation not addressed in the scripture by analogy with a scripturally based rule. In a classic example, the Quranic prohibition of drinking wine is extended to all intoxicating substances, on the basis of the "cause" (
ʿilla) shared by these situations, which in this case is identified to be intoxication. Since the cause of a rule may not be apparent, its selection commonly occasioned controversy and extensive debate. Majority of
Sunni Muslims view
Qiyas as a central Pillar of
Ijtihad. On the other hand;
Zahirites,
Ahmad ibn Hanbal,
Al-Bukhari, early
Hanbalites, etc rejected
Qiyas amongst the Sunnis. Twelver Shia jurisprudence also does not recognize the use of
qiyas, but relies on reason (''ʿ
'aql'') in its place.
Aims of Sharia and public interest Maqāṣid (aims or purposes) of Sharia and
maṣlaḥa (welfare or public interest) are two related classical doctrines which have come to play an increasingly prominent role in modern times.
Abū Hāmid al-Ghazālī,
Izz al-Din ibn 'Abd al-Salam and
Abu Ishaq al-Shatibi used maslaha and madasıd as equivalent terms. Synonyms for the term maqāṣid aš-šarīʿa are the expressions maqāṣid aš-šāriʿ ("intentions of the legislature"), maqāṣid at-tašrīʿ ("intentions of the legislature "), ruḥ aš -šarīʿa ("Spirit of Sharia"), ḥikmat at-tašrīʿ ("Wisdom of Legislation") and falsafat at-tašrīʿ ("Philosophy of Legislation"). They were first clearly articulated by
al-Ghazali (d. 1111), who argued that
Maqāṣid and
maslaha was God's general purpose in revealing the divine law, and that its specific aim was preservation of five essentials of human well-being: religion, life, intellect, offspring, and property. Although most classical-era jurists recognized
maslaha and
maqasid as important legal principles, they held different views regarding the role they should play in Islamic law. Some jurists viewed them as auxiliary rationales constrained by scriptural sources and analogical reasoning. Others regarded them as an "independent" source of law, whose general principles could override specific
inferences based on the letter of scripture. Taking maqasid and maslaha as an "independent"
source of sharia – rather than an auxiliary one – will pave the way for the re-critique and reorganization of
ahkam in the context of maqasid and maslaha, thus (including
hudud), which is often criticized in terms of today's values and seen as problematic, in terms of the purposes of Sharia and social benefits will be replaced by new ones.
Abdallah bin Bayyah goes further with an approach that prioritizes purpose and benefit among the sources of Sharia and declares it to be the heart of "usul-al fiqh". While the latter view was held by a minority of classical jurists, in modern times it came to be championed in different forms by prominent scholars who sought to adapt Islamic law to changing social conditions by drawing on the intellectual heritage of traditional jurisprudence. These scholars expanded the inventory of
maqasid to include such aims of Sharia as reform and
women's rights (
Rashid Rida); justice and freedom (
Mohammed al-Ghazali); and
human rights and
dignity (
Yusuf al-Qaradawi).
Ijtihad Ijtihad refers to independent reasoning by an expert in
Islamic law, or exertion of a jurist's mentality in finding a solution to a legal question in contrast with
taqlid (
conformity to precedent ijtihad). According to theory,
ijtihad requires expertise in the Arabic language, theology, religious texts, and principles of jurisprudence (
usul al-fiqh), In the general understanding, beyond the limitation of ijtihad to those situations that do not have a clear ruling in the Quran and hadiths, scholars who have the ability to give general judgments are also ranked with definitions such as "mujtahid mutlaq", "mujtahid in sect", "mujtahid in issue". Rulings based on ijtihad are not decisions that require obligatory implementation for other Muslims. Throughout the first five
Islamic centuries,
ijtihad continued to practise amongst Sunni Muslims. The controversy surrounding
ijtihad started with the beginning of the twelfth century. By the 14th century,
Islamic Fiqh prompted leading Sunni jurists to state that the main legal questions had been addressed and then
ijtihad was gradually restricted. In the modern era, this gave rise to a perception amongst
Orientalist scholars and sections of the Muslim public that the so-called "gate of
ijtihad" was closed at the start of the classical era. Starting from the 18th century,
Islamic reformers began calling for abandonment of
taqlid and emphasis on
ijtihad, which they saw as a return to Islamic origins. The advocacy of
ijtihad has been particularly associated with
Islamic Modernism and
Salafiyya movements. Among contemporary Muslims in the West there have emerged new visions of
ijtihad which emphasize substantive moral values over traditional juridical understandings.
Shia jurists did not use the term
ijtihad until the 12th century. With the exception of
Zaydis, the early
Imami Shia were unanimous in censuring
Ijtihad in the field of law (
Ahkam) until the Shiite embrace of various doctrines of
Mu'tazila and classical Sunnite
Fiqh. After the victory of the
Usulis who based law on principles (
usul) over the
Akhbaris ("traditionalists") who emphasized on reports or traditions (
khabar) by the 19th century,
Ijtihad would become a mainstream Shia practice. for example, a subcategory or an auxiliary source will not be able to eliminate a provision clearly stated in the main source or prohibit a practice that was not prohibited though it was known and practiced during the prophetic period. If we look at an example such as the abolition of the validity of
Mut'a marriage, is touched upon in the
Quran 4:24, and not prohibited (Sunnis translate the words used in the relevant verse with terms used to describe the ordinary marriage event) according to Sunnis is banned by
Muhammad towards the end of his lifetime, and according to
Shiites, by
Omar, "according to his own opinion" and relying on power. The Shiite sect did not accept the jurisprudence of Omar, whose political and religious authority they rejected from the beginning.
Ahkam al-shar'iyya (Decision types; labels) Fiqh is concerned with ethical standards as much as with legal norms, seeking to establish not only what is and is not legal, but also what is morally right and wrong. Sharia rulings fall into one of five categories known as "the five decisions" (
al-aḥkām al-khamsa):
mandatory (
farḍ or
wājib),
recommended (
mandūb or
mustaḥabb),
neutral (
mubāḥ),
reprehensible (
makrūh), and
forbidden (
ḥarām). It is a sin or a crime to perform a forbidden action or not to perform a mandatory action. Reprehensible acts should be avoided, but they are not considered to be sinful or punishable in court. Avoiding reprehensible acts and performing recommended acts is held to be subject of reward in the afterlife, while neutral actions entail no judgment from God. Jurists disagree on whether the term
ḥalāl covers the first three or the first four categories. The legal and moral verdict depends on whether the action is committed out of necessity (
ḍarūra) and on the underlying intention (
niyya), as expressed in the legal maxim "acts are [evaluated according] to intention." follows
Fazlur Rahman Malik's footsteps and says that the verses are revealed on
the historical context, the
Ahkam are not among the essence and
purposes of religion, with an example:
Slaves were considered property; could be bought, sold, rented and shared.
Al-Sarakhsi decided that the paternity determination of the child to be born could be made by
draw, and asks how many of you can accept this understanding today?
Hanafi fiqh does not consider both terms as synonymous and makes a distinction between "
fard" and "
wajib"; In Hanafi fiqh, two conditions are required to impose the fard rule. 1.
Nass, (only verses of the Qur'an can be accepted as evidence here, not
hadiths) 2.The expression of the text referring to the subject must be clear and precise enough not to allow other interpretations. The term wajib is used for situations that do not meet the second of these conditions. However, this understanding may not be sufficient to explain every situation. For example, Hanafis accept
5 daily prayers as fard. However, some religious groups such as
Quranists and
Shiites, who do not doubt that the Quran existing today is a religious source, infer from the same verses that it is clearly ordered to pray 2 or 3 times, not 5 times. In addition, in religious literature, wajib is widely used for all kinds of religious requirements, without expressing any fiqh definition. As seen above and in many other examples, classifications and labels have a relative character shaped by the understanding of the people and groups who make them. For example, believing in the existence and miracles of
Awliya is presented as a "condition" for orthodox Islam by many prominent Sunni creed writers such as
Al-Tahawi and
Nasafi and is accepted in traditional Sunnis and Shi'ism. However, this understanding, along with expressions of respect and visits to the graves of saints, are seen as unacceptable
heresy by puritanical and revivalist Islamic movements such as
Salafism,
Wahhabism and
Islamic Modernism. . see also:
Islamic views on concubinage. About six verses address
the way a woman should dress when in public; Muslim scholars have differed as how to understand these verses, with some stating that a Hijab is a command (fard) to be fulfilled The statement in the
Qur'an that determines the status of slaves and concubines in the understanding of Sharia is as follows;
ma malakat aymanuhum or
milk al-yamin Judgment that concerns individuals is personal and, for example, in an Islamic Qisas or
compensation decisions, jurist must take into account "personal labels" such as the
gender,
freedom, religious and
social status such as
mu'min,
kafir,
musta'min,
dhimmi,
apostate, etc. Similar distinctions also apply to witnessing practices, which have a fundamental value in the establishment of judicial provisions, such as the identification of the criminals. Islamic preachers constantly emphasize the importance of
adalah, and in trials, the judge is not expected to observe equality among those on trial, but is expected to act fairly or balanced. Traditional fiqh states that legal and religious responsibility begins with
rushd.
Branches and details (furūʿ al-fiqh) The domain of
furūʿ al-fiqh (lit. branches of fiqh) is traditionally divided into
ʿibādāt (rituals or acts of worship) and
muʿāmalāt (social relations). Many jurists further divided the body of substantive jurisprudence into "the four quarters", called rituals, sales, marriage and injuries. Each of these terms figuratively stood for a variety of subjects. For example, the quarter of sales would encompass partnerships, guaranty, gifts, and bequests, among other topics. Juristic works were arranged as a sequence of such smaller topics, each called a "book" (
kitab). The special significance of ritual was marked by always placing its discussion at the start of the work. Some historians distinguish a field of
Islamic criminal law, which combines several traditional categories. Several crimes with scripturally prescribed punishments are known as
hudud. Jurists developed various restrictions which in many cases made them virtually impossible to apply. Other crimes involving intentional bodily harm are judged according to a version of
lex talionis that prescribes a punishment analogous to the crime (
qisas), but the victims or their heirs may accept a monetary compensation (
diya) or pardon the perpetrator instead; only
diya is imposed for non-intentional harm. Other criminal cases belong to the category of
taʿzīr, where the goal of punishment is correction or rehabilitation of the culprit and its form is largely left to
the judge's discretion. Which crime falls into which category may vary depending on understanding. For example, according to some verses and hadiths, those who avoided
alms and
prayers were the ones to be fought against,) and according to some understandings, they were
people who had abandoned religion – theologians debated whether worship was a part of faith – and according to classical
fiqh sects, they were people who should be killed. However, even if today's dominant understanding defines the abandonment of worship as
sinfulness, does not approve of giving worldly punishment for them. However, in Sharia governments, their testimony against a devout Muslim may not be accepted, they may be humiliated and barred from certain positions because of this tag. In practice, since early on in Islamic history, criminal cases were usually handled by ruler-administered courts or local police using procedures which were only loosely related to Sharia. The two major genres of
furūʿ literature are the
mukhtasar (concise summary of law) and the
mabsut (extensive commentary).
Mukhtasars were short specialized treatises or general overviews that could be used in a classroom or consulted by judges. A
mabsut, which usually provided a commentary on a
mukhtasar and could stretch to dozens of large volumes, recorded alternative rulings with their justifications, often accompanied by a proliferation of cases and conceptual distinctions. The terminology of juristic literature was conservative and tended to preserve notions which had lost their practical relevance. At the same time, the cycle of abridgement and commentary allowed jurists of each generation to articulate a modified body of law to meet changing social conditions. Other juristic genres include the
qawāʿid (succinct formulas meant to aid the student remember general principles) and collections of fatwas by a particular scholar. Classical jurisprudence has been described as "one of the major intellectual achievements of Islam" and its importance in Islam has been compared to that of
theology in
Christianity.
Schools of law and
Ibn Hanbal. One of the oldest literary manuscripts of the Islamic world, dated October 879 AD. The main Sunni schools of law (
madhhabs) are the
Hanafi,
Maliki,
Shafi'i and
Hanbali madhhabs. They emerged in the ninth and tenth centuries and by the twelfth century almost all jurists aligned themselves with a particular madhhab. These four schools recognize each other's validity and they have interacted in legal debate over the centuries. Rulings of these schools are followed across the Muslim world without exclusive regional restrictions, but they each came to dominate in different parts of the world. For example, the Maliki school is predominant in North and West Africa; the Hanafi school in South and Central Asia; the Shafi'i school in Lower Egypt, East Africa, and Southeast Asia; and the Hanbali school in North and Central Arabia. The first centuries of Islam also witnessed a number of short-lived Sunni madhhabs. The
Zahiri school, which is commonly identified as extinct, continues to exert influence over legal thought. The development of Shia legal schools occurred along the lines of theological differences and resulted in formation of the
Twelver,
Zaidi and
Ismaili madhhabs, whose differences from Sunni legal schools are roughly of the same order as the differences among Sunni schools. The
Ibadi legal school, distinct from Sunni and Shia madhhabs, is predominant in Oman. The transformations of Islamic legal institutions in the modern era have had profound implications for the madhhab system. Legal practice in most of the Muslim world has come to be controlled by government policy and state law, so that the influence of the madhhabs beyond personal ritual practice depends on the status accorded to them within the national legal system. State law codification commonly utilized the methods of
takhayyur (selection of rulings without restriction to a particular madhhab) and
talfiq (combining parts of different rulings on the same question). Legal professionals trained in modern law schools have largely replaced traditional
ulema as interpreters of the resulting laws. Global Islamic movements have at times drawn on different madhhabs and at other times placed greater focus on the scriptural sources rather than classical jurisprudence. The Hanbali school, with its particularly strict adherence to the Quran and hadith, has inspired conservative currents of direct scriptural interpretation by the
Salafi and
Wahhabi movements. Other currents, such as networks of Indonesian ulema and Islamic scholars residing in Muslim-minority countries, have advanced
liberal interpretations of Islamic law without focusing on traditions of a particular madhhab. ==Pre-modern Islamic legal system==