Bismillah ir-Rahman ir-Rahim.
Introduction: Islam is a religion of Law we emphasise practice as well as belief. In Christianity theology is the central religious discipline and locus for defining a sacrament based faith which is administered by a priestly caste. In Islam and Judaism however there are no priests in the Christian sense of the word the Rabbi, the Imam, the Ayatollah, all are scholars of law.
This guide is the first in a mini-series of guides in which we discuss the concept of ijtihad,and fiqh, as part of and preparation for the guides to sharia (law). We are deliberately keeping the guides on these topics as short as possible as we know from experience that people coming new to the topic, particularly those who are not from a Muslim culture, can find the terminology and indeed the concepts confusing.
Umm Fatima, Suleiman Aydin.
Shariah and Fiqh
Note: All the dates given in this guide are according to the western calendar. This is to prevent western readers unfamiliar with the Islamic calendar becoming confused.
I have prepared the glossary immediately below using laymen’s English
Umm Fatima
Glossary:
Shariah: Allah’s divine law as found in the Holy Qur’an and the hadiths. Islamic Law concerning the community.
Faqih: A jurist who is expert in Islamic legal matters. Fiqh: Islamic Jurisprudence.
Fuqaha: Plural of faqih.
Ijma: Scholarly consensus on an issue.
Ijtihad: Independent reasoning.
Ilm: Knowledge, science.
Madhab: A school or tradition of legal scholarship. mujtahid: A highly trained Muslim scholar qualified to practice ijtihad.
Qiyas: Reasoning by analogy to a known precedent or principle of law.
Taqlid: Following the guidance of a scholar on fiqh issues.
In Islam we have two terms that are used to refer to law: “shariah” (شريعه) and “fiqh” (فقه). Shariah means Allah’s law as contained in the Holy Qur’an and the Hadiths. Fiqh means the efforts of Muslim scholars – fuqaha (فقهاء) specialising in Islamic law to discern and elaborate the elaborate the details of shariah through investigation and debate. A key point that you must understand from the outset is that shariah is an unchanging revelation, fiqh, on the other hand is a human endeavour and is thus variable according the society in which it is found, is open to debate, reinterpretation, and change.
Over the centuries jurists have developed Islamic law by using their knowledge of the Quran, hadith, and analogical reasoning with local practice. A consequence of this was the emergence of the major schools of legal thought (madhhabs مذهب). For the Sunni the madhabs are — Hanafi, Maliki, Shafii, Hanbali — while for Twelver Shii the madhhab that emerged is the Jafari madhab.
As these schools emerged the Sunni and the Shi’i developed different understandings of who it was who held the power to interpret shariah. Sunni scholars held that the actual temporal ruler delegated this right to scholars. While the Shi’i initially believed that only an Imam (in this context the word “Imam”means any one of 12 infallible members of the Ahl al-Bayt) could interpret shariah because they believed, the Imams were infallible. Following the disappearance of the 12th Imam Shi’i jurists reinterpreted this tradition as granting judicial authority to the fuqaha as the Imam’s representatives, absent the Imam. In addition to the Holy Qur’an and hadith of the Prophet (PBUH), the Shi’i also use the rulings of the Imams. Ijma (إجماع), scholarly consensus, is admitted by the Shi’i only if it includes the infallible imam’s opinion.
There are two types of fiqh literature:
1. Usul al-fiqh (roots of law). Usul al-fiqh which considers the hermeneutical principles that can be used for deriving rules (norms) from scripture. It a philosophy of law and is important because it is the theoretical basis of Islamic law and the kernel of Islamic orthodoxy.
2. Furu al-fiqh (branches of law). Deals with the elaboration of those rules which govern ritual and social activities.
These structures are combined in the Islamic concept of “ijtihad” (إجتهاد) which means or independent reasoning. Ijtihad both recognizes and encourages a variety of interpretations on all but the most fundamental structures of the law. Only scholars who are highly trained in the sources of the law are qualified to practice ijtihad most Muslims are not highly trained lawyers and so they follow the rulings of legal scholars instead.
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