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Fiqh is an Arabic word which can be translated as deep understanding of Sharah or Islamic
law. Its primary sources are the Qurn and the Sunnah (the sayings and the actions of the
Prophet Muammad, peace be upon him, as recorded in the adth).
Ul al-fiqh is the study of the sources of Sharah and the methodology by which Sharah is
developed. Fiqh is the end product of the application of Ul al-fiqh which is best translated as
Islamic jurisprudence.
To be a competent Islamic jurist one must know both the law and the methods by which it was
developed. As an example, Kamali points out that Islamic law prohibits theft. However the jurist
needs to know the source which in this case is given as the Qurn 2:188 http://quran.com/2/188
"Devour not each other's property in defiance of the law."
During the lifetime of the Prophet (pbuh) Islamic law existed in the form of the Qurn and the
Prophet's rulings. However Islamic jurisprudence was not required as any new problem not
covered by existing Islamic law could be referred to the Prophet (pbuh) for a decision. That
decision would then become a part of the expanded Islamic law.
After the Prophet (pbuh)s demise, legal decisions were made by his companions, inspired by
their knowledge of his approach to decisions, and they were not in need of any formal legal
methodology or jurisprudence. However with the passage of time those who had known the
Prophet (pbuh) passed away and gradually jurisprudence became a formal methodology.
The Sunnah
Kamali starts by explaining the meaning of the word.
"Literally, Sunnah means a clear path or a beaten track but it is also used to imply normative
practice, or an established course of conduct. A Sunnah may be a good example or a bad one,
and it may be set by an individual, a sect or a community. In pre-Islamic Arabia, the Arabs use
the word "Sunnah" in reference to the ancient and continuous practices of the community that
they inherited from their forefathers. Thus it is said that the pre-Islamic tribes of Arabia each had
their own Sunnah, which they considered the basis of their identity and pride. The opposite of
Sunnah is bidah, or innovation, which is characterized by lack of precedent and continuity with
the past."
The scholars of jurisprudence consider Sunnah as referring to all that is narrated from the
Prophet (pbuh), his acts, his sayings and whatever he has tacitly approved.
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Kamali explains that although scholars have used Sunnah and adth almost interchangeably, the
words have distinct meanings. Sunnah occurs 16 times in the Qurn and is always used to imply
an established practice or course of conduct. adth occurs 23 times in the Qurn and in each
case carries the meaning of a narrative or communication. None of the occurrences in the Qurn
use the word hadith in its technical exclusive sense of being a saying of the Prophet (pbuh). In
juristic terms, Kamali states that adth is a narration of the conduct of the Prophet (pbuh)
whereas Sunnah is the law that is deduced from that conduct.
Rules which the Prophet (pbuh) laid down in his capacity of Messenger of God pertaining to the
principles of the religion, especially in the area of devotional matters and setting out what is
permissible and what is prohibited are general legislation whose validity is not restricted by the
limitations of time and circumstance. Instead they apply to all Muslims everywhere. The
individual Muslim should act upon these laws without needing prior authorization from a
religious leader or the government.
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Conversely action which the Prophet (pbuh) authorised in his capacity as the imam can only be
acted upon by other Muslims with prior authorisation of the imam for the time being. This would
include matters such as government administration, signing treaties, division of the spoils of war,
the declaration of war etc. Kamali points out that sometimes determining the status is difficult.
He cites the adth: "Whoever kills a warrior [in battle] may take his belongings."
Kamali states:
"Imm Mlik held that the Prophet (pbuh) offered this adth in his capacity as imm, in which
case no one is entitled to the belongings of his victim in the battlefield without the express
authorization of the imm. The majority have held the view that this hadith lays down a general
law which entitles the soldier to the belongings of the deceased even without the permission of
the imam."
Sunnah originating from the Prophet (pbuh) in his capacity as a judge in particular disputes
usually has two parts. One is situational relating to the specific dispute and does not constitute
general law. The second part, being the judgement itself lays down general law. However
nobody may act upon it without the prior authorization of a competent judge since the Prophet
(pbuh) himself was acting in a judicial capacity.
the "Book of God" and then to the "Sunnah of the messenger of God." He points out that this
example was expressly referred to by the second Caliph Umar ibn al-Khab in writing
addressed to two judges who were ordered to resort to the Qurn first and the Sunnah only when
they could find no guidance in the Quran.
Tafsr literally means "explanation" and basically aims at explaining the meaning of a given text
and deducing the ruling from it within the confines of the words and sentences. Accordingly the
explanation follows immediately from the content of the text.
The word tawl could be translated as "allegorical interpretation" but Kamali prefers to use the
Arabic word. Tawl goes beyond the literal meaning of words and sentences and reads into them
a hidden meaning which is often based upon speculative reasoning and ijtihd. It should only be
used when there is evidence to justify the departure from the manifest meaning of a text.
Tawl itself falls into two categories:
remote or far-fetched
relevant
Kamali illustrates remote tawl with the example of the Hanafi interpretation of a hadith. One of
the companions of the Prophet (pbuh), Firuz al-Daylm embraced Islam having married two
sisters before he became a Muslim. The Prophet (pbuh) ordered him to "retain one of the two,
whichever you wish, and separate from the other."
The anaf interpretation is that al-Daylm was instructed to contract a new marriage with one
of the sisters if he had previously married both in a single contract of marriage. However if he
had married each sister in a separate contract, he was to retain the one whom he had married first
without requiring a further marriage contract.
Their logic for this tawl interpretation is that there is a rule of Sharah prohibiting two women
being married in a single contract. However the jurists regard this anaf interpretation as remote
and not supported by the wording of the hadith. As a new convert to Islam, al-Daylami would
not be expected to be familiar with the detailed rules of Sharah. Accordingly had the Prophet
(pbuh) intended the interpretation given by the anafs, he would have clarified his ruling
himself.
As an illustration of relevant tawl, Kamali cites the Qurnic verse 5.6 "O believers, when you
stand for alh [prayer], wash your faces and your hands up to the elbows." The interpretation is
that ablution is required before standing for prayer since the contrary interpretation of
performing ablution after starting to pray makes no sense.
However the following verse 4.93 quoted above has an alluded meaning that murder is so
heinous that there is no room for expiation so that the killer is not required to free a slave. The
alluded meaning of 4.93 takes priority over the inferred meaning of 4.92 so the murderer is not
required to pay expiation, although he is of course subject to retaliation.
This demonstrates the anaf school order of priority mentioned earlier.
However the Shfi School considers that the inferred meaning takes priority over the alluded
meaning on the grounds that the inferred meaning is based on the language and rationale of the
text whereas the alluded meaning is not. Accordingly the Shfi School would require the
murderer to pay expiation as well as suffering retaliation.
Abrogation (Nasakh)
In today's world abrogation is one of the most controversial issues in Islam. At the risk of
extreme oversimplification, many of the verses in the Qurn that were revealed in Makkah
convey a universalistic message of religious tolerance while some of the verses revealed later in
Madnah can be interpreted as "warlike" or intolerant of non-Muslims. If one regards these later
verses as abrogating the earlier ones, one can paint an image of Islam that is narrow and
exclusionary. This is done today both by non-Muslims wishing to criticize Islam but also by
some Muslims (for example the adherents of Al-Q`idah) who contend that the only relationship
between Islam and other religions is one of unavoidable military conflict.
Literally the word naskh means 'obliteration.' Kamali writes:
"Nasakh may be defined as the suspension or replacement of one Sharah ruling by another,
provided the latter is of subsequent origin, and that the two rulings are enacted separately from
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one another. According to this definition, nasakh operate with regard to the rules of Sharah
only, a proviso which precludes the application of nasakh to rulings that are founded in
rationality ('aql) alone."
Kamali makes a number of points in his discussion of the subject:
Abrogation applies almost exclusively to the Qurn and the Sunnah but not to ijm and
qiys.
It is confined to the period while the Prophet (pbuh) was alive.
Ijm cannot abrogate a clear ruling of the Qurn or the Sunnah since one can never
conclude a valid ijm that contradicts the Qurn or the Sunnah.
A Qurnic ruling or a mutawtir adth cannot be abrogated by a weaker adth, by
ijm or by qiys. These are not of equal authority to the foregoing. That is also the
reason why there can be no abrogation after the Prophet (pbuh)s demise.
Statements of fact in the Qurn (such as the destruction of the people of Thamd by a
storm) cannot be abrogated since that would imply that the original statement in the
Qurn had been false.
Some Qurnic teachings (for example the attributes of God) are inherently incapable of
being abrogated.
The text itself may preclude the possibility of abrogation. For example Qurn 24:4 states
that persons who are convicted of slanderous accusation may never are admitted as
witnesses. The word never indicates that this is a principle valid for all time and
therefore not capable of being abrogated.
There are varying views as to whether a hadith can abrogate the Qurn. The general
view is that a ruling of the Qurn may be abrogated by another Qurnic text or by a
mutawtir adth. The anaf view permits abrogation of the Qurn by a mashhur adth
as that is almost as strong as a mutawtir adth.
Conversely Shf and ibn anbl considered that no adth could abrogate the Qurn.
Shfi explains his view by reference to Qurn 16:101 'and when we substitute one ayah
in place of another ayah, and God knows best what He reveals.' According to Shfi, this
text is self-evident on the point that an yah of the Qurn can only be abrogated or
replaced by another yah. That argument is further strengthened by Qurn 10:15 'Say: it
is not for me to change it of my own accord. I only follow what is revealed to me.' which
makes it clear that the Prophet (pbuh) himself cannot change any part of the Qurn.
However Kamali explains that despite Shfis arguments, the majority opinion of
scholars is that the Sunnah can abrogate the Qurn (and vice versa.)
Kamali points out that the scholars are not unanimous about whether abrogation has actually
occurred in the Qurn. He mentions that al-Suy said to have identified 21 occurrences of
abrogation within the Qurn while Shah Wal Allh accepted only 5 of those as genuine
abrogation contending that all of the rest can be reconciled. Another scholar, Abu Muslim alIsfan denied the existence of abrogation in the Qurn altogether. However the majority view
is that abrogation within the Qurn does take place as the yt quoted earlier attest to it. The
commentators in the minority who contend that there is no abrogation consider that the yt
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mentioned in these quotations as being substituted refer not to yt of the Qurn but to previous
Scriptures such as the Tawrh and the Injl.
Kamali accepts the majority view that abrogation has occurred within the Qurn but points out
the divergence regarding the number of instances, quoting the varying counts of abrogation
identified by different scholars:
Kamali goes on to explain the tendency of modern scholars to reduce the instances of abrogation
to the lowest possible number. He points out that some of the large numbers above arise from
confusing nasakh with takh (specification, i.e. making a ruling more specific) and also
occasions where the effective cause of a ruling disappears:
"Similarly, large numbers of Qurnic yat that advocated patience and tolerance towards the
unbelievers were claimed to have been abrogated by the yat that authorized fighting the
unbelievers. There was in reality no abrogation and both rulings were valid under different
circumstances. The earlier yat applied at a time when the Muslims were small in number and
weak, and the latter when they acquired military power."
Kamali goes on to draw upon criticism of the approach of some early Muslim scholars in the
book The Islamic Theory of International Relations: New Directions for Islamic Methodology
and Thought by Abdul md Ab Sulaymn. Kamali writes:
"The broad sweep of nasakh was, however, taken so far as to invalidate a major portion of the
Qurn. This is precisely the case with regard to the ayah of the sword (yah al-ayf) which
reads: 'and fight the polytheists all together as they fight you all together, and know that God is
with those who restrain themselves' (al-Tawbah, 9:36).
Influenced by the prevailing pattern of hostile relations with non-Muslims, some jurists took an
extreme position in interpreting this ayah, and claimed that it abrogated all preceding yat
pertaining to patients, tolerance and the right of others to self-determination. Although scholars
are not in agreement on the exact number of yat that were abrogated as a result, Mustafa Abu
Zayd has found that the yah of the sword abrogated no less than 140 yat in the Holy Book.
Jurists who were inclined to stress the aggressive aspect of jihd could only do so by applying
abrogation to a large number of Qurnic yat, and 'using abrogation in this manner has', Ab
Sulaymn contests, 'indeed narrowed the Qurnic experience' and undermined the egalitarian
substance of its teachings. In many passages the Qurn calls for peace, compassion and
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forgiveness, and promotes a set of moral values such as moderation, humility, patience and
tolerance whose scope could not be said to be confined to relations among Muslims alone."
Kamali's overall conclusion is to express doubt about the theory of abrogation:
"My general comment is that the theory of nasakh and most of its cited examples are also open
to a variety of doubts. Nasakh as a whole is really too controversial to command the alleged
support of the majority (jumhur) of Muslim scholars in its favor. To say that there were instances
where some of the rulings of Sunnah, or even of the Qurn, were amended due to the change of
circumstances is not in doubt. But then to extend the scope of this essentially circumstantial
phenomenon to a juridical doctrine with a theory, definition and typology of its own is less than
warranted. Nasakh is basically factual and has little juridical substance of its own, nor does it
seem to have a direct bearing on the substance of legal theory."
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Custom (urf)
While the Qurn and the Sunnah are the primary and secondary sources of Islamic law, there are
also tertiary sources.
Kamali defines urf as "Recurring practices that are acceptable to people of sound nature." He
goes on to explain "Custom that does not contravene the principles of Sharah is valid and
authoritative; it must be observed and upheld by a court of law."
In my view this is similar to the way that English common law developed from the customs and
practices of the Anglo-Saxons living in England. It also shows that although the teaching of the
Prophet (pbuh) radically transformed pre-Islamic Arab society; it did not replace previous
practices that did not conflict with Islam. Kamali writes:
"The ulam have generally accepted urf as a valid criterion for the purposes of interpreting the
Qurn. To give an example, the Qurnic commentators have referred to urf in determining the
precise amount of maintenance a husband must provide for his wife. This is the subject of Srah
al-alq (65:7) which provides 'Let those who possess means pay according to their means.' In
this yah, the Qurn does not specify the exact amount of maintenance, which is to be
determined by reference to custom."
Kamali goes on to discuss the requirements for the existence of a valid urf and also points out
that custom will change from time to time as society itself changes.
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"For the Shfites and the anblites, istishb denotes 'continuation of that which is proven and
negation of that which had not existed'. Istishb, in other words, presumes the continuation of
both the positive and negative until the contrary is established by evidence."
As an illustration, if someone who owes a debt claims that it is no longer his liability, he needs to
prove that he has repaid it. Conversely if someone wishes to claim that another person owes him
money, it is up to the claimant to prove that the debt has come into being.
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Restrictions on ijtihd
As part of a drive to impose restrictions on ijtihd, the scholars of the fifth/eleventh century
classified the right to practice ijtihd into different categories, eventually reaching seven
categories:
1. Full mujtahid who derives rulings from the evidence in the original sources without being
restricted by the rules of a particular school of thought. Quite critically, with the
exception of the Hanbl school, the other three schools of thought concluded that
independent ijtihd had been discontinued; the so-called "closure of the gate of ijtihd."
2. Mujtahidn who are limited to expanding the law within the confines of a particular
school of thought while adhering to the principles lay down by the imm of that school.
3. Mujtahidn on particular issues only. While the practitioners within these first three
categories are called mujtahidn, the scholars in the following four categories have been
classified as imitators.
4. The ab al-takhrj who did not deduce rulings but were knowledgeable about existing
doctrine and able to indicate which view was preferable in cases of ambiguity or for
particular prevailing conditions.
5. The ab al-tarj who were competent to make comparisons and distinguish the
correct/authentic (a), the preferred (raja, arja) and the agreed upon (muft bih)
views from weaker ones.
6. The ab al-tashh who could distinguish between the manifest (hir al-riwyah) and
the rare or obscure (al-nawadir) views of the schools of thought to which they belonged.
Kamali points out that categories 4-6 overlap somewhat and could easily be consolidated
into one.
7. The muqallidn (imitators) who lack the abilities of any of the above classes.
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Over the last 200 years there has been movement back towards the wider practice of ijtihad,
seeking to renovate Islam by going back to the original sources of the Qurn and Sunnah rather
than being confined to the rulings of earlier jurists.
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