Introduction

Preface and Keys

Preface and Keys

All Praise Be to Allah (Subḥânahu wa Ta‘âlâ – Glorified and Exalted is He) and Blessings and Peace Be on His Messenger (ṣalla Allâhu

‘alayhi wa sallam – blessings and peace

be upon him)

The word fiqh literally means ‘understanding’. In the terminology of Prophet Muhammad (SA) and his Companions (raḍiya Allâhu ‘anhum – may Allah be pleased with all of them), it meant a good understanding of the entire religion. Later, it came to be used more specifically for Islamic law, which addresses the divine injunctions pertaining to worship, personal conduct, and interpersonal dealings. The fuqahâ’ (jurists) study these rulings and the evidence used to derive them. 1
The science of fiqh is thus defined as the recognition of the religious rulings derived from detailed proofs. The indisputable sources of proofs are the Book of Allah (the Qur’an), the Sunnah (the practice and collected sayings, also called Hadith) of His Messenger (SA), and ijmâ‘ (the consensus of the entire global community of Muslim scholars). When it is clear, qiyâs (analogy) comes close to the strength of those sources. There are other sources of proofs, with some controversy regarding their status, strength, applications and scope. These issues are discussed in detail in the books of uṣool al-fiqh (principles of jurisprudence).

Fiqh is usually divided into two large categories: the fiqh of worship (Fiqh al-‘Ibâdât) 2 and the fiqh of interpersonal dealings and personal conduct (Fiqh al-Mu‘âmalât wal-Âdâb ash-Shar‘iyah). Under the fiqh of interpersonal dealings, there are three main categories:

1. Wherever possible, Arabic terms have been translated into English. In cases where we have chosen to retain the Arabic, the transliterated word or phrase is shown in italics the first time it appears in the text; the term is also defined in the Glossary found at the end of this book. (Editor)

2.Under the fiqh of worship, the following topics are usually tackled: purification, prayers, funerals, zakat (obligatory charity), fasting, and pilgrimage.

Fiqh al-Mu‘âmalât al-Mâliyah (Financial Transactions)

Fiqh al-Aḥwâl ash-Shakhṣiyah (Family Laws)

Fiqh al-Qaḍâ’ wal-Ḥudood (Judiciary and Penalties)

In Islam, all actions have rulings, which belong to one of the following five categories or legal values: 3

1. Mandatory (wâjib = وَاجِب),

2. Preferable (mustaḥabb = مُسَتحَب),

3. Permissible (mubâḥ = مُبَاح),

4. Disliked (makrooh = مَكروه),

5. Forbidden (haram = حَرام).

The jurist’s work is to deduce from the proofs a ruling for every action. This requires extensive knowledge of the Qur’an, the Sunnah, scholarly opinions, the Arabic language, and many other disciplines. There are five legal maxims that serve as the thread connecting the pearls of fiqh, and they apply in all its chapters. These maxims, listed below, are used frequently throughout the book.

Deeds are judged according to intentions.

الأعْمَالُ بالنِّيّاتِ.

Certainty is not negated by doubt.

اليَقِينُ لا يَزُولُ بالشَّكِّ.

Hardships warrant concessions.

المَشَقَّةُ تَجْلِبُ التَّيسِيرَ.

There should be no harm or reciprocation of harm.

لا ضَرَرَ وَلَا ضِرَارَ.

Customs are given consideration.

العَادَةُ مُحَكَّمَةٌ.

3. The Ḥanafis divide the wâjib into farḍ and wâjib, and they divide the haram into haram and makrooh taḥreemi.

The Different Approaches to the Study of Fiqh

Fiqh is studied either according to one madh-hab (school of juristic thought), or as comparative fiqh (according to the various schools of fiqh recognized by the Ummah, as well as the opinions of independent mujtahid scholars). Both methods have their merits, but for the beginner in search of serious knowledge, most scholars recommend starting with one madh-hab. This is more conducive to simplicity and clarity, as well as methodological consistency since each madh-hab has its own principles (uṣool) and legal maxims (qawâ‘id) and regulators (dawâbiṭ). This work follows this advice by focusing on a classical text of one madh-hab, namely the Ḥanbali School. Footnotes are added to explain the positions of the three other imams on the major issues, and sometimes the positions of other mujtahids, particularly those that have gained widespread acceptance or become mainstream through collective ijtihâd by fatwa bodies, fiqh assemblies, or Muslim legislatures. This taste of comparative fiqh provides some of the benefits of that method. Those benefits are particularly pertinent nowadays to cultivate the flexibility and vastness of our fiqhi legacy in order to address modern challenges and ensure the vitality of Islamic law and its ability to respond to the enormous changes that have taken place in our world. There is also a need to develop the fiqhi faculties in the student of knowledge, and this requires impartial discussions of opposing views so as to foster respect for the evidence and appreciation of the source and wisdom of the rulings. Most of the contemporary fuqahâ’ realize that people nowadays need to imbibe the spirit and principles of the law more than they need to memorize detailed rulings. It is also important in our times to promote respect for all the scholars and tolerance of variant positions. Regarding the last two points, Imam Abu Is-ḥâq ash-Shâṭibi said: Supporting the positions of one madh-hab only may make the student of knowledge averse to, and intolerant of, every other madh-hab whose proofs he or she has not come across. In turn, this will prevent the student from recognizing the virtue of Imams whose good qualities are agreed upon by the people, in addition to their religiosity and their expertise in the objectives of the Sharia and the understanding of its aims. 4

As for the reservations against a relatively early exposure to comparative fiqh, one may say that the principles of the madh-habs of Ahl us-Sunnah are not so different as to make the study of comparative fiqh impossible or counterproductive. They largely agree on the first and most important two sources. Their disagreement over the other principles is sometimes related to form, not substance, and while one madh-hab may in theory reject istiḥsân (juristic preference), they will use it in practice. Even within the same madh-hab, the detailed rulings have not always been consistent with the principles, so such inconsistencies, although rare, must be pointed out to the student. As for the assumption that students may become confused if exposed to other madh-habs and their principles, it is not without merit, but this can largely be avoided by the astute student and by good instruction; it is also outweighed by the benefits of that exposure. There is also an exaggeration when it comes to the perceived danger of mixing between the madh-habs. The scholars of the past have allowed, with certain conditions, transfer (tanaqqul), even for the public, from one madh-hab to another, and takhayyur (expert selection) or patching positions (talfeeq) from the different madh-habs – something that is frequently done in contemporary fiqh assemblies by scholars who are otherwise wholly committed to their own madh-habs. The idea of complete immersion in one madh-hab is sometimes driven by egotistic pursuits such as wanting to be known as one of the most erudite scholars of that madh-hab. While that aspiration is not always condemnable, it must not be the main motive for studying this noble knowledge and teaching it.

Being grounded in one madh-hab, with a healthy exposure to others, should be the goal of every student of fiqh. Unlike in the past, people will not be finishing many levels of learning; therefore it would be reasonable, in my assessment, to start learning comparative fiqh at college level, along with a continued emphasis on one madh-hab.

4. ash-Shâṭibi, al-Muwâfaqât, 3/131.

Introduction

Introduction

The book of purification

The book of prayer

The Book of Funerals

The Book of Fasting

The Book of Hajj and Umrah

All Praise Be to Allah (Subḥânahu wa Ta‘âlâ – Glorified and Exalted is He) and Blessings and Peace Be on His Messenger (ṣalla Allâhu

‘alayhi wa sallam – blessings and peace

be upon him)

The Different Approaches to the Study of Fiqh