FIQH - ‫ﺍﻟﻔﻘﻪ‬

Islamic
Jurisprudence
An Introduction
 Definition
• Fiqh literally means to comprehend
• Fiqh - The science of extraction of practical
religious regulations from their detailed sources.
• Allah Almighty says in 9:122
• Nor should the Believers all go forth together: if
a contingent from every expedition remained
behind, they could devote themselves to
acquiring fiqh in religion, and admonish the
people when they return to them, that thus they
(may learn) to guard themselves (against evil).
• Shari`ah - Those doctrinal, practical and
dispositional regulations which Allah has
legislated through one of His Messengers.
 Definition of Faqih
• Literally, an expert in the science of Fiqh
• Plural form: Fuqaha
• "The faqih is the one who is frugal in this
world, desirous of the Hereafter, a person
who has insight into his religion, who is
constant in the worship of his Lord, who
keeps himself well away from [violating]
the characters of and property of Muslims,
and who is an advisor to them."[Hasan al-
Basri]
 Sources of Fiqh
• Primary Sources
Qur'an
Sunnah

• Secondary Sources
Consensus (Ijma`)
Analogy (Qiyas)
Differences between the Islamic
Shari`ah and Man-Made Law
1) Divine origin vs. Human origin.
2) Consequences in this world and the
Hereafter vs. This world only.
3) Development of personal accountability
to Allah vs. Mere loyalty to the law
4) Absolute criteria providing for the benefit
of creatures vs. Popular opinion which
may or may not be beneficial.
Categories of Actions – DO’S
• Fard
Fard `Ayn
Fard Kifayah
• Wajib
• Sunnah Muakkadah / Sunan Al-Huda
• Mustahab / Sunnah Ghair Muakkadah/
Adab / Sunan Az zawaid / Sunan
Adiyyah
• Mubah
 Categories of Actions
DONT’S
• Haram (totally forbidden)
• Makruh Tahrimi (highly
reprehensible)
• Makruh Tanzihi / Khilaf Al-Awla
(slightly reprehensible)
 Branches of Fiqh

1. Aqaaid – Beliefs, doctrine

2. Ibadaat – Worship rituals
3. Mu’aamalaat – Mutual dealings
4. Mu’aasharaat – Mutual conduct
5. Akhlaaq – Inner character
 Branches of Fiqh

• Ibadat
1. Taharah – Purification
2. Salah – 5 times daily Prayer
3. Zakah – Annual Alms-giving
4. Sawm – Fasting in Ramadhan
5. Hajj - Pilgrimage
 Branches of Fiqh
• Mu’amalaat
1. Trade 7. Agriculture
2. Commissioning 8. Interest
3. Gifts 9. Manufacturing
4. Endowments 10. Leasing & Hiring
5. Lost & Found 11. Collaterals
6. Deposits 12. Partnerships
 Branches of Fiqh
• Mu’asharaat
• Marriage
• Divorce
• Custody
• Support
• Inheritance
 Branches of Fiqh

• Penal Code
• Murder • Drinking
• Theft • Oaths & Expiations
• Adultery • Judgment
• Slander • Testimony
• Highway Robbery • Coercion
 Evolution of Fiqh
• Fiqh at the time of the Prophet (may Allah bless
him and grant him peace).
• Fiqh in the time of the Sahabah.
• Fiqh in the time of the Tabi’een
• Imam Abu Hanifah an-Nu`man ibn Thabit al-Kufi,
(80-150 A.H.).
• Imam Abu `Abdillah Malik ibn Anas al-Yahsubi,
(93-179 A.H.)
• Imam Abu `Abdillah Muhammad ibn Idris al-
Shafi`i, (150-204 A.H.)
• Imam Abu `Abdillah Ahmad ibn Muhammad ibn
Hanbal al-Shaybani, (164-241 A.H.)
Agree on ~ 75% of material.
An Introduction to Fiqh

Part II
 Sources of Legislation
• Legislation primarily depends on two
forms of Divine revelation Wahy:
1. Recited revelation Wahy Matlu; or the
Qur'an with its absolute inimitability I'jaz
2. Non-recited revelation Wahy Ghayr
Matlu; or the Sunnah of the Prophet
(salla Allah alaihi wa sallam)
 The Holy Quran
• the words of Allah Almighty revealed to the Prophet
peace be upon him through Jibreel alaihis salam,
• the only book guaranteed divine protection,
• the recitation of which itself constitutes an act of
worship,
• the shortest Surah of which is a challenge to
mankind to produce anything the like thereof,
• every letter of which has been transmitted to us via
an indisputably authentic (Qat’i) chain of authority
Tawatur;
• which is written between the two covers of the
Mushaf beginning with Surat al Fatihah "The
Opening Chapter" and ending with the Surat al Nas.
 The Sunnah
• This includes everything, other than the
Qur'an, which has been transmitted from
the Prophet (salla Allahu alaihi wa
sallam); what he said, did, and agreed to.
• The ahâdîth (sing. Hadith), with regard to
their linkage to us throughout the eras,
are divided into three major kinds:
1. Mutawatir
2. Mash’hoor
3. Khabar Al-Wahid
 1. Mutawatir
• a hadith narrated through tawatur i.e. in each era,
from the days of the Holy Prophet salla Allah alaihi
wa sallam up to this day, the Hadith was narrated by
such a large number of narrators that it is impossible
to reasonably accept that all of them have colluded
to tell a lie.
• This kind of Hadith provides utmost yaqeen
(conviction), and is thus qat’i ut thuboot
‫( ﻗﻁﻌﻲ ﺍﻟﺛﺑﻭﺕ‬definitive in its affirmation and reliability)
• This kind is further classified into three categories:
(a) Mutawatir in words
(b) Mutawatir in meaning
(c) Mutawatir in practice
 Mash’hoor
• A Hadith that was not mutawatir in the
generation of the Holy Companions, but
became mutawatir immediately after them.
• Such a Hadith falls under the category of
dhanny ut thuboot ‫( ﻅﻧﻰ ﺍﻟﺛﺑﻭﺕ‬semi definitive
in its affirmation and linkage)
 Khabar Al-Wahid
• A hadith whose narrators have been less
than three in all three generations i.e. the
generation of the Sahaba, the Tabi’een and
Taba’ Tabi’een
• The authenticity of this kind depends on the
veracity of its narrators. If the narrator is
trustworthy in all respects, the report given
by him can be accepted, but if a single
reporter is believed to be doubtful, the
entire report subsequently remains doubtful.
 Nas / Nusoos

• In the context of the Principles of

Jurisprudence the word Nas ‫ﻧَﺺ‬
refers to the texts of the Quran or
Hadith
• Nusoos ‫ ﻧُﺼﻮص‬is its plural
 ‫ ﺍﻟﺛﺑﻭﺕ‬- Thuboot
• The texts in reference to the level of how
well established/firm/reliable they are, can
be categorized into two levels:
1. Texts reported to us through tawatur e.g. Quran
and Mutawatir Ahadith are known as Qati ut
thuboot i.e. 100% accurate, well-established,
definitive and firm leaving no room for doubt.
2. Texts reported to us through non-tawatur means
e.g. mash’hoor and khabar wahid are known as
dhanny ut thuboot i.e. not as well-established,
definitive and firm as Qati but ~80% leaving room
for slight doubt from the human perspective
Classification of the Texts /
Quran & Hadith in terms of
their thuboot/reliability

1. Qati ut thuboot = Entire Quran &

Mutawatir Ahadith
2. Dhanny ut Thuboot = All
Mash’hoor & Khabar al-Wahid Ahadith
 Thuboot
‫ﺛﺑﻭﺕ‬

Qati Ut Thuboot Dhanny ut thuboot

‫ﻗﻁﻌﻲ ﺍﻟﺛﺑﻭﺕ‬ ‫ﻅﻧﻰ ﺍﻟﺛﺑﻭﺕ‬

•Entire Quran •Mash’hoor

• All Mutawatir •Kabar Wahid
Classification of the Quran &
Hadith in terms of their
indication/denotation
• Qati ud dalalah: ~80% of Quran & all
Ahadith i.e. the texts that are unambiguous/
unequivocal/express/explicit in the manner they
relay their meanings. No ijtihad is required in
detrmining their meanings.
• Dhanny ud dalalah: ~20% of Quran & All
Ahadith i.e. those texts that are ambiguous/
equivocal in the way they relay their meanings.
Ijtihad is required in determining their meaning
and differences in opinion may occur.
 Dalalah
‫ﺩَ ﻻﻟﺔ‬

Qati ud dalalah Dhanny ud dalalah

‫ﻗﻁﻌﻰ ﺍﻟﺩﻻﻟﺔ‬ ‫ﻅﻧﻰ ﺍﻟﺩﻻﻟﺔ‬

• ~ 80% of all
• ~20% of all texts
Texts
 The Four types of Texts
We may conclude that there are 4 types of
texts:
• Qati ut thuboot, Qati ud dalalah: ~80% of
Quran & Mutawatir Ahadith
• Qati ut thuboot, Dhanny ud dalalah:
~20% of Quran & Mutawatir Ahadith
• Dhanny ut thuboot, Qatiy ud dalalah:
~80% of Mush’hoor & Khabar wahid Ahadith
• Dhanny ut thuboot, Dhanny ud dalalah:
~20% of Mash’hoor & Khabar Wahid Ahadith
 1. Qati ut thuboot, Qati ud
dalalah
• Issues related to Aqeedah without which a person
cannot be a believer must be proven through this type of
text e.g. belief in Allah, Angels, books, Prophets, Pre-
destiny, Afterlife etc.
• Acts that are proven through the first type of text are
classified as fardh (totally obligatory),unless proven
otherwise. Its denier will not be a believer e.g. salah,
zakah, hajj, sawm.
• Prohibitions that are proven through this type of text are
classified as Haram (totally prohibited) and major sins,
unless proven otherwise. Its denier will not remain a
believer e.g. robbery, lying, backbiting, adultery, drinking
wine etc.
 2. Qati ut thuboot, Dhanny
ud dalalah
• Issues related to Aqidah proven through this type
will not render its denier a non-muslim, but will be
termed as deviant.
• Acts proven through this type are usually
categorized as wajib, unless proven otherwise. Its
denier will not become a non-muslim, but will be
termed as deviant.
• Prohibitions proven through this type usually are
categorized as Makruh Tahrimi unless proven
otherwise. Its denier will not become a non-muslim,
but will be termed as deviant.
 3. Dhanny ut thuboot, Qatiy
ud dalalah
• Issues related to Aqidah (beliefs) proven through
this type will not render its denier a non-muslim.
• Acts proven through this type are usually termed
as Sunna Mua’akkadah if consistently done by
the Prophet salla Allah alaihi wa sallam. If
accompanied by a warning against not doing it,
then wajib. If it was not done consistently or was
not emphasized, then sunnah ghair muakkadah.
• Prohibitions proven through this type if
accompanied by warnings, then makruh tahrimi,
otherwise tanzihi.
 4. Dhanny ut thuboot,
Dhanny ud dalalah

• Acts proven through this type are usually

subject to vast differences of opinions,
therefore their rulings are lighter and more
flexible.
• Prohibitions proven through this type are
usually makruh tanzihi.
Introduction to
Fiqh
Part III
Derivation of Rulings
from Texts
Levels of Textual Indication
&
Methods of Derivation
 Methods of Derivation
• There are four levels & ways through
which a ruling may be derived from any
Nas:
1. Al-Istidlal bi Ibaratin Nas ‫ﺍﻻﺳﺗﺩﻻﻝ ﺑﻌﺑﺎﺭﺓ ﺍﻟﻧﺹ‬
2. Al-Istidlal bi Isharatin Nas ‫ﺍﻻﺳﺗﺩﻻﻝ ﺑﺈﺷﺎﺭﺓ ﺍﻟﻧﺹ‬
3. Al-Istidlal bi dalalatin Nas ‫ﺍﻻﺳﺗﺩﻻﻝ ﺑﺩﻻﻟﺔ ﺍﻟﻧﺹ‬
4. Al-Istidlal bi Iqtidhain Nas ‫ﺍﻻﺳﺗﺩﻻﺍﻝ ﺑﺎﻗﺗﺿﺎء ﺍﻟﻧﺹ‬
• Istidlal means to use as evidence / derive
evidence or rulings from something
 1. Al-Istidlal bi Ibaratin Nas
• This means the derivation of a ruling through the
explicit meaning of the text for which the text was
primarily meant for.
• Ibarat un Nas is what is obviously perceptible
from the text and also represents the principal
theme of the text, if there are subsidiary themes
also.
• Most of the Nusoos (legal texts) convey their
rulings by way of Ibarah Al Nas.
• conveys a Hukm Qati (definitive ruling) on its
own and does not require corroborative
evidence.
 Examples
• Obligations of Salah, Zakah, Sawm, Hajj
etc.
• Obligation of dowry to be given to wife in
the following verse:
4:4 And give the women (on marriage) their dowry as
a gift; but if they, of their own good pleasure, remit
any part of it to you, take it and enjoy it with right
good cheer.
2. Al-Istidlal bi Isharatin Nas

• This means the derivation of a ruling that

has been alluded to in the text, but not
expressly mentioned, nor is it primarily
meant.
• Isharatun Nas is the second level of
textual indication.
• The ruling derived from it is Qat’i, but the
first level will supersede it if it contradicts a
ruling derived through the first level.
 Examples
2:236 There is no blame on you if you divorce women
before consummation or the fixation of their dowry; but
bestow on them (a suitable gift), the wealthy according to
his means, and the poor according to his means; a gift of
a reasonable amount is due from those who wish to do
the right thing.
• It is not clearly mentioned that marriage can be
contracted without prior fixation of a dowry, but it
is alluded to in the verse.
• It must be known that the dowry is obligatory
regardless of whether it is fixed before or after
the marriage as proven from verse 4:4
 Examples
ِ ُ‫وﻋﻠﻰ اﻟْﻤﻮﻟ‬
‫ﻮد ﻟَﻪ زﻗﻬﻦ وﻛﺴﻮﻬﺗﻦ ﺑﺎﳌﻌﺮوف‬ َ
And upon the one for whom the baby is begotten (the father) is
their (the wives’) provision and clothing according to what is
common.
• The Ibaratun Nas of this verse is obvious from the
translation.
• Jurists derive from the Ibaratun Nas that it is the husband’s
responsibility to provide for the wife.
• At the same time, the usage of the words ‘al-mawlood
lahoo’ (the one for whom the child is begotten) instead of
‘al-walid’ or ‘al-ab’ (father) alludes that the lineage of the
child is linked to the father.
3. Al-Istidlal bi Dalalatin Nas

• This means the derivation of a ruling

through a meaning inferred in the text
even though it is not expressly indicated in
the text.
• The ruling derived from it is Qat’i but,
• Dalalatun Nas is at the third level of textual
indication, thus will be superseded by the
1st & 2nd in case of contradiction.
 Examples
17:23 … And do not say ‘oof’ to them…
• It is inferred from this verse that not only is it prohibited
to say ‘oof’ to your parents, but any type of verbal or
physical means of abuse is also prohibited.
• Order of kaffara to the Bedouin Sahabi who deliberately
broke his fast by having sexual intercourse with his wife.
• It can be rightfully inferred from this order that it was
given because he had deliberately broken his fast and
not because of him being a Bedouin, therefore this ruling
will apply to all those that deliberately break their fast by
committing intercourse and will not be restricted to that
Bedouin only.
• It is also inferred that if a person commits any other
violation of fasting e.g. eating and drinking, the same
ruling will apply.
4. Al-Istidlal bi Iqtidhain Nas

• This means the derivation of a ruling

through a meaning regarding which the
text is silent, yet it is required and must be
assumed to properly fulfill the objective.
• A ruling derived from this is Qat’i, but
• Is at the 4th level of textual indication, thus
will be superseded by the first 3 in case of
contradiction.
 Examples
‫ﻭﺍﺳﺋﻝ ﺍﻟﻘﺭﻳﺔ‬
And ask the town
• We must assume that it means ‘Ask the
people of the town’

4:22 Prohibited upon you (for marriage) are: your

mothers, daughters, sisters…
• The text does not mention that marriage
to the above relations is prohibited, but it
must be assumed.
 Examples
...‫ﺣﺭﻣﺕ ﻋﻠﻳﻛﻡ ﺍﻟﻣﻳﺗﺔ ﻭﺍﻟﺩﻡ ﻭ ﻟﺣﻡ ﺍﻟﺧﻧﺯﻳﺭ‬
Unlawful for you are the carcass and blood and
pork…(5:3)
• The text does not mention that the
above are unlawful for consumption,
but the text requires the missing
element to be supplied in order to
convey a complete meaning.
 Examples of Conflict
O you who believe! The law of
equality in retaliation (qisas) is
prescribed upon you in cases of
murder: the free for the free, the
slave for the slave, the woman for
the woman. But if any remission is
made by the brother of the slain,
then grant any reasonable
demand, and compensate him with
handsome gratitude. This is a
concession and a Mercy from your
Lord. 2:178
• The ibarah of this text
provides that equivalent
retaliation must be
executed.
• There is a conflict between the ibarah of the 1st and
the isharah of the 2nd
• Thus, the ibarah of the 1st will be given preference.
And whoever kills a Believer
intentionally, his recompense is
Hell, to abide therein (forever):
and the wrath and the curse of
Allah are upon him, and a
dreadful penalty is prepared for
him. 4:93
• The ibarah of this text is
that the punishment is
hellfire.
• The isharah of this text is
that no other punishment
like retaliation is
necessary.
 And whoever erroneously kills a And whoever kills a Believer
Believer, it is ordained that he should intentionally, his recompense is
free a believing slave, and pay Hell, to abide therein (forever):
compensation to the deceased's and the wrath and the curse of
Allah are upon him, and a
family, unless they remit it freely. dreadful penalty is prepared for
4:92 him. 4:93
• The ibarah of this text is that • The ibarah of this text is
expiation is necessary in the that the punishment is
case of erroneous homicide. hellfire.
• The dalalah (inference) of this • The isharah of this text
text indicates that expiation is that no other
should also be necessary in punishment like
the case of intentional retaliation or expiation is
homicide because it is much necessary.
more severe than the former
There is conflict between the dalalah of the 1st text and the
ishara of the 2nd text, therefore the isharah will take priority.
And it has already been mentioned that qisas is necessary by
the ibarah of 2:178