KHUTAB III - 14. SHARĪ‘AH AND FIQH

14. SHARĪ‘AH AND FIQH

          Comparing Islam with the other two revealed religions, a common statement among scholars of religions is as follows: Judaism is a religion with a canonical law called Mishnah[1], but not a missionary one; Christianity is a missionary religion but without a canonical law; Islam is both a missionary religion and with a canonical law, the Sharī‘ah. People in the West who are majority Christians fail to understand why Muslims in this modern era should follow the law laid down fourteen centuries ago. They wonder why Muslims have many different schools of law called madhhabs. This article tries to explain the position of Islamic law called the Sharī‘ah and the Islamic jurisprudence called the Fiqh.

Sharī‘ah literally means “water hole,” “drinking place”, and “the approach or the way to the water hole or the drinking place”. For the people living in the desert, finding the way to the drinking place is extremely important, it is a matter of life and death. Technically, Sharī ‘ah means the canonical law of Islam. The Muslim jurist Imām Abū H...anīfah gives the definition of the Sharī‘ah as follows: “Sharī‘ah is what the Prophet taught through revelation from Allah.” Imām al-Shāfi‘ī elaborates it when he says that is clear or obscure rules for Muslims based on Allah’s revelation as well as those deduced from it. These laws arrange man’s relationship with his Creator, with other human beings, as well as other creatures, such as animals, plants and inanimate objects.  The term fiqh literally means “understanding”, “comprehension,” “knowledge.” Technically, it means “Islamic jurisprudence.” An expert in the science of fiqh is called faqīh (pl. fuqahā’), such as Abū H...anīfah, Mīlik bin Anas, al-Shāfi‘ī, and Ah.mad ibn H...anbal. Their followers compiled their respective teachings and later became schools of law (madhhabs). In order to reach the right conclusion the jurists have to be careful in approaching, studying and analysing the divine texts by applying the science of fiqh. The main differences between Sharī‘ah and Fiqh are as follows:

Sharī‘ah                                                 Fiqh

It is revelation, directly from              It is human understanding,  Allah, explained in the H...adīth                liable to change from time to                                                                 time

It is fundamental in nature                It is instrumental

Its law is qat.‘ī (definite, final)             Its law is z.annī  (hypothetical)

It is universal, unique                         It is incidental, varied

Its main object is man’s relation-      Its main object is man’s   

  ship with Allah, the Creator               relationship with himself and                                                                    other creatures 

Its sanction is reward or punish-        Its sanction is praise or  blame   

 ment from Allah in   the Here-         from  the community, or the        after, sometimes in this world,           rulers (police, prosecutors,

  whether  felt  (e.g., penal law           judges) who apply this sanction

 by Muslim rulers) or not by

 the sinner  

                                                            

                     Sharī‘ah contains injunctions and prohibitions through revelation from Allah dealing with the actions and behaviour of the mukallaf, namely, a Muslim (who is sound in mind and reaches adulthood) who is obliged to observe the precepts of religion. A good Muslim is law abiding, not a law breaker. The injunction to study fiqh is mentioned the Qur’ān, as follows:

 وَمَا كَانَ الْمُؤْمِنُونَ لِيَنْفِرُوا كَافَّةً فَلَوْلَا نَفَرَ مِنْ كُلِّ فِرْقَةٍ مِنْهُمْ طَائِفَةٌ لِيَتَفَقَّهُوا

فِي الدِّينِ وَلِيُنْذِرُوا قَوْمَهُمْ إِذَا رَجَعُوا إِلَيْهِمْ لَعَلَّهُمْ يَحْذَرُونَ (التوبة ,:١٢٢)

And it is not (proper) for the believers to go out to fight (jihad)

 all together.Of every troop of them, a party only should go forth, that

 they (who are  left behind) may get instruction in (Islamic) religion,

 and that they  may warn  their people when they  return to

 them, so that they may beware (of evil). (Q. 9:122).

In a h.adīth it is reported that the Prophet s.a.w. prayed for his young cousin Abdullah ibn ‘Abbās; he said,

اللَّهُمَّ فَقِّهْهُ فِي الدِّينِ وَعَلِّمْهُ التَّأْوِيلَ (رواه أحمد و الطبراني و البيهقي و ابن حبان)

 Oh Allah, make him understand the religion (Islam)

and teach him ta’wīl (interpretation, namely, the deep

 meanings of the divine texts).(Reported by Aḥmad,

 al-Ṭabrānī, Bayhaqī, and Ibn Ḥibbān)

          If we open the books of fiqh we shall see various topics such as belief (i‘tiqādāt), cleanness or purity (t.ahārah), worship (‘ibādāt), social transactions (mu‘āmalāt), marriage and inheritance (munākah.āt), criminal and penal laws (al-jināyāt wa’l-‘uqūbāt), and holy war (jihād). It includes every aspect of life. No wonder that Islam is not a religion as understood in the West as a relationship between man and God, but a dīn (which is mistakenly translated as “religion”), a way of life.  There is rule or law for everything; every person is responsible for his/her acts and will be accounted for in the Hereafter. Fortunately, the majority of rules belong to the category of mubāh (permitted). In matters of worship everything is prohibited except what it enjoined. Its basic rule is prohibited (h.arām). In other matters, everything is permitted, except what is prohibited. Its basic rule is permitted (mubāh.).

_______

[1] Mishna or mishnah (in Hebrew means “Repeated Study”) “is the oldest authoritative postbiblical collection and codification of Jewish oral laws, systematically compiled by numerous scholars (called tannaim) over a period of about two centuries…. The mishna supplements the written, or scriptural, laws found in the Pentateuch. It presents various interpretations of selective legal traditions that had been preserved orally since at least the time of Ezra (c. 450 BC).” The mishna consists of six major sections: (1) Zera’im (“Seeds”) containing laws involving agriculture; (2) Mo‘ed (“Festival”) dealing ceremonies, festivals, rituals, prohibition related to the Sabbath, fast days, etc.; (3)  Nashim (“Women”), dealing with marriage, divorce, etc. (4) Neziqin (“Damages”), civil and criminal laws (theft, usury, idolatry, physical punishment including death; (5)  Qodashim (“Holy Things”), dealing with laws regulating Temple sacrifices, other offerings and donations; (6) T.ohorot (“Purifications”) dealing with ritual purity of vessels, dwellings, foods, etc. (see Encyclopedia Britannica, q v.. “Mishna”

          In order to find the legal judgment of a certain issue which is not mentioned in the Qur’ān or the H...adīth of the Prophet, or the ijmā‘ (consensus of Muslim scholars) especially the new emerging one, the jurists exercise their ijtihād  (exertion to find their independent judgment in a legal or theological question) through various means, such as qiyās (analogy, analogous interpretation, comparing the judgment of a known matter with what is under investigation), and the jurist who exercises this ijtihād is called mujtahid. This new judgment of this mujtahid is called fatwā (formal legal opinion), and the jurist who exercises it is called muftī,

officially appointed by the government, or those who are in authority in the Muslim community.

A simple example of ijtihād is the consumption of a kind of drug called ecstasy. What we had in the time of the Prophet is khamr (alcoholic drink) which is h.arām, prohibited. It seizes human reason, clouds his mind. The verb of the word khamr is khamara and khammara meaning “to cover, to hide, to cause fermentation.” Having the same effect of clouding the mind of the consumer and other side effects, Muslim jurists pass their judgement and verdict: ecstasy is h.arām.

          Ijtihād in the time of the Prophet was very rare and limited, because the s.ah.ābah (companions of the Prophet) could consult the Prophet about the judgment of an issue. One example of the ijtihād of the s.ah.ābah is this: ‘Umar and Mu‘ādh were on a journey when they had wet dreams. They became in the state of major impurity and had to take a bath. But there was no water. So, Mu‘ādh rubbed his body with dust as substitute for water, then performed the z.uhr (early afternoon) prayer. ‘Umar waited until he found water, but it was too late; the time for dhuhr prayer had passed. The Prophet who heard about it said that they should have performed the tayammum, as mentioned in the Qur’ānic verse 6 of sūrat al-Mā’idah (chapter 5), as follows:

يَا أَيُّهَا الَّذِينَ آَمَنُوا إِذَا قُمْتُمْ إِلَى الصَّلَاةِ فَاغْسِلُوا وُجُوهَكُمْ وَأَيْدِيَكُمْ إِلَى الْمَرَافِقِ

وَامْسَحُوا بِرُءُوسِكُمْ وَأَرْجُلَكُمْ إِلَى الْكَعْبَيْنِ وَإِنْ كُنْتُمْ جُنُبًا فَاطَّهَّرُوا وَإِنْ كُنْتُمْ مَرْضَى

أَوْ عَلَى سَفَرٍ أَوْ جَاءَ أَحَدٌ مِنْكُمْ مِنَ الْغَائِطِ أَوْ لَامَسْتُمُ النِّسَاءَ فَلَمْ تَجِدُوا مَاءً

فَتَيَمَّمُوا صَعِيدًا طَيِّبًا فَامْسَحُوا بِوُجُوهِكُمْ وَأَيْدِيكُمْ مِنْهُ ... (المائدة : ٦)

 O you who believe! When you intend to offer the prayer, wash your faces

 and your hands (forearms) up to the elbows, rub (by passing wet hands)

 over your heads, and (wash) your feet up to the ankles. If you are in

a state of janābah (major state of impurity), purify yourselves (bathe

your whole body). But if you are ill or on a journey, or any of you comes

 after answering the call of nature, or you have been in contact with

women, and you find no water, then perform tayammum with clean

 earth and rub therewith your faces and hands…” (Q. 5:6).

               Another example of the ijtihād of the s.ah.ābah is when they were on a journey they did not find water, and therefore they performed tayammum, and then prayed their z.uhr prayer. When they found water later, one of them performed ablution and prayed again z.uhr prayer, as the time for this prayer had not lapsed yet. The other one did not repeat his prayer. When the Prophet heard about it, he said that the person who did not repeat his prayer was correct, whereas the one who repeated the prayer got the merit of a sunnah (recommended) prayer.

          Confusion is rampant among Muslims, as many of them pass their own legal judgment based solely on what is called “common sense”, and not on the divine texts, the Qur’ān and the Sunnah of the Prophet. The moment they enter the domain of jurists to which they do not belong, argument starts and sometimes violently. On one Friday, after the imām of the Preston mosque in Melbourne talked about this issue, an old man shouted in Arabic after the Friday prayer, saying, “If ‘Umar [the companion of the Prophet who was known for his piety and strict application of Islamic law when he became caliph] were among us, we would have killed him out of our ignorance.”

          To sum up, the injunction of performing prayers is in the domain of sharī‘ah. It is based on revelation, it is fundamental in nature, definite and final (nobody can change it), universal and indicates unity. The prayer timetable in northern part of the United States or Canada, such as at the town of North Pole in Alaska or Yellowknife in the Northwest Territories by following the prayer timetable in Makkah or that of the Muslims at the nearest town, such as Ft. McMurray in Northern Alberta, Canada, is in the domain of fiqh. It is based on human understanding, based on assumption, and is the result of the ijtihād of the Muslim legists and jurists. A jurist could change his view from time to time based on the condition and circumstance. Sometimes people ask hypothetical questions. When a person asked Prof. Hamka, the Indonesian scholar, about praying on the moon, he answered, “Go first to the moon, then I shall give you the answer”

 There was a story that a person sold a piece of land and later found that there was treasure in the land. To whom does it belong? To the seller? He did not sell the treasure. To the buyer? He did not buy the treasure. To the state? It did not own the land. But the seller, the buyer, even the state could claim it. Who owned it? Allah. What to do with it? Ask the jurists! The honest seller and buyer went to a judge as they disclaimed the treasure. The wise jurist asked each of them if he had a son or a daughter suitable for marriage. When both of them replied “yes”, the wise judge told them, “Let them marry each other and have the treasure as the dowry.”