c
c

c
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History of Fiqh
(Islamic jurisprudence).
v



Insha¶a Allah, by the end of this presentation you
are expected to know:
! Úefinition of fiqh;
! Dividing Fiqh into Fiqh Al-
Al-Ibadat and Fiqh Al-
Al-
Moamalat;;
Moamalat
! Different stages through which Figh passed;
! How the Madhhabs (schools of thought) came to
existence; and
! jactors that result in diverse Fiqh opinions, and
how to deal with such diversity.
 Ú





Mexically: the word Fiqh is derived from the root
word faqiha which means ³to understand´.
An example:
In the Qur¶anic Ayah 20: 20:27,
27, the present
present--tense
verb Yafqahoo (΍Ϯ˵ϬϘ˴ ϔ˴ϳ), derived from the same
root word faqiha,
faqiha, was used to mean:
³understand´
ϲϟϮϗ˴ ΍Ϯ˵ϬϘ˴ ϔ˴ϳ ϲϧΎδ˶ϟ Ϧ˶ϣ Γ˱ ΪϘ˵ϋ Ϟ˵Ϡ˸Σ΍ϭ
³And
³A nd remove a knot
from my tongue, that they understand my
speech.
As a technical term:
term:

Fiqh is defined as: the knowledge of

the practical rules of Shari¶ah (Islamic
law) acquired from the detailed evidence
in the sources.

Note::
Note
including ³practical rules´, in the definition, excludes the
rules associated to the principles of faith,
faith, because those rules
are discussed in the area of Aqeedah not Fiqh.Fiqh.
 In other words, the knowledge of
the rules must be acquired directly
from the sources (the Qura¶an and
the Sunnah),
Sunnah), a requirement which
implies that the faqeeh (Jurist) must
be in contact with the sources of
Fiqh..
Fiqh
-xample::
-xample
The faqeeh must know not only the rule
that unjustly eating up the property of an
orphan is forbidden, but also that the detailed
evidence for it is the Qur¶anic Ayah 4:10: 10:
ϲ˶ϓ ϥ
˴ Ϯ˵Ϡϛ˵ ˸΄ϳ˴ Ύ˴Ϥϧ͉·˶ Ύ˱Ϥ˸Ϡχ
˵ ϰ˴ϣΎ˴Θϴ˴ ˸ϟ΍ ϝ
˴ ΍˴Ϯ˸ϣ΃˴ ϥ
˴ Ϯ˵Ϡϛ˵ ˸΄ϳ˴ Ϧ
˴ ϳ˶άϟ͉΍ ϥ
͉ ·˶
΍˱ήϴ˶όγ
˴ ϥ ˴ ˸ϮϠ˴˸μϴ˴ γ
˴ ϭ˴ ΍˱έΎ˴ϧ ˸ϢϬ˶ ϧ˶ Ϯ˵τΑ˵
³Those who unjustly eat up the property
of orphans, eat up a fire into their own
bodies, they will soon be enduring a blazing
fire´
Ú
 
Ú
  
 
 ΍ΩΎΒόϟ΍ 



 

   ϣΎόϤϟ΍
The scholars used to divide Fiqh into two
divisions:
1. Al--Ibadat  refers to the
Fiqh Al
acts of worship that are purely rights of Allah
(between Allah and his servant only).
only).
-xamples::
-xamples
At
At--Taharh (purity), As-
As-Salah (prayer), As-
As-
syam (Fasting) , Hajj (pilgrimage), etc
©

  ϣΎόϤϟ΍


 

 


       


   '
  '


 
   





 Ú
  
 

  

   

D 


    
   

Insha¶a Allah, we will discuss:
m Fiqh during the lifetime of the Prophet ϢϠγϭ ϪϴϠϋ Ϳ΍ ϰϠλ
m Fiqh during the time of the Sahaba ϢϬϨϋ Ϳ΍ ϲοέ
m Fiqh during the time of the Tabi¶een (the successors of
the Sahaba
Sahaba).).
m Fiqh during the time of the Mujtahid Imams ((Abu
Abu--
Hanifah, Malik, As-
As-Shafe¶i and Ahmad
Ahmad).).

  





   ϪϴϠϋ Ϳ΍ ϰϠλ
ϢϠγϭ
During this time, the sources for legislation
were the Qur¶an and the Sunnah. Most of the
rules were legislated without being related to
any specific event or occasion.
-xamples:
Most of Al
Al--Ibadat (the Salah, Zakat,etc )
and some of Al
Al--Mua¶malat .
 @
 other rules were legislated in
@
 other
reference to an event or occasion or a
question.
-xamples:
` The Qur¶anic Ayah 2:222:
ϥ
˴ ˸ήϬ˵ ˸τϳ˴ ϰ͉ΘΣ
˴ Ϧ
͉ ϫ˵ Ϯ˵Αή˴ ˸ϘΗ˴ _˴ϭ ξ
˶ ϴ˶ΤϤ˴ ˸ϟ΍ ϲ˶ϓ ˯˴ Ύ˴δϨ͋ϟ΍ ΍Ϯ˵ϟΰ˶ Θ˴ ˸ϋΎ˴ϓ Ϧϋ Ϛ
˴ ϧ˵Ϯϟ˴΄δ˴ϳϭ
ϯ˴Ϋ΃ Ϯ˵ϫ Ϟ˵ϗ ξ ˶ ϴ˶ΤϤϟ΍
³And they ask you concerning menstruation, Say:
that is a harmful thing, so keep away from women in
their menstruation, and do not approach them until
they are clean´.
clean´.
` The Qur¶anic Ayah 2:189:
Ξ
͋Τ˴ ϟ΍ϭ α
˶ ΎϨϠϟ Ζ
˵ ϴϗ΍Ϯϣ ϲ
˴ ϫ˶ Ϟ˵ϗ Δ˶ Ϡ˶ϫϷ΍ Ϧ
˶ϋϚ
˴ ϧ˵Ϯϟ˴΄δ˴ϳ
³They ask you about new moons, Say: these are signs
to mark fixed periods of time for mankind and for the
hajj´´
hajj


 the Sahaba used to make
Ú


Ijtihad (an effort to infer the rules of Shari¶ah
from the source) based on their knowledge
in the Qur¶an and the Sunnah. They might be
correct in their Ijtihad,
Ijtihad, or they might be
mistaken!
However, when they related the matter to
the Prophet ϢϠγϭ ϪϴϠϋ Ϳ΍ ϰϠλ he either approved
their Ijtihad or corrected them if they were
mistaken!
An -xample:
Narrated Abu Saeed Al-
Al-Khudri: two men set out on a
journey and when the time for the Salat (prayer) came
they had no water. They performed Tayammum with clean
earth and prayed. Mater on they found water within the
time of the prayer. One of them repeated the prayer and
ablution but the other did not repeat. Then they came to
Allah¶s Messenger ϢϠγϭ ϪϴϠϋ Ϳ΍ ϰϠλ and related the matter
to him.
The Prophet ϢϠγϭ ϪϴϠϋ Ϳ΍ ϰϠλ said to the one who did
not repeat: ³You followed the Sunnah and your prayer is
enough for you´ and he said to the one who performed
ablution and repeated: ³For you there is a double reward.´
[Reported by Abu Da¶ud and An
An--Nasa¶i]
Nasa¶i]
Another example:
Ammar Ibn Yasir said: the Prophet ϪϴϠϋ Ϳ΍ ϰϠλ
ϢϠγϭ sent me on an errand, then I had ejaculation
(in my sleep) and I did not find water. I rolled on
the soil like an animal, then when I returned to the
Prophet
ϢϠγϭ ϪϴϠϋ Ϳ΍ ϰϠλ and mentioned that to him. He
said: ³it was sufficient for you to do with your
hand this way´. He then struck his hands once on
the soil and then rubbed the left hand on the right
and the exterior part of his palms and his face.
[agreed upon. This
version is that of Muslim]

 

 
 
During the Khilafa of Abubakr,
Abubakr, when an issue
arises, Abubakr looks in the book of Allah and
the Sunnah that he knows. If he could not find
any thing, then he asks the Sahaba if any of
them have a knowledge of a Sunnah related to
the issue. If non of them have that, then he
consults them and makes his Ijtihad.
Afterwards, Omar, during his Khilafa,
followed the same methodology.
 An -xample:
ΖϤϠϋ Ύϣϭ ˯ϲη ϰϟΎόΗ Ϳ΍ ΏΎΘϛ ϲϓ Ϛϟ Ύϣ ϝΎϘϓ ΎϬΛ΍ήϴϣ Ϫϟ΄δΗ ϖϳΪμϟ΍ ήϜΑ ϲΑ΃ ϰϟ· ΓΪΠϟ΍ ˯ΎΟ cc
ΓήϴϐϤϟ΍ ϝΎϘϓ αΎϨϟ΍ ϝ΄δϓ αΎϨϟ΍ ϝ΄γ΃ ϰΘΣ ϲόΟέΎϓ ΎΌϴη ϢϠγϭ ϪϴϠϋ Ϳ΍ ϰϠλ Ϳ΍ ϲΒϧ ΔϨγ ϲϓ Ϛϟ
ϙήϴϏ Ϛόϣ Ϟϫ ήϜΑ ϮΑ΃ ϝΎϘϓ αΪδϟ΍ ΎϫΎτϋ΃ ϢϠγϭ ϪϴϠϋ Ϳ΍ ϰϠλ Ϳ΍ ϝϮγέ ήπΣ ΔΒόη ϦΑ
ήϜΑ ϮΑ΃ ΎϬϟ ϩάϔϧ΄ϓ ΔΒόη ϦΑ ΓήϴϐϤϟ΍ ϝΎϗ Ύϣ ϞΜϣ ϝΎϘϓ ΔϤϠδϣ ϦΑ ΪϤΤϣ ϡΎϘϓ
A grandmother came to Abu Bakr As-Siddiq and asked him
for her inheritance. Abu Bakr said to her: ³You have nothing in
the Book of Allah, and I do not know that you have anything in
the Sunnah of the Messenger of Allah ϢϠγϭ ϪϴϠϋ Ϳ΍ ϰϠλ. Go away
therefore, until I have questioned the people.´. He questioned the
people, and Al-Mughira Ibn Shuba said: ³I was present with the
Messenger of Allah ϢϠγϭ ϪϴϠϋ Ϳ΍ ϰϠλ when he gave the
grandmother a sixth.´ Abu Bakr said: ³Was there anybody else
with you?´. Muhammad ibn Maslama al-Ansari stood up and said
the like of what Al-Mughira said. Abu Bakr gave it to her.
[Abu Daowed, At-Tirmizi, Malik]

 

 
    


  
 

The Tabi¶een followed the footsteps
of the Sahaba.
Sahaba. They look in the Qur¶an
and Sunnah
Sunnah,, if there is nothing in the
Qur¶an or Sunnah regarding the issue,
they look if the Sahaba had an opinion
on that issue, if not, then they make their
own Ijtihad
Ijtihad..
 During the time of the Tabi¶een,
Tabi¶een, two
schools of Fiqh emerged:

m The school of Al
Al--madina or the school of
Hadith; and
m The school of Al
Al--kuffa or the school of Al
Al--
ra¶ay
ra¶ay
The school of Al
Al--madina (the
(the school of Hadith):
Many of the Sahaba lived and stayed in AlAl--madina,
madina,
because Abubakr and Omar used to ask the Sahaba not
to leave Al
Al--madina (because they need them for Shoorah
or consultation).
consultation). This why the knowledge of Hadith was
widely spread in AlAl--madina.
madina.
Prominent figures of this school are:
Saeed Ibn Al-
Al-mosa¶ieb, Kharija Ibn Zayed Ibn Thabit,
Urwa Ibn Al-
Al-zobier, ...
At the end, the leadership of this school came to the
hands of AlAl--imam Malik.
 The school of Al
Al--kuffa (the school of Al
Al--ra¶ay)
The knowledge of Hadith, in Al
Al--koffa, was
not as strong as in Al
Al--madina,
madina, for the
following reasons:
` The Sahaba lived in AlAl--khuffa were not as many as
those lived in Al
Al--madina;
later on, during the Khilafa of Othman Ibn




 later
@




Afaan,, many of the Sahaba moved to Al
Afaan Al--kuffa,
kuffa, among
them::
them
Ali Ibn Abee Talib (who moved his capitol from Al- Al-
Madina to Al-
Al-Kuffa), Sa¶ad Ibn Abee Wagas, Ammar Ibn
Yassir, Abdallahi Ibn Maso¶od, «
` The occurrence of forgery in the Hadith literature,
i.e.,, attribution of false statements to the Prophet Ϳ΍ ϰϠλ
i.e.
ϢϠγϭ ϪϴϠϋ , mainly by the enemies of Islam, owing to their
hatred of Islam, in that part of the Muslim world at that
time. For that reason, the scholars in Al Al--kuffa were very
cautious in accepting the Ahadeeth, and instead they
resort to Qiyas (analogical deduction).
deduction).
Prominent figures of this school are:
Masrooq, Al-
Al-aswad Ibn Yazeed Al-
Al-nkha¶aee, «
At the end, the leadership of this school
came to the hands of Al Al--imam Abu-
Abu-Haneefa.

 



 





ϦϳΪϬΘΠϤϟ΍ Δ˶ Ϥ΋Ϸ΍



ϦϳΪϬΘΠϤϟ΍
as we mentioned earlier;
` The leadership of the school of Al
Al--ra¶ay came to Al Al--
imam Abu-
Abu-haneefa.
haneefa.
` The leadership of the school of Hadith came to Al Al--
Imam Malik.
` Al
Al--imam Ash-
Ash-shafe¶e was a student of Al
Al--Imam Malik,
and later on, after Malik passed away
away,, he went to Iraq and
became a student of AlAl--imam Mohammad Ibn Al- Al-hassan
Ash--shibani the student of Abu-
Ash Abu-haneefa.
` Al
Al--imam Ahmad Ibn Hanbal was a student of Al Al--imam
Ash--shafe¶e.
Ash shafe¶e.
 The major characteristics of this
stage are:
m Collecting and compiling of the Hadith.
The first book in this art was Mota¶a AlAl--
imam Malik. Mater on, other Imams
(Ahmad, Al- Al-Bukhari, Muslim, «)
«)
followed him.
m Writing down the the principles of Fiqh
(the first to do so was Al
Al--imam Ash-
Ash-
shafe¶e),
shafe¶e ), Fiqh, Tafseer Al
Al--Qur¶an,
Qur¶an, «
 D 
   
  



   
many factors contribute to this issue, among
them:
` The scholar might not be aware of the Daleel (evidence).
An -xample:
Al
Al--imam Malik used to say it is permitted to observe fast on the
day of Friday. He was unaware of the Hadith of Abu-
Abu-Huraira that the
Prophet ϢϠγϭ ϪϴϠϋ Ϳ΍ ϰϠλ said: ³none of you should fast on Friday
unless he fasts (it together) a day before or a day after it [agreed
upon].
ÿ
 
 ÿÚ
` The scholar might be aware of the Daleel but he
interprets it differently.
differently.
because the nature of the Arabic language may allow
more than one meanings of the same word.
-xample:
In the Qur¶anic Ayah (5:6): ˯Ύδ͋Ϩϟ΍ Ϣ˵Θδϣ_ ϭ΃
³or ye have been in contact with women´
The ward Mamastum Ϣ˵Θδϣ_ in this Ayah may mean
touching or sexual intercourse.
Ash--shafe¶e and others accept the first meaning and
Ash
hold that touching a woman nullifies ablution.
Abu Hanifa accepts the second meaning, and he
holds that touching a woman does not nullify the
ablution.
` Apparent conflicts between evidences.
In reality, there is no conflict between the evidences of
Shari¶ah. However, it might appear to a Scholar that two
evidence are in conflict with one another
-xample:
A Hadith says: ³whoever touches his sexual organ
needs to makes Wudu ´. In another Hadith the Prophet ϰϠλ
Wudu´.
ϢϠγϭ ϪϴϠϋ Ϳ΍ was asked about touching one¶s sexual organ,
He said it is like touching any other part of the body.
Ash--shafe¶e , Ahmad and others are of the opinion
Ash
that the second Hadith abrogates the first, therefore
touching one¶s sexual organ does not nullify Wudu.
Abu Hanifa regards the first Hadith to be authentic and
rules that Wudu is required after touching
` The differences among the scholars in their
approach towards the sources of Shari¶ah
Shari¶ah..
-xample:
Al
Al--imam Malik takes the practice of the people of
Al
Al--madina as one of the sources of Shari¶ah, other
scholars disagreed with him.
Another -xample:
The vast majority of the Scholars regard Qiyas
(analogical deduction)
deduction) as one of the sources of
Shari¶ah, other scholars (Dawood
(Dawood Al-
Al-zahiri and Ibn
Hazm)) do not regard Qiyas as a source.
Hazm
The principles we expected to follow
to deal with diverse
diverse Fiqh opinions.
` Avoiding Tagleed (blindly following one
Madhhab).
The great scholars did their best to teach people their
religion and offer them proper guidance, but they forbade
people from following them blindly and told them: ³It is
not allowed for anyone to say what we have said without
knowing the evidence for our position.´
They made it clear that their opinions was whatever
the authentic Hadith stated. They did not have the
intention of having the people follow them like they should
follow the Prophet ϢϠγϭ ϪϴϠϋ Ϳ΍ ϰϠλ, who was protected from
sin or mistake by Allah.
` Following the opinion that has the stronger
evidence and proof.
However, regardless of the reasons that lead
to diverse Fiqh opinions, the differences
themselves should not be looked upon as being
inherently evil; on the contrary, they can be a
great help in learning as well as guarding us
from the unyielding rigidity that has stunted the
growth and the contribution of the Muslim
Ummah in recent times.
TH- -ND