The School of Islamic Jurisprudence (A Comparative Study)

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About the Book

After careful study of various schools of Islamic jurisprudence one can conclude in the words of Prophet Muhammed (P.B.U.H.) that “The differences of opinion in my community is (a sing of divine) mercy”. Therefore difference of opinions in Islamic community among jurists in matters of law developed various schools of Islamic jurisprudence. These schools (Madhahib) are the various paths or roads of Sharia, the source of Islamic learning.

The basis on which all schools of Islamic jurisprudence developed their doctrines is the same and its is only in matters of secondary nature, they differ from each other. These differences are due to various methods of their interpretation of the Holy Qur’an and Sunna, the fundamental sources of Islamic law. All schools accepted the authority of these fundamental sources and based their systems on them with their own way of understanding and interpreting them. Thus they are streams of the one ocean that It Sharia and their aim is to guide people towards understanding of Islam and in following the right path and thereby to obey Allah’s commands, in which lies the welfare of individual as well as society in general.

Preface

Islamic Jurisprudence or Fiqh is a discipline of paramount importance, its scope is very wide, it covers all spheres of life, temporal as well as spiritual whereas, it deals with prayers; it also studies political institutions, socioeconomic affairs, inter- national relations, matters relating to war and peace etc. In fact it is an ever-growing subject since the birth of Islam, the period of Prophet Muhammed (Peace be upon him) was the period of legislation. After completion of his mission, his immediate successors developed it on the same line of their master.

With the establishment of various schools of Islamic Jurisprudence, Islamic society entered into a new era, with the moving element in it and due to efforts made by the learned jurists, Fiqh or Islamic Jurisprudence surpasses other systems of Jurisprudence of the world. Islam never develops any caste-system or sects but only schools of Jurisprudence or legal thoughts. They are the different sources of knowledge, having in view the very purpose of Islam i.e. peace, prosperity and welfare of humanity. For the sake of unification of Islamic society and for the very purpose of Islam we must limit ourselves to be called brothers in Islam or Muslims only. There is no need to add it more as we are all followers of Islam and believe in it that the primary sources of knowledge of this faith are Holy Qur’an and Hadith or precepts of the Prophet Muhammed (Peace be on him). In this book I have dealt with all the schools of Islamic Jurisprudence like Hanafi, Shafi’i, Maliki, Hanbali and Shia etc. and postulated the theme of unification of Islamic society through comparative study of all these schools. It throws light on Islam, Law, Shariah, Islamic Jurisprudence or Fiqh, sources of Islamic legislation like Holy Qur’an, Hadith or Sunna, Ijma, Qiyas etc. and the other legal principles developed by all the schools of Islamic Jurisprudence. All these topics are prescribed for study in the syllabus of B.A., M.A. (Islamic studies) and in LL.B. and LL.M. courses of Osmania University and other universities. Therefore, it may be useful for students as well as teachers of the said faculties, Research Institutes of Islamic studies, Islamic law, Shariah etc. of Islamic countries and other centres of learning of various countries. Probably there is no such work in single volume particularly in English which studies all the schools of Islamic Jurisprudence. Moreover, as it touches the most important and burning issue of unification of Islamic society it may attract the attention of intellectuals as well as commoners.

I crave the indulgence of the readers for the errors or imperfections which might have crept in this work. Any suggestion for improvement of the book shall be gratefully welcome.

I must record my thanks with gratitude to my teachers, Mr. Murtuza Ali Ansari, B.A., LL.B. (London), Head of the Department, Faculty of Law, Osmania University, and Dr. Syed Ahmed Moinuddin Habibi, B.Com., LL.M. (Osm.), Ph.D. (Singapore), Legal Adviser, Pertromin, Riyadh, Saudi Arabia, formerly Lecturer, Law College, Osmania University, Hyderabad who endured me to write my LL.M. thesis on this topic and for their valuable suggestions, extensive help and keen interest evinced throughout my work.

I am also thankful to Dr. Yusufuddin, formerly Head of the Department of Religion and Culture, Osmania University, Mr. Kamaluddin Mohd. Zaferullah, Shahana Khatoon and Mrs. Oarner Fatima for their certain useful advices and suggestions in this regard.

In the end, I am grateful to M/s Kitab Bhavan (Mr. Nusrat Ali Nasri) Publishers, Distributors, Importers and Exporters, New Delhi for including this work in their series and painstaking co-operation and efforts in bringing it out in this excellent form.

Introduction

The word Islam signifies submission and obedience to Allah (God) and it occurs eight times in the Holy Qur’an in such verses as:

“The (true) religion with God is Islam.” (III:17)

“This day have I Perfected for you, your religion and completed My favour on you, and chosen for you Islam as a religion.” (V:3)

The word Islam is comprehensive one and does not express any association with any particular person, people or country. The object of this religion is to create a sense of obedience and submission to Allah, His ordinances and thereby to walk on right path (Siratal Mustaqeem). Those who follow this path are Muslims. It is given in the verse, ‘who-so a Muslim, he seeketh after the right way’ (LXXII:14). The welfare of the humanity lies in following the right path and thus Islam has come for the welfare of humanity irrespective of race or region. Submission or obedience to Allah’s commands or ordinances covers every aspects of life, spiritual as well as temporal. However, in temporal matters certain amount of discretion is permitted to judge and choose a correct standing for the welfare of individual as well as people in general, keeping in view the prevailing circumstances, needs and requirements of time.

Islam and Iman-Muslim theologians made a distinction between Iman (faith) and Islam, and based it on the following verse:

“The Arabs say, “We believe “say thou”, Ye believe not” say rather, “we profess Islam (aslamma)” for the faith (Iman) hath not yet found its way into your hearts.”

Belief with heart is one thing; the profession of Islam is another. It is outward obedience to certain rules, and it is only when sincerity (Tasdiq) is joined to it, as shown in the belief in God, angels, divine books, Prophets (Peace be upon them), Predestination, and the last day, that a man becomes a true believer. Shahrastani in the “al Milal Wa’n Nihal” (p. 27) draws a distinction between Islam, Iman (faith) and ihsan (Devotion, benevolence) in the following tradition:

Gabriel (Archangel) one day came in the form of an Arab and sat near the Prophet (PBUH) and said:

“O Messenger of God, What is Islam? The Prophet (PBUH) replied, ‘Islam is to believe in God and His Prophets (PBUH), to say the prescribed prayers, to give alms, to observe the fast of Ramadan, and to make the pilgrimage to Mecca. Gabriel replied that he had spoken the truth, and then asked to Prophet (PBUH) what Iman is? He replied that it is to believe in God, angels, books, Prophets (PBUH), the last day, and predestination. Again, Gabriel admitted correctness of the definition, and inquired what Ihsan meant? The Prophet (PBUH) replied “to worship God, as if thous seest Him, for if thou seest Him not He sees thee.”

Therefore, a Muslim is one who carefully keeps the outward works of the law, but when he adds to it Ihsan, or devotion, he is a muhsin, a man who does good works as well as pays attention to ceremonial observances, when to these he adds sincerity of heart and exercises faith (Iman), he becomes a mu’min or believer.

“The true believers (al Muminun) are only those who believe in Allah and His apostle, and afterwards doubt not

Islam Envisages Universal Brotherhood, International Peace and Welfare of Humanity.

The root meaning of the word Islam is to enter into peace, and a Muslim is one who makes his peace with God and man. Peace with God means submission to His will, and peace with man is not only to refrain from evil or injury to another but also to do good to him and others.

These ideas find expression in the Holy Qur’an, “Yea, whoever submits (aslama) himself entirely to Allah and he is the doer of good to others, he has his reward from his Lord, and there is no fear for such, nor shall they grieve.”

Islam is thus, the religion of peace and its two basic principles, the unity of God and the concept of one nation and universal brotherhood as stated in Holy Qur’an:

“All men are single nation (II:213) leads to international peace and welfare of humanity.

The Prophet Muhammad (PBUH) in his last sermon told his people that excellence consisted only in deed. Pride of colour or race was utterly condemned, ‘The Arab is not superior to the non-Arab; the non-Arab is not superior to the Arab. You are all sons of Adam, and Adam was made of Earth. Verify all Muslims are brothers ... If a deformed Abyssinian slave holds authority over you and leads you according to the Book of Allah, hear him and obey.”

Islam is Latest and Perfect Religion-The Islam is latest religion of the world and an all-embracing religion, it is the perfect expression of the Divine will, the Holy Qur’an says, “This day have I perfected for you, Your religion and completed My favour on you, and chosen for you Islam as a religion” (V: 3). Thus it postulates that its all institutions, like, social, political and legal etc., must be ideal, perfect and practicable and it must be in the interest of society as well as individual.

Islamic Jurisprudence and Its Schools-Definition of Islamic Jurisprudence Islamic Jaw is divine Jaw as it is based on the totality of Allah’s commands revealed on Prophet Muhammad (PBUH) and embodied in Holy Qur’an. The discipline which studies the principles of Islamic law is denominated as Usulu’l Fiqh also called ‘illmu’l Usul’ (Islamic Jurisprudence). Ilumu’l Faru, is the material science of Islamic Law.

Etymologically usul means the roots or principles and Usul’l Fiqh is described as ‘The knowledge or science of law which deals with the nature of sources of law and matters relating thereto as contradistinguished from ‘Ilmu’l Faru, which is the name for the material science of Islamic law.

Fiqh literally means ‘intelligence’ and faqih is a jurist, a person expert in legal science. There is a difference between ‘Ilm , knowledge, and fiqh, which requires both intelligence and independent judgement.

Abu Hanifa defines, “Fiqh is the soul’s cognizance of its rights and obligations”. He emphasized on moral aspect.

The Shafii jurists define Fiqh as ‘the knowledge of the laws of the Sharia’, relating to men’s acts and derived from specific sources” and the Maliki jurists call it the science of the commands of the Sharia in particular matters deduced by the application of a process of reasoning.

The author of the Taudih gives the definition of fiqh as the knowledge of laws (ahkam) of the Shariat which are intended to be acted upon, and have been divulged to us by revelation or determined by concurrent decision of the learned, such knowledge being derived from the sources of the laws with the power of making correct deductions therefrom.

In fact, Fiqh is the name given to the jurisprudence in Islam. In its widest sense, it covers all aspects of religious, political and civil life. In addition to the laws regulating ritual and religious observances (Ibadaat), as far as concerns performance and abstinence, it includes the whole field of a family law, the law of inheritance, of property and of contract, in other words, provisions for all the legal questions that arise in social life (Muamalat), it also includes criminal law and procedure and finally constitutional law and laws regulating the administration of the State and the conduct of war. All aspects of public and private life and business should be regulated by laws recognized by religion, the science of these laws is Fiqh. In other words Fiqh or the science of Islamic law is the study of one’s rights and obligations derived from the Qur’an, and the Sunna of the Prophet (PBUH) (tradition), the consensus of opinion among the learneds (Ijma), analogical deduction (qiyas). Here it is necessary to understand the distinction between Shariat and Fiqh.

Distinction between Shariat and Fiqh-Shariat literary means the road to the watering place, the path to be followed. In technical sense it means the Canon law of Islam, the totality of Allah’s commands or in the words of Abdur Rahim, Shariat means, matters which would not have been known but for the communication made to us by Lawgiver.’ Shariat is the wider circle and embraces all human activities: fiqh is the narrower one, and deals with the legal acts. The path of Shariat is laid down by God and His apostle (PBUH) whereas fiqh is the result of human endeavour. Fiqh signifies science of law; and Shariat is the divinely ordained path of rectitude. It is however difficult to make a sharp distinction between the two terms as the law in Islam is so intermixed that even a pure secular act which is in accordance with texts gets religious merit and blessings of God. Therefore, in practice both terms are used synonymously as the criterion of all human actions, whether in the Shariat or in the fiqh, is the same-seeking the approval of the Allah by conforming to an ideally perfect code.

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