Fiqh 101 - Substance of Fiqh texts II

Last time we looked at Fiqh texts we mentioned:

If we look at them substantially, they consist of:

1. textually gleaned understandings (i.e. from Quran and Hadith)
2. issues of consensus
3. opinions of the companions an/or their students
4. opinions of the “Imam” of that particular school
5. and at times opinions of the leaders of that Imam’s school after him

This time I’d like to discuss each of these in brief:

1. Textually gleaned understandings

This first category is made up of understandings taken from the texts of the Quran and Sunnah. Both of these contain texts which can generally be divided up into three categories:

A. Texts which are explicit and unequivocal in nature, i.e. they will not and cannot hold more than one meaning without deviating from their true linguistic meanings and invoking some type of heterodox interpretation. This category is know as a “Nass” (نصّ).

And example of this would be the verse (وَآتُواْ حَقَّهُ يَوْمَ حَصَادِهِ ) “And give its right the day of Harvest…” 6:141. The meaning taken from this verse is that zakat is due on crops the day they are harvested. No one can rightfully construe this verse to mean something other than that apparent without invoking an interpretation that would not only be foreign to the corpus of Islamic legal understanding but to the Arabic Language as well.

An example of deviant misinterpretation of the Quran would be construing this verse (إِنَّ اللّهَ يَأْمُرُكُمْ أَنْ تَذْبَحُواْ بَقَرَةً ) “…God orders you to slaughter a cow…” 2:67, which was directed to the Children of Israel at the time of Moses to mean that God has ordered the slaughter of Aisha, the wife of the Prophet Muhammad. Such an interpretation is neither logical nor in accordance with sane readings of the texts legally or linguistically.

B. Texts which contain more than one meaning, yet one of these is presumed stronger than the other. This is called a “Zahir” text (ظاهر).

An example of this would be the hadith narrated by Muslim:

“For every forty sheep, a sheep.” (في أربعين شاة شاة)

The apparent meaning of this hadith is that a Shepard who owns forty sheep must pay one sheep as Zakat. Other scholars said that the meaning of this hadith is that he must pay the price of one sheep as zakat, not that he is obligated to pay the actual sheep. Regardless of Juristic polemics surrounding the issue at hand, when analyzed singularly the strength of first meaning is more presumptuous than that of the second.

C. Texts which contain multiple meanings, it being impossible to designate one of these meanings without an external texts or meaning to help determine it. This type is called “Mujmal” (مجمل). The process by which it is clarified is called “Bayan” (بيان). It is then known as a “Mubayyan” (مبين) text.

For example the 3rd verse of Surah al- Mujadilah

(وَالَّذِينَ يُظَاهِرُونَ مِن نِّسَائِهِمْ ثُمَّ يَعُودُونَ لِمَا قَالُوا فَتَحْرِيرُ رَقَبَةٍ مِّن قَبْلِ أَن يَتَمَاسَّا)
“Those that commit Zihar from their wives then return to that which they said must free a slave before they reunite…”

The description of the slave here is an unknown, is it a believing slave as mentioned in other verse (4:92) or not? Does a slave who is impaired count? and so on and so forth. Some would say that in this instance we must look at similar instances in the texts, and judge the ambiguity of this text by the explicitly of the others. Other disagreed.

The point in all of this is that the multiplicity of opinion based on B & C is found in works of Fiqh, and fiqh texts become the junction of linguistic, inductive, and logical arguments; these all leading to the categories following this first one.

More later Inshallah…

Medina Arabic Resources

Look HERE for the books and some useful charts.

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Fiqh 101 - Substance of Fiqh texts

Fiqh texts are made up of various components:

I. If we look at them compositely they contain:

1. definitions
2. rulings
3. examples
4. exceptions

II. If we look at them substantially, they consist of:

1. textually gleaned understandings (i.e. from Quran and Hadith)
2. issues of consensus
3. opinions of the companions an/or their students
4. opinions of the “Imam” of that particular school
5. and at times opinions of the leaders of that Imam’s school after him

III. And if we look at them structurally then they consist of:

1. chapters
2. sections
3. and subsections

With the latter being pretty obvious, the rulings that were expressed throughout those chapters, etc . and compose “Fiqh” were gathered to create a new form of text: al-Ashbah wa ‘l-NaZa’ir. These texts were not categorized like fiqh texts, even though they deal directly with the same substance of fiqh. Instead “ashbah” or “semblances” and “naZa’ir” or “relations” were correlated. Rulings that resemble each other were analyzed along side each other, and others which were related but did not have the same outcome were as well. From these the science of Qawaid Fiqhiyyah developed (for an excellent article on the subject look here). Some of these works were intra-school works, while others were comprehensive of different schools.

Other texts were created from Fiqh texts as well, such as the texts that deal with the “Mufradat” of a particular school and its Imam. Perhaps the most famous of all Imams in his “Mufradat” (i.e. issue in which he held a singular opinion) is Imam Ahmad Ibn Hanbal. This was for several reasons, one being that he was the latest of the four Imams to have a codified school gain prominence, as well as the fact that he was the one Imam from the four that narrated the most hadith, in addition to his keenness to collect the opinions of those scholars that preceded him, especially those of Ahl al-Hadith.

A third type of text was created out of fiqh texts, that of “Furuq” or differentiation between rulings, definitions, and exceptions. These works, although few in number, detail the differences between seemingly similar things, their exceptions, and the reasoning behind that. These texts are closely related to those of “Qawaid fiqhiyyah” and as such many of the early authors of such texts were those that gained prominence for their “Qawaid” writings in both fiqh and Usul.

More Fiqh 101 to come, InshaAllah…

Rising to the Challenge of Critical Thinking

Then there is the doctrine of precedent, one of my favourite doctrines. I have managed to apply it at least once a year since I’ve been on the Bench. The doctrine is that whenever you are faced with a decision, you always follow what the last person who was faced with the same decision did. It is a doctrine eminently suitable for a nation overwhelmingly populated by sheep. As the distinguished chemist, Cornford, said: “The doctrine is based on the theory that nothing should ever be done for the first time.”
- Lionel Murphy (1979), The Responsibility of Judges

“Lawyers operate on a day-to-day basis at a pragmatic level of abstraction which is different to the philosophical level of a jurisprudent. A legal expert system should be built upon a model of legal reasoning, but this model need not conform to any jurisprudential theory about the nature of law.”
- James Popple (1996), A Pragmatic Model of Legal Reasoning, P.63

Precedent, or rather the blind-following thereof, presumably exonerates the public (or at least some of its members) from rising to the challenge of critical thinking. While it functions as a social safety-net for most, disregard for circumstance and social relevance in both public ruling and personal choice disrupts overall justice; justice as understood through either the lenses of custom and convention or those of accommodation and duress. The more drastic the change the more drastic the disruption, and thus the farther the public strays from the spirit of the law, while still monotonously following its letter.