The Importance of Fiqh

The Khilafah’s early rapid expansion coincided with encounters with new cultures, customs, traditions, tongues and philosophies. These encounters spawned the need to find laws to settle new issues. If the text was not always wholly explicit on the fine detail of a subject it become necessary to extract laws through ijtihad. The procedures for arriving at these laws was just as important as finding the laws themselves. These procedures became codified and documented. Scholars laid down basic formulae for studying novel issues and comparing them to the text. Thus the science of jurisprudence (Usul al-Fiqh) was born out of the necessity to extract law from the revealed text on novel situations.
When humans step onto the battlefield of life they are confronted with problem after problem. Our lives are about grappling with major and minor issues. Islam is not a barrier between man and his legitimate desires and aspirations. It does not regard human’s existence as a gloomy punishment for some original sin. Nor does it portray life as some fleeting opportunity for material satisfaction and sensuous delight. Muslims consider the most mundane of actions to be "religious" and therefore a source of reward.

Rasool-Allah said, "When a wife spends food of her house without spoiling, there is for her its reward for she gives away, and there is also reward for her husband for what he earns, and the like (reward) for the storekeeper - none of them diminishing anything from the reward of another."

There is a need to seek out Allah’s (swt) law for everyday issues. For us, the solutions for life’s problems lay in the revealed text. For the Capitalist these solutions lay within Man’s own remit.

Islam: a way of life

The laws of Islam not only deal with salat, syam and hajj but also with economics, government and international affairs. Dissimilar to the codes of life that came to the Prophets of the Bani-Isra’eal, the final revelation came for all humankind. At the time of Rasool-Allah problems that the Sahaba (ra) faced were settled by the revelation. They (ra) had no need to perform ijtihad in the presence of Rasool-Allah . They (ra) could asked him directly for solutions. After his death the revelation ceased. However the community that Rasool-Allah nurtured clung to the beliefs and practices that they (ra) were taught. When they (ra) faced fresh problems they sought answers from the Qur’an and the Sunnah. They did not philosophise or theorise over issues, they merely quoted an evidence or extrapolated a meaning from a known evidence. Fatimah (ra), the daughter of the Prophet claimed that she was entitled to inheritance from him . It was not until Abu Bakr quoted the hadith: "We prophets do not inherit nor leave an estate for inheritance. Whatever we leave is a charity". Bukhari

Umar ibn al-Khattab set out for ash-Sham and when he was at Sargh, near Tabuk, the commanders of the army, Abu Ubayda ibn al-Jarrah and his companions, met him and told him that the plague had broken out in ash-Sham. Umar ibn al-Khattab said, 'all the first Muhajir unto me.' He assembled them and asked them for advice, informing them that the plague had broken out in ash-Sham. They disagreed. Some said, 'You have set out for something, and we do not think that you should leave it.' Others said, 'You have the companions of the Prophet, and the rest of the people with you, and we do not think that you should send them towards this plague.' Umar said, 'Leave me.' Then he said, 'Summon the Ansar to me.' They were summoned and he asked them for advice. They acted as the Muhajirun had and disagreed as they had disagreed. He said, 'Leave me.' "Then he said, 'Summon to me whoever is here of the aged men of Quraysh from the Muhajirun of the conquest.' He summoned them and not one of them differed. They said, 'We think that you should withdraw the people and not send them towards the plague.' Umar called out to the people, 'I am leaving by camel in the morning,' so they set out. Abu Ubayda said, ‘Is it flight from the decree of Allah?' Umar said, (in astonishment) ‘better that someone other than you had said it’. Abu Ubayda replied Yes. ‘We flee from the decree of Allah to the decree of Allah.’ Abd ar-Rahman ibn Awf arrived (he had been off doing something) and said, 'I have some knowledge of this. I heard Rasool Allah, say, “If you hear about it (the plague) in a land, do not go forward to it. If it comes upon a land and you are in it, then do not depart in flight from it.” 'Umar praised Allah and then set off."

Finally the whole issue was settled by the citation of a hadith.

When they (ra) found no explicit text they (ra) exercised ijtihad to solve issues. They did not formerly document the principles of deriving laws from the Qur’an and Sunnah. They had an exceptional command of the Arabic language and the direct knowledge of the source of law. The next generation maintained this pure understanding. They too did not document the procedures of deriving law. However the third generation saw massive territorial expansion and with this came new challenges. This gave rise to frequent use of ijtihad. It was at this stage that the jurists devised a set of criteria to remove disagreements over disputed points. These rudimentary guidelines were based on Arabic grammar, syntax, textural authenticity and relevance and the practices of the Sahabah (ra) in jurisprudence. This lead on to very comprehensive discussions of the basis of deriving law as in the example of Shafi’i’s Risala. The next four hundred years saw the golden age of ijtihad and clear accounts and discussions written by the jurists. [Malik (d 179AH) Abu Hanifah (d 150AH), Abu Yusuf (d 182AH), Shaybani (d 290AH) Shafi’i (d 204AH) Ahmed b. Hanbel d 244]

Implementation of Islam

Many issues, dubbed modern, have laws concerning their legitimacy within Islam. For example in this century scholars have found rulings related to stocks and share companies, insurance cover, nationalisation of waterways, hijacking of airliners and even IVF and whole organism cloning.

Shari’ah address human problems, it was applicable 14 centuries ago and it is applicable today. The instincts and biological needs of humans have not changed in all this time. Fundamentally we are still the same.

The Shari’ah was revealed to solve such new and numerous demands, regardless of their diversity or how their patterns change. Actually, this was one of the factors which contributed towards the growth of Fiqh. But this vast capacity of the Shari’ah does not mean that it is flexible and adapts to everything or to every issue even if it contradicts shar’ia. Nor does it mean that it evolves thereby it changes with time. It rather means that the texts have the capacity for numerous rules to be derived from them, and it also means that the rules have the capacity to apply on many issues. This ample capacity of the text enabling many rules to be derived from it and the ample ability of the rules to be applicable in many problems.

How is law derived ?

This is obviously an issue way beyond the discussion here. However we may outline some ways in which the texts may be related to issues. The Islamic texts are viewed as legal texts, enabling the Mujtahid to derive rules for other issues not explicitly mentioned.

Allah (swt) says:

"...then if they give suck to the children for you, give them their due payment..." [ 65:6]

The ayah mentions that payment should be paid for wet-nursing. However, many rules or principles can be derived from this one verse: payment is extended to any hired employee. Also, the wage has to be defined in the contract and employees should receive their wage without any delay upon fulfilling contractual obligations.

"O you who believe! When the call to prayer is sounded on the day of congregation hasten to the zikr of Allah, and leave all trading" [ 62:9-10]

The Ayah mentions that, when the call to prayer is given, one should stop trading (baya’). What if we are not involved in trading, does the Ayah tell us to stop what we are doing? The Ayah goes on to mention that when the prayer is over, disperse and seek Allah’s bounty. This means that there is a reason to leave the commerce, being that if we do not, then we will be preoccupied. The application of Qiyas for this example would be for any other activity besides trading. Thus ‘being busy’ is the main issue. Therefore, working as a computer programmer or rocket scientist, playing football or watching TV all constitute ‘being busy’ and are prohibited at the time of Juma’a(friday prayer). There are several verses and countless hadith that may be applied in this way to modern issues.

Scholarship is necessarily not pragmatism

The job of extracting law is arduous and lays with the scholars. The ability for this Ummah to produce scholars of this calibre is an obligation, fard-al-kifiyah(collective obligation). We need to produce competent scholars that can pull the law from the pages of the text and apply them to modern life. What we do not need is apologists that accept the status quo and bury the text by reinterpreting them with the "anything goes" philosophy. It is this skill that is lacking in the Ummah today. The reasons for this deficiency are many. However one of the reasons for their abundance during the golden age was related to the shear fact that they were confronted continually with new problems that needed answers. The brilliance of the older scholars may in part be attributed to the abundance of issues that they had to solve. The real test of the substance of a scholar lies in his settling of problems and the actual practice of his ‘job-description’. As with any skilled craftsmen he maintains his ability by continually facing new challenges. Cutting corners in scholarship lead to the misapplication of Islam in the short term, and in the long term lead to the complete erosion of the correct Islamic ruling system.

The future of Usul al-Fiqh

The nuts and bolts of Usul al-Fiqh involves hard and fast traditional studying, teaching, memorising, arguing and discussing. However the application of this science to life is an extremely animated affair. It involves sagaciously extracting the solemnity of the written text and injecting it into our lives so that we may reap the benefits(means pleasing Allah s.w.t) of this world and the next. This is a true and extraordinarily difficult science, requiring great feats of mental agility. However, it is not merely for academics in ivory towers. It is born of the need to live by Islam. It will continue as a result of the need to live by Islam. The whole science in its brilliance lays testament to the fact that this Ummah was always aware of the need for invention, ‘creativity’ and discovery and what comes with this is the need to derive law for these new issues. The only way to reverse the current woeful state of scholarship is not merely to churn out graduates in "Islamic law". Good Islamic ruling and good Islamic scholarship should go hand-in-hand. When one is good the other is good. Conversely when one is shoddy the other is shoddy. A return to the golden era may result from several factors, all working in concert; the correct implementation of Islam, the striving for technological advancements, an elevating of the of basic knowledge of Islam and the language of Islam (Arabic).