UNDERSTANDING FIQH, USUL AL-FIQH AND SYARIAH

1. The definition of Fiqh:

Fiqh is the knowledge of the Islamic ruling of the conduct of the people. Imam Abu Hanifah
defined Fiqh as ‘the knowledge of what is for man’s self and what is against man’s self’ (ma’rifat
al-nafs ma laha wa ma ‘alyha) and this general definition of Fiqh includes all knowledge of Islam.
On the other hand, Imam Al-Ghazali confined the word Fiqh to the science of the rules of law.
Literally, the term Fiqh is used to mean understanding or al-fahm. Technically, Fiqh is the name
given to the whole science of jurisprudence (i.e. Islamic Jurisprudence) because it implies the
exercise of intelligence in deciding point of law in the absent of a binding text (nas) of the Quran
and Sunnah (the tradition of the Prophet pbuh). It is the knowledge of the Islamic ruling of the
conduct of the people.

Fiqh covers various aspects of human life. It concerns with the governing relationship between
man and his Creature and man and man. One important point that should be observed about Fiqh
is its flexibility. There are two kinds of Fiqh rulings according to the changeable and fixed rulings.
The fixed Fiqh rulings are the rulings that are deduced from the decisive evidence from the Quran
and Sunnah. This kind of rulings cannot be changed according to the change of time and place or
circumstances such as rulings related to Ibadah e.g. prayer, fasting, punishment for adulterers etc.
However, the implementation of such rulings can be deferred if the situation does not permit for it
to be implemented or if the implementation of such rulings might result in defying the objectives
of Syariah. The changeable rulings are Fiqh rulings that are deduced by the scholars from their
understanding and interpretations of Holy Quran and Sunnah and from other various sources of
Islamic law such as juristic preference (al-istihsan), consideration of public interest (masalih al-
mursalah), presumption of continuity (al-istishab), customs (‘uruf) and others. This kind of rulings
utilise the power of reasoning of the jurists in certain Fiqhi issues. Example of changeable Fiqh
rulings are the rulings related to Muamalah. Rulings under this category are flexible and can be
changed according to the changes of time, place and circumstances.

2. The distinction between Syariah and Fiqh

Fiqh is an important component of Syariah (Islamic doctrine of duties, a code of obligations but
not limited to Islamic law). The Syariah is based on revelations in which the knowledge is only
obtained from the Holy Quran or Sunnah (the tradition of the Prophet pbuh). The Syariah is the
body of revealed injunctions found both in the Quran and Sunnah and it includes the following
three main components: Al-ahkam al-I’tiqadiyyah or aqidah (the sanctions relating to beliefs), Al-
ahkam al-akhlaqiyyah (the sanctions relating to moral and ethics), and Al-ahkam al-‘amaliyyah
(sanctions relating to the sayings and doings of the individuals and his relations with others) which
is also called Fiqh. Therefore, Fiqh is a subset, a component to the respective Syariah. Unlike
Syariah, in Fiqh, the power of reasoning is stressed and deductions based upon knowledge are
continuously referred to with approval.

In summary, Syariah is the whole divine law and a value as given by Allah and Fiqh is the laws,
or rather opinion on laws, extracted by jurists from the sources of Islamic law. Thus, Fiqh contains
human involvement which is required as juristic interpretation comes in. The terminology of
‘Islamic law’ as used by many scholars often refers to this meaning of Fiqh. However, it must be
noted that the demarcation line between Syariah and Fiqh is not clearly drawn, thus the two terms
are being use interchangeably.

3. The difference between Fiqh and usul al-Fiqh

Fiqh and usul al-Fiqh is two different disciplines. Fiqh is actually the result of the jurists’
interpretation from the source of law (Asl). This is where the distinctive Fiqh is takes place. It
explains the methods by which the rules of Fiqh are deduced from their sources.

The scholars of Islamic law divide the science of Fiqh into two categories which is; (i) the usul,
and (ii) the furu’. The usul literally means the roots or foundations. The science of usul deals with
methods by which the rules of Fiqh are deduced from their sources. Usul al-Fiqh or the origins of
Islamic law, indicates by which the rules of Fiqh are deduced from their sources. On the other
hand, the science of furu’ deals with particular injunctions or ahkam, which are the results of the
science of usul. Therefore, Fiqh is the end product of usul al-Fiqh. The Fiqh is the furu’. Therefore,
one must appreciate the clear distinction between the principles in the first division and the rules
deduced from their application.

The rules of Fiqh derived from the Quran and Sunnah and other sources which are collectively
known as usul al-Fiqh. The Holy Quran and Sunnah contain very little methodology, but they
provide the indications and general principles from which rules of Fiqh can be deduced. The
methodology of usul al-Fiqh refers to ijtihad (methods of reasoning) such as qiyas (analogy),
istihsan (juristic preference), istislah (public interest), istishab (presumption of continuity), ‘Uruf,
‘amaal ahl al-Madinah (practice of al-madinah people) and sad al-dharai (blocking means to evil).
Thus, the Fiqh is the end product of usul al-Fiqh. The importance of usul al-Fiqh is irrefutable as
it examines the sources of Islamic law, the methods to be used to deduce the rulings and determine
the type of person who is qualified to deduce these laws. Usul al-Fiqh in this sense provides
standard criteria for the correct deduction of the rules of Fiqh from the sources of Syariah. The
principle objective of usul al-Fiqh is to regulate ijtihad and to guide the jurists in his effort at
deducing the law from its sources. The need for this become prominent when unqualified persons
attempted to carry out ijtihad which will lead to the risk of error and confusion in the development
of Syariah and become source of anxiety to the ulema and ummah.

4. Primary and secondary sources of Syariah

One of the important constituents in Islamic law is the sources that were utilised in order to deduce
rulings. Jurists of Islamic law have classified the sources of Islamic law into various categories
including according to the origins. The classification of primary and secondary sources of law in
Islamic jurisprudence is utmost important because it will determine from which the Ahkam (rules)
of Allah are discovered, in which the dalil (guide) or source of Syariah will give weight. The Holy
Quran and the Sunnah are the primary sources of Islamic laws. However, some other sources are
agreed upon by the majority of the schools to belong within the primary sources of Islamic law are
the Ijma’ (consensus) and Qiyas (analogy).
In the Islamic legal system where hierarchy and order of priority of sources are carefully
maintained, the Holy Quran enjoys the highest position as the most primary source in the Islamic
Syariah from which Islamic legal rules are derived, and through which the purposes of Syariah are
to be achieved. The Quran is assigned with divine functions being the words of God, to serve as a
source of God-imparted knowledge and fundamental guidance for men. The Holy Quran and
Sunnah are considered as the sources originated from the text of revelation which is called al-
nusus and other sources based on the power of reasoning are called non-textual sources or al-ray.
Majority of the jurists from majority schools are in agreement in classifying the Holy Quran,
Sunnah, Ijma (consensus) and Qiyas (analogy) as the primary sources of Syariah. Indeed, no
scholars have challenged the authority and advantage of these four sources over other subordinate
sources.

The second source of Islamic law is the Sunnah and there is no dispute among scholars with regards
to the position of the Sunnah as the second source of Islamic law after al-Quran. The authority of
Sunnah comes from the following verse whereby Allah clarified the fact that whatever originated
from the Prophet (pbuh) does not come out of his own desire, but it is an inspiration from Allah.
This directly indicates the role of Sunnah as the type of revelation from Allah to His prophet
(pbuh);

‘Nor does he say (ought) of his own desire. It is no less than inspiration sent down to him’
(Al-Najm, 3-4)

The third source of Islamic law is ijma’ or consensus of opinions. Unlike the Quran and the
Sunnah, ijma’ does not directly partake in the divine revelation. As a principle and proof of Islamic
law, ijma’ is a rational proof and it is also a binding proof. Technically, ijma’ is defined as the
unanimous agreement of the mujtahidun (qualified scholars in Islamic law) of Muslim community
of any period following the demise of Prophet Muhammad (pbuh). However, the modern scholar
Abu Zahrah has narrowed this definition of ijma’ to confine it to Syariah (legal matters only and
this has specified the role of ijma’ to be one of the sources of deducing rulings in Islam. The
definition clearly specified that ijma’ can only occur after the demise of the Prophet (pbuh) as he
was the highest authority of Islamic law during the particular period. Ijma’ has played a significant
role in the development of Islamic law during the period of the companions and in fact, the existing
body of Fiqh is the product of a long process of ijtihad and ijma’. Scholars have regulated the
process of ijma’ by placing certain requirements in order for ijma’ to be valid such as ijma’ must
be produced from the agreements of qualified scholars or mujtahidun who fulfil certain conditions
laid down by the scholars to exercise ijtihad. Consensus will never exist unless there is a plurality
of concurrent opinions. Some of the conditions that lend to the validity of ijma’ is that the
agreement or consensus that must take place only among the mujtahids, that is only by those who
have attained the status of ijtihad. In addition to that, the agreement must be unanimous among all
of the mujtahids.

The fourth principle source of Islamic law as agreed by scholars to be a rational tool for deducing
the rulings of Fiqh is the Qiyas (analogical reasoning). Recourse to qiyas would only be done when
the solution of a new case cannot be found in the Holy Quran, the Sunnah or a definite ijma’.
Analogical deduction of qiyas put emphasis on the identification of a common cause between two
cases. The process of identifying the effective cause of ten involves intellectual exertion on the
part of the jurist. The jurists involve in the process recourse not only to the semantics of a given
text but also to his understanding of the general objectives of Islamic law.

5. The seconday sources of Syariah

The other category is the secondary sources of Islamic law in which the scholars differ in utilising
these sources as a basis in deducing the rulings of Islamic law. This is because some scholars
considered them as a source whilst some decline to utilise them in deducing the rulings of Fiqh.
The secondary sources of Syariah are the qiyas (analogy), istihsan (juristic preference), istislah
(public interest), istishab (presumption of continuity), ‘uruf, ‘amaal ahl al-Madinah (practice of
al-madinah people) and sad al-dharai (blocking means to evil). As mentioned above, these sources
are the products ijtihad, the same method of deductions that use the same principle as of qiyas.
When the mujtahid exercise his ijtihad, the material sources used during this legal reasoning are
the Quran, Sunnah and ijma’. However, the rational secondary sources provide the means of
extension for the law stated in these primary sources. There are a few other secondary sources of
Islamic law that depend upon transmission (naql) and not on the methods of reasoning for example,
the companion’s opinion (Qawl al-Sahabi). From the jurists’ perspectives, a companion is
someone who saw the Prophet (pbuh) and associated with him for some time so that he could
understand something of the ways of the Syariah from him. After the death of the Prophet (pbuh),
it was the companions who involve in interpreting the law and developed it. They undertook the
ijtihad, issued rulings, settled case and became a source of guidance.

References:

Imran Ahsan Khan Nyazee (2000), Islamic Jurisprudence, Islamabad, The International Institute
of Islamic Thought and Islamic Research Institute.
Mohammad Hashim Kamali (1991), Principles of Islamic Jurisprudence, UK, Islamic Text Society
of Cambridge.
Wahba Al Zuhaili (2003), Financial transaction in Islamic jurisprudence, Beirut: Dar al-Fikr al-
Mouaser, First Edition,

Source of material (with minor alteration):

http://arzim.blogspot.com/2010/01/secondary-sources-of-shariah-uruf-or.html