The Word Jurisprudence (Fiqh) in the Holy Qur'an and the Traditions
Martyr Ayatullah Murtada Mutahhari
The study of jurisprudence is one of the most extensive studies in Islam. Its history is older than all the other Islamic studies. It has been studied on a very wide scale throughout the whole of that time. So many jurisprudents have appeared in Islam that their numbers cannot be counted.
The words fiqh and tafaqquh, both meaning "profound understanding", have been often used in the Quran and in the Traditions. In the Holy Quran we have been told: "Why should not a company from every group of them go forth to gain profound understanding (tafaqquh) in religion and to warn their people when they return to them, so that they may beware. " (9:122)
In the Traditions, the Holy Prophet has told us: "Whoever from my nation learns forty Traditions; God will raise him as a faqih (jurisprudent) an alim (a man of 'ilm or knowledge)."
We do not know for sure if the 'ulema and fuzala, the learned and distinguished, of the Prophet's companions were called fuqaha (jurisprudents), but it is certain that this name was applied to a group since the time of those who had not witnessed the Prophet but had witnessed those who had (tabi'in).
Seven of the tabi'in were called 'the seven jurisprudents'. The year 94 A.H. which was the year of the departure from this world of Imam Ali ibn Husein (d,) and the year in which Sa'id ibn Masib and Orwat ibn Zubayr of the "seven jurisprudents" and Sa'id ibn Jabir and others of the jurisprudents of Medina also passed away, was called the 'year of the jurisprudents'. Thereafter the word fuqaha was gradually given to those with knowledge of Islam, especially of the laws of Islam.
The holy Imams have repeatedly made use of these words. They have commanded some of their companions to profound understanding (taffaqquh) or have termed them as a master of jurisprudence or fuqaha (the plural of faqih, a jurisprudent). The prominent pupils of the Imams during that same period were known as Shi'ite fuqaha.
The word jurisprudence (fiqh) in the terminology of the 'ulema
In the terminology of the Quran and the Sunnah, fiqh is the extensive, profound knowledge of Islamic instructions and realities and has no special relevance to any particular division. In the terminology of the 'ulema, however, it gradually came to be especially applied to the profound understanding of the Islamic laws. The 'ulema of Islam have divided the Islamic teachings into three parts:
First, the realities and beliefs: the aim of which is awareness, faith and certitude, and which are related to the heart and the mind, containing issues like the issues related to the unseen past and the unseen future, to Prophethood, revelation, angels and Imamate.
Second, morality and self-perfection: the goals of which are the spiritual qualities of how to be and how not to be, containing issues like cautiousness of God (taqwa), justice ('idalat), generosity, courage, fortitude and patience (sabr) being satisfied and content with God (riza) firmness on the true path (istiqamat) and so on.
Third, the laws and issues of actions: which is related to the special external actions that human beings must perform and how the actions they perform are to be and how they are not to be.
The jurisprudents of Islam have termed this last division, fiqh (jurisprudence), perhaps from the viewpoint that since the early days of Islam the laws were the most subject to attention and queries. Therefore, those whose speciality was in this subject came to be known as the fuqaha (jurisprudents).
Two Types of Law
It is necessary that we mention some of the special terms of the jurisprudents. Amongst these is the names of the two divisions the jurisprudents have made of the Divine Laws: the laws of (human ) duty (hukm taklifi) and the laws of (human) situations (hukm waz'i).
The laws of duty include those duties which contain obligation, prohibition, desirability, undesirability, and, simple permissibility.
These five laws are termed as "the five laws" (ahkam khamsah).
The jurisprudents say that in the view of Islam no single action is empty of one of these five laws. Either it is obligatory (wajib), meaning that it must be done and must not be left undone, like the five daily ritual prayers, or it is forbidden (haram), meaning that it must not be performed and must be refrained from like lies, injustice, drinking alcohol and such like; or it is desirable (mustahab) meaning that it is good to do but leaving it undone is not a crime or sin, including such things as praying in a mosque; or it is undesirable (makruh), meaning that it is bad to do but if done no sin is committed, like talking about worldly affairs in a mosque which is a place of worship; or it is permissable (mubah), meaning that the doing of it and the not doing of it are exactly equal, and this includes most actions.
The laws regarding situation are not like the laws regarding duty. The laws regarding duty consist of "do's" and "don'ts", commands and prohibitions, or the giving of permissions, while the laws of situation regard situations like marriage and ownership and the rights thereof.
Types of Obligation
Another issue is that the obligations, the things that are obligatory, are divided into many different classifications. Firstly, they are divided into ta'abbudi and tawassuli.
Ta'abbodi means those things, the correct and valid performance of which depends upon the intention (niyyat) of nearness of God. That is, if the obligatory action is performed solely with the intention of approaching the Divine without any worldly, material motive, it is correct and valid, and if not, it is not valid. Prayer and fasting are both "wajib ta'abbudi"
Wajib tawassuli, however, is that in which, even if performed, imagine, without the intention of nearness to God, still the obligation has been met and one's duty fulfilled. Obeying one's parents, for example. Or the performance of responsibilities towards society, like if a person undertakes to do a certain work in return for a certain payment, the doing of that work. And, in fact, absolute loyalty to all one's promises is the same way.
Another way in which the obligations are divided is into 'aini and kafa'i. An 'aini obligation means that which is obligatory on each and every individual, like prayer and fasting, and kafa'i obligation is that which is obligatory on the general Muslim population, and which, when performed by one or a group of them, is no longer obligatory on any of them. Such types of obligation include the needs of the community like the need for doctors, soldiers, judges, farmers, traders and so on. In the same class is the burial procedures of deceased Muslims that the general Muslim population is commanded to perform, which, when performed by some, are no longer obligatory on any.
Another way the obligations are divided is into t'ayini and takhiyiri. A t'ayini obligation is that a special specified thing must be performed, like the daily prayers, fasting, Hajj, khoms, zakat, commanding to what is recognised as good (amr bi m 'aruf), struggle (jihad), etc.
A takhiyiri obligation on the other hand, means that the duty-bound is to perform one thing out of two or several things. For example, if a person has intentionally not fasted one day during the holy month of Ramazan, it is a takhiyiri obligation for him either to free a slave, or to feed sixty poor people or to fast consecutively for two months.
Yet another way the obligations are divided is into nafsi and muqaddami. A nafsi obligation means that the duty itself is the concern of the Shari'ah, and it is for its own sake that it is demanded, while a muqaddami obligation is obligatory for the sake of something else.
For example, to save a respected person's life is obligatory but this obligation is not a preparation for some other obligation. However, the actions needed in preparation for saving him, such as acquiring a rope or boat or other means of saving a person who, let us say, has fallen in a river and cannot swim, are also obligatory, not for their own sakes but as a preparation for a different obligation, the obligation of saving the man's life.
Or, for example, the actions of the Hajj are themseives obligatory, but the acquiring of a passport and ticket and the other preparations are obligatory in preparation. Prayer is a nafsi obligation, while to take Wuzu or ghusl or tayammum as their substitute in order to enter the state of cleanliness necessary for the prayer are not obligatory until the time of prayer has begun, and then not for themselves, but as an obligatory preparation for the obligatory prayer. Thus the Hajj and the ritual prayers are both nafsi obligations, while acquiring a passport or taking ablution are muqaddami obligations.