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2.2.4 The Islamic FiÎh (Jurisprudence)
The original meaning of the word fiÎh is knowledge, intelligence, or understanding. In Islamic scholarship fiÎh is understood as the science of law or jurisprudence concerned with the Sharī’a. It functions as the official custodian of the value of life in Muslim society. This science determines which acts are lawful or unlawful for the daily life of a Muslim (Norlene, 2001). Therefore, FiÎh is “the science of application of shariah” (Bewley, 1998:7). FiÎh was first introduced by the earliest caliphs of the Prophet Muhammad and other learned men (the Mujitahids) among the successors of Muhammad (Norlene, 2001). Islamic jurisprudence began to establish itself as an independent science in the eighth Century. A complete system of law was built from the four grand sources of law. The Tab’ Tabi'un (successors of successors) assimilated and unified the materials. The ‘ålamā (Muslim scholars) derived the fiÎh by establishing the rules and procedures which developed as the science of jurisprudence known as Ußål al-fiÎh (roots of the law) (Waines, 1995).
2.2.5 The Division of Human Actions According to FiÎh
FiÎh divides human actions into two kinds in accordance with the Qur’ān and Sunna. They are (i) Mar’ufat (Permissible). These are actions which are good and show man’s obedience to Allāh; and (ii) Munkarat (Vices). These are bad actions and they show man’s disobedience to Allāh. Mar’ufat is divided into two groups. Fardh: are actions which are obligatory for all Muslims. This includes the five pillars of Islam. A person is liable to punishment if he does not fulfill these acts. Within this group there are also actions known as Wajib: These are actions which are important but do not result into punishment if one does not fulfill. These acts include things like giving charity at the end of the fast or before the Idd prayer (Quraish, 1987). The second group of Mar’ufat is actions which are recommended, and are known as Mandub. They are derived by implication from the tradition and sayings of Muhammad. These are acts which are considered better to carry out than to omit. These are things like observing the new moon. (Norlene, 2001) The third group of Mar’ufat includes acts known as Mubah, Jaiz or Èal§l. These are things which are permitted but considered indifferent and which would not result in punishment if they were not performed.
Munkarat are forbidden actions in Islam and are divided into two categories. The first one is known as Harām. These acts are forbidden by Allāh and one is punished by Allāh if goes against this. This includes all things which are considered as major sins in Islam, like going against the fundamental of Islam or breaking the Sharī’a. The second category of Munkarat is known as Makruh. These acts are not as bad as Harām, nevertheless they should not be done by a believer. These are acts like saying prayer while one is angry.
2.2.6 Sunni Schools of Law (Madhahib)
“During the greater part of the first century, Islamic law in the technical meaning of the term, did not as yet exist” (Schacht, 1964:19). The non-existence of Sharī’a brought several problems to the first caliphs. Quraish (1987) states that the expansion of Islam made it difficult for the |§∙ī to pass uniform judgment. The |§∙ī faced a problem in one place which was very different from one in another place and different circumstances. Therefore, as the Islamic faith spread and the group of believers became large, the need for a well-established code of regulations was apparent and “in the conquered provinces and at home every day fresh circumstances required regulation. So foundation for the administration of state had to be laid” (Goldzier, 1981:31).
According to Quraish (1987) some devoted people decided to write a systemized code of rules for administering justice. There are four prominent figures that devoted their lives to write and systematize the law. These are Imam Abu Hanifa, Malik, al-Shafii and Ibn Hanbal. These four Imams are the ones who formulated the four well-known Suni schools of law (Madhaahib) which were called after their names. Those are Hanafi School of law, Maliki School of law, Hanbal School of Law and Shafii School of law. “Most pious Muslim lawyers belong to one of these schools…. In most cases, however, the difference between the schools is minimal” (Norlene, 2001:212). Doi (1997) goes deeper showing what makes the differences. He asserts that if one closely examines the fiÎh of the four schools, one will never come across any difference of opinions as far as the basic principles of Islam are concerned. The difference mainly center on the furuat (tiny branches) of theology rather than the ußål (the fundamental principles) on belief.
2.2.6.1 Hanafi School of Law
The School originated in Kufa Iraq in the 8thC AD. The founder of this school was Abu Hanifa (d. 767 AD). This Madhhab is named after him. He was appointed as a |§∙ī by the Abbasid caliph, al-Mansur in Baghdad, but he declined the position because of his religious commitment. He was jailed for that. His works were recorded and edited by two of his disciples: Abu Yusuf (d. 798 AD) and Muhammad al-Shayban (d. 804 AD) (Waines, 1995). It is the most widespread school in Islamic law. Roughly one third of the world’s Muslims are following this school.
The most significant characteristic of this school is its use of ray (reason or logic opinion) and |iyās Bottom of Form
(analogy). Because of this Hanafi was criticized by the traditionalists. The legal doctrines are relatively liberal, particularly with respect to personal freedom. Unlike other schools of law, Hanafi gives freedom to women on the matters of marriages. A woman who is major is allowed to marry on her free will. And when a woman is minor she can refuse to be bound in marriage contracted by her guardian. According Hanafi School of law, in matters of divorce and release from marital bond, woman’s testimony is equal to that given by a man whereas the other three schools regard it as unreliable. This was the first school to formulate contract rules for business (Esposito, 2003).
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