Fiqh ( Arabic فقه 'Knowledge, understanding, insight') refers to the discipline in the Islamic system of science that deals with religious norms (al-ahkām asch-sharʿiyya) . The term is translated as "Islamic jurisprudence" or "Islamic jurisprudence ". A specialist in the field of Fiqh is called Faqīh (فقيه), the plural is Fuqahāʾ (فقهاء).
The canonical law evaluates all actions of Muslims by religious standards; The law does not recognize a separation between the secular and the religious sphere. "All relations of public and private life and traffic should be regulated in the sense of a law to be recognized as religious". “The science that deals with Sharia law is called fiqh , i. H. Knowledge and understanding of law. ”The religious laws are set forth and discussed in the books of Fiqh. Jurisprudence always refers to the religious text sources Koran and Hadith together with their interpretation and explains both the ritual obligations (ʿibādāt) and the rights of people towards their fellow men (muʿāmalāt) in an Islamic society. Thus, fiqh is the science that discusses all areas of private and public life in Islam . Their representation is reserved for the schools of law in their Fiqh books, with some of them clearly controversial legal conceptions.
In the pre-Islamic tribal culture , a hakam, recognized by all parties and known for his special wisdom, was turned to the settlement of legal disputes . He had no executive power to enforce a judgment, so he usually asked the opponents in advance that they swear an oath and transfer goods of their own possession to a neutral third party as security.
After the hijra of the Islamic prophet Mohammed and his followers to Medina , Mohammed assumed the role of such a hakam for the Muslims. According to his self-image, as it is documented in the Koran, he was considered a role model for his followers:
"In the Messenger of God you have a beautiful example ..."
The first caliphs also acted as arbitrators for the Muslim community. It was not until the Umayyad caliphs who appointed judges who were relatively free in their decisions and who formulated their judgments according to ra'y ("discretion", "opinion") without taking into account the Koran , the traditional Sunnah of Muhammad and local customary law (ʿurf) to contradict.
The first schools of law in Islam emerged in the second half of the 8th century in Kufa and Basra in Iraq , in Syria and in Medina or Mecca , which differed not only in local customary law, but also in the interpretation of the traditional hadith material as Sunnah of the Prophet Mohammed.
Fiqh was almost always a male domain. One of the few women who is narrated to have been a Faqīha, i.e. a specialist in the field of Fiqh, was Umm ad-Dardāʾ in the time of the Umayyad caliph ʿAbd al-Malik (r. 685-705).
The sources of law
The Islamic legal system resulting from the Sharia is not based on the Koran alone. All four Sunni schools of law know four “roots” d. H. Sources of jurisprudence usul al-fiqh /أصول الفقه / uṣūlu ʾl-fiqh , which have been the foundations of jurisprudence since the systematisation of Islamic law - at the latest since Ash-Shāfiʿī († 820).
- The Koran (القرآن) is for Muslims the immediate word of God and the first source of law, which contains both norms and certain principles (maqāṣid) . About 500 verses (approx. 8%) from the Koran have legal relevance.
- The Sunna ( Sunna /سنة / sunna / 'eig. Custom, habit, behavior ') is the sum of the traditional utterances and actions of the founder of the religion, Mohammed, and represents the comprehensive material of Islamic jurisprudence. The Sunna is transmitted in hadiths that were recorded in writing or orally at an early stage. The rapid growth of hadiths depicting Muhammad's deeds and sayings led to the compilation of the first collections of traditions in the early 8th century. In the early 9th century, a selection of the hadiths that were “authentic” from an Islamic perspective in the “Six Books” ( al-kutub as-sitta /الكتب الستة), of which two ( Bukhari and Muslim ) enjoy a special reputation. These works have already been put together according to the legal subjects of jurisprudence - ritual law, sales and contract law, marriage law, etc. In the Sunna as the source of jurisprudence, Muhammad is not only portrayed as a prophet - as confirmed several times in the Koran - but also as a legislator, as a legislative and executive power. This position of Muhammad is also clear from some verses of the Koran that were written in Medina :
“You believers! Obey God and His Messenger and do not turn away from him when you hear! "
- See also sura 5 , verse 92; Sura 24 , verse 54 and Sura 64 , verse 12.
- The relationship between the two sources - the Koran and the Sunna - has been the subject of controversial discussions in legal doctrine on several occasions. Because the question of whether the Koran can only be abrogated or restricted in content by another divine revelation or by a Sunna that deviates from the Koran remained controversial in the legal theoretical writings . The first attempts to clarify this issue are documented in the Risāla (missive) of Ash-Shāfiʿī. His teaching that the Koran can only be abrogated through the Koran and the Sunna only through the Sunna is not followed without reservation outside of his school.
- For example, the Koranic punitive measure for theft is only possible if the non-Koranic legal provisions, which are derived from the Sunna, are observed. Legally relevant aspects are the question of the minimum value of a stolen object, which is only discussed in the Sunna literature, as well as the clarification of the question of whether the perpetrator was in an emergency situation at the time of his act.
- The third root of jurisprudence is the principle of Idschmāʿ إجماع / iǧmāʿ / 'consensus', d. H. the agreement of legal scholars on a legal question. A distinction is made between three types of consensus: Consensus by expressly saying ijma 'al-qaul /إجماع القول / iǧmāʿu ʾl-qaul , the consensus through the general practice idschma 'al-fi'l /إجماع الفعل / iǧmāʿu ʾl-fiʿl and the consensus by tacit approval idschma 'as-sukut /إجماع السكوت / iǧmāʿ ʾs-sukūt . Many precepts of the doctrine of duty could not be documented either in the Koran or in the Sunna. But even the two main sources of law - the Koran and the Sunna - have been able to interpret the legal doctrine controversially, which inevitably led to differences of opinion about the true meaning of the revelation and the traditional Sunna. Unrestricted consensus idschma 'mutlaq /إجماع مطلق / iǧmāʿ muṭlaq prevailed among the scholars only in fundamental questions of ritual obligations such as the duty of wajib /واجب / wāǧib / 'duty' to pray, fast, etc. a. The consensus idschma 'mudaf / , which is restricted by an addition, occupies a large space in jurisprudence in the works of usul al-fiqh /إجماع مضاف / iǧmāʿ muḍāf a; one speaks of the consensus of the scholars of Mecca and Medina, of that of the "rightly guided" caliphs, of the idschma of "the two cities" (i.e. Kufa and Basra). The legitimacy of the ijma as a source of law is based on the basic idea that the consensus of the scholars can never contradict the Koran and the Sunna. It is to the merit of Ash-Shāfidī to have established the principle of consensus as the third most important source of Islamic jurisprudence in legal doctrine.
- The conclusion by analogy (القياس / al-qiyās ) is the fourth recognized source of jurisprudence since Ash-Shāfidī. In the development process of jurisprudence in the 8th and early 9th centuries, not all legal cases or partial aspects of cultic acts could be satisfactorily solved using the three sources mentioned above. It became necessary to apply existing legislation, which had been derived from the first three sources, to new cases by analogy. This type of law finding, which Asch-Shāfidī made universal validity and equated it with the ijtihad , one's own discretion in the interpretation of law, also had opponents who only recognized the Koran and the Sunna as sources of jurisprudence. Nevertheless, the inference by analogy has remained one of the recognized sources in Fiqh.
Further sources of jurisprudence are:
- The "decision at your own discretion" ( ra'y /رأى) of the jurist - where neither the Koran nor the Sunna can be used as primary sources for a legal decision. Ra'y is the oldest form of law finding that corresponded to the legal practice of the Prophet's companions and their successors.
- The common law ( 'urf /عرفor āda /عادة). Pre-Islamic legal practices, especially during the Islamic expansion phase, were adopted to a large extent in the Sharia and legitimized by the ijma . The Madinan customary law played a major role here, as well as administrative practices and laws of the conquered territories.
- The ijtihād (اجتهاد), the independent interpretation of the legal sources, was pushed back more and more in Orthodox Islam by the influence of the consensus. In the course of the consolidation of the schools of law, a doctrine developed according to which the "gate of ijschtihād" was closed with the emergence of these schools of law around the year 300 after the hijra . However, some Orientalists out that also in the Sunni schools of ijtihaad to the 16th century Christian was in usual legal determination practice. More recently, reform movements (e.g. the Salafists , but also - albeit with opposing goals - liberal, secular Muslims such as Irshad Manji ) have called for the reintroduction of ijtihad or have actually used it.
The five legal categories of human action
Islamic jurisprudence divides human actions into five categories, because “According to the view of the Muslim theologians, not everything that is ordered or prohibited in the traditional sources of the Muslim law in the form of commands and prohibitions resides to the same degree as imperative or prohibitive Kraft inne ... From this point of view, the legal science of Islam distinguishes by and large five categories “: in legal theory they are calledالأحكام الخمسة / al-aḥkām al-ḫamsa / 'the five (legal) principles'
- obligatory actions: (فرض fard orواجب wajib ) - this act is rewarded, failure to do so is punished. A distinction is made between personal duties (فرض العين farḍ al-ʿayn ), which every Muslim must obey , and communal duties (فرض الكفاية fard al-kifāya `` duty to do the job ''), in which it is sufficient if a sufficient number of Muslims participate. The first category includes e.g. B. five times daily prayer (صلاة, Koranic صلوة salad ), in the secondjihad.
- Recommended actions: (مندوب mandūb orمستحب mustahabb orسنة Sunnah ) - this act is rewarded, failure to do so is not punished.
- permitted, indifferent actions: (مباح mubāh orحلال halāl ) - the individual himself can determine whether or not to carry out an act. The law does not provide for reward or punishment in this case.
- reprehensible, deprecated act: (مكروه makrūh ) - they are actions that the law does not punish, but whose omission is praised.
- Prohibited act: (حرام haraam ) - the perpetrator is punished, those who fail to do so are praised.
Prohibited acts are punished by the punishments ( hudud ) provided for in the Koran in this world : alcohol consumption, fornication, false accusations of fornication, theft, sexual intercourse between men and apostasy ; The latter is primarily punished by the Sunna of the Prophet Mohammed and not by the Koranic penal provisions.
The emergence of the schools of law, each named after their founder, is the result of literary activities in the field of hadith and legal literature in the early 8th century:
- the Hanafites by Abu Hanifa (699-767)
- the Malikites after their founder Malik Ibn Anas (around 715–795)
- the Shafiʿites according to Muhammad ibn Idris al-Schafii (767-820)
- the Hanbalites according to Ibn Hanbal (780–855)
The legal doctrines of al-Auzāʿī and at-Tabarī can be verified especially in the systematic representations of Fiqh by asch-Schafii, because apart from a few fragments, their own writings are no longer preserved today.
Gates of Ijhtihad
In the eleventh or twelfth century of Christian chronology or in the fourth or fifth century of Islamic chronology, more and more Islamic legal scholars declared the “gates of idschtihād ” to be closed, which then became the general consensus and remained unchallenged until the 19th century. Reason for the "closing of the gates of ijtihad " ( insidād bāb al-ijtihad /انسداد باب الاجتهاد) was the fact that actually every ordinary Muslim can in principle issue a fatwa , which in practice can lead to constant uncertainty about legal issues, since in Sunni Islam there is no clearly delineated clergy that has the sole right to issue a fatwa , but rather only the relatively unclearly delimited group of legal scholars ( ulama ) .
Some scholars of the time ( al-Ghazali , al-Āmidī ) fought vehemently, perhaps with wise foresight, against this solidification, but ultimately failed. It was not until the end of the 19th century that personalities such as Jamal ad-Din al-Afghani or Muhammad Abduh emerged, who endeavored to renew Islamic belief and jurisprudence. Since then, there have been and still are attempts by individuals or specific groups to reopen the “gates of ijtihad ”, or they have actually been opened by some in practice, which, however, neither fundamentalist nor conservative Islam have recognized so far.
In recent times, especially since the western world has become more intensely concerned with Islam and Sharî'a , it has even been claimed that the “gates of ijtihad ” were never closed and that it was a myth to defame Islam as backward. If one studies older scriptures, the "closing of the gates of ijtihad " is often controversially discussed and a reopening is often suggested or even practiced, but the fact that the "gates of ijtihad " were closed for at least 600 if not 800 years becomes apparent never disputed in these writings.
Eminent legal scholars
- Tilman Nagel: Islamic Law: An Introduction. WVA-Verlag Skulima, Westhofen 2001, ISBN 3-936136-00-9 .
- Wolfgang Johann Bauer: Building blocks of Fiqh. Core areas of 'Uṣūl al-Fiqh. Sources and methodology for exploring Islamic judgments. Peter Lang Edition, Frankfurt / Main 2013, ISBN 978-3-631-62999-4 . ( Table of contents )
- Gotthelf Bergsträßer : Basic features of Islamic law. Berlin 1935.
- Yasin Dutton: The Origins of Islamic Law. The Qur'an, the Muwatta 'and Madinan' Amal 2nd edition. Curzon, Richmond 2002, ISBN 0-7007-1669-6
- Hatem Elliesie: Internal Plurality of Islamic Law: Diversity of Religious Normativity viewed from a legal dogmatic and methodological perspective (SFB 700: Governance in Areas of Limited Statehood - Working Paper No. 54, April 2014), Freie Universität Berlin / Rule of Law Center of the Science Center for Social Research.
- Asaf Ali Asghar Fyzee : Outlines of Muhammadan Law. London 1955.
- Ali Ghandour: Fiqh - Introduction to Islamic Norms. , kalām-Verlag, Freiburg, 2015. ISBN 978-3-9815572-3-7
- Ignaz Goldziher : The Ẓāhirites . Their teaching system and their history. A contribution to the history of Muslim theology. Leipzig 1884. ( digital copies at archive.org )
- Rüdiger Lohlker : Islamic law . Vienna 2011.
- Miklós Murányi : Fiqh . In: Helmut Gätje (Hrsg.): Outline of Arabic Philology . Vol. II. Literary Studies. Wiesbaden 1987, pp. 298-325.
- Richard Potz : Islamic Law and European Legal Transfer , in: European History Online , ed. from the Institute for European History (Mainz) , 2011, accessed on: August 24, 2011.
- Tariq Ramadan : Radical Reform - Islamic Ethics and Liberation, Oxford 2009
- Mathias Rohe : The Islamic Law , Verlag CHBeck, Munich, 3rd edition 2011, ISBN 978-3-406-57955-4
- Joseph Schacht : An Introduction to Islamic Law. Oxford 1964.
- Joseph Schacht: The Origins of Muhammadan Jurisprudence. Oxford 1950.
- Otto Spies , E. Pritsch: Classical Islamic Law. In: Handbook of Oriental Studies. 1. Dept., Erg.Bd. 3: Oriental law. Leiden / Cologne 1964, pp. 237–343
- Konrad Zweigert: § 22. Islamic Law , in: Ders .: Introduction to comparative law in the field of private law , Mohr, Tübingen 3rd edition 1996, ISBN 3-16-146548-2 , pp. 296–305.
- 1001 way of finding the law Article that explains the finding of law in Islam understandably
- Al-mausūʿa al-fiqhiyya. 1st edition. Kuwait 1995. Vol. 32, p. 193
- Arent Jan Wensinck and JH Kramers (eds.): Short dictionary of Islam . Brill, Leiden 1941. p. 130.
- Helmut Gätje (Ed.): Outline of Arabic Philology . Volume II. Literary Studies. Wiesbaden 1987. pp. 299-300
- Helmut Gätje (1987), p. 299
- Al-mausūʿa al-fiqhiyya. 1st edition. Kuwait 1995. Vol. 32, p. 189.
- See Doris Decker: Women as bearers of religious knowledge. Conceptions of images of women in early Islamic traditions up to the 9th century . Stuttgart 2013. pp. 346-50. Her real name was probably Huǧaima bint Ḥuyayy, cf. az-Ziriklī : al-Aʿlām, sv
- Fuat Sezgin : History of Arabic literature . Vol. 1, pp. 484-490. Suffering, brill. 1967
- For the meaning and application of the term see: Max Bravmann : The spiritual background of early Islam . Studies in ancient Arab concepts. Brill, Leiden 1972
- Fuat Sezgin: History of Arabic literature . Vol. 1, pp. 55ff. Suffering, brill. 1967
- Ignaz Goldziher: Muhammedanische Studien . Vol. 2, pp. 231ff.
- Miklós Murányi (1987), p. 300
- Fuat Sezgin (1967), p. 488. No. II
- Miklos Muranyi (1987), p. 301; for further aspects see Joseph Schacht: An Introduction to Islamic Law . Pp. 179-180. 2nd Edition. Oxford 1965
- Miklos Muranyi (1987), pp. 306-307
- Miklos Muranyi (1987), p. 307
- Fuat Sezgin: History of Arabic literature. Brill, Leiden 1967. Vol. 1. pp. 398-399
- Malise Ruthven : Islam. A brief introduction. Stuttgart 2000, p. 116
- Ignaz Goldziher : The Ẓāhirites . Their teaching system and their history. A contribution to the history of Muslim theology. Leipzig 1884. p. 66 ( digitized UB Halle; archive.org :  ,  ).
- Ignaz Goldziher, op. Cit. 66-70; M. Muranyi: Fiqh . In: Helmut Gätje (Ed.): Outline of Arabic Philology. Vol. II: Literary Studies. Wiesbaden 1987. pp. 298-299; Irene Schneider: The terminology of aḥkām al-ḫamsa and the problem of its origin, illustrated using the example of the šāfi⁽itic adab al-qāḍī literature . In: ZDMG, Suppl. VIII, XXIV. German Orientalist Day from 26th to 30th Sep. 1988 in Cologne, ed. by W. Diem and A. Falaturi. Stuttgart 1990, 214-223.
- Joseph Schacht: The Origins of Muhammadan Jurisprudence. Pp. 288-289. Oxford 1967
- Miklos Muranyi (1987), pp. 307-309