Fiqh, Islamic jurisprudence, is a major discipline in Islamic studies. As a separate discipline it is compatible with other fields of study, such as Tafsîr (Qur’an interpretation), Hadîth (Muhammad’s tradition), Tasawwuf (Sufism ), Falsafah (Philosophy), Târîkh (History). Discussing Islamic tenets without including fiqh as one of its main disciplines would be incomplete.
Fiqh is based on religious texts, either from the Qur’ân or the Sunnah, and its existence has become the basis for Islamic discourse for many centuries It has developed over time, but became more and more relevant since the period of its first codification, in the second century after Hijra. The widespread expansion of Islamic tenets has been influenced more by this discipline than any other. Islam in Indonesia, for example, is mainly characterized by teachings from fiqh, combined with elements and knowledge from tasawuf (Sufism) or tarekat (religious order).
Fiqh is some times defined as ‘a science to understand facts from various sharī‛a laws related to human conduct and gained from detailed verses’. Its development can not be separated from certain inherent factors, such as its proponents, the various groups, and different periods. Other, external factors include social, geographic, political, and cultural conditions. According to Islamic history, fiqh developed in the 2nd and 3rd century after Hijra, while its earliest beginning can be traced to the period of the Prophet and his Companions, sahabah. It is known that the Prophet interpreted religious texts, which would subsequently become an important reference for and source of Islamic laws.
Some regard fiqh as being insensitive to women’s needs and interests, since so many of its texts emphasize men’s roles and their central position in so many aspects of society. Because it is seen as lacking in gender-sensitive issues, or at least not intent on addressing these, fiqh is seen as ‘too masculine’. The question we should be asking is whether that is a true impression in fiqh literature; and if it is true, to find the causes and establish ways to redefine gender interests in contemporary fiqh. However, if it is not true we should ask ourselves why there is such a strong impression of (gender-) discrimination in fiqh, and why it has become so widely spread in Islamic countries. The article below tries to answer those questions by exploring the development of traditional fiqh discourse and the possibility of the deconstruction of fiqh.
Fiqh, Fatwâ, Qadlâ’ and Qânûn
The terms fiqh, fatwâ, qadâ’ and qânûn are often used in Islamic law, but they have a different definition and function. Usûl fiqh too, meaning the ‘science of ontological methodology’ or epistemology in Islamic jurisprudence: it is the most theoretical level in fiqh.
Fiqh is most widely used and covers the widest substance. It is a complete Islamic legal structure as the outcome of the process of usûl fiqh (methodology). Fiqh is very complicated, since it consists of various perspectives. Besides its central role, fiqh contains also other than legal elements that are not always applicable in reality, as we can see from the number of amendments found in fiqh literature. The amendments could either be made by the imam of the various madhhab (schools of thought) in fiqh, or others.
Fiqh can be regarded as a collection of interpretations of religious texts, yet it still does not have a 100% positive law for certain groups and subjects. The diversity of viewpoints found in fiqh reflects the variety of discourse in the Islamic legal field. Fiqh has for example never been established as a national legal system in any country However, throughout its history it has strongly influenced some countries’ legal system, although the latter is usually only based on one of the madhhab fiqh. Nevertheless, of the various terms to be discussed here fiqh is the most general one; fatâwâ, qadâ’ and qanûn are often mentioned in fiqh literature, both in classical and contemporary studies.
Fatwâ is part of the legal processes taking place in fiqh discourse. It is a type of decision that can be used as an assisting ‘tool’ in a legal case. We can regard it as a reaction of the community, or mustafti, to a dispute, or when reality demands the formulation of a fatwâ. Since it is a reaction, or response to a problem, a fatwâ is only provisional; its content depends highly on the particular part of the specific problem that it addresses. This makes a fatwâ partly a reflection of (the needs of-) reality when it is implemented. Fatwâ is not quite part of the theory-building process, as is fiqh in usûl fiqh; it is rather part of a direct solution for solving a mustafti’s problem.
According to research the initial process of formulating fatwâ in special text editions was begun in the 13th century (or 6th century after Hijra). The various madhhab fiqh started collecting them in different periods. Thus the collection of fatwâ by the madhhab Hanafi was based on the work of Burhanuddin Ibn Mazza (†1174/570H); the collection used by madhhab Maliki is based on the work of the early-16th century al-Wansairisi (†1508/914H), and known as ‘al-Miyar al-Maghribi’; while madhhab Hanbali based its collection on the work of Ibn Taimiyya (‘Fatâwâ al-Kubra’).
Qadâ on the other hand is a legal institution, an Islamic court, and its existence becomes important when an Islamic legal solution is needed to solve a problem in a Muslim community. Compared to fiqh, qadâ has a much more limited theoretical base. Its strength lies in clearly defining when an act is (or isn’t) virtuous, particularly when this is a matter of dispute. It functions rather as a problem-solving tool, and its theoretical basis is not as complicated as fiqh. Qadâ is also more flexible and dynamic. As a judicial institution, qadâ’s existence is generally acknowledged in Islamic history, especially on a government level and in those countries where Islamic law is adopted as its overall judicial system.
Qânûn, finally, is a law book. Its existence in Islamic history depends highly on a society’s leaders’ political will to accept and adhere to one of the madhhab fiqh as the basis for a country’s overall legal system (state regulations). In modern times, one of the Qânun that is formulated and put into practice is Al‑Mudawwanah in Morocco. Aside from the limitations it has regarding substance, the functioning of a Qânun also depends on the wish of a country’s authorities to adopt a part, or all of the perspectives as formulated in one of the madhhab fiqh. There are fewer sources in literature mentioning qânun than there are on fiqh.
Discussions on Islamic law are more often dominated by arguments from fiqh than from the three other legal fields. It is important to recognize this, so that the study of and the discussions on fiqh can be separated from the ‘air of sacredness’ that sometimes still surrounds it. It is clear that fiqh is the outcome of thinking (rational processes), yet with a great variety in theory and viewpoints. This makes the discussion and implementation of fiqh open for critical interpretation, which might perhaps even lead to the deconstruction of some of the limitations that have developed in the issues it addresses.
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This is an excerpt from Dr. Phil.M. Nur Kholis Setiawan 2007 "Women’s Issues in Fiqh: Historical Roots of Islamic Legal Discourse", in KH. Husein Muhammad, Faqihuddin Abdul Kodir, Lies Marcoes Natsir and Marzuki Wahid, Dawrah Fiqh Concerning Women - Manual For A Course on Islam and Gender, Fahmina Institute, Cirebon, 2007.
