Fiqh (Jurisprudence) and the Fuqaha’ (Jurists)

The quintessence of Islamic teaching is the Qur’an  and sunna and the means of understanding these primary sources is accurately crystallised through the science of fiqh.  Fiqh is the eyesight whilst the Qur’an and sunna are the light.  Eyesight is an indispensable tool for deriving benefit from light; in its absence light is of little use and vice-versa.  Similarly, it is through the implementation of fiqh that one is able to extract the finer implications and subtleties articulated in the Qur’an and sunna.

Fiqh literally means to comprehend and understand.   In early Islamic history, the term included legal, ethical and theological norms.  Fiqh dealing with creed was termed al-fiqh al-akbar, (Imam Abu Hanifa’s book entitled al-Fiqh al-akbar and his definition of fiqh bear testimony to this), and the term faqih denoted equally a ‘jurist’ and ‘theologian.’

Later definitions, such as Imam al-Shafi`i’s, begin to portray a dichotomy between legal theory and theology:  ‘Knowledge that is discerned from the detailed proofs (the Qur’an, sunna, ijma` (consensus) and qiyas (analogical deduction)) regarding norms for actions in the shari`a. (al-Fiqh al-islami wa adillatuh  p.16)

The clause ‘discerned from the detailed proofs’ precludes the layman from indulging in deriving fiqh.  The successful derivation of fiqh requires the ability to discern rulings from the Qur’an and sunna, ijma` (consensus) and qiyas (analogical 0deduction).  These derivations entail a complexity that a layman is ignorant of.  If he does possess the ability, then he neither belongs to the laity, nor to ordinary scholarship, but to the  higher category of  the jurists.

Fiqh (comprehension) has varying levels, the optimum level consists of direct inspiration from Allah, to which the words of the Prophet (may Allah bless him and grant him peace) attest, “For whomsoever Allah wishes good he endows him with fiqh of the religion.”  Ibn Hajr commenting upon this tradition (hadith) remarks, “In this narration there is a clear elucidation of the superiority of the `ulama over the laity and that of fiqh in religion above all other sciences. (Fath al-Bari 1/217)

In another tradition the Prophet (may Allah bless him and grant him peace) said, “May Allah keep fresh one who hears my words, preserves them and then conveys them to those who have not heard them.  At times the one carrying fiqh has no fiqh himself, and at times the one carrying fiqh conveys it to one who has more fiqh than himself.”  Hakim and Dhahabi state, “This narration fulfils the conditions of Bukhari and Muslim,” and the former has declared the narration as mashhur  (well-known).

The narration delineates that a fundamental purpose of the propagation of traditions is the inference of fiqh from it.  Furthermore, the initial bearer of the traditions may himself not possess the required tools to derive fiqh, whilst a later bearer may, and his derivations may benefit Muslims.  It is here that a distinction is drawn between the muhaddithun and the fuqaha’.  The former place emphasis on memorising texts, chains of transmission, biographies of the transmitters etc, whilst the latter derive
from the traditions their deeper implications.

This distinction between the fuqaha’ and the muhaddathun (traditionists) reaches as far back as to the time of the Sahaba (may Allah be pleased with them).  Eminent compilers of traditions such as Abu Hurayra (may Allah be pleased with him), who despite transmitting more traditions than many other Sahaba (may Allah be pleased with them), very rarely issued formal legal rulings (fatawa), and despite his immense knowledge of traditions was not regarded as a faqihi among the Sahaba.

Further clarification of this distinction is Muhammad Rawas al-Qal`ahji’s Silsila al-mawsu`a fiqh al-salaf, compendiums illustrating the legal rulings of distinguished Sahaba (may Allah be pleased with them).  The work dealing with the fiqh of Abu Hurayra (may Allah be pleased with him) is in total a fifth compared with the rulings of other distinguished Sahaba (may Allah be pleased with them), who transmitted far fewer traditions than Abu Hurayra (may Allah be pleased with him).

Further illustrations can be found in the following examples:

A person rebuked Imam Ahmad b. Hanbal for leaving the circles of Sufyan b. al-`Uyayna for that of Imam al-Shafi`i.  Imam Ahmad replied, “Keep silent! If a tradition with a higher chain eludes you, then you will acquire it through a lower chain.  However, if the insight of this young man passes you by, I fear you will never come across it again.” (al-Raf` wa al-takmil fi al-jarh wa al-ta`dil,  p.71)

On another occasion Imam Ahmad said, “Knowledge of traditions and the fiqh thereof are more beloved to me than the memorisation of traditions.” (al-Raf` wa al-takmil fi al-jarh wa al-ta`dil,  p.70)  `Ali b. al-Madini said, “The most noblest of sciences is the knowledge of fiqh within the ahadith.”  (Maqam Abi Hanifa, p.52)

The deep insight and intellectual excellence needed to attain the status of a faqih ensured that the fuqaha’ remained considerably fewer in number than the Muhaddithun.  Hafiz al-Ramhurmizi has stated in al-Muhaddith al-fasil bain al-rawi al-wa`i, with his own chain of transmission from Anas b. Sirin that, “I came to Kufa where I found four thousand seeking traditions and four hundred had become fuqaha’.’” (al-Ta`liq al-mumajjad `ala Muwatta Muhammad, 1/20)

Notwithstanding their excellence in hadith, many eminent muhaddithun of the ‘Golden Generations’ imbibed the fiqh of the great fuqaha’ of their time. From amongst those eminent muhaddithun who adhered to the opinions of the eponym of the Hanafi school of thought, Abu Hanifa, were eminent figures such as Waki` b. al-Jarah, a teacher of Ahmad b. Hanbal, Ishaq b. Rahwai, Abu Bakr b. Abi Shayba, `Ali b. al-Madini and Yahya b. Ma`in.

Imam Ahmad b. Hanbal said, “I have never seen anyone equal to Waki` in knowledge, memorisation, acquaintance with the chains of transmission and chapter headings (abwab).” (Tahdhib al-kamal, 30/473)

Yahya b. Ma`in said, “I swear by Allah I have never seen anyone other than Waki` narrate solely for the sake of Allah, nor anyone who had memorised more than him. He in his era was like Awzai`i was in his.” (Tahdhib al-kamal, 30/475)

Yahya b. Ma`in also said, “I have never seen anyone more virtuous than Waki`.”  He was asked if Waki` was even more virtuous than Ibn al-Mubarak.  He replied, “Ibn al-Mubarak is virtuous, but I have never seen anyone more virtuous than Waki`, he would face the Qibla and memorise traditions, he would fast successively and issue fatawa according to the opinion of Abu Hanifa.” (Tahdhib al-kamal,  30/474)

Another from amongst these illustrious scholars was Yahya b. Ma`in, a teacher of many well-known scholars including Imam Bukhari, Muslim, Abu Da’ud, and Abu Hatim al-Razi to name just a few.

Muhammad b. Nasr al-Tabri reported, “I heard Yahya b. Ma`in state, ‘With these hands of mine I have written a million traditions.’” (Tahdhib al-kamal, 31/548)

`Abd al-Khaliq said, “I said to Ibn Rumi, ‘I have heard a traditionist say, ‘Yahya b. Ma`in the one who the sun has not risen upon greater than (in traditions) narrated to me.’ He replied, “Why the surprise?  I heard `Ali b. al-Madini say, ‘I have never seen amongst the people one equal to him.’” (Tahdhib al-kamal, 31/553)

Imam Dhahabi has stated regarding Yahya b. Ma`in that he was a staunch Hanafi,
notwithstanding the fact that he was a muhaddith.  (al-Kanz al-matawari, 1/159)

Another eminent scholar who followed the opinions of Imam Abu Hanifa was Yahya
al-Qattan, a teacher of Ahmad b. Hanbal, Sufyan al-Thawri, Sufyan b. al-`Uyaina, Sh`uba b. al-Hajjaj and `Ali b. al-Madini.

Abu Talib reported from Ahmad b. Hanbal that he said, “I have never seen anyone like Yahya b. Sa`id, in his era there was none equal to him.” (Tahdhib al-Kamal, 31/337)

Zakariya b. Yahya al-Saji said, “I heard `Ali b. al-Madini say, ‘I have never come across anyone who was more knowledgeable regarding the biographies of narrators than Yahya b. Sa`id al-Qattan.’” (Tahdhib al-kamal, 31/336)

An indication of how a revered scholar such as Yahya b. Sa`id al-Qattan accepted and acted upon the fiqh of Abu Hanifa is evident from the following statement.  Sa`id al-Qadi states, “I heard Yahya b. Ma`in say, ‘Yahya b. Sa`id al-Qattan said, ‘We do not belie Allah when we say that we have never heard an opinion better than that of Abu Hanifa’s, and we have accepted the majority of his statements.’” (al-Ta`liq al-mumajjad `ala Muwatta Muhammad, 1/16)

These eminent muhaddathun ceded the arduous task of drawing fiqhi rulings to those who were more adequately equipped to take up this demanding intellectual challenge.  This approach was adopted throughout the Golden Generations, a period which witnessed the flourishing of many schools of thought; the majority of which did not survive due to a lack of preservation by their followers. Imam al-Shafi`i stated:  “Laith was a greater faqih than Malik but his students wasted him (through not preserving his teachings).” (Siyar i`lam al-nubala’, 8/156)

Those schools which were preserved throughout the centuries up until the present day were subjected to rigorous refinement and amendment by the scores of scholars who adhered to them.  In each century, using the usul al-fiqh (principles of jurisprudence) of the school, casuistic conflict solutions (masa’il) were deduced to deal with the exigencies of the time.

A testimony to the acceptance of these schools of thought is the unfaltering adherence they enjoyed throughout the centuries.  It would be no exaggeration to state that the overwhelming majority of Muslims avidly adopted these schools.  It is only of late, due to a moral and scholarly degeneration in the ummah, that individuals have begun to excoriate the schools and their followers. It is therefore important that whilst facing antagonism, one adhering to the fiqh of one of the great Imams must also adopt their sublime manners, tolerance, and the deep respect and love that they exhibited for their
Muslim brothers, even if they contravened their personal position.  May Allah guide them and us, for they are our brothers in the Din, and ‘None of you can be a true believer until he desires for his brother what he wishes for himself.’

Disputation, according to Imam Ghazali, is only valid if the following conditions are met:

1) Disputation is a communal obligation (al-fard al-kifaya); before one may practise it he must have already fulfilled the individual obligations (al-fard  al-`ayn).
2) The purpose of disputation is to seek the truth; and it is justified only when there is not a more important community obligation that should be performed.
3) Disputation is justified only in the case of a mujtahid, capable of arriving at his own legal opinion and who is not bound by the opinions of any school of law.
4) Disputation is justified only in cases that are likely to be of actual occurrence.
5) Disputation should be held privately, rather than in public assemblies in the presence of notables and men of power and influence.
6) In disputation the aim should be to seek the truth regardless of which of the two adversaries finds it.
7) Disputation should be free of certain restrictive rules of dialectic, such as preventing the adversaries shifting from one argument to another.
8) A disputant should dispute with an opponent from whose knowledge he expects to benefit, one who occupies himself with legitimate religious knowledge.

After presenting his eight conditions Imam Ghazali states that there are others of minor importance, “but in these eight conditions there is that which will show you the difference between those who dispute for the sake of Allah, and those who do so for an ulterior motive.” (The Non-Asha`rite Shafi`ism of Abu Hamid Ghazali)
 

The Author

The author is Abu al-Ikhlas al-Hasan b. `Ammar b. `Ali b. Yusuf he was born in Shrunbalal in 994 A/H.  He commenced his studies at the prestigious seat of learning, al-Azhar, Cairo, under the patronage of some of the most eminent scholars of his time. He himself later became a scholar of great repute and a copious writer, whose works exceed fifty in number.  The Shaykh passed away in 1069 A/H.
 

Notes On The Text

The Nur al-idah is a classical text on sacred law, and for generations has been one of the most widely taught texts used to transmit Hanafi fiqh. Generations of scholars and layman alike have been taught the Nur al-idah, which gives them sufficient grounding in the basic masa’il they encounter daily.
 
 
 
 

About This Compilation

Throughout this work, the main text has been based on the Nur al-idah, whilst any text in brackets has been taken from reliable Hanafi sources and commentaries on the Nur al-idah.  These sources are sometimes mentioned in abbreviation, before the closing bracket.  Bracketed commentaries marked by ‘Z’ indicate a synopsis not a full translation from supplementary works so as to allow more leeway in explaining complex rulings within the text.  I have refrained from inserting anything from my part except what was essential for the clarification of the text.  A number of contemporary fatawa have been taken from Mufti Rashid Ahmad’s Ahsan al-fatawa. The chapter regarding the rulings of the water from the well has been omitted because of its irrelevance to the society for which this book has been compiled.  Similarly, other rulings that may be a source of confusion for the reader without the assistance of a teacher have also been omitted.

Finally, I acknowledge that there are far more able individuals than myself to undertake this task, and therefore no claim is made that this work is free from error.  Yet despite my shortcomings, I have deemed it important to present this work because of the paucity of suitable material on the fundamental subject of tahara in the English language.
 

Zahir Mahmood,
Birmingham, England,
26 Rabi` al-Awwal 1421/27 June 2000
 

Abbreviations
 

ai = Ashraf al-idah sharh nur al-idah
 

Ahf = Ahsan al-fatawa
 

Mf  =  Maraqi al-falah sharh nur al-idah
 

Mf+t  =  Hashiya `ala maraqi al-falah sharh nur al-idah
 

Lub  = Lubab fi sharh al-kitab
 
 
 
 
 
 

Definitions of the Usul al-Fiqh
Terminologies to be found in this Work

1.1   While the majority of jurists regard fard and wajib as synonymous, the Hanafis draw a clear distinction between the two. Ishaq b. Ibrahim al-Shashi in defining the two states, “Linguistically fard means to decree, whilst in the Shari`a, it denotes that which is delineated in such a manner that no increase or decrease is possible.  The command of a fard is communicated by a definite (qat`i) text wherein there is no ambiguity, clear and specific.  To act upon it and to believe in it is binding…  wajib, technically means that which is established by a text of an ambiguous or
speculative (zanni) authority, such as an allegorically interpreted (mu’awal) verse.”

The majority of jurists and Hanafis agree that fard and wajib are both binding.  Fard is
communicated by a clear definite text with no ambiguity or speculation and wajib by a speculative text.  As a consequence the obligation emanating from a fard is of a greater degree than that from a wajib. The omission of a fard invalidates the act, such as the unanimous view of the jurists that the omission of the stay at `Arafa (def: 5.12 (s)), which is a fard act, renders one’s hajj null and void.
Whilst the omission of sa`i (pacing) between al-Saffa and al-Marwa (def: 5.12 (t)), which is communicated by a speculative authority will not invalidate the hajj.  Another distinction is that one who refuses to believe in a fard such as salah or zakah is rendered an unbeliever.  However, the denial of believing in an obligation established by a speculative authority will not make one an unbeliever. (edited excerpts from Usul al-fiqh, p.23 and Usul al-Shashi,  p.172)

The term wajib, when used in a non-Shari` context, has the connotation of ‘necessary.’ An example is ‘al-qir’at wajib `alayk’ (it is necessary that you read).  Whenever the term has occurred in this work, I have endeavoured to discern whether it is the Shari` or non-Shari` term that is implied.  However, if I have failed to understand its precise connotation at any place, such discrepancies are from Satan and myself, for which I seek refuge in Allah and seek His and your pardon.

1.2   Sunna mu`akkada (emphatic sunna) is an act upheld by the Prophet (may Allah bless him and grant him peace) perpetually whilst letting it be known that its performance is not fard, such as the two rak`ahs before the fard of the fajr prayer and after zuhr, maghrib and `isha’.  The abandonment of a sunna mu`akkada (emphatic sunna) is not punishable, but nevertheless the perpetrator will be reproached, because its omission would be tantamount to opposing that which the Prophet (may Allah bless him and grant him peace) perpetuated. (edited excerpts from Usul al-fiqh,  p.31)

The giving of non-obligatory charity for one who is capable, the four rak`ahs before `asr and `isha’ are sunna ghayr mu`akkada, namely, actions which the Prophet (may Allah bless him and grant him peace) did not perform perpetually. (edited excerpts from Usul al-fiqh, p.31)  It is also referred to as mustahab.

1.3   Adab (sing: adab) is that which the Prophet (may Allah bless him and grant him peace) did only once or twice throughout his life.  It is a rewardable act with no reproach for one who abandons it.  It has also been defined as praiseworthy manners.  (Maraqi al-falah, p.111)

1.4   Haram is an obligatory command from the Lawgiver demanding abstinence from something. It is communicated by a definite authority. Examples are eating the flesh of a dead animal, drinking alcohol, fornicating, adultery, unjustly killing someone and many others. (edited excerpts from Usul al-fiqh, p.33)

1.5 Makruh according to the Hanafis is a command for abstinence from something established by a speculative proof.  It is divided into two categories, namely, makruh tahrim and makruh tanzih.  The former is closer to haram and can also be defined as being in diametrical opposition to a wajib.  Makruh tanzih is closer to mubah and in diametrical opposition to a mustahab. (edited excerpts from Usul al-fiqh, p.36)

1.6   Mubah is an allowance from the Lawgiver to a mukallaf  (a competent person who is in full possession of his faculties) in performing or refraining from an act, such as eating or drinking.  Shawkani defined mubah as that “upon which no commendation is shown upon its performance or omission.”  At times it is used to illustrate the permissibility of a generally prohibited act such as the statement ‘The blood of an apostate is lawful (mubah)’ meaning there is no harm upon one who
kills him.  Mubah is also referred to as halal and ja’iz. (edited excerpts from Usul al-fiqh, p.36)

1.7   Communal obligation (al-fard al-kifaya)  is an obligation which is incurred upon all, without specifying those who should perform it. Its obligation upon all will be lifted if fulfilled by a few. Examples of al-fard al-kifaya are the funeral prayer, to enjoin good and forbid evil, furnishing definite proofs upon the existence of Allah etc. (al-Mawsu`a al-fiqhiya, (32/96))
 

Water
 

2.1   There are seven types of water with which cleanliness can be achieved:

(1) rainwater;
(2) seawater;
(3) river water;
(4) well water;
(5) water from melted ice;
(6) water from melted hail;
(7) and spring water.

2.2   Water (with regards to its states) can be one of five types:

(1) Mutlaq  (pure) water: water which is intrinsically pure and purifying for others but is not makruh (def: 1.6) [Z: the last clause will become clearer whilst discussing the next type].

(2) Water which is intrinsically pure and purifying for others, but is makruh.  This is a small quantity of water (def: 2.2 (4)) from which a cat or a similar animal has partaken.

(3) Water which is intrinsically pure, but not purifying for others; that which has been used (musta`mal) to remove a state of ritual impurity, or used for the sake of attaining rewards, such as wudu’ performed afresh by one who already has wudu’ with the intention of wudu’ [Z: in order to obtain reward and not merely for the sake of cooling oneself down or removing dust from one’s limbs,  ai: p.8].

Water becomes used (musta`mal) by its mere separation from the body.

[Z:  If a junbi (one in a state of major ritual impurity) inserts his hand which is free from any apparent najasa into a bowl of water, then that water will be rendered musta`mal. This is provided that other means of extracting the water are available.  If there is no other means then the water shall remain mutlaq.   (def: 2.2 (1)),   Ahf: 1/140].

 Cleanliness cannot be attained by using water from a tree or fruit even if it has come forth without being squeezed.  Nor can it be attained from water, which has lost its nature through being cooked or through the predominance of something else over it.

 Predominance when water is mixed with a solid substance occurs when that water loses its thinness and liquidity, and thus such water no longer remains fit for wudu’.

 When mixed with a solid substance, such as saffron, fruit and leaves of a tree, then the water shall continue to be purifying even though all its qualities [colour, smell and taste] have changed.

 Predominance when water is mixed with a liquid, which has two qualities, is that one of these qualities becomes apparent in the water, such as milk, which has the qualities of colour and taste but not smell. Thereby, when water is mixed with a liquid that has three qualities, when two of these qualities become apparent in the water this signifies predominance, an example of such a liquid is vinegar.

 Predominance when water is mixed with those liquids, which have no qualities, will be judged according to proportion such as in the case of used water or rose water from which the smell has diminished.  Thus if two litres of used water are mixed with one litre of pure water, then wudu’ is not permissible with it.  It would be permissible if the proportion is to the contrary.

(4) Impure water: A small quantity of stagnant water in which najasa (def: 10.1) has fallen.  A small quantity of water is that amount which is less than ten by ten. [Z: Ten by ten in current measurements in a surface, the product of its width and length  being 225ft sq or 20.9m sq]. It will be regarded impure [if najasa falls into it] even though the signs of najasa are not visible.  The signs of najasa are; taste, colour and smell.

[Z: The death of those animals which have no flowing blood does not make the water impure, whether they died in the water, or outside and thereafter were thrown into it.   (Lub:1/22)  Similarly the death of those animals which live in the water do not make it impure, such as fish, frogs or crayfish,  Lub: 1/23].

(5) Water in whose quality of cleansing there is a doubt; from which a donkey or mule has drunk.

When some pure pots of water are mixed with impure ones, but the majority are pure, then one is obliged to discern the pure ones if intending to do wudu’ or drink water.  If on the other hand the majority are impure then one is exempted from doing this, unless one intends to drink water, [because as a substitute for wudu’ one may perform tayammum,   Mf: p.76].  If pure and impure clothes are mixed then one is required to discern the pure from the impure regardless whether the majority are pure or impure.
 

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