Topic 1:

Introduction to Shari’ah, Fiqh and Usul

Fiqh

By the end of the topic, the student should be able to:

 Understand the importance of shari’ah
 Explain the philosophy and fundamentals of shari’ah

CHE AMINAH JAAFFAR

 Explain the objectives of Usul Fiqh
 Explain about the schools of jurisprudence

1
 ISLAM

CHE AMINAH JAAFFAR

Aqidah Shari’ah Akhlak

2
Aqidah
• Pillars of Iman
- Belief in ……………………
- Belief in ……………………
- Belief in ……………………

CHE AMINAH JAAFFAR

- Belief in …………………..
- Belief in …………………...
- Belief in …………………….

3
 Shariah
Shari'ah is an Arabic term which literally means “the way” or
“a path to a watering - place”, “a clear path to be followed”
and more precisely, “the way which leads to a source”.

Shari’ah is the sum of the Islamic teachings and system, which

CHE AMINAH JAAFFAR

was revealed to Prophet Muhammad (p.b.u.h.), recorded in
the Quran and deduced from the Sunnah.

The Shari'ah is a set of norms, values and laws that governs

the Islamic way of life. In other words, the Shari'ah governs all
aspects of Islam, including faith, worship, economic, social,
political and cultural aspects of Islamic societies.
4
 Components of Shari’ah

• HablumminalLah
• Hablumminannas
al-ahkam al
I’tiqadiyyah

CHE AMINAH JAAFFAR

Al-ahkam Al-ahkam al-
al-’amaliyyah ahlaqiyyah

Pg 149

5
 Akhlaq

Human with Human with

CHE AMINAH JAAFFAR

Creator creation

Human

Non-human

6
Salient features of Shariah: Al-Quran
 Rabbaniyyah (Divinely origin)
 Waqi’iyyah (Realistic and Contemporary)
 ‘Aalamiyyah (Universal)

CHE AMINAH JAAFFAR

 Wasatiyyah (Balance : Duniawi & Ukhrawi)
 Syumulliyyah (Completeness)

7
Sunnah
 Actions
 Sayings
 Tacit approval
S 59:7, S 4:59

Functions of Sunnah

CHE AMINAH JAAFFAR

1 Explains and elaborates the meanings of the Qur’an.
2 Supports the rulings that are stated in the Qur’an.
3 Acts as an independent source of Islamic law.

Classification of sunnah – refer pg 155

8
 Ijma’

Ijma’ is the unanimous agreement of the mujtahidin

of the Muslim community of any period following the
demise of Prophet Muhammad (p.b.u.h.) on any
matter.

CHE AMINAH JAAFFAR

S 3:103, S 3:110, S 4:115

9
 Qiyas
Pillars of qiyas:
1. Original case (asl)
2. New case (far’)
3. Effective cause (’illah)
4. Ruling (hukm).

CHE AMINAH JAAFFAR

Conditions of a valid ’Urf:
1. Must be a common and recurrent phenomena
2. Must be dominant
3. Must be in existence at the time the transaction is
concluded
4. Must not contravene the clear stipulation of an
agreement 10
5. Must not be in conflict with the Qur’an or Sunnah
Evolution of schools of jurisprudence
During Khulafa’ al-Rashidun – most of the Islamic scholars resided in
Madinah

After the period of the companion, a number of scholars chose to settle

in other areas.

1. Abu Hanifah an-Nu’man bin Thabit (Hanafi) (699 AD – 800 AD)

CHE AMINAH JAAFFAR

Diciples of Imam Abu Hanifah:
i. Abu Yusuf Ya’akub (c732 AD – 800 AD)
ii. Muhammad bin Hassan ash-Shibani (c750 AD – 805 AD)

2. Malik bin Anas (Maliki) (713 AD – 795 AD)

3. Muhammad bin Idris ash-Shafii (Shafii) (767 AD – 819 AD)
4. Ahmad bin Muhammad bin Hanbal (Hanbali) (780 AD – 855 AD)

11
In the beginning around 720 AD to 850AD, the differences in Islamic
Law followed geographical regions:

Hijazi School (of Madinah and Makkah)

Iraqi School (of Kufah, Basrah and Baghdad)
Syirian (of Damshiq/Damascus)

During this time, only the jurists attached themselves to the teachers of

CHE AMINAH JAAFFAR

the different schools of Islamic Law in the early stages of emerging.

The division of Islamic Law into schools according to geographical

regions changed to schools according to teaching of certain imams
(founders).

By 870 AD, the muslim people became identified accordingly to schools

of Islamic Law following the Imams.
12
Seven of the schools of Islamic Law (mazahib pl. of mazhab) which
prevailed until today are:

1. Hanafi (changed from Iraqi School)

2. Maliki (changed from Madinah school)
3. Shafii (changed from Iraqi school)
4. Hanbali (changed from Iraqi school)

CHE AMINAH JAAFFAR

5. Imamiyyah (Syiah) ???
6. Zaidiyyah (Syiah)???
7. Dzahiriyyah

13
Rule –making process in Islamic
Law (Ijtihad)

• Introduction
• The rule-making process in Modern Islamic Banking & Finance

CHE AMINAH JAAFFAR

14
Introduction to Ijtihad

Understanding/knowledge of
Shariah rulings relating to
human conduct derived from
their respective particular
Definition: evidences.

CHE AMINAH JAAFFAR

Deduction of Shariah values
relating to human conduct
derived from their respective
particular evidences.

15
 Historical development

First Stage: Foundation

The Method of Legislation
General content of al-Quran
The Makkan Period (609 -622 CE)
The Madeena Period (622 -632 CE)

Second Stage: Establishment

CHE AMINAH JAAFFAR

Problem-solving procedures of the Righteous Caliphs
The approach of individual Sahaabah and Ijtihad
The absence of Factionalism
Characteristics of Fiqh during this period

Third Stage: Building

Factors affecting Fiqh
Characteristics of Fiqh in the Umayyad period
Reasons for differences
Compilation of Fiqh
16
Fourth Stage: Flowering
The development of Fiqh
Period of the Great Imams
Period of the minor scholars

The Madhab: Great schools of Legal Thoughts

CHE AMINAH JAAFFAR

1. The Hanafee Madhab
2. The Maalikee Madhab
3. The Shafii Madhab
4. The Hambalee Madhab

Other schools of Islamic Legal thoughts

i. The Zaydee Madhab
ii. The Dashiree Madhab
iii. The Jareeree Madhab
iv. The Laythee madhab
v. The Thawree Madhab
vi. Awzaa’ee Madhab
17
Main reasons for conflicting rulings
i. Word Meanings
ii. Narration of Hadieths
iii. Admissibility of certain principles
iv. Methods of Qiyaas

CHE AMINAH JAAFFAR

Fifth Stage: Consolidation
Four Mazhabs
Compilations of Fiqh

Sixth Stage: Stagnation and Decline

Emergence of Taqleed
Reasons for Taqleed
Compilation of Fiqh
Reformers

18
Introduction to Fiqh and Usul fiqh

• Definition and meaning of Usul Fiqh

• Characteristics of Fiqh
• Component of Fiqh
• Differences between Shariah and Fiqh

CHE AMINAH JAAFFAR

19
 Fiqh
Fiqh is the knowledge of one’s rights and obligations derived
from its sources.

“Fiqh, or the science of Islamic law, is the knowledge of one’s

rights and obligations derived from the Qur’an or Sunnah of
the Prophet (p.b.u.h.), or the consensus of opinions among

CHE AMINAH JAAFFAR

the learned (ijma’), or analogical reasoning (qiyas).”

Two categories of fiqh ruling:

a) Fixed rulings (primary source): rulings deduced from the
decisive evidences of the Qur’an and Sunnah.
b) Flexible rulings (secondary source): rulings deduced from
the understanding and interpretations of scholars of the 20
Qur’an, Sunnah and other sources of Islamic law.
Characteristics of Fiqh
 Humanly acquired through the process of ijtihad.
 A result of deduction and analysis of the sources of
Islamic legal rulings (masadir al-ahkam al-shar’iyyah).
 Detailed rulings of any related issues.

CHE AMINAH JAAFFAR

 Flexible and subject to change and modification in
many instances.

21
 Component of Fiqh
Feqh

Human with Creator Human with human

(Ibadah) (Mu’amalah ‘Ammah/’Adah)

Munakahat Muamalat Jinayat

CHE AMINAH JAAFFAR

Politic Economic Social

Political Commercial Law (family,

system, non- transaction, civil, criminal)
muslim in public finance, administration
Islamic state, economic of justice
foreign system and
relationship Islamic finance
22
Differences between Shariah and Fiqh

Shariah Fiqh
• Divine • Combination of fixed
ruling and humanly
acquired through the

CHE AMINAH JAAFFAR

process of ijtihad.
• Comprehensive teaching
(general principles for • Detailed rulings of any
general applications) related issues
• Raw material which is • Flexible and subject to
not subject to change change and modification
in many instances
23
 Maqasid Shariah
Maqasid is the deeper meanings and inner
aspects of wisdom (hikam) considered by the
Lawgiver in all or most areas and
circumstances of legislation.

CHE AMINAH JAAFFAR

Islam promotes maslahah in muamalat
through:
- prohibition of usury (riba),
- excessive ambiguity (gharar); and
- gambling (maysir). 24
Two types of maqasid al-shariah :

1. Religious (dini) objective pertaining to the Hereafter,

i.e., preservation and promotion of religious faith.

2. Worldly (dunyawi) objectives pertaining to mundane

CHE AMINAH JAAFFAR

affairs of this world. This includes the preservation and
promotion of human life (al-nafs), intellect (al-̒aql),
progeny and offspring (al-nasl), and property (al-mal).
(al-Ghazali)

25
“The very objective of the Shari'ah is to promote the
welfare of human beings, which lies in safeguarding their
Religion, Selves, Minds, Progeny and Wealth. Whatever
ensures and safeguards these five fundamentals serves
public interest and is desirable. Whatever hurts them is
against public interest and its removal is desirable.”
(Al-Ghazali, (1356/1937)

CHE AMINAH JAAFFAR

Al-Shatibi follows earlier Muslim scholars in classifying
Pressing Necessities into five key elements:
(1) Religion
(2) Self (for human life)
(3) Mind
(4) Progeny and 26
(5) Wealth
Elements of Maqasid Shariah
• Religion
• Self
• Mind S3
R3
• Progeny
• Wealth
R2 S2
R1 S1

CHE AMINAH JAAFFAR

W1 M1
W2
P1 M2
W3
M3
P2

 Dharuriyat – basic
necessities P3
 Hajjiyat- Needs
 Tahsiniyat - Embellishment
Figure 2.2 pg 41
27
Shari’ah Framework for Islamic Finance
1. Matters are determined according to intentions.
2. Hardship begets facility.
3. Harm should not be inflicted nor reciprocated.
4. Certainty (yaqin) cannot be removed by doubt.

CHE AMINAH JAAFFAR

5. Customary practice as a basis of judgments.

28
Islamic financial system is trying to promote are maqasidic
approach whereby:
• public interest (maslahah) is promoted and harm
(mafsadah) is to be prevented;
• promoting productive activities and genuine trade and
business transactions that are related to the real sector
of the economy;

CHE AMINAH JAAFFAR

• ethical values such as justice, fairness, trust, honesty,
integrity and a balanced society;
• promoting brotherhood and co-operation through
partnership, equity-based and risk-sharing financial
instruments; and finally,
• promoting good governance and transparency.
29
Tutorial Questions:

i. Discuss on the sources of Islamic Law

ii. Discuss on the Legal Maxims (Qawaid al-Fiqiyyah)
iii. Define Shari’ah and fiqh and identify the relationship

CHE AMINAH JAAFFAR

between these two terminologies.
iv. Outline the sources and rule-making process of
Islamic commercial law.
v. Explain the difference between jurisprudence and
maqasid al-shari’ah and why the later is needed.
vi. Explain how riba, gharar and maysir may occur in
modern financial transactions.
30