ISLAMIC STUDIES ACADEMY
Midterms Assignment
Summar 2008
Course Code:
FQH 402
Course Title:
Evolution of Fiqh
Due Date:
Instructor:
Dr Bilal Philips
STUDENT: AL MADZHAR AHMADUL
Explain why the statement “Islamic law is outdated” is false using points 2 and 3 of the Introduction on the distinction between Fiqh and Shariah as your basis, along with 2 practical examples.
Alhamdulillah wassalatu wassalamu ‘ala Rasoolillah
The statement “Islamic law is outdated” is false because of the fact that Allah, the Law Giver, the Wise could not possibly give mankind a certain set of Law and declare that such law are binding for them until the end of time, and would become non essential due to the passive of time.
One of the reasons of this misunderstanding comes from the way we identify with the phrase “Islamic Law” which does not distinguish between Shari’ah and Fiqh. Therefore what follows is an elucidation between the two terminologies and their corresponding illustrations.
I. Distinctions between Shari’ah and Fiqh: Shari’ah is fixed and unchangeable, whereas Fiqh changes according to the circumstances under which it is applied.
Example: the ruling on smoking.
When tobacco was introduced to the Muslim world some few hundred years ago, it was ruled to be detestable (Makrooh) by the Islamic Scholars. The only known bad effect of smoking at that time was bad odor. Since smoking, just like garlic and onions, causes bad odor, the ruling on them was applied to smoking. This is due to the fact that the Prophet did not use to eat foods containing onions and garlic.
In Sahih Muslim, Jabir reported:
The Messenger of Allah (Peace and salutations of Allah be upon him) said: He who eats garlic or onion should remain away from us or from our mosque and stay in his house. A kettle was brought to him which had (cooked) vegetables in it, He smelt (offensive) odour in it. On asking he was informed of the vegetables (cooked in it). He said: Take it to such and such Companion. When he saw it, he also disliked eating it. (Upon this). he (the Holy Prophet) said: You may eat it, for I converse with one with whom you do not converse.
This hadeeth tells us that onions and garlic are detestable due to their inherently noxious aromatic characteristics but it also tells us that despite of that we can still eat them.
The “Shari’ah” part of this ruling is the hadeeth of Jabir (and others) found in Sahih Muslim. The “Fiqh” part comes from analogical deduction (Qiyaas) of the rulings on smoking based on the rulings on onions and garlic.
However as science and medicine have advanced significantly in the last century, many health related effects of smoking have been well documented to the point that we can fairly say that there is already an Ijmaa’ or concensus between researchers and physicians concerning the evil effects of smoking on human health. In fact, it has been estimated that in the 20th century about 100 million have died of tobacco-related illness worldwide.[1]. This figure is more than the death resulted from any plagues or the individual world wars. Globally, smoking-related mortality is set to rise from 3 million annually (1995 estimate) to 10 million annually by 2030, with 70% of these deaths occurring in developing countries[2]. Moreover, the socio-economic impact of smoking is also no less harmful than its health effects.
Because of these descriptions, it cannot be from the good things that were allowed for the sons of Adam, rather it is from the filthy and foul things that were forbidden for them. Allah said:
Those who follow the Messenger (Muhammad), the unlettered Prophet whom they find written in the Torah and the Gospel with them, he enjoins upon them that which is virtuous and forbids them that which is evil; he allows them all that is good and forbids for them all that is foul. Al-A’raf (7):157
That is why modern Islamic scholars who are aware of danger and harm of smoking ruled that it is haram.
The “Shariah” part of this modern ruling for smoking is the verse of Al A’raf verse 157 (and others) and the “Fiqh” part is the application of the comprehensive word (Khabaaith: foul, filthy) from the verse to smoking.
Finally in relation to the first distinction between Shari’ah as fixed and Fiqh as changeable, onions and garlics continues to be Makrooh because of its basis from a direct Shariah evidence (the hadeeth) while the ruling of smoking has been changed from Makrook to Haram due to different results of Qiyaas.
II. Distinctions between Shari’ah and Fiqh: The Laws of Shari’ah are, for the most part, general: they lay down basic principles. In contrast, the laws of Fiqh tend to be specific: they demonstrate how the basic principles of Shari’ah should be applied in given circumstance.
Example: Women are prohibited to drive in Saudi.
It is widely believed that in Saudi women are prohibited to drive. This is because; it is said, Saudi Arabia applies a strict form and interpretation of Islam – the ‘Wahabi’ Islam. However, looking at the issue closely would reveal that that is not so.
Recently a senior of Scholar of Saudi states that “in principle women driving is permitted in Islam. Sheikh Abdul Mohsen Al-Obaikan, a member of the Kingdom’s Council of Senior Islamic Scholars.
The ban, he said, has to do with the social complications rather than the act itself. As an example, the sheikh referred to a fatwa from former Grand Mufti Sheikh Abdulaziz Bin-Baz that said it is permitted for women in rural areas to drive cars, but that they should be forbidden from driving in the cities where, as Al-Obaikan said, “youths (even) harass women accompanied by parents and drivers.
He said if certain issues are resolved, such as the problem of men’s behavior and traffic safety, then he sees no religiously motivated conflict with women driving.” [3]
It is clear from these statements that the basis of women being prohibited to drive in cities is from a basic Islamic principle of “The Means takes on the same rulings as their aims do” and from this; a secondary principle Sad ad-dara’i or preventing the means that can lead to haram is taken. There are several Qur’anic verses from where this principle can be deduced.
Dr. Saleh as Saleh in a discussion of Shaykh Abdur Rahman As Saadi’s fiqh maxims wrote:
Every allowable matter taken to abandon an obligation or to perform a forbidden act is itself haraam (forbidden). This is because in this foundation, the means take on the same ruling as there aims. That is why it is forbidden to trade or buy after the second call for jumu’ah; Allaah states[4].
O you who believe (Muslims)! When the call is proclaimed for the Salaat (prayer) on the day of Friday (Jumu'ah prayer), come to the remembrance of Allaah [Jumu'ah religious talk (Khutbah) and Salaat (prayer)] and leave off business (and every other thing), that is better for you if you did but know!_ Surah al-Jumu’ah (62:9)
Although trade is halal, but since doing it in the time of Jumu’ah prayer would cause one to miss it, it is forbidden. Similarly, driving is fundamentally allowed – men or women – but in Saudi, the Scholars and the government felt that there is a greater evil in allowing it due to a specific condition of their society.
This situation is specific to the Saudi society and must not be blindly applied to all Islamic countries. In connection to our topic, here, the Shariah law gives general rulings or principles which in this case is preventing the means that leads to haram and the Fiqh issue here is the specific situation of the Saudi society.
Summary
The statement “Islamic law is outdated” is not accurate because it doesn’t distinguish between the term Shari’ah and Fiqh. The Shari’ah of Allah cannot be outdated while its application, the Fiqh (understanding) of it can be, as demonstrated by the changing ruling of smoking. In the absence of specific ordinance from the Shari’ah, it nevertheless, lays down general principle that can serve as a basis for determining what is beneficial and what is harmful. The application of these principles can vary from place to place or time to time.
Wallahu ‘Alam.
[1] White WB. Smoking-related morbidity and mortality in the cardiovascular setting. Prev Cardiol. 2007 Spring;10(2 Suppl 1):1-4.
[2] Fagerström K. The epidemiology of smoking: health consequences and benefits of cessation. Drugs. 2002;62 Suppl 2:1-9.
[3] fatwa-online@yahoogroups.com
[4] Al-Qawaa'id wal-Usool al-Jaami'ah wal-Furooq wat-Taqaaseem al-Badee'ah an-Naafi'ah. The Basic Rulings and Principles of Fiqh –The Beneficial, Eloquent Classifications and Differentiations
Foundation -2 By Sh. 'Abdur Rahmaan ibn Naasir As-Sa'di, pg. 5.
