Islamic Law: Fiqh (Jurisprudence) and Its Application

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Topic 6 — Key Facts for KPK PMS Core concept: Fiqh (Islamic jurisprudence) is the science of deriving practical rulings from the primary sources of Islamic law (Quran, Sunnah, Ijma, Qiyas); it encompasses personal conduct, family law, criminal law, economic transactions, and governance High-yield point: The Islamic legal system classifies acts into five categories: wajib/fard (obligatory), sunnah (recommended), mubah (neutral), makruh (disliked), and haram (forbidden); the four Sunni schools of jurisprudence (Hanafi, Maliki, Shafi’i, Hanbali) each derive rulings through slightly different methodologies but reach similar conclusions on most matters ⚡ Exam tip: Islamic criminal law (hudud) includes specific penalties for specific crimes: zina (adultery/stoning), false accusation of zina (flogging), drinking alcohol (whipping), theft (amputation of the hand), robbery (cross amputation); these are frequently tested — know the hudud crimes and their punishments

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The Science of Fiqh (Usul al-Fiqh)

The Legal Theory of Islamic Law

Usul al-Fiqh (Foundations of Jurisprudence): The principles by which Islamic legal rulings are derived:

1. Quran: The primary source
2. Sunnah: The second primary source
3. Ijma: Consensus of scholars
4. Qiyas: Analogical reasoning

The Process of Ijtihad:

• Ijtihad is the effort to derive legal rulings through independent reasoning
• A mujtahid is a scholar qualified to perform ijtihad
• The “closing of the gates of ijtihad” is a contested historical claim — in practice, ijtihad has continued

The Legal Schools (Madhahib):

School	Founder	Region
Hanafi	Imam Abu Hanifah (699–767 CE)	Turkey, South Asia, Central Asia
Maliki	Imam Malik ibn Anas (711–795 CE)	North Africa, West Africa
Shafi’i	Imam al-Shafi’i (767–820 CE)	Egypt, East Africa, Southeast Asia
Hanbali	Imam Ahmad ibn Hanbal (780–855 CE)	Saudi Arabia, Gulf states

The Categories of Acts

Category	Arabic	Definition	Reward/Punishment
Obligatory	Wajib/Fard	Must be performed	Reward + punishment if omitted
Forbidden	Haram	Must not be performed	Punishment if done
Recommended	Sunnah	Should be performed	Reward + no punishment if omitted
Disliked	Makruh	Should not be performed	No reward + punishment if done
Permissible	Mubah	Neutral	Neither reward nor punishment

Personal Acts (Ibadat)

Purification (Tahara):

• Wudu (ablution): Ritual washing before prayer
• Ghusl (full bathing): Required after major ritual impurity
• Tayammum (dry ablution): With earth/stone when water is unavailable

Prayer (Salat):

• Five daily prayers (obligatory for every Muslim who has reached puberty)
• Friday prayer (Jumu’ah) — obligatory for men
• Taraweeh (night prayer during Ramadan) — sunnah
• Janazah (funeral prayer) — collective obligation (fard kifayah)

Fasting (Sawm):

• The fast during Ramadan is obligatory
• Exemptions for illness, travel, pregnancy, elderly
• Fidya (feeding the poor) is a substitute for fasting in certain cases

Family Law (Fiqh al-Awqaf / Fiqh al-Mu’amalat)

Marriage (Nikah):

• A contract (aqd) between a man and woman
• Requirements: Proposal (ijab) and acceptance (qubul); two witnesses; mahr (dowry)
• Polygamy: Up to four wives (with conditions of equal treatment)

Divorce (Talaq):

• Talaq by the husband: The most common form; revocable (raj’i) for three menstrual cycles; becomes final (ba’in) after that
• Khul’: Divorce at the wife’s initiative; she returns the mahr
• Fasakh: Judicial divorce for cause (e.g., husband’s cruelty, non-payment of nafaqah)

Inheritance (Fara’id): The Quranic system of inheritance (Surah An-Nisa, 4:11–12):

Heir	Share
Son	Double the share of a daughter
Daughter	1/2 (if only one) or 2/3 (if two or more)
Father	1/6 (if there is a son)
Mother	1/6 (if there is a child) or 1/3 (if not)
Wife/Wives	1/8 (if there is a child) or 1/4 (if not)
Husband	1/2 (if no child) or 1/4 (if there is a child)

The Residuaries (Asabah): Male relatives who inherit when the fixed shares are allocated: the son of the son, the father, the brother, the nephew, etc.

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Criminal Law in Islam

The Three Categories of Crime in Islamic Law

1. Hudud (Fixed Penalties): These are offences against God (Allah’s rights); the punishment is fixed and cannot be reduced or changed:

Crime	Quranic Punishment	Notes
Zina (adultery/fornication) by free persons	100 lashes (for unmarried); stoning to death (for married)	Requires 4 eyewitnesses or confession
Qazf (false accusation of zina)	80 lashes	Requires no evidence (accused’s oath)
Drinking alcohol	80 lashes	Based on consensus (Ijma’)
Theft	Amputation of the hand (right hand)	First offence; requires proof
Hirabah (disruption of society — robbery, piracy)	Cross amputation (right hand and left foot) + exile or execution	Depending on severity
Apostasy (ridda)	Execution after a three-day waiting period (for men); imprisonment (for women)	Based on hadith

⚡ The Hudud Controversy: Hudud punishments are among the most debated topics in Islamic law. Modern reformers argue:

• These punishments were for specific historical conditions
• They require the highest standards of evidence (often impossible to meet)
• The Quranic verse “There is no compulsion in religion” (2:256) and the Prophet’s statement “Prevent [hudud] from being carried out even in cases of suspected guilt” support moderation
• Modern Islamic states (Pakistan included) have not implemented full hudud in practice

2. Qisas (Retaliation): Offences against the person (the victim’s or family’s rights):

• Eye for an eye, tooth for a tooth
• The victim’s family can choose between retaliation or diya (blood money)
• The Quranic principle: “And there is for you in qisas [life, wealth, and dignity] life” (2:178)

3. Diya (Blood Money):

• Compensation paid to the victim or victim’s family
• Amount varies by the severity of the crime and social rank
• Allows for resolution without blood feud

The Islamic Criminal Procedure

Evidence:

• The highest evidence is eyewitness testimony (by the righteous)
• For hudud: four male eyewitnesses or the accused’s confession (freely given)
• A confession can be withdrawn

The Judiciary:

• The Qadi (Islamic judge) is the primary legal authority
• Qadis are trained in Sharia and Fiqh
• In Pakistan, the Federal Shariat Court reviews laws for compliance with Sharia

Criminal Investigation:

• The process of investigation (istintag) and evidence gathering
• The prohibition of torture: ” Allah has not called anyone to account about his body, nor has He ordered him to cut his flesh” (Hadith)

Economic Transactions in Islamic Law

The Prohibition of Riba

Forms of Riba:

• Riba al-Fadl: Excess in an exchange of specific items (e.g., gold for more gold of the same type)
• Riba al-Nasiah: Excess charged on delayed payment

The Islamic Response:

• Islam prohibits exploitative interest but allows profit through legitimate trade
• Islamic finance has developed alternative instruments (see Topic 3)

Contracts (Aqad) in Islamic Law

The Essentials of a Contract (Shurut al-Aqd):

1. Offer (Ijab): The invitation to contract
2. Acceptance (Qabul): The agreement
3. Subject matter (Mawdu’): Must be valid and permissible
4. Price (Thaman): Must be specified or determinable
5. Consent (Rida): Free consent of both parties — no coercion or fraud

The Major Contracts:

Contract	Arabic	Description
Sale	Bay’	Exchange of goods for goods or goods for money
Partnership	Shirkat	Joint venture between two or more parties
Agency	Wakala	One party acts on behalf of another
Lease	Ijara	Temporary transfer of the right to use an asset
Gift	Hibah	Transfer of ownership without consideration
Guarantee	Dhaman	One party guarantees another’s obligation

Waqf (Religious Endowment)

What is a Waqf?: A waqf is an endowment of property (real estate or other assets) dedicated to charitable or religious purposes:

• The donor (waqif) transfers ownership to God
• The property generates income for the designated purpose
• The most common waqfs fund mosques, schools, and hospitals

Types of Waqf:

• Waqf al-Ahlal: Endowment for one’s family, then to the poor (family waqf)
• Waqf al-Khairi: Endowment exclusively for charity (charitable waqf)

The Waqf in Islamic Civilisation:

• The waqf system funded the Islamic Golden Age’s educational institutions
• Al-Azhar University in Cairo and many madrasas were waqf-funded
• The Ottoman waqf system was particularly elaborate

⚡ Pakistan’s Waqf System: Pakistan has the WakafProperties Ordinance 1949, which governs waqf properties. The Evacuee Trust Council administers properties left behind by refugees from India after Partition.

Governance in Islamic Law

The Concept of the Islamic State

The Caliphate:

• The Caliph (Khalifa) is the successor to the Prophet in governing the Muslim community
• The role is political-administrative, not prophetic
• The Caliph should be elected or selected by the community (Shura)

The Qualifications of a Caliph:

• Knowledge of Islam
• Justice and integrity
• Physical and mental capability
• Male (all schools agree — women cannot be Caliph or head of state in the classical view)

The Role of the Shura (Consultation):

• The Quran: “And their affairs are by consultation among them” (42:38)
• The shura is both a religious duty and a check on autocracy
• Major decisions should involve consultation

Modern Islamic Governance

The Debate on the Islamic State:

• Classical scholars: The state is necessary for implementing Sharia
• Modern scholars (Ali Abd al-Raziq, 1925): The Islamic state is not a Quranic requirement; Islam is a spiritual and ethical system, not a political system
• Contemporary: The Islamic state debate continues in the Muslim world

Pakistan’s Constitutional Position:

• Pakistan is officially an Islamic Republic (since 1956)
• The Objectives Resolution (1949) declared that sovereignty belongs to God but is exercised by the state
• The 18th Amendment declared Pakistan a “Islamic, democratic, federal republic”
• Islamic law (Sharia) is applied through the Federal Shariat Court

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