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Encyclopaedia of Islam, THREE / Fiqh, faqīh, fuqahāʾ

The term fiqh refers commonly to religious knowledge, especially knowledge of Islamic law derived through legal reasoning (ijtihād) (al-Shīrāzī, 1:157), and the term faqīh (pl. fuqahāʾ ) to someone who possesses such knowledge. Etymologically, the root f-q-h denotes subtle and penetrating discernment and comprehension, particularly of speech (al-Azharī, Tahdhīb al-lugha, ed. ʿAbd al-Salām Hārūn, 15 vols., Cairo 1964–7, s.v. f-q-h; al-ʿAskarī, al-Furūq al-lughawiyya, ed. Muḥammad Ibrāhīm Salīm, Cairo 1998, 87–8; al-Shīrāzī, 1:157). The connection between the root f-q-h and religious expertise is already evidenced in the Qurʾān (9:122), which advises that a group of Muslims should dedicate themselves “to gaining understanding of religion” (li-yatafaqqahū fī l-dīn). Similarly, an early and widely narrated ḥadīth attributes to the prophet Muḥammad the statement “To him to whom God wishes to show favour He gives understanding of religion (yufaqqihhu fī l-dīn).” This sense of understanding came to be juxtaposed with mastery of transmitted material (ʿilm, riwāya) (e.g., Ibn Saʿd, 7:397, 620).

The great scholars of Medina belonging to the generation of the “followers” (tābiʿūn) in the late first/seventh century were variously described as the seven, ten, or twelve fuqahāʾ (Umar F. Abd-Allah, Mālik in Medina, Leiden 2013, 43), and their legal opinions had a formative influence on the Mālikī school of law. In the early period, however, fiqh did not yet seem to apply exclusively to law, because two theological texts attributed to Abū Ḥanīfa (d. 150/767) include the word fiqh in their titles (al-Fiqh al-akbar and al-Fiqh al-awsaṭ).

From the late second/eighth through the fourth/tenth century, a legal-methodological dispute pitted the proponents of reasoned opinion (ahl al-raʾy), who were engaged in a particular form of legal reasoning that favoured consistency (El Shamsy, The canonization of Islamic law, New York 2013, 22–34), against the proponents of Prophetic traditions (ahl al-ḥadīth), who focused on collecting and evaluating Prophetic and early Islamic traditions and were opposed to raʾy because, in their view, it produced results that contravened transmitted texts. In this polemical atmosphere, the relatively neutral terms fiqh and faqīh fared better than raʾy, avoiding the opprobrium directed at the latter (e.g., Ibn Qutayba, 256), but they nonetheless retained an intimation of neglect of ḥadīth for the ahl al-ḥadīth (see, e.g., al-Khaṭṭābī, 2–3, on ahl al-fiqh wa-l-naẓar in the fourth/tenth century). On the other hand, for jurists and theologians fiqh stood for critical analysis and insight, as opposed to superficial literalism (al-Khaṭṭābī, 2–3). An important intervention to bridge this gulf was al-Khaṭīb al-Baghdādī’s (d. 463/1071) spirited defense of fiqh, in al-Faqīh wa-l-mutafaqqih (see esp. his introduction), to his fellow ḥadīth scholars, but ḥadīth scholars continued to criticise the fuqahāʾ for perpetuating and defending their schools’ doctrines, even in the face of contrary ḥadīth evidence (e.g., al-Bayhaqī, Risālat al-imām Abī Bakr al-Bayhaqī ilā l-imām Abī Muḥammad al-Juwaynī, Beirut 2007, 57).

The primary socio-religious occupations open to a faqīh were those of judge (qāḍī), teacher (mudarris, ustādh), and jurisconsult (muftī). In the judiciary and legal education, particularly in madrasas, fiqh and faqīh became established as neutral, technical designations, respectively, for the discipline dealing with the details of positive law and for someone learned in this discipline. The dominance and eventual de facto monopoly of the four schools of Sunnī law meant that the discipline and practice of fiqh came commonly to be qualified by an association with one of the four schools (e.g., fiqh according to the school of al-Shāfiʿī), which exerted various degrees of authority over the legal reasoning of their members (Calder).

Among the myriad literary genres related to fiqh, the standard texts that expounded the rules of a particular school followed an almost universal pattern: they began with ritual law (ʿibādāt) and then covered contract law (muʿāmalāt), penal law (jināyāt), and judicial procedure (qaḍāʾ). These basic texts attracted commentaries (sharḥ, pl, shurūḥ), glosses (ḥāshiya, plural ḥawāshī), and tertiary notes (taqrīr, plural taqārīr); the latter two genres are characteristic of the tenth/sixteenth to thirteenth/nineteenth centuries (El Shamsy, Ḥāshiya). In the post-Mongol era, each school developed its own relatively stable curriculum of teaching texts for use in training jurists (Robinson).

An indigenous historiography dedicated to the fuqahāʾ emerged in the third/ninth century, first as lists (e.g., al-Nasāʾī’s Tasmiyat fuqahāʾ al-amṣār) and then as full-scale biographical dictionaries (e.g., al-Shīrāzī’s Ṭabaqāt al-fuqahāʾ and Ibn Abī Yaʿlā’s Ṭabaqāt al-Ḥanābila). While early jurists were classified by region, from the generation of the school eponyms (late second/eighth and early third/ninth centuries) onwards they were organised according to their adherence to a school of law. This historical self-consciousness of the fuqahāʾ was motivated by a need to situate scholars and their opinions within the growing body of each school’s literature (see al-Nawawī’s introduction to Ṭabaqāt al-fuqahāʾ al-shāfiʿiyya, ed. Muḥyī l-Dīn Najīb, 2 vols., Beirut 1992).

While the term faqīh denoted a person educated in Islamic law, exceptional talent in legal interpretation acquired its own specific descriptor, fiqh al-nafs (and faqīh al-nafs). This refers to a natural disposition (gharīza; al-Ghazālī, al-Mankhūl, ed. Ḥasan Hītū, Beirut 1998, 573) to analyse a legal problem (Ibn al-Ṣalāḥ, 48) and to understand the rationale underpinning statements of revelation (al-Bannānī, Ḥāshiyat al-Imām al-Bannānī ʿalā Sharḥ al-Maḥallī ʿalā matn Jamʿ al-jawāmiʿ, 2 vols., Cairo 1937, 2:382). Fiqh al-nafs is thus distinguished from simple book learning (al-Juwaynī, al-Burhān fī uṣūl al-fiqh, ed. ʿAbd al-ʿAẓīm al-Dīb, 2 vols., Cairo 1400/1980, 2:1332).

In the realm of law, the term fiqh retained its original connotations of insight and seeing below the surface, but when juxtaposed with Ṣūfism, it came to denote preoccupation with the external form of religion, as opposed to the internal reality claimed by Ṣūfism (see, e.g., Cornell).

The study of Arabic language (lugha) also adopted the term fiqh to indicate close analysis, but the resulting compound term, fiqh al-lugha, appears never to have referred to a uniform or distinctive genre. The phrase appears in the titles of works ranging from philosophical treatments of the origin of language (Ibn Fāris, al-Ṣāḥibī fī fiqh al-lugha, ed. Aḥmad Ṣaqr, Cairo 1977) to treatises on lexicography and grammar (al-Thaʿālibī, Fiqh al-lugha, ed. Muṣṭafā al-Saqqā, Ibrāhīm al-Abyārī, and ʿAbd al-Ḥafīz Shalabī, Cairo 1938).

At least from the eleventh/seventeenth century onwards, the term faqīh—or, more precisely, faqīh al-rīf/faqīh al-balad—came to denote a religious functionary in the Egyptian countryside (where faqīh was pronounced locally as fiqī/figī/fiʾī). Such a person’s remit could include teaching the Qurʾān, answering legal questions, leading communal prayers, and drafting documents such as wills and marriage contracts (Baer, 20–1). Similarly, in Morocco the term faqīh (pronounced fqīh) denoted a Qurʾān teacher (Eickelman, 493), who would also be called upon to carry out exorcisms (Emilio Spadola, Writing cures. Religious and communicative authority in late modern Morocco, Journal of North African Studies 14/2, 2009, 155–168).

The semantic field of the root f-q-h has historically been concerned with legal qualification rather than office, and the term has thus remained largely apolitical. Sunnī modernism has preferred to refer to Islamic law with the term sharīʿa, as a symbol of the unified divine law that goes beyond the minutiae of fiqh; it has also sought to develop a new, unified project of fiqh beyond the schools of law. A prominent example is al-Sayyid Sābiq’s influential work Fiqh al-sunna (14 vols., Cairo 1946–72), written originally as an educational tool for the Egyptian Muslim Brotherhood. Among Shīʿīs, by contrast, Khomeini’s theorisation of the guardianship of the jurist (wilāyat al-faqīh) invested political legitimacy not in any particular figure in the Shīʿī religious hierarchy but in the sense of legal qualification expressed by the term faqīh (Amanat).

Ahmed El Shamsy

Bibliography

Sources

Ibn Qutayba, Taʾwīl mukhtalif al-ḥadīth, ed. Muḥammad al-Aṣfar, Beirut 1999

Ibn Saʿd, Kitāb al-ṭabaqāt al-kabīr, ed. ʿAlī Muḥammad ʿUmar, 11 vols., Cairo 2001

Ibn al-Ṣalāḥ, Adab al-fatwā, ed. Rifʿat Fawzī ʿAbd al-Muṭṭalib, Cairo 1992

al-Khaṭīb al-Baghdādī, al-Faqīh wa-l-mutafaqqih, ed. ʿĀdil al-ʿAzzāzī, 2 vols., Dammam 1996

Abū Sulaymān al-Khaṭṭābī, Maʿālim al-sunan, ed. Muḥammad al-Ṭabbākh, 4 vols. in 3, Aleppo 1932–4

Abū Isḥāq al-Shīrāzī, Sharḥ al-Lumaʿ, ed. ʿAbd al-Majīd Turkī, 2 vols., Beirut 1988

Abū Isḥāq al-Shīrāzī, Ṭabaqāt al-fuqahāʾ, ed. Iḥsān ʿAbbās, Beirut 1970.

Studies

Abbas Amanat, From ijtihād to wilāyat-i faqīh. The evolution of the Shiʿite authority to political power, in Abbas Amanat and Frank Griffel (eds.), Sharīʿa. Islamic law in the contemporary context (Stanford 2007), 120–36

Gabriel Baer, Fellah and townsman in the Middle East. Studies in social history, London 1982

Norman Calder, Al-Nawawi’s typology of muftis and its significance for a general theory of Islamic law, ILS 3/2 (1996), 137–64

Vincent J. Cornell, Faqīh versus faqīr in Marinid Morocco, in Frederick de Jong and Bernd Radtke (eds.), Islamic mysticism contested. Thirteen centuries of controversies and polemics (Leiden 1999), 207–24

Dale F. Eickelman, The art of memory. Islamic education and its social reproduction, Comparative Studies in Society and History 20/4 (1978), 485–516

George Makdisi, The rise of colleges. Institutions of learning in Islam and the West, Edinburgh 1981

Francis Robinson, Ottomans-Safavids-Mughals. Shared knowledge and connective systems, JIS 8/2 (1997), 151–84

Ahmed El Shamsy, The ḥāshiya in Islamic law: A sketch of the Shāfiʿī literature, Oriens 41/3–4 (2013), 289–315

Devin Stewart, Al-Ṭabarī’s Kitāb marātib al-ʿulamāʾ and the significance of biographical works devoted to “the classes of jurists,” Der Islam 90/2 (2013), 347–75.

Cite this page

El Shamsy, Ahmed, “Fiqh, faqīh, fuqahāʾ”, in: Encyclopaedia of Islam, THREE, Edited by: Kate Fleet, Gudrun Krämer, Denis Matringe, John Nawas, Everett Rowson. Consulted online on 07 January 2017 <http://dx.doi.org/10.1163/1573-3912_ei3_COM_27135>