Fiqh, or the study of Islamic jurisprudence, may be defined as a human attempt to understand Divine texts included in the Qur'an and in authentic Hadiths. But it goes beyond that to show how such understanding should be used for the practical implementation of these texts in practical life.
Scholars have defined Fiqh as "knowledge of Islamic practical rules acquired through a study of the detailed evidence constituting their basis." In addition to thorough scholarly knowledge, a scholar of Fiqh, or Faqih, to use the Arabic term, is required to have thorough knowledge of the practical conditions that prevail in his community where he issues rulings on problems, judges in disputes, or teaches students and laymen.
Scholars have consistently attached particular importance to this requirement to the extent that they do not allow a scholar who does not have knowledge of the prevailing practical conditions, social habits and traditions to issue any rulings on any practical question.
To highlight this importance we may quote the advice of Imam Al-Qarafi's, a Maliki scholar who lived in Egypt: "When social tradition acquires a new guise, apply it in its new shape and form. Should it be abandoned by the community, discard it. You must not stick throughout your life to what is written in books. On the contrary, should a foreigner come to you for a ruling on a particular question, you must not apply your own community's traditions to his problem. You must get from him a clear idea of the traditions that prevail in his community and make your ruling on their basis, to the exclusion of your own country's traditions or what you have in your books. This is certainly right, because holding on to scholarly heritage only leads to error and betrays ignorance of the aims and objectives of the distinguished scholars of the past."
Experts on the history and development of scholarship in Islamic jurisprudence demarcate three distinctive periods:
The stage of free ijtihad, or scholarly effort, unrestricted by any limits other than the implementation of the Qur'an and authentic Hadith and Sunnah.
The emergence of the major schools of Islamic law, and their acquisition of their distinctive status, and documenting them in major scholarly works.
The stage of following past scholars with little motivation for scholars to exert new efforts. In this stage, students of Islamic law were happy to follow in the footsteps of distinguished scholars of the past, toe the line of their colleagues and disciples, and disseminate their rulings and statements. Some scholars in this period go further than that, making the views and statements of earlier scholars a basis for deducing new rulings. This is wrong as it elevates such views and statements to the level of religious text imparted to us through revelation.
A few scholars add a fourth stage which has started in our own contemporary period. They call it the stage of scholarship revival. Numerous indications have been pointed out confirming the start of this new stage, which is gaining grounds and gathering momentum among scholars. Hence, no Islamic scholar of distinction today follows in the footsteps of those generations which restricted scholarly effort and discretion, denouncing those who resorted to it and thus they closed a door that God prefers to remain open. Indeed it is universally agreed by contemporary scholars of note that the claim that the door of scholarly discretion has been closed, which prevailed for many generations in the third stage, is false and cannot be supported on any religious or rational basis.
But this new stage of Fiqh scholarship revival can only attain its full vigor and yield its fruit in the form of a new understanding of Islam that suits the requirements of contemporary life when its intellectual foundation has established its roots among scholars, students of Islamic studies, and advocates of Islamic revival all alike.
I do not subscribe to the view that calls for discarding all old Fiqh that has been recorded on the basis of the different schools of Islamic jurisprudence. It is my view that such Fiqh represents a rich legal wealth that has no parallel in any other faith or community. Such great heritage must never be discarded. However, many of the problems that we face in day to day life require new rulings arrived at through the exercise of scholarly effort which aims to facilitate the implementation of Islamic law in practice. Thus, people will be able to draw closer to God by being obedient to Him, doing His bidding and steering away from what He has forbidden.
To do so, scholars will need to be guided by the essential basic rules, including the one we have mentioned earlier, requiring a scholar to have thorough knowledge of religious text as well as the prevailing conditions in his community. It is only through such dual knowledge that a scholar can utilize Islamic teachings and principles to meet people's needs. That was certainly the method applied by the Prophet's companions and their successors, as well as highly distinguished scholars in successive generations of glorious Islamic scholarship. In addition, individual scholars of high standing have followed the same method throughout Islamic history.
Our need for a new Fiqh and for competent scholars to pursue and promote Fiqh scholarship revival becomes readily apparent when we look at the works of some authors and speakers who try to show Islamic Fiqh as no more than heritage that has had its day. They often describe it as having lost the ability to develop, and that its proponents are unable to tackle contemporary realities with a liberal approach that understands the same text may admit several possible interpretations.
Contemporary Islamic literature often betrays an inability to do little more than to quote the rulings arrived at by past scholars of high distinction. Such rulings reiterated by our contemporaries tackle questions that are closely related to some highly important questions in today's cultural, political and religious life. Yet those scholars of earlier generations only arrived at their rulings taking into account the prevailing conditions in their communities, or the social traditions of a particular community.
At times contemporaries rely on rulings they look only at the particular case that led to the revelation of a particular verse or the statement of a Hadith. But a universally accepted rule tells us that we should look at the total meaning of a text, not the immediate case it initially addressed. All such matters require a fresh look by scholars who endeavor to bring about harmony between the basic principles of Islamic Fiqh and the practical conditions that prevail in contemporary society.
We are all required to disseminate this new Fiqh and scholarship revival among all people so that new generations may be able to play their role in bringing God's law closer to people's life. Thus, it becomes easier to implement. It is only through such revival and its common, enlightened acceptance that Islamic Fiqh maintains its vigor and ability to interact with human life. No legal system, however glorious its past and immaculate its foundation, can survive if it loses its ability to maintain such interaction with human life and its continuous development.
