Islamic Jurisprudence — What Does It Mean
An examination of the term
In the name of God, Most Gracious, Most Merciful
Have you ever wondered what exactly “Islamic jurisprudence” means?
Before we can intelligently look at the term we might find it useful to define its components. Let’s look first at the definition of “jurisprudence”, as “Islamic” seems to be the part most people know more about.
The Merriam-Webster website gives us three possible appropriate definitions:
1 : the science or philosophy of law they have no theories of jurisprudence but … decide each case on its facts — R. H. Bork
2 a : a system or body of law [as in] Roman jurisprudence, labor jurisprudence
b : the course of court decisions as distinguished from legislation and doctrine a tendency that has become apparent in the jurisprudence of the American courts — Bernard Schwartz
3: a department of law medical jurisprudence
The third definition provides no real help in this discussion. As normally used, the two parts of the second definition most closely match our term. So we will talk about them first.
Traditional Islamic jurisprudence has a very long history and comprises a weighty subject.
Entire banks of bookshelves hold its tomes and one may study it for a lifetime, just like Western law.
Indeed its practice is very similar to that of Western law. It has its own law schools training lawyers and judges. And provides its own justice system, like law practiced in the West.
And what provides the sources of this body of law?
According to Wikipedia:
Fiqh (/fiːk/;[1] Arabic: فقه [fɪqh]) is Islamic jurisprudence.[2] Fiqh is often described as the human understanding of the sharia,[3] that is human understanding of the divine Islamic law as revealed in the Quran and the Sunnah (the teachings and practices of the Islamic prophet Muhammad and His companions). Fiqh expands and develops Shariah through interpretation (ijtihad) of the Quran and Sunnah by Islamic jurists (ulama)[3] and is implemented by the rulings (fatwa) of jurists on questions presented to them. Thus, whereas sharia is considered immutable and infallible by Muslims, fiqh is considered fallible and changeable. Fiqh deals with the observance of rituals, morals and social legislation in Islam as well as political system. In the modern era, there are four prominent schools (madh’hab) of fiqh within Sunni practice, plus two (or three) within Shi’a practice. A person trained in fiqh is known as a faqīh (plural fuqaha).[4]
The notes for this quote are at the bottom of this story. Wikipedia’s article continues, however this gives us enough detail.
But what about the first part of our phrase “Islamic Jurisprudence”? You might think I’m about to discuss the differences between Sunni and Shia Jurisprudence — that of the two major sects of Islam. However, I am not.
So what am I talking about?
As I write this story, I also am writing about a proposed legal system based solely on the Quran in Medium’s publication The Heart of Quran.
Supposedly Quran provides the supposed basis of the organized religion of Islam. But did you know that in truth almost all Muslims follow the Hadith and Sunna instead? So it is not surprising that the legal system is based on those sources.
But there is other form of legal system which I describe briefly here. For all the details please see my other story, Quranic Jurisprudence.
As you see in the linked article, the Quran strongly condemns Muslims following other sources besides the revelations of the most Wise (6:19, 38, and 114). And it provides the best, most merciful and most just form of jurisprudence — that using Merriam-Webster’s first definition — law based on each individual case.
Earlier this year the world saw a horrifying example of Islamic Jurisprudence in the implementation of stoning to death as the punishment for homosexual acts and adultery in Brunei.
Imagine you are now standing before a crowd of the people you love most — your family and friends. People you have known and loved all your life. And they have known, loved and nurtured you.
But now you see no love or compassion or mercy in their eyes and you know they will stone you to death. Can you sense what a terrifying, agonizing and horrendous feeling that must be?!
I have heard the argument from some that stoning to death is the punishment in the Old Testament for adultery, and so Muslims must follow it. However if this barbaric punishment is still to be enforced why don’t the Israelis do so? Is it possible that they recognize that God would no longer require such a brutal punishment now that the Earth has been sufficiently populated, unlike the times when the punishment originated?
For those of you who believe that we must follow Hadith and Sunnah, please do not think that I am demeaning you or your belief. I simply ask that you question yourselves. Would the most Gracious most Merciful, most Compassionate, Kindest possible God — our God — ever ask this of modern human beings?
My personal answer is a resounding “NO”. What is yours?
In both cases — adultery and homosexuality — the punishment goes against the Quran. God does not give a punishment at all for homosexual acts in the Quran and He specifies pubic whipping for adultery. Even the whipping for adultery can be (and I believe, given God’s mercy, should be) understood to be mostly symbolic, with the humiliation of a public punishment as the true intent.
For more specific examples of the differences between the two systems please see Quranic Jurisprudence.
Thank you for reading this piece. I would love to hear your comments to it should you have any.
Notes for the Wikipedia quote:
[1] “fiqh”. Collins English Dictionary. [2] Fiqh Encyclopædia Britannica. [3] Vogel, Frank E. (2000). Islamic Law and the Legal System of Saudí: Studies of Saudi Arabia. Brill. pp. 4–5. ISBN 9004110623. [4] Glasse, Cyril, The New Encyclopedia of Islam, Altamira, 2001, p. 141
