Jurist (faqih)

الفقيه

The jurist (faqih) is the scholar of the practical rules of the sharia. He derives a rule from its sources, or takes it from an accepted school, and then gives opinions and teaches. In the earliest period the word meant a deep understanding of religion in general. From the late second Islamic century it named the discipline of law, and once the schools took shape a jurist was usually a student who transmitted and defended the teaching of a school's founder. A jurist is not a judge: he knows the rule and gives opinions; the judge settles a dispute under an appointment.

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At a glance

Era
The Prophetic Era · The Rashidun Caliphate · The Umayyad Period · The Early Abbasid Caliphate · The Buyid, Fatimid and Seljuk Era · The Gunpowder Empires · The Modern Era
Region
Arabia · Levant & Iraq · Egypt & Nile · Maghreb · Persia & Central Asia · Anatolia
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Summary

The jurist (faqih) is the scholar of the practical rules of the sharia. He derives a rule from its sources, or takes it from an accepted school, and then gives opinions and teaches. The Turkish encyclopaedia gives two definitions of fiqh: Abu Hanifa's, as knowing what one owes and what one is owed, and the Shafi'i definition, as knowledge of the practical rules derived from their detailed proofs. 1 2

Scholars of legal theory used the word faqih to mean mujtahid, so a man who had not exercised independent judgement was not called a faqih in their usage, but a muqallid, one who passes on and gives the rulings of the mujtahids. In later centuries the word came to be used for anyone who knew his school's law and gave opinions from it without ijtihad. 2

Meaning

The root occurs about twenty times in the Qur'an, mostly in the sense of understanding and grasping, and once in connection with religion, meaning knowledge of religion. 2 In hadith the faqih is a description of a scholar of religion, and the traditions describe him as one who is detached from the world, fears God, is patient and calm, and does not make people despair of God's mercy. The description joins learning with conduct. 2

The entry says that fiqh first meant understanding of religion in general, covering belief, conduct and rules. The name stayed with the science of practical rules after belief and ethics had their own sciences. The narrower technical sense became settled in the following centuries. 1

Origins

The entry treats revelation as the source of law: the Qur'an and the Sunna supplied the material from which jurists drew their rulings, followed by the opinions and efforts of the Companions. It names gradualness, facility and abrogation as features of the Prophet ﷺ's period. 1

Among the Companions known for giving opinions were Abu Bakr, Umar, Uthman, Ali, Zayd ibn Thabit (may God be pleased with him), Aisha, Ibn Umar and Abu Hurayra (may God be pleased with him) in Medina, and Ibn Mas'ud in Kufa. Each region had its own jurists from among these and their students, who relied on what the Companions had transmitted and on local custom. 1

The Umayyad period: Medina and Iraq

The Umayyad period, in the entry's account, began with Hasan's withdrawal from the caliphate in favour of Mu'awiya and lasted until 132 AH (750 CE). In these decades most Companions died and knowledge passed to the Successors. Fabricated hadiths appeared, and there were departures from the public law. 1

Jurists divided into two main schools: the Hijaz, meaning Medina, and Iraq, meaning Kufa. The Medinans treated the practice of their city as the living Sunna, and did not accept Kufan or Syrian reports unless a scholar of Medina confirmed them. The Kufans leaned more on opinion, had fewer hadiths, and were stricter in checking them. 1

Jurists of that generation included Sa'id ibn al-Musayyab, Urwa ibn al-Zubayr, al-Qasim ibn Muhammad, al-Zuhri and Rabi'at al-Ra'y in Medina; Alqama, al-Nakha'i and Hammad ibn Abi Sulayman in Kufa; al-Hasan al-Basri and Ibn Sirin in Basra; Ata and Mujahid in Mecca; Makhul in Syria; and al-Layth ibn Sa'd in Egypt. 1

In the period that followed came jurists to whom the schools were attributed afterwards, among them Malik ibn Anas in Medina and Abu Hanifa in Iraq. The entry says that Ibn Khaldun takes the Hijazis as people of transmission and hadith, with Malik as their imam, and the Iraqis as people of opinion, with Abu Hanifa as theirs, and that al-Shafi'i combined the two methods, drawing on both. 1

The Abbasid period and codification

The Abbasids claimed to revive the age of the Rashidun caliphs, and rewarded scholars who did not oppose their policy. The entry says al-Mansur had Abu Hanifa flogged because he refused a public post and secretly supported the opposition, and that Harun al-Rashid placed Abu Yusuf at the head of the judiciary. 1

In this period the Sunnas were compiled and the six hadith books were written, and fiqh was set down in books that gathered the cases with their proofs. Surviving examples include Malik's Muwatta', the al-Mabsut and al-Athar of Muhammad ibn al-Hasan al-Shaybani, Abu Yusuf's al-Kharaj, and al-Shafi'i's al-Umm. The entry says that six books of al-Shaybani are called the zahir al-riwaya, the earliest and most reliable sources of the Hanafis. 1 3

Scholars of the period were sorted into four groups: extreme and moderate men of opinion, and extreme and moderate men of transmitted texts. The entry places Dawud al-Zahiri among the extreme men of transmitted texts. The four schools were not yet settled: the entry says that Muslims were not divided among four schools until the fourth century AH, and that many other schools existed. 1

Taqlid and the schools

The entry defines madhhab as a mujtahid's method and the rulings that follow from it. It arose in that sense first, and after the third century AH it turned into partisanship. Students and the public came to bind themselves to one mujtahid and treated his words as revelation; where a text disagreed, it was read as interpreted or abrogated. 1

The entry gives reasons why taqlid took root. The founders left senior pupils who were trusted and respected. Posts and endowments were given to followers of one school, so that rulers chose a school: the Seljuks favoured the Hanafis, and the Shafi'is were strengthened after Nizam al-Mulk. 1

Partisanship also shaped the disputes. Views that forbade prayer behind a follower of another school spread, and there were riots between school groups in Baghdad, Rayy, Isfahan and Merv. The entry says that Ibn Jarir al-Tabari was stoned by the Hanbalis because he did not mention Ahmad ibn Hanbal in his book, and was buried at night. 1

Once ijtihad had stopped, the schools worked by takhrij and tarjih. The mukharrijun drew the cause of a ruling from the imam's principles and applied it to new cases. The murajjihun compared the reports from the imam or his pupils and preferred the most reliable. The Hanafis distinguished the zahir al-riwaya from the rare reports, and the Shafi'is preferred the transmission of Rabi' ibn Sulayman al-Muradi to that of al-Muzani and other pupils of al-Shafi'i. 1

Ijtihad and rank

The entry defines ijtihad as the effort to reach a probable knowledge of a legal ruling from the text or, where there is no text, from other methods of deduction. It describes the process, where fiqh describes the result. Scholars of legal theory therefore distinguish ijtihad as an act from fiqh as a body of knowledge. 2 4

The mujtahid is divided into absolute and restricted. The absolute mujtahid can derive the rules of the whole sharia without binding himself to one imam's school. The restricted mujtahid (muqayyad or muntasib) follows his imam's principles and method of deduction and gives opinions within his school. 4

Among the Shafi'is and Hanbalis the restricted mujtahid has four tiers. The first follows the imam's method and calls to his school. The second derives proofs within the imam's principles; these are the ashab al-wujuh. The third knows the school's proofs and defends them without reaching the second tier. The fourth transmits the school, understands it, and is trusted in its transmission. 4

The Hanafis have seven tiers of jurists: mujtahids in the sharia, mujtahids in the school, mujtahids in particular questions, the ashab al-takhrij, the ashab al-tarjih, the ashab al-tamyiz, and the pure muqallids. The other schools have five tiers: the absolute independent, the absolute attached, the restricted, those who prefer and explain within the school, and those who understand the school and transmit it correctly. 2

From the fourth century AH the independent absolute ijtihad became rare and taqlid largely took its place. 1

The entry reports that the idea of the "closing of the gate of ijtihad" appeared among some scholars in the late third and early fourth century AH. It does not know who first said it. It ties the closure to the formation of the schools and the spread of taqlid, to protecting judgement and fatwa from political use, and to fear of innovation in a corrupt age. 4

From about the seventh century AH the need for absolute ijtihad returned to scholarly discussion, and in the nineteenth century reformers, among them Muhammad Abduh, called for ijtihad to be renewed. 4

The jurist and the judge

The entry separates ijtihad, fatwa and judgement. Ijtihad is the theoretical effort and its method. Fatwa and judgement are the application of what jurists reached in practice, and the judiciary and fatwa had a formal institutional frame. 4

The ideal was that a judge should be a mujtahid. From the period of the Successors that became rare. Judges who had not reached ijtihad were appointed, and were required not to go beyond the accepted opinions, so that judgement became a limited choice among what the school had accepted. 4

In the early Abbasid period judges ruled by the school prevailing in their region. A litigant of another school was given a deputy from his own school to hear his case. 1

The jurist knows the rule and gives opinions on it; the judge settles a dispute by appointment. The two offices can be held by one man, but they differ in their origin and their authority. 4 2

Other schools and the marja

The Imami Shi'a (Twelvers) have a fiqh with its own sources: the Qur'an, the Sunna and the reports from the Imams. The entry says that their four hadith books, by al-Kulayni, Ibn Babawayh and al-Tusi, correspond to the six books of the Sunni tradition. 3

Their jurisprudence passed through two methods, the Akhbari and the Usuli. The Akhbari method, which relied on transmitted reports, prevailed until the end of the fourth century AH. From the fifth century the Usuli method, which relied on the Qur'an, the sound Sunna, reason and ijtihad, came to the fore. Muhammad Baqir al-Bihbahani restored the Usuli method after about a hundred and fifty years of Akhbari dominance. 3

Among their known legal books are the Shara'i' al-Islam of al-Muhaqqiq al-Hilli, the Lum'a of al-Shahid al-Awwal, and the Makasib of Shaykh al-Ansari, who combined law and legal theory in one work. 3

Linked to the Imami tradition is the office of marja' al-taqlid, the mujtahid to whom an ordinary believer turns for rulings. In its present form the office took shape with the Usuli school from the late eighteenth century. The marja who is followed is the most learned of the mujtahids, and the conditions are that he be male, adult, sane, Imami, of legitimate birth and just. 5

The entry says the marja collects religious dues such as zakat and khums, sometimes manages endowments, and that taqlid does not apply to the principles of religion. A dead marja is followed only where his superiority over the living is clear. Choosing a marja is personal: a wife is not bound to her husband's marja and an adult son is not bound to his father's. 5

The marjas also had a political role. Under the Qajars, some issued rulings that led to the cancellation of the Reuter concession in 1889 and of the tobacco monopoly in 1891, and many rulings for or against the constitutional movement were issued between 1905 and 1909. The entry says that many marjas kept away from politics. 5

The Zaydis have a legal book attributed to Zayd ibn Ali, which the entry describes as the oldest surviving book of fiqh. The Ismailis have the Da'a'im al-Islam of al-Qadi al-Nu'man. The Zahiris reject analogy and rely on the apparent sense of the text; Ibn Hazm collected their opinions in al-Muhalla. 3 1

Training and ijaza

A jurist learned by sitting with a master, by attendance and by transmission, and then received an ijaza. In the entry's definition an ijaza is a permission from a scholar to a student to transmit, teach or give opinions on what he has learned. For hadith, the entry lists four elements: the one who grants it, the one who receives it, the work it covers, and the form of words. 6

The ijaza began in hadith. Most scholars accepted it, though some objected, among them al-Qadi al-Husayn, al-Mawardi and Ibn Hazm. 6

The entry reports that the earliest written ijaza of this kind known to it was given by Rabi' ibn Sulayman al-Muradi for copying three parts of al-Shafi'i's Risala, and that he wrote it with his own hand, in 265 AH (879 CE). 6

Jurists obtained permission to give fatwas orally from their shaykhs. In the medrese curriculum, the ijaza for fatwa and teaching was given, usually after an examination, and it allowed its holder to teach, give opinions and debate. The entry gives a Shafi'i example of this ijaza, and a Hanafi one from 632 AH. 6

Schools carried their chains of transmission. Al-Shaybani read Malik's Muwatta' in Medina, and al-Shafi'i travelled to Medina, Iraq and Egypt. Pupils wrote down their masters' teaching: al-Shaybani recorded Abu Hanifa's opinions in the zahir al-riwaya; Sahnun compiled the Mudawwana from the reports of Malik's pupils; Rabi' transmitted al-Umm and the Risala from al-Shafi'i; and al-Hallal gathered Ahmad ibn Hanbal's opinions in the Jami'. 1 3

The ijaza in learning remained personal and civil, not official, until it was formally organised in Egypt in 1872 and in Istanbul in 1914, when the ijaza became an official certificate for graduates of the higher medreses. Whoever held the ijaza in fiqh was qualified to serve as judge or mufti. 6

The Ottoman period and the modern period

The entry defines the ilmiyye as the class of medrese-trained scholars who staffed education, health, the judiciary, fatwa and religious affairs in the Ottoman state. 2

The entry says that fiqh declined from the Mongol period to the Mecelle, that attention to it and its codification revived after, and that Jamal al-Din al-Afghani and his followers began the awakening that led to a fresh look at the law. 1

Codification was one of the main movements of this age. The entry divides Muslim states into three groups according to the place of fiqh in their positive law. 1

In Turkish the discipline is called İslâm hukuku, and in Arabic al-fiqh al-islami, names shaped by Western legal thinking. Twentieth-century writing compares fiqh with Western law, and Muslim and Western scholars both write it, a change from the classical books arranged by chapter without such comparison. 1 7

What became of the office

The entry says that after the nineteenth century the discipline moved towards codified law. The Imami office of marja continues: the most learned marja is followed by believers, and some marjas manage zakat, khums and endowments. 1 5

References

  • TDV İslâm Ansiklopedisi, "FIKIH", Hayreddin Karaman, Ahmet Özel and Ali Bardakoğlu, vol. 13, pp. 1–27. 8
  • TDV İslâm Ansiklopedisi, "FAKİH", Hayreddin Karaman, vol. 12, pp. 126–127. 2
  • TDV İslâm Ansiklopedisi, "İCTİHAD", H. Yunus Apaydın, vol. 21, pp. 432–445. 4
  • TDV İslâm Ansiklopedisi, "İCÂZET", education section, Cemil Akpınar and Mehmet Ali Sarı, vol. 21, pp. 393–401. 9
  • TDV İslâm Ansiklopedisi, "İCÂZET", fiqh section, H. Yunus Apaydın, vol. 21, pp. 401–403; read to separate the legal sense of ijaza in contract from the scholar's ijaza, and nothing from it is used for the scholar's ijaza. 10
  • TDV İslâm Ansiklopedisi, "MERCİ-i TAKLÎD", Hamid Algar, vol. 29, pp. 172–174. 5
  • Works named in the entries, not read for this record: al-Shafi'i, al-Risala and al-Umm; al-Shaybani, al-Mabsut; Malik, al-Muwatta'; al-Kulayni, al-Kafi; Ibn Hazm, al-Muhalla; al-Hallal, al-Jami'; al-Muhaqqiq al-Hilli, Shara'i' al-Islam; al-Ansari, al-Makasib; al-Qadi al-Nu'man, Da'a'im al-Islam. 8

Held by

Undated

Not yet covered

The detailed sections on the jurist's place of work (the study circle, the mosque, the medrese), his tools and registers, gatherings, travel beyond the examples given, and the image are not yet written. They need sources not read for this record.

References

  1. FIKIH — TDV İslâm Ansiklopedisi (Hayreddin Karaman, Ahmet Özel, Ali Bardakoğlu) , p.1-14
  2. FAKİH — TDV İslâm Ansiklopedisi (Hayreddin Karaman) , p.126-127
  3. FIKIH — TDV İslâm Ansiklopedisi (Hayreddin Karaman, Ahmet Özel, Ali Bardakoğlu) , p.14-22
  4. İCTİHAD — TDV İslâm Ansiklopedisi (H. Yunus Apaydın) , p.432-445
  5. MERCİ-i TAKLÎD — TDV İslâm Ansiklopedisi (Hamid Algar) , p.172-174
  6. İCÂZET (education) — TDV İslâm Ansiklopedisi (Cemil Akpınar, Mehmet Ali Sarı) , p.393-400
  7. FIKIH — TDV İslâm Ansiklopedisi (Hayreddin Karaman, Ahmet Özel, Ali Bardakoğlu) , p.22-27
  8. FIKIH — TDV İslâm Ansiklopedisi (Hayreddin Karaman, Ahmet Özel, Ali Bardakoğlu) , p.1-27
  9. İCÂZET (education) — TDV İslâm Ansiklopedisi (Cemil Akpınar, Mehmet Ali Sarı) , p.393-401
  10. İCÂZET (fiqh) — TDV İslâm Ansiklopedisi (H. Yunus Apaydın) , p.401-403
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islam.museum contributors. “Jurist (faqih)”. islam.museum, https://islam.museum/en/job/faqih/. CC BY-SA 4.0. Last updated 2026-11-01.

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