When I read about Islamic jurisprudence (fiqh), I find out that there is a challenge between scholars regarding law on relation of universal theory of fiqh and laws of fiqh or Qawaed fiqhi.
Now I want to know exactly what is the distinction between them?
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1Sorry but i don't understand your Question are you talking about the difference between theological/fiqh jurisprudence and what we may call established law? Or do you want to know the difference of meaning of some terms like osol al fiqh (sources/bases/roots of fiqh), furu' (branches...) of fiqh, qawa'id (rules) of fiqh and maqassid a-Shari'a (goals) of shri'a?– Medi1Saif ♦Mar 11, 2016 at 6:44
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we have two kind of concepts in fiqh. one is to some rules that we know them as Qawaed fiqhi and other concept is universal theory of fiqh.some believes that these two concepts are as the same,I Want to know that is is it correct?that's clear.– Ya MahdiMar 11, 2016 at 20:59
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What is universal theory of fiqh could you give examples?– Medi1Saif ♦Mar 14, 2016 at 6:24
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for example there is no universal theory about contract in islamic fiqh. traditional fiqh just is concerned with determined contracts and dealth with contracts seperately.– Ya MahdiMar 18, 2016 at 20:47
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1 Answer
To the questioner. There are various sciences related to Fiqh (Islamic Jursiprudence). Relevant to your question are the following:
Usool al-Fiqh (Foundational Juristic Principles) Ahkam al-Fiqh (or Furu') Maqasid ash-Shariah (Aims and Objectives of the Sacred Law) Qawaid Fiqhiyyah (Juristic Axioms or Maxims) Nathariyah Fiqhiyyah (Juristic Theories)
There is no universal theory of Fiqh but rather the various sciences mentioned address the subject of the relationship between God (The Law Giver), Humans and their actions.
The primary subject of Usool al-Fiqh pertains to how to engage the juristic sources of Islam and the method by which laws are established. Usool al-Fiqh is also concerned with the characteristics and qualities of those able to do so. So, Usool preceeds the Furu and the Furu are a product of the Usool - generally speaking.
The Furu are concerned with the actions of the morally responsible. Such as how to make ablution (wudu). How to make prayer. The furu are cataloged in the manuals of fiqh that are well known to Muslims.
Maqasid ash-Shariah is concerned with the aims and objectives of the law. Think of it as a way to align the Usool and Furu such as to avoid harm for instance. This is perhaps what you may have been referring to when you said, Universal Theory of Fiqh. Maqasid studies engage major universal principles such as preservation of religion, life, wealth, lineage and intellect. But also how to weigh and rank legal rulings so that they align and do not conflict with the preservation of these things.
Qawaid Fiqhiyyah or Juristic Maxims or Axioms is the study of general legal principles that can be applied to many related branches. In logic this would be a type of inductive application of legal principles. The scholars in viewing the legal rulings laterally from various chapters and subjects of Fiqh compiled broad principles that can be applied various situation in order to arrive at a ruling. Such as the famous principle, "Harm must be removed".
Finally, Nathariyyah Fiqhiyyah or Juristic Theory is a recent development in the Science of Fiqh. They are subject based studies of particular topics in order to arrive at a general theory of what jurist understood or arrived at. As someone mentioned above, there is no general theory of contracts. That's not necessarily true. This is one of the benefits of Nathariyyaat because they seek to study a single subject in order to extract the theory that in many cases is implicit. Many times jurists in their books may not have addressed a theory per se but no doubt had a living method and reasoning behind their conclusions. After purposeful study one can begin to extract and derive juristic theories.
To that end, Nathariyyaat have become novel within the last 100 years or so. There have been studies produced on theories of contract, for instance. As well as many others. This type of study can be found within Masters and Doctoral studies at Islamic Universities.
I apologize for being long-winded but hope this helps the questioner.
And Allah ta'ala knows best..
Tariq
