The verb faqiha denotes in nontechnical contexts a correct understanding of matters that are not readily grasped. The fifth form of the verb, tafaqqaha, occurring in the Qur’an (9.122), refers to the close study and understanding of a specific issue. In the technical legal usage of the eighth century, fagih (pl., fuqaha’) signified an expert in fiqh, the specialized knowledge of law. When legal theory (usul al -fiqh) emerged toward the beginning of the tenth century, the term faqih came to refer to a legist who can reason and meditate on a particular case of substantive law on the basis of textual evidence specifically relevant to that case. In contradistinction to the fagih, a legist who specializes in the study of the sources and methodological foundations of the law and who treats of positive law only as a means for constructing a legal theory is known as an usuli, a legal theoretician. Thus by the beginning of the tenth century at the latest, the technical term faqih came to refer exclusively to a specialist in case law, the so-called “branches” (furu) of the law. In pedagogical technical terminology, a mutafaqqih is a student of positive law, and tafaqqaha ‘ala is the verb connoting the activity of studying under an authority on substantive law.
The fuqaha’ constituted a major segment of the religious elite of Islam, the ‘ulama’, who were considered the guardians of the community and its religion. Socially they were the pillars of their communities, and legally they functioned as judges and jurisconsults (muftis). As judges, they acted as trustees of the properties of orphans, as supervisors of charitable trusts, and as marriage guardians for women who had no male relative to function in this capacity. As jurisconsults, they issued opinions (fatwds) on legal questions addressed to them by members of the community.
On the practical level, the fuqaha’ derived their authority from the very functions they fulfilled in Muslim society; but on the theoretical level, they were deemed-and reckoned themselves-to continue the works of the prophets. As such, they were thought to be the custodians of the shari’ah, the means to salvation in the hereafter, and thus to be the keepers of religion. The legitimation of their authority is explicitly attested in the oft-quoted prophetic tradition, “The `ulama’ are the heirs of the prophets.”
As a result of the massive twentieth-century reforms in the legal systems of Muslim countries, the institution of the fuqaha’ has steadily been on the decline. They have substantially lost not only their influence as a religious elite, but also their functions as jurists, judges, legal guardians, and, to a lesser degree, as jurisconsults. The introduction of European codes and Western-style courts has made it necessary to phase out the functionaries of the traditional system. They have been largely replaced by modern lawyers, jurists, and judges. Their function is now limited to a narrowly defined jurisdiction in family law, and even this is not without the encroachment of state secular legislation.
[See also `Ulama’; Usul al-Fiqh.]
BIBLIOGRAPHY
Schacht, Joseph. An Introduction to Islamic Law. Oxford, 1979. Tyan, Emile. “Judicial Organization.” In Law in the Middle East, edited by Majid Khadduri and Herbert J. Liebesny, pp. 236-278. Washington, D.C., 1955. Concise statement on the religious character of the fuqaha’ and their functions as judges, jurisconsults, guardians, etc.
WAEL B. HALLAQ
