PARA-FIQH : Bridging Thematic Fiqh to U ṣ ūl and U ṣ ūl ’ s Respo se to Specialization of Fiqh

Muslim feminist movement represents an indigenous voice among the contemporary literature on women and family. Its main contention is that women in Muslim society are accorded less favourable treatment especially in terms of legal rights. To remedy the situation, feminist scholarship’s main argument is that there is a need for feministreading of the sacred texts so as to purge the juristic legacy of malebiased views and achieve justice and equality for Muslim women in contemporary families. One principal methodological framework for this idea to materialise is to embark on the re-reading of the Quran from the women`s perspective. In this context, this paper presents issue-based analysis of Amina Wadud’s reading of the relevant Quranic passages on family law matters and finds that in spite of its merits, its main handicap lies on its methodological flaws, both in terms of approach and outcome. Methodologically, it is regarded as selective and ultra-vires of Islamic methodology of legal reform. It terms of impact, it is suspected as being tainted with Western inspired assumptions of rights in terms of justice and equality between the genders. To overcome this impasse, the paper argues for a mediated holistic approach to harmonise relations between men and women in the family.

classical literatures of the Muslim scholars. By scrutinizing the concept para-fiqh, it is hoped that: first, this article presents a universal legal argument on some particular legal themes; second, it explains the principles of to understand the thematic Fiqh products. The findings emphasize that the para-Fiqh concept is important for enriching the intellectual tradition of Muslim communities, as well as being a bridge between the gaps created by the study of Islamic jurisprudence (fiqh) and the study of Islamic legal theory (Uṣūal-fiqh

A. Introduction
In Islamic intellectual tradition, Islamic law exclusively studied by two different sciences, Uṣū al-Fiqh and Fiqh (Islamic Jurisprudence). Uṣū al-Fiqh defines Islamic law as the god's command related to mukallaf actions, 1 while Fiqh refers as the result of god's command, not the command its self. 2 Both terms emphasize in different field; Uṣūl focuses on legal evidence, which is the god's command, while Fiqh focuses on legal action contained in legal evidences. Uṣūl supposes to be the reference of Fiqh; therefore, the whole study of Fiqh must refer to Uṣūl as its foundation. Its foundation is recognized from its name "Uṣū al-fiqh" which means "the foundation of Fiqh". Uṣūl provides principles for Fiqh to comprehend legal evidences and furthermore explains the legal action in detail to be implemented.
Therefore, the development of Fiqh 3 should be followed by Uṣūl and on contrary. But, in fact, the growth of Fiqh cannot be equalized by Uṣūl. The current trend of Fiqh are its specialization -some scholars showed particular studies in only one certain legal theme like mu`āmalat, munākahatof themes of Fiqh discussion and the emerging of contemporary issues like modernity and health. On the contrary, Uṣūlhas been far more stagnant compared to Fiqh. The literatures of Uṣūl in its early period were not much different with thecurrent literature. Despite its stagnancy, some growth of Uṣūl revealed only in aspect of systematization and definition. We could easily compare early Uṣūl literatures with modern literatures, such as: 11  The increase of Fiqh which is not followed by Uṣūl causes a gap between them. On legal source, for instance, Uṣūl listed`urf (custom) as a source, but all Fiqh ibadat rejected it as legal source by acclamation as stated "al-aṣlu fī al-`ibādat al-tahrīm" which means all worships were not legal except based on the practice of Muhammad. The new form of worship without example from The Rasul, called bid`ah, should be rejected. On contrary, Fiqh mu`āmalat listed`urf (custom) as legal source following "al-ashlu fī almu`āmalat al-ibāhat or al-`ādat muhakkamat". The gap also can be seen in legal subject, defined as mukallaf, a person by Uṣūl. Uṣūl never extent the meaning of mukallaf to be a corporation or institution, even though Fiqh mu`āmalat urgently need for it, because contemporary mu`āmalat has not only been acted by person, but also by corporation or institution.
To respond the Fiqh specialization and minimize the gap between Uṣūl and Fiqh, I try to locate this issue on a discussion of thematic Uṣū al-Fiqh, this discussion may be termed as para-fiqh. Para-Fiqh is a science connected Uṣūl to Fiqh, and the response of Uṣūl to specialization of Fiqh.

B. Uṣū al-Fiqh and Its Scope
The term of "Uṣū al-Fiqh" consists of two Arabic words: Uṣūl and fiqh. Uṣūl means the foundation or the origins. 14 The word Uṣū lis often interpreted as basis, or root. 15 In its use, the word "Uṣūl" also means the general principle or the general legal status 16 ,such as "al-aṣlu fi al- amr li al-wujūb, 17 in which the word "al-aṣlu" means general principle. Meanwhile, the word "fiqh" means understanding or knowledge. The word "fiqh" definitively means an understanding of jurist on Islamic law. However, the word Fiqh substantively means the result of ijtihād performed by jurist. Fiqh mostly defined as an Islamic science which explain Islamic law in detail in order to be practicable, based on detail legal evidences. 18 In other word, Uṣū al-Fiqh could be simply defined as the foundation or the principles of Fiqh.
The core of Uṣū al-Fiqh is the method or rule to understand legal evidences. 19 As a method, Uṣū al-Fiqh is a procedure followed by fuqahā' in understanding a legal evidence in order to produce the proper understanding. That is why Uṣū al-Fiqh contains textual and contextual principles needed in understanding the legal evidence. For instance, a legal evidence "aqim al-shalāt" supposedly states wājib as a legal status of prayer, because Uṣū al-Fiqh stipulates "al-aṣlu fī al-amr li al-wujūb". 20 Another example, "wa lā taqrabūz zinā" must state harām as a legal status of zinā (sexual intercourse of unmarried couple), because Uṣūl determines that "al-aṣl fi al-nahyi al-tahrīm". 21 The Most of legal evidences are text, Qur'anic verse and hadith. Therefore, Uṣū al-Fiqh is dominated by textual principles to understand textual legal evidences, like principle of amr-nahy, `āmm -khāsh, muṭlaq-muqayyad, manṭūq-mafhūm etc. 22 17 Abdul Hamid Hakim, Mabādi' al-Awwaliyyah (Jakarta: Sa`diyah Putra, 1996), p. 8. 18 Hakim, Mabādi…, p. 6. 19 Bek, Ushūl…,p. 13. 20 Hakim,Mabādi…,p. 6. 21 Hakim,Mabādi'…,p. 8. 22 Bek, Ushul…, p. 119-122 Uṣū al-Fiqh is also defined as science of legal evidence to look at beyond the product of Islamic law. Several sources of Uṣū al-Fiqh are contain of some discussions on: law, law giver, legal reasoning, subject and object of law, hierarchy of legal source, legal evidence, finding legal question (ijtihād), method of ijtihād, principles to understand the legal evidences, the conflict of evidences, etc. 23 The contents of Uṣūl mainly refer to one object, namely legal evidence. The law has been discussed in Uṣūl because it is the purpose of legal evidence. The law giver has been discussed because He is the source of legal evidences. The Uṣūliyyah principle has been discussed because it is needed to understand the legal evidences.
However, some of Uṣūl literatures stated that the object of Uṣūl is stipulation of legal evidences toward a legal status of an action. Its mean that the object of Uṣūl is "law and its legal evidences", 24 such as to determine "aqim al-shalāt" for obligation of prayer, or "lā taqrabū al-zinā" for prohibition of zinā. But, in my opinion, the real object of Uṣū al-Fiqh is no other than legal evidences, or what so called by some literatures as al-dalīl al-sam'iy. 25 Literatures of Uṣū al-Fiqh described various purposes of Uṣū al-Fiqh. Some Muslim scholars argued that the purpose is to determine legal status of action based on legal evidences, and other said to determine legal evidence for legal status of action, while other said to find law legal evidences by using proper principle. But, if the purpose is 23  referred to its object, the substance of Uṣūl's purposes is to understand legal evidence of Islamic law. In accordance with its purpose, Uṣū al-Fiqh constructs the necessary principles to understand the legal evidences. Referring to its object (legal evidences) and purpose (to understand legal evidences), all scopes of discussion in Uṣūl are limited for: legal evidences and its understanding. Hence, the main scope of Uṣū al-Fiqh can be classified in to two classes: an introduction to Islamic law and a methodology. The classes could be seen as layers of Uṣū al-Fiqh. The first layer is the introduction to Islamic law, and the second is methodology in finding Islamic law.
As an introduction, the scope of Uṣūl comprises of definition of law, law giver, object and subject of law. 26 Mohammad Rifa`i, in his work entitled;Fiqh, started his book with discussion on legal source and method to find Islamic law before discussing ṭahārah(purity-purification), prayer, fasting and etc. 27 In general, in two volumes of Indonesian literatures of Uṣūl, introduction to Islamic law revealed in the first volume. 28 The second layer of Uṣūl, called the substantial Uṣū al-Fiqh, is methodology to find Islamic law. It focused on legal evidences and methods to understand them. 29 Its scope consists of legal sources, legal evidences and its classification, principles of legal evidences such as amarnahy, manṭūq-mafhūm,`āmm-khāsh, conflict of evidences, 26

C. Fiqhand Its Scope
Fiqh 31 is definedas a science of practical Islamic law based on detailed legal evidences, 32 of course as a result of ijtihād. 33 Fiqh can also be seen as a systematic understanding of fuqahā (jurists) on legal evidences.  vol. 1,p. 517,vol. 2,p. 520,vol Numbers of evidences are crucial in its understanding. Single understanding of legal evidence can not be considered as fiqh, because to achieve a systematic understanding, one had to refer the whole legal evidences on certain theme. For example, "fasting is obligated for mukallaf"which merely derives from "kutiba`alaikumuṣ ṣiyām" is not fiqh. Only a systematic comprehension on fasting consisted of rukn, syarṭ, mubṭil, produced from whole legal evidences on fasting are called fiqh. The term "practical" refers to a detailed explanation on how to conduct a legal action. In another word, Fiqh is an instruction of how to practice legal action.
The object of Fiqh is mukallaf's action in accordance with Islamic law. 34 The legal action forms various scope; an action in relation with god, humans, animals, plants, environment like land or ocean, or even with himself. The vastness scope of legal action leads fuqahā' to limit his Fiqh on certain theme. This later contributes to specialization of Fiqh or known as thematic Fiqh. Thematic fiqh focused on one theme of Islamic law such as worship, marriage, inheritance, modernity, environment, women, and minority.
The early tradition of scientific literature had started this specialization when fuqahā' divided his discussion into several chapters. In this period, the term of thematic Fiqh or Fiqh specialization had not been introduced.
Fuqahā's limitedness in time and resources to cover whole mukallaf legal actions also contributed to this process. The various object of Fiqh, cannot possibly covered in 60 years of human life time. A scholar could begin his scientific writing in range 25-35 years of his age, while 6-25 years of his age used to attend formal elementary to postgraduate educations. This might be the reason behind the disappearance of encyclopedic literatures of Fiqh during the modern age. Other factors that might also affect this trend of Fiqh are such as linearism in Indonesian education system, and the economic level causing scholars spend his time not only to write Fiqh, but also to seek sustenance.
Each legal theme discussed in Fiqh: mu`āmalat, jināyat, mawārits, siyāsat,`ibādat etc. refers to Uṣū al-Fiqh. Unfortunately, this Uṣū al-Fiqh had only a single model in which discussed the methods of understanding legal evidences and fiqhiyyah principles. This is the single model that has been taught generally for Indonesian Islamic students. This can be proofed by literatures of Uṣū al-Fiqh written by Indonesian scholars. 63 The same thing also can be found in Arabic literature of Uṣū al-Fiqh. 64 This means that Fiqh specialization is not properly responded by Uṣū al-Fiqh. Both mu`āmalat and jināyat scholars together refer to single model of Uṣū al-Fiqh.
Uṣū al-Fiqh itself never presents the legal evidences required by Fiqh. 65 Uṣū al-Fiqh only provides slight description of legal evidences by determining the source both Quran and Sunnah, or other legal source debated by scholars. Each candidate of fuqahā' of mu`āmalat, jināyah and siyāsat has never revealed complete understanding about the amount of legal evidences related to their themes that they need to refer in their study.
The candidate of Fiqh scholars wasted their time to learn Uṣū al-Fiqh which is sometime irrelevant with their study. Those factsexplained, lead us to conclude that Uṣū al-Fiqh had to respond the specialization of Fiqh.
To linkbetween Uṣūl andFiqh, it is necessary to construct new science to facilitate the candidates of fuqahā' in maximizing their potential. The new science studies legal evidences focused on a special legal theme and methods to understand them. Regarding the science studying the thematic legal evidences and methods, it can substantially be considered as part of Uṣū al-Fiqh,but just more thematic. It only focused on one legal theme such as jināyat, siyāsat mu`āmalat, mawārits, munākahat,`ibādat and other legal themes. Therefore, we may call the science asUṣūl mu`āmalat as it connects the fiqh mu`āmalah to Uṣū al-Fiqh, or may call Uṣū al-jināyah or Uṣū mawārits or Uṣū ibādah. Those are the science this article tries to propose as a new term called para-fiqh. It seems not appropriate to create another term "Para-Uṣūl" for two reasons; its position which is located in the middle of Uṣūl and Fiqh, and the contemporary of Fiqhwhich is more thematic than Uṣūl.
The term "para" means beside or not same with, close to, 68 such as "paramedic or paragliding". The term "parafiqh" means beside Fiqh or near to Fiqh but not same with it. Para-Fiqh studies whole legal evidences on certain theme but it is only focused on methods to understand them, not to explain them to be practical as evidences. However, they are different in purpose; Fiqh studies legal evidences to explain legal action for implementation, while para-Fiqh explains methods to understand them.
To sum up, para-Fiqh can be defined as science of legal evidences on certain theme and methodology to understand them. The current trend indicates the emerge of this para-fiqh that can be seen in some new literatures, such as Muhammad Mufid who wrote Uṣū al-Fiqh Ekonomi" 69 or Abdiansyah Linge who wrote "Ayat-Ayat Ekonomi" 70 as small part of para-fiqh mu`āmalat, or Abdul-Azeem Badawi who wrote "The Concise Presentation of Fiqh of the Sunnah and the Noble Book". 71

Border of Uṣūl and Fiqh
Para-Fiqh shares a same object of study with Fiqh, which is legal evidence on the same theme. 72 Both parafiqh jināyat (Uṣūljināyat) and fiqh jināyat studied legal evidences of jināyateither fromQur'an or hadith, or other legal sources. 73 However, para-Fiqh presents only thematic legal evidences together with methodology to understand them. While Fiqh, on the contrary, explains its content in order to unveil Islamic law.Fiqh is not  687-702. 72 There is no objection that the object of ushūlfiqh is legal evidences. All ofushūl fiqh literature which discussed the object of ushūl must listed legal evidences as object. 73 See for instance Nurul Irfan and Masyrofa, Fiqh Jinayat (Jakarta: Amzah, 2014), p. 18-20. obliged to explain its methods, because this explanation refers to para-fiqh.
While para-fiqh explicates the methodology used to understand legal evidences, Fiqh attempts to define the legal action contained in legal evidences presented by para-fiqh, either in taklifī or wadh`ī. So, determining the legal status of zina (sexual intercourse of un marriage couple in Islam), classifying it in to two classes, explaining its proofing system, and implementing its penalty are the task of Fiqh and cannot be interfered by para-Fiqh (Uṣū al-jināyat).
Either para-fiqh or Fiqh possibly defines the legal theme they studied. Both para-fiqh jināyat and fiqh jināyat, could define "jināyat". Defining the legal theme either in para-Fiqh or in Fiqh is certainly required to establish definite equal perspective of para-Fiqh and Fiqh.

Object and Purpose
As we have mentioned, the object of para-Fiqh is thematic legal evidences, such as evidences of jināyat or āmalat, etc and methods to understand these thematic legal evidences. These legal evidences may originate from Qur'an, hadith, community tradition, state constitution, the practice of ṣahābat, and etc. The sources of legal evidences may be different from a theme to other themes. Worship, for instance, its legal evidences only originated from Qur'an and hadith, no other sources. While legal evidences of mu`āmalat may be derived from Qur'an, Sunnah, custom or tradition and state constitution.
Para-fiqh has two main purposes: presenting whole thematic legal evidences and explaining the methods or principles needed to understand them.
However, the most challenging task of para-Fiqh lies in the first. Some scholars had begun the task, like Abdiansyah on "Ayat-Ayat Ekonomi" who presented legal evidences of mu`āmalat contained in Qur'an, Ahmad Sholihin Siregar on "Āyāt al-Ahkām", a compilation of selected all legal evidences contained in Qur'an, classified them into legal themes. 74 Other than Qur'an, it seems para-fiqh required more time to classify whole legal evidences from hadith. Some efforts in presenting and classifying them had begun by muhadditsīn in their Sunan, just like what Abū Dāūd, al-Tirmīdzī, Ibnu Mājah, and al-Nasā'ī did. They had compiled whole hadith (legal evidences) and classified into several legal themes. However, modern legal theme of fiqh which had rapidly growth has more variation compared to legal themes found in these Sunans. Therefore, para-Fiqh needs to reclassify the hadith into new legal themes in responding to current themes of Fiqh. So did Para-Fiqh to other sources of legal evidences, such as community tradition, state constitution, the practice of ṣahābat and other sources.
Para-fiqh also should reselect the relevant principles and cast out the irrelevant one, mainly in aspect of fiqhiyyah principles. Al-aṣlu fi al-`ibādat, for instance, is not relevant with jināyat, and should be put aside from para-fiqh jināyat, and so be "al-itsāru fi al-ibādat madzmūm" .

Scope of Study
Para-Fiqh studies more specific scope compared to Uṣūl or Fiqh in accordance with its definition, object and purpose. The scope of para-Fiqh must refer to its two purposes: presenting whole thematic legal evidences and explaining the methods to understand them. To fulfill the two purposes, the scope of para-Fiqh should consist: 1. Definition.
2. Legal source. Legal sources required further discourse because the sources may be truly different among parafiqh or legal themes. Due to these sources, para-Fiqh ought to explain the hierarchy of legal sources and the conflict of evidences.

Legal Evidence
Para-fiqh must provide whole thematic legal evidences, either from Qur'an or hadith or other sources. Most partof para-fiqh studies is these legal evidences. Para-fiqhhas to select and compile the thematic legal evidences from Qur'an, hadith, custom, state constitution, etc.

Uṣūliyah Principle
Uṣū al-Fiqh has been explaining a lot of Uṣūliyyah principles. The task of para-fiqh, in this case, is to explain the principles related to its theme using thematic legal evidences as its example. Besides, para-Fiqh also should construct a new Uṣūliyyah principles related to new legal sources such as state constitution.

Relevant Fiqhiyyah Principle
Para-Fiqh selects and provides only relevant thematic fiqhiyyah principles, and ignores irrelevant ones. For example, Al-ashl fī al-`ibādat al-tahrīm" should be removed from para-fiqh jināyat, and listed in para-fiqh`ibādat. Some parafiqhes may share same principles, like "al-umūru bi maqāṣidihā" which is relevant to worship, jināyat, munākahat etc.

Other studies of Uṣul
Para-Fiqh should discuss some studies of Uṣul which are different from general Uṣū al-Fiqh. The definition of Islamic law is certainly unnecessary, because the same definition may be applied for all legal themes. As well as the definition of law giver, which means no ne of law giver except Allah. However, for certain themes, legal subject may be dissimilar, as the subject of mu`āmalat is not barely limited to mukallaf but also legal institution or corporation that is never been discussed by general Uṣū al-Fiqh.
We might include the whole scope of Uṣū al-Fiqh in para-fiqh, but it could later lead us to futility and disappearances of Uṣū al-Fiqh. If this situation occurred, we would had "an orphaned" para-Fiqh from the "mother science: Uṣū al-Fiqh ".

F. Para-fiqh: An Axiology
Para-fiqh is constructed to help candidates of fuqaha' focused on certain legal themes, especially in particular study program like jināyat, mu`āmalat, ahwāl syakhshiyyah, etc. It eases them to explore and master Uṣū al-Fiqh with their theme. Hence, the scholar of mu`āmalat would not be halted on general Uṣūl explaining general legal evidences and methods to understand them, which are occasionally irrelevant with their study. Therefore, all candidates shall have more opportunities to deepen their study. Scholar of jināyat, for instance, may refer to Uṣūl jināyat which provides him all jināyat legal evidences and methods, and then contribute to a new original thought. On the other hand, they would not be distressed from seeking thematic legal evidences and wasting times for classifying them.
Another advantage offered by para-Fiqh is the progress of Uṣūl and Fiqh, as para-Fiqh develops new principles of Uṣūlliyyah and fiqhiyyah. Fiqhiyyah principles of jināyah and siyāsah for instance, are faintly touched by Uṣū al-Fiqh compared to ibādat or munākahat.
Para-Fiqh also may offer solutions for contemporary debate of Islamic law, which is Uṣūl cannot offer. Long Debate on Qanun Jinayat, for instance, whether it is part of Islamic law or Indonesian legal system; either complies to Islamic law or Indonesian constitution. Some scholars, such as Natangsa Surbakti, 75  Amsori-Jailani 77 concluded that Qanun Jinayat is combination of Islamic law and Indonesian penal law. Para-Fiqh could affirm the conclusion in perspective of Islamic law as it stipulates state constitution as legal source of jināyat under Qur'an and Sunnah.
For theme of worship, Para-Fiqh also can settle the conflict on legal status of wirid 78 whether it is bid`ah or not, as Para-Fiqh (Uṣūlibādat) only legalizes Qur'an and Sunnah, and rejects`Urf (custom) as legal source.
Recently, I myself have been asked "whether a legal institution like Syariah Mandiri bank could possibly carry Islamic immolation on behalf of its name or not" by chief of Immolation committee in STAIN Gajah Putih. The extension of legal subject to mukallaf (person) and legal institution, Para-Fiqh could easily answer the question.

G. Conclusion
The vastness of Fiqh scope, limitedness of lifespan, and stagnancy of Uṣū al-Fiqh create a gap between Fiqh and Uṣūl. Various thematic Fiqh refers to only one model of Uṣū al-Fiqh . This led to the need of science bridging thematic Fiqh to Uṣūl, namely para-fiqh.
Para-fiqhis science of whole thematic legal evidences and methods to understand them. Besides, I determined para-Fiqh here is a paradigm to understand the dynamic interplay between Fiqh and Uṣū al-Fiqh discussions. 76 Because of para-Fiqh studies thematic legal evidences and its methods, therefore, it can be considered as part of Uṣūl, and not considered as Fiqh.
Para-Fiqh presents the thematic legal evidences together with methods to explain them. Para-fiqh does not discuss explanation of legal actions contained in legal evidences, as it is an authority of Fiqh.
The object of para-Fiqh is thematic legal evidences, such as jināyat or mu`āmalat or munākahat legal evidences. Para-fiqh has two main purposes: First, presenting the whole thematic legal evidences, and second, explaining methods to understand them.
The scope of para-Fiqh consisted of definition of terms (Fiqh, Uṣū al-Fiqh, para-fiqh, legal theme), legal sources, thematic legal evidences, Uṣūliyyah and fiqhiyyah thematic principles, and other different Uṣūl studies.
Para-Fiqh is urgently constructed to facilitate fuqahā' in developing Uṣūl and Fiqh, to deepen Uṣūl -mainly in Uṣūliyyah and fiqhiyyah thematic principles-and Fiqh studies.