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Two books on Sunni method of jurisprudence and religious law
Book 1: "Usul al Faqh al Islami" by Taha Jabir Al Alwani
Book 2: "Usul al-Fiqh" By Shah Abdul Hannan
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BOOK 1:
"USUL AL FIQH AL ISLAMI"
SOURCE METHODOLOGY IN ISLAMIC JURISPRUDENCE:
Methodology for Research and Knowledge
By Taha Jabir Al Alwani
English Edition by:
Yusuf Talal DeLorenzo
A. S. Al Shaikh-Ali
The International Institute of Islamic Thought - Virginia
Dedication
We present this study to those Muslim youth who are searching for a ray of light in the deepest darkness that surrounds us, and who are seeking a solution and a way out of the crisis that currently overwhelms us; in the hope that it may be of benefit to them, in Sha'a Allah.
1411 AH/1990 AC by
The International Institute of Islamic Thought
555 Grove Street, Herndon, Va. 2207O-4705, U.S.A.
ABOUT THIS BOOK
Usul al Fiqh is a science in which reason and revelation come together, where considered opinion is accompanied by received law. Yet, al Usul does not rely purely on reason in a way that would be unacceptable to revealed law, nor is it based simply on the kind of blind acceptance that would not be supported by reason. Hence, the science of Usul al Fiqh has been called the "Philosophy of Islam".
This book is an attempt to simplify Usul al Fiqh and introduce it to specialists in the social sciences and humanities who do not have the opportunity to study the details of the science considered to be the most important method of research produced by Muslim thought during its most creative period.
The International Institute of Islamic Thought presents this work as the first in a new series of academic research to be made available to a wide readership of students, educated Muslims, and scholars of Islamic knowledge.
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In the Name of Allah. the Compassionate, the Merciful, Praise be to Allah, Lord of the Universe, and Peace and Prayers be upon His Final Prophet and Messenger
# A Word From the Editors
Legal studies in any language pose problems to authors and readers alike. In translation, those same problems are compounded, even many times over at some places in the text, so that quite often the result is, to say the least, disappointing. Unfortunately, with regard to English translations of classical works of the Islamic intellectual heritage, this sort of disappointment has been the rule rather than the exception.
Certainly, to the student of Usul al Fiqh this disappointment has been all the more acute. While translations of classical works in the field are non-existent, with the shining exception of professor Khadduri's excellent rendition of al Imam al Shafi'i's Risalah, there is as yet no general and systematic study of the discipline in English. Even survey literature on the subject is scarce.
Yet, despite this near desperate situation, the International Institute of Islamic Thought has not published the present volume merely in order to fill a void in the library. Rather, it is in recognition of the dynamics of intellectual reform, and of the role of Ijtihad in that process, that the Institute is undertaking to publish a series of works by its President, Dr. Taha Jabir al 'Alwani, on the subject of al Usul and, in particular, Ijtihad.
This volume should be understood as an overview of the field, and as an introduction to the classical discipline. Subsequent volumes, however, will, In Sha'a Allah, present much that is original, and even vital. For it is the conviction of the Institute that the source methodology developed by the scholars of al Usul for dealing with and interpreting the texts of the Qur'an and Sunnah is what now needs to be placed before our Muslim social scientists so that they, with this important and versatile tool in hand, may proceed to fashion the outlines of a new relevancy for Islam.
Certainly, for our part, we can only hope that we have succeeded in making the text clear. Moreover, we have taken pains to include a full Subject Index, with the help of Cindex version 4.0 software, that should prove useful to specialist and generalist alike. Also, while the Arabic edition of this book was published with topic headings, it was not divided into chapters. In the interest of clarity, we have divided the work into chapters by converting, where necessary, topic headings into chapter headings; and by adding brief explanatory notes. May Allah give His guidance to the Ummah of Muhammad (PBUH).
A.S. Al Shaikh-Ali Yusuf Talal DeLorenzo
IIIT-London Department of Research-IIIT
Jumada al Akhirah 1411 AH
December 1990 AC
# Introduction
The research for this work originally formed part of the studies I undertook in Islamic Jurisprudence for the doctoral program at Al Azhar University in 1392/1973. On the occasion of the Second International Conference on Islamic Thought, held in Islamabad, Pakistan in 1402/1982 on the subject of the "Islamization of Knowledge", material from this thesis was presented in a revised form.
When the League of Muslim Youth expressed their desire to hold a course on Usul al Fiqh "Source Methodology in Islamic Jurisprudence", the material for this study formed one of the six subjects covered in the course. Then, as many of those who attended the course expressed a wish to obtain the lectures in printed form, and as the study was already being printed as one of the papers for the Islamabad Conference on the Islamization of Knowledge, which the International Institute of Islamic Thought will soon be publishing(*), In Sha'a Allah, we decided to take this opportunity to present this part of the Conference material to those who attended the course and to others who may wish to gain knowledge of this essential science of Shari'ah. [ Note: (*) The edited proceedings of the Islamabad Conference were published by the Institute as volume number 5 in the Islamization of Knowledge Series, and is entitled ISLAM: Source and Purpose of Knowledge.]
The science of Usul al Fiqh is rightly considered to be the most important method of research ever devised by Muslim Thought. Indeed, as the solid foundation upon which all the Islamic disciplines are based, Usul al Fiqh not only benefited Islamic civilization but contributed to the intellectual enrichment of world civilization as a whole. It will not be out of place to note here that the methods of analogical developed within the framework of Islamic jurisprudence constituted the methodological starting-point for the establishment and construction of empiricism, which in turn is considered to be the basis of contemporary civilization.
We present this brief work to all who are interested in gaining some knowledge of this science; and we ask Allah Ta'ala to help us benefit from what we learn, and to learn that which will benefit us, and to protect us from knowledge that is not beneficial, and from deeds that are not acceptable to Him. Wa Akhiru Da'wana an al Hamdu Lillah Rabb al 'Alamin! (All praise and thanksgiving belong to Allah, the Lord and Sustainer of all the worlds!)
Dr. Taha Jabir al Alwani,
President, International Institute of Islamic Thought
Herndon, Virginia
Dhu al Hijjah 1408 AH
July 1988
# CHAPTER ONE: USUL AL FIQH: METHODOLOGY FOR RESEARCH AND KNOWLEDGE IN ISLAMIC JURISPRUDENCE
Definition:
The science of Source Methodology in Islamic Jurisprudence Usul al Fiqh has been defined as the aggregate, considered per se, of legal proofs and evidence that, when studied properly, will lead either to certain knowledge of a Shari'ah ruling or to at least a reasonable assumption concerning the same; the manner by which such proofs are adduced, and the status of the adducer. [ See Fakhr al Din al Razi, Al Mahsul Fi 'Ilm Usul al Fiqh, edited by Dr. Taha Jabir al 'Alwani, Riyadh, Imam ibn Sa'ud Islamic University, 1st edition, 1399/1979, part I, p.94.]
Subject Matter:
As its subject matter, this science deals with the proofs in the Shari'ah source-texts, viewing them from the perspective of how, by means of Ijtihad, legal judgements are derived from their particulars; though after, in cases where texts may appear mutually contradictory, preference has been established. [ See the notes on Usul al Fiqh prepared by the professors of the shari'ah Faculty, Al Azhar University; for the academic year 1382/1963, p.22.]
Benefit:
The science of Usul al Fiqh engenders the ability to have knowledge of Shari'ah rulings through study, on the part of those qualified to perform Ijtihad and who meet all its requirements, of the legal proofs revealed in the sources by the Lawgiver.
The benefit to be had from this science to those not qualified to perform Ijtihad is that, through their study of the classical schools of legal thought madhahib of the mujtahidun (those who practise Ijtihad) and the reasoning behind their rulings, the student of Source Methodology in Islamic Jurisprudence is enabled to understand the various schools of thought, to analyze them, to choose from among their interpretations and assign preference, and to adduce legal arguments on the basis of the principles formulated by the classical mujtahidun.
THE SCIENCES FROM WHICH USUL AL FIQH DERIVED ITS ACADEMIC BASIS
The science of Usul al Fiqh is in fact an independent and autonomous field. It is, however, based on certain fundamental predications muqaddamat, knowledge of which the Islamic legal scholar cannot do without. These predications have been derived from several other disciplines:
Some are derived from the science of Aristotelian logic which the philosopher-theologian writers mutakallimun had become accustomed to discussing in the introductions to their works. These academic discussions dealt, for example, with the ways in which words convey meanings, the division of subjects into present and predicable, the need for, and varieties of, discourse depending on conceptual principles taken from interpretations and definitions, the validity of conclusions based on inductive reasoning, and discussions about evidence and how it may be used to prove the claims of the one who is adducing it, or to refute contradictions, and so on.
Some are derived from Ilm al Kalam Scholastic Theology, and include discussions of such questions as the nature of the Sovereign Hakim, in the sense of whether it is the Shari'ah itself or reason which decides what is right and what is wrong; or such as whether one can have knowledge of right and wrong before revelation; or such as whether rendering thanks to the Bounteous Creator is a duty derived from the Shari'ah or from human reasoning.
Some are general linguistic rules which the scholars of al Usul developed through linguistic research and presented in a crystallized form, such as research dealing with languages and their origins, the classification of words into metaphorical and literal, discussions of etymology, synonymity, emphasis, generalization, specification, the meanings of grammatical particles and so on.
Some are derived from the classical sciences of the Qur'an and the Sunnah, such as discussions concerning the transmission of Hadith by a single narrator Ahad, or by an impeccable plurality of narrators Tawatur, the non-standard recitations of the Qur'an and the rules about them, the criteria for the acceptance Ta'dil or rejection Jarh of narrators of Hadith, abrogation of legislation al Nasikh wa al Mansukh [Al Nasikh wa al Mansukh: This is the study of those verses of the Qur'an whose content have abrogated a legal meaning another verse, or in a Hadith, which is therefore called al Mansukh. This branch of al Usul also studies whether or not the contents of a Hadith may abrogate legal meanings in the Qur'an, and in other Hadith.], the condition of the text of a Hadith and its chain of narrators, and so on.
Finally, the examples cited by the scholars of al Usul in illustration of their arguments are derived from the specifics of Fiqh, and from the detailed evidence for the same as taken from the Qur'an and the Sunnah.
The issues with which the scholars of al Usul are primarily concerned include the following:
Logic and its predications
Linguistics
Commands and Prohibitions
Comprehensive al 'Amm and Particular terms al Khass
Inconclusive al Mujmall and Determined concepts al Mubayyan
Abrogation al Naskh
Deeds (in particular, those of the Prophet, upon whom be
peace, and their significance)
Consensus al Ijma'
Narrations relating to the Sunnan
Analogical reasoning al Qiyas
Indicating preference in cases of apparent contradiction
Exercising legal acumen and scholarship Ijtihad
Following a specific school of legal thought Taqlid
Disputed Sources (those other than the four "agreed" sources)
ORIGINS AND DEVELOPMENT OF USUL AL FIQH
It is difficult to attempt a study of Usul al Fiqh and its development without considering the history of Fiqh, the practical precepts of Shari'ah that have been gleaned from detailed source-evidence.
The lexical meaning of Usul is foundation, or basis Asl; plural Usul or that upon which something else is built. In the legal system of Islam, Fiqh is built upon and stems from the bases Usul which constitute its source-evidence. Hence, in order to understand the origins of Usul al Fiqh, we need to have a general idea of the history of Islamic legislation Tashri'.
Establishing Shari'ah legislation, prescribing law, laying down rules and regulations, and defining systems is a function which is specific to Allah alone. Anyone who presumes to ascribe these functions to any other than Allah commits the sin of al Shirk, as, in doing so, he has effectively contradicted the belief in the Oneness of Allah Tawhid.
Allah has provided articulate proofs and clear source-evidence in order that the believers should have no trouble in finding their way to the particulars of His legislation, or Ahkam. with reference to some of this source-evidence, the Islamic Ummah has agreed on its validity and its relevance to the Ahkam, and has accepted it as such. However there are differences with regard to other source-evidence.
The source-evidence upon which the whole Ummah fully agrees, and on the validity of which there is general consensus, comprises the two sources that formed the basis of legislation at the time of the Prophet (PBUH). These two sources of legislation are:
1. The Qur'an: This may be defined as the words revealed to the Prophet (PBUH) the recitation of which itself constitutes an act of worship, the shortest Surah of which is a challenge to mankind to produce anything the like thereof, every letter of which has been transmitted to us via an indisputably authentic chain of authority Tawatur; which is written between the two covers of the Holy Book Mushaf beginning with Surat al Fatihah "The Opening Chapter" and ending with the Surat al Nas.
2. The Sunnah: This includes everything, other than the Qur'an, which has been transmitted from the Prophet(PBUH); what he said, did, and agreed to.
Thus, every utterance of the Prophet (PBUH), apart from the Qur'an, and his every deed, from the beginning of his mission to the last moment of his life, constitute his Sunnah, in the general sense of the word, whether these establish a ruling which is generally applicable to all members of the Ummah, or a ruling which applies only to the Prophet himself or to some of his Sahabah.
Regardless of whether what the Prophet (PBUH) did was instinctive or otherwise, his every word, deed and approval may be taken as the basis for evidence in a legal ruling. This is so regardless of whether his utterances or actions related to matters of faith or practice, or whether they were concerned with commanding or recommending, prohibiting, disapproving, or allowing; and regardless of whether his word or action was based on a ruling previously revealed in the Qur'an, or whether it served independently to establish legislation.
During the lifetime of the Prophet (PBUH), all the legal rulings Ahkam of the Shari'ah, inclusive of all of its classifications, such as principal and derived rulings, teachings on the fundaments of the faith, and regulations regarding personal practice and legalities, were derived from these two sources, the Qur'an and the Sunnah.
3. Ijtihad was practiced by the Prophet (PBUH) and by those of his companions with legal proclivities Ahl al Nazar. The Prophet's Ijtihad was sometimes confirmed by the Qur'an and sometimes not; in which case it was explained that the better solution was other than that which he had adopted.
The Ijtihad made by the Companions was always in response to situations which actually occurred to them. Later, when they met the Prophet (PBUH), they would explain what happened and tell him what they had decided. Sometimes he (PBUH) approved of their Ijtihad, and such decisions of theirs (having gained the approval of the Prophet) became a part of the Sunnah. If he (PBUH) disapproved of their Ijtihad, his explanation of the correct procedure would become the Sunnah.
Thus, we can say that at that stage legislation depended on the two forms of Divine revelation Wahy:
Recited revelation Wahy Matlu; or the Qur'an with its absolute inimitability I'jaz
Non-recited revelation Wahy Ghayr Matlu; or the Sunnah of the Prophet (PBUH)
Indeed, the Ijtihad made by the Prophet (PBUH) set a precedent for his Sahabah and later Muslims, that clearly proved the legitimacy of Ijtihad, so that when they could not find an express legal ruling in the Qur'an or Sunnah, they were to make use of Ijtihad in order to arrive at a judgement on their own.
Moreover; probably to reinforce and establish this concept, the Prophet (PBUH) used to order certain of his Companions to make Ijtihad concerning certain matters in his presence. Then he would tell them who was correct and who was mistaken.
METHODS FOR DERIVING RULINGS FROM THE SOURCES
As to the Qur'an..
The Qur'an was learned and understood by the Sahabah without their ever having recourse to formal rules of grammar. Likewise, endowed as they were with clear vision, sharp wits and common sense, they readily understood the aims of the Lawgiver and the wisdom behind His legislation.
Indeed, the Sahabah rarely used to question the Prophet (PBUH) about any matter unless he himself mentioned it first.
It is reported that Ibn Abbas said: "I have never seen any people better than the Sahabah of the Prophet, may Allah bless him and grant him peace. Throughout his mission, until he passed away, they only asked him about thirteen matters, all of which are mentioned in the Qur'an. For example, [the meaning of]: 'They ask you about fighting in the sacred month...' (2:212); and 'They ask you about the menstruating woman...' (2:222)" Ibn Abbas said, "They only asked him about matters which were of actual concern to them." [ See 'Abd Allah ibn 'Abd al Rahman al Darimi, Sunan, I, 51.]
Ibn 'Umar said in this respect: "Don't ask about something that hasn't happened, for I heard my father, 'Umar ibn al Khattab, curse one who asked about something which had not occurred." [ al Darimi, op. cit., I, 50.]
Qasim said (to the third generation of Muslims): "You ask about things we never asked about, and quarrel about things we never quarrelled about. You even ask about things which I'm not familiar with; but if we did know, it would not be permitted for us to remain silent concerning them." [ al Darimi, op. cit., I, 49.]
Ibn Ishaq said: "I met more of the Prophet's Sahabah than anyone else did; and I have never seen a people who lived more simply, or who were less demanding on themselves." [ al Darimi, op. cit., I, 51.]
'Ubadah ibn Nusay al Kindi said: "I have known a people whose austerity was not as rigid as yours, and whose questions were quite other than the ones you ask." [ al Darimi, op. cit., I, 51.]
Abu 'Ubaydah said in his book Majaz al Qur'an: "It has never been reported that any of the Sahabah went to the Prophet (PBUH) for knowledge of anything which could be found in the Qur'an." [ Quoted by Shaykh 'Ali Abd al Razzaq in Tamhid li Tarikh al Falsafah, Cairo, p. 152.]
As to the Sunnah...
The parts of the Sunnah which consist of the Prophet's words were in the Companions' own language, so they knew its meaning and understood its phrases and context.
As far as the Prophet's deeds were concerned, they used to witness them, then tell others exactly what they had seen. For example, hundreds of people saw the Prophet (PBUH) making ablutions Wudu' and then adopted his practice without asking him about details; like which of the various actions in Wudu' were obligatory and which were recommended, which were merely allowed and which were not. Likewise, they witnessed him (PBUH) performing Hajj and Salah, and the other acts of worship.
People were heard asking the Prophet (PBUH) to give Fatawa concerning various matters, and he did so. Cases were referred to him, and he would pronounce his judgement. Problems would arise amongst the Sahabah, and he would give a definite answer; whether the problems concerned mutual relations, personal conduct, or various political matters. They witnessed all these situations and they understood the context in which they took place, so that the wisdom and purposes of the Prophets judgements were not hidden from them.
People also saw how the Prophet (PBUH) used to notice the conduct of his Sahabah and others. Thus, if he (PBUH) praised anybody, they knew that the person's act had been a good one; and if he (PBUH) criticized anybody, they knew that there had been something wrong with what the person had done.
Moreover, all the reports concerning the Prophet's Fatawa, rulings, decisions and approval or disapproval of various matters indicate that they took place in the presence of many people. So, just as the colleagues of a doctor know, due to their long association and experience [ al Dahlawi, Hujjatullah al Balighah, (Egypt) I, 289.], the reasons for his prescribing certain medicines, so also the Sahabah of the Prophet (PBUH) knew exactly the reasoning behind his decisions.
As to Ijtihad...
The indications that Ijtihad is valid and relevant in the contemporary context are many. For example, Mu'adh ibn Jabal states that when the Prophet (PBUH) sent him to Yemen, he asked:
"what will you do if a matter is referred to you for judgement?" Mu'adh said: "I will judge according to the Book of Allah." The Prophet asked: "what if you find no solution in the Book of Allah?" Mu'adh said: "Then I will judge by the Sunnah of the Prophet." The Prophet asked: "And what if you do not find it in the Sunnah of the Prophet?" Mu'adh said: "Then I will make Ijtihad to formulate my own judgement." The Prophet patted Mu'adh's chest and said "Praise be to Allah who has guided the messenger of His Prophet to that which pleases Him and His Prophet." [ For information concerning the validity of citing Hadith as evidence, see the author's, Al Ijtihad wa al Taqlid, (Cairo, Dar al Ansar), 23-24; and the chapters on Ijtihad in Al Mahsul.]
This Ijtihad and forming of one's own judgement, as mentioned by Mu'adh, is further explained in the advice 'Umar gave to Abu Musa when he appointed him a judge: "Judgement is to be passed on the basis of express Qur'anic imperatives or established Sunnah practices.." Then he added:
"Make sure that you understand clearly every case, that is brought to you for which there is no applicable text of the Qur'an or the Sunnah. Yours, then, is a role of comparison and analogy, so as to distinguish similarities -in order to reach a judgement that seems nearest to justice and best in the sight of Allah." [ See Ibn Qayyim, I'lam al Muwaqqi'in, passim.]
Consequently, al Imam al Shafi'i explained "opinion" as meaning Ijtihad, and Ijtihad as meaning al Qiyas. He said: "They are two names for the same thing." [ See al Imam al Shafi'i, Al Risalah, (Cairo), p.476.]
Abu Bakr al Siddiq, Khalifat Rasul Allah, said: "As far as the Prophet is concerned, his opinion was always correct because Allah always guided him. In our case, however, we opine and we conjecture." [ Ibn Qayyim, op. cit., I, 54: Ibn 'Abd al Barr, Jami' Bayan al 'Ilm, II, 134.]
Thus, we may state that the concept of Ijtihid or "opinion", at that stage, went no further than one of the following:
Applying one or another of the possible meanings in cases where a sentence may lend itself to two or more interpretations, e.g. when the Prophet (PBUH) ordered the Muslims to pray among Banu Qurayzah.15
Comparative Qiyas; which deals with a matter by comparing it with another, similar matter which is dealt with in the Qur'an or Sunnah. For example, the Qiyas of 'Ammar who compared the case of Tayammum when in a state of Janabah to Ghusl, and therefore rubbed his whole body with dust.16
Ijtihad by taking into account something which is potentially beneficial; or prohibiting something which could lead to wrongdoing; or deriving a particular ruling from general statements; or adopting a specific interpretation; and so on.
The extent of the Prophet's concern with encouraging the Sahabah to make Ijtihad and training them in its use can be seen in his saying "When a judge makes Ijtihad and reaches a correct conclusion, he receives a double reward; and if his conclusion is incorrect, he still receives a reward."17
The Ijtihad of many of the Sahabah was so accurate that in many cases the revelations of the Qur'an confirmed it, and the Prophet (PBUH) supported it. Obviously, their close association with the Prophet (PBUH) had afforded them a keen sense of the aims of the All-wise Lawgiver, of the basic purposes behind the Qur'anic legislation, and of the meanings of the texts; opportunities which those who came after them did not directly enjoy.
# CHAPTER TWO : THE SAHABAH WHO GAVE FATAWA DURING THE PROPHET'S LIFETIME
The Sahabah who gave Fatawa in the Prophet's lifetime were: Abu Bakr, 'Uthmtan, 'Ali, 'Abd al Rahman ibn 'Awf, Abd Allah ibn Mas'ud, Ubay ibn Kab, Mu'adh ibn Jabal, Ammar ibn Yasir, Hudhayfah ibn al Yaman, Zayd ibn Thabit, Abu al Darda, Abu Musa al Ash'ari and Salman al Farisi, may Allah be pleased with them.
Some Sahabah gave more Fatawa than others. Those who gave the most Fatawa were: 'Aishah Umm al Mu'minin, 'Umar ibn al Khattab and his son Abd Allah, 'Ali ibn Abu Talib, Abd Allah ibn Abbas and Zayd ibn Thabit. The Fatawa given by any one of these six would fill a great volume. For example, Abu Bakr Muhammad ibn Musa ibn Ya'qub ibn al Khalifah Ma'mun collected the Fatawa of Ibn Abbas in twenty volumes.
Those from whom a lesser number of Fatawa were narrated are: Umm Salmah Umm al Mu'minin, Anas ibn Malik, Abu Sa'id al Khudri, Abu Hurayrah, 'Uthman ibn 'Affan, Abd Allah ibn Amr ibn al 'As, 'Abd Allah ibn Zubayr, Abu Musa al Ash'ari, Sa'd ibn Abu Waqqas, Salman al Farisi, Jabir ibn Abd Allah, Mu'adh ibn Jabal and Abu Bakr al Siddiq. The Fatawa of each of these thirteen would fill only a small part of a book.
To this list can be added Talhah, al Zubayr, 'Abd al Rahman ibn Awf, 'Imra-n ibn Husayn, Abu Bakrah, 'Ubadah ibn al Samit and Mu'awiyah ibn Abu Sufyan. The rest gave only a few Fatawa, and only one or two, in some instances more, have been transmitted from any of them. Their Fatawa could be collected into a small volume, but only after much research and sifting through texts18.
In preparing their Fatawa the Sahabah used to compare the particulars of events that had happened to them with similar matters for which judgments had been given in the texts of the Qur'an and the Sunnah. In thus referring the matter to the sources, they employed the method of looking for the meaning and legal significance through examination of the text's literal wording, its implications, and any other relevant details.
Having arrived at a decision, they would then explain to others how they had adduced the arguments that led them to their judgments, whether these had been derived from the letter of the text or from its spirit, and the people would follow them. Indeed, these early Muslim jurists never stopped researching a question until they reached a decision they felt certain of, and until they were completely satisfied that they had done their best and could do no more.
THE ERA OF THE GREAT SAHABAH
After the time of the Noble Prophet (PBUH) came the era of the Great Sahabah and the Rightly Guided Caliphs Khulafa' Rashidun . This period lasted from 11 to 40 AH. The Reciters Qurra' was the term used at the time to denote those Sahabah who had a good understanding of Fiqh and gave Fatawa.
THE TIME OF ABU BAKR AL SIDDIQ
Maymun ibn Mahran summed up Abu Bakr's method of arriving at legal judgments as follows:
Whenever a dispute was referred to him, Abu Bakr used to look in the Qur'an; if he found something according to which he could pass a judgment, he did so. If he could not find a solution in the Qur'an, but remembered some relevant aspect of the Prophet's Sunnah, he would judge according to that. If he could find nothing in the Sunnah, he would go and say to the Muslims: 'Such and such a dispute has been referred to me. Do any of you know anything in the Prophet's Sunnah according to which judgment may be passed?'. If someone was able to answer his question and provide relevant information, Abu Bakr would say: 'Praise be to Allah Who has enabled some of us to remember what they have learnt from our Prophet.' If he could not find any solution in the Sunnah, then he would gather the leaders and elite of the people and consult with them. If they agreed on a matter then he passed judgment on that basis.19
If all the methods mentioned above failed to produce any result, then he would make Ijtihad and form his own opinion, either by interpreting a text in such a way as its legal implications became apparent, or by exercising his own legal acumen.
An example of Ijtihad of the first kind was when he was asked about the Kalalah. In response, Abu Bakr said: "My opinion, if it is correct, then it is from Allah, and if it is wrong, then it is from myself and from the Shaytan. The Kalalah is one who has neither ascendants nor descendants."20
Another example of the same was the instance when 'Umar mentioned to him the following Hadith of the Prophet (PBUH): "I have been commanded to wage war against people until they say that there is no god but Allah..."21, and Abu Bakr said, "Zakah is a part of it."22
When Abu Bakr wanted to wage war against those who were withholding Zakah, 'Umar cited this Hadith to show that fighting them was not permitted, because the Prophet had said: "...until they say that there is no god but Allah. Then, if they say this, their blood and their wealth will be spared by me, except where due by right (ie. unless they do acts that are punishable in accordance with the Shari'ah of Islam).
According to 'Umar, these acts were: adultery, murder, and apostasy; since withholding Zakah was not expressly mentioned by the Prophet (PBUH). But Abu Bakr said to him: "Zakah is a part of it. By Allah, I would fight anyone who performed Salah but did not pay Zakah! If anyone were to withhold from me even the smallest amount they used to pay to the Prophet, I would go to war with them over it."
An example of the second type of Ijtihad was when he decided that the mother's mother may inherit, but the father's mother may not.
Some of the Ansar said to him: "You allow a woman to inherit from the deceased, while he would not inherit from her if she were the deceased. And you have left with nothing the woman from whom he would inherit were the situation reversed." Abu Bakr then decided that both maternal and paternal grandmothers would share one-sixth of the inheritance.
Another example is his judgment that everyone should receive an equal share from the public treasury. 'Umar asked him: "How can you consider one who entered Islam with misgivings to be equal to one who left his home and wealth behind, and migrated to be with the Prophet?" Abu Bakr, however, insisted that: "They all entered Islam for the sake of Allah, and their reward is with Him; this world is nothing." when, however, 'Umar became the Khalifah, he differentiated between people and paid the "stipend" according to how early each person had entered Islam, whether they had migrated, and how much they had suffered for the sake of Islam.
Another example of Abu Bakr's exercise of Ijtihad was when he compared the appointment by the Khalifah of his own successor, to the appointment by means of Bay'ah. Thus, he appointed 'Umar to be the Khalifah after him, and the Sahabah agreed with him.
Khalid ibn al Walid wrote to Abu Bakr, telling him that in some areas of the Arabian Peninsula he had found men engaging in homosexual practices. Abu Bakr decided to consult the Sahabah of the Prophet (PBUH) as to what he should do about it. One of the Sahabah was 'Ali, and his was the strictest judgment.
He said, "his sin was known only in one nation, and you know what Allah did to them. I suggest that these people should be burnt to death."
Abu Bakr wrote back to Khalid to tell him that they should be burnt to death; and this was done.23
SPECIAL FEATURES OF FIQH IN THE PERIOD
The use of al Qiyas was widespread in cases where there was no relevant text in the Qur'an or Sunnah and none of the Sahabah objected to this.
Al Ijma' was also widely used as a basis for judgment. This was facilitated by the fact that the Sahabah were few, and it was easy for them to agree amongst themselves. They used al Ijma' in many cases; for example, their decisions that the Khalifah or Imam should be appointed, that apostates should be fought and killed, that an apostate could not be taken as a prisoner of war, and that the Qur'an should be collected and written down in one volume.
THE TIME OF 'UMAR IBN AL KHATTAB
'Umar's recommendations to the judge, Shurayh, as mentioned above, explain his way of deriving judgments from the available evidence. The most noticeable feature of 'Umar's methodology, however, is the fact that he often consulted the Sahabah and discussed matters with them so as to reach the best understanding and find the most appropriate way to carry out judgments. In his approach to questions of legalities, 'Umar was like a shrewd and cautious chemist whose intent is to produce medicine that will cure disease without causing adverse side effects.
As a result, 'Umar left us a great wealth of jurisprudence. Ibrahim al Nakha'i (d.97 AH) said that when 'Umar was martyred, "nine-tenths of all knowledge disappeared with him.24
Ibn Mas'ud said of him, "whatever path 'Umar chose, we found it easy to follow."25
'Umar's understanding was comprehensive and he was possessed with good common sense. Thus, he was quick to relate the particular to the general, and could pursue the ramifications of an issue back to basic principles in order to see its wider implications. This is how he was during the time of the Prophet (PBUH) and Abu Bakr, and he did not change when he himself became the Khalifah.
'Umar learnt a great deal from the Prophet (PBUH). He often noticed that the Prophet would refrain from issuing an order to the people to do something good, although he wanted to do so, because he did not want to subject them to hardship. He (PBUH) often used to say: "If it were not that I am afraid to impose hardship on my Ummah, I would have commanded them to do... such and such."26
Sometimes he would forbid them to do certain things, and then, when he saw that the reason for forbidding them was no longer valid, he would lift the ban. On other occasions, he would be about to forbid something, and they would tell him of the hardship and distress that such a prohibition would cause them, so he would refrain from it so as to protect them from hardship.
'Umar saw how the Prophet (PBUH), whenever he was faced with a choice between two things, would always choose the easier of the two; and this had a great effect on 'Umar. Indeed, he well understood that the Shari'ah has purposes and aims which must be discerned and considered; and that there are grounds for, and reasons behind, these judgments; some of which are made clear in the primary texts while others are only alluded to. He felt it the duty of scholars to discover those reasons which are not specified in the texts, so that legal judgments may be applied to new issues and developments, and everything brought under the judgment of Allah so that people will not become accustomed to seeking remedies and legal rulings on their problems outside the law of Allah.
Hence, when we look at 'Umar's practice of Ijtihad, we will find clear methods of arriving at judgments. Anyone who studies his Fatawa will readily see that the reasoning behind them is based on the public interest, on taking precautions to prevent wrong-doing or to combat corruption, and on adopting the easiest and most expedient course under the law.
'Umar, for example, declared some judgments invalid because the reasons for enforcing them no longer applied, or because some of the conditions for following them no longer prevailed. Among those judgments: his request to the Prophet (PBUH) that the prisoners of the battle of Badr should be killed; his suggestions about Hijab, and that the Prophet (PBUH) should not tell the people that whoever said "there is no god but Allah" would enter Paradise, in case they relied only on that and made no further effort; his suggestion to Abu Bakr that he should no longer give an extra share from the public treasury to those who had recently embraced Islam; and his decision not to share out the conquered land among the army.
THE TIME OF UTHMAN IBN 'AFFAN
When allegiance was given to 'Uthman, it was done on the condition that he work in accordance with the Book of Allah, the Sunnah of His Prophet, and the precedent set by the first two Khulafa'. This, he promised to do. 'Ali, however, indicated that when he became Khalifah he would be prepared to work according to the Book of Allah and the Sunnah of His Prophet, and then to do the best that his own knowledge and energy would allow. Because 'Uthman showed that he was willing to undertake to work in accordance with the precedents set by the first two Khulafa' he was supported by Abd al Rahman, who had the casting vote. Thus, a third source of legislation, the precedent set by the first two Khulafa'; was added at the time of the third Khalifah, and was approved by him.
Since 'Ali had reservations about this, when he himself became the Khalifah he acted according to his own Ijtihad in matters for which the earlier Khulafa' had already produced Ijtihad. For example, 'Ali reconsidered the issue of whether slave women who had begotten children for their masters could be sold.
'Uthman ibn Affan was one of the Sahabah who did not produce a great number of Fatawa, probably because most of the matters he came across had already been dealt with by Abu Bakr and 'Umar, and he preferred to adopt their opinions. But in some cases, he had to make Ijtihad, just as his predecessors had done. Once, before 'Uthman had become Khalifah, 'Umar asked him about a legal matter. In reply, 'Uthman said: "If you follow your own opinion, that will be right. But, if you follow the opinion of the Khalifah before you (i.e. Abu Bakr), that is better, because he was so good at passing judgment!"
He also performed his own Ijtihad when, during the Hajj, he did not shorten Salah in Mina; though certainly it is permitted to do so. There are two possible explanations for this: the first is that he had been married at Makkah, and thought that the people of Makkah were not permitted to shorten their Salah in Mina; the second explanation is that he was afraid that some bedouins might be confused when they watched him do so, and so he did not.
'Uthman also formulated the Ijtihad that all people should read the Qur'an according to Zayd's way of recitation, because he thought that this was the most sound, and the most likely to forestall the occurrence of disagreements.
THE TIME OF 'ALl IBN ABU TALIB
'Ali was like 'Umar ibn al Khattab in the way he understood and applied the texts of the Qur'an and in his deep concern with linking particular issues to general principles. Prior to his assuming the office of Khalifah, he was considered the best judge in Madinah.
When the Prophet (PBUH) appointed 'Ali judge in Yemen, he (PBUH) prayed for him, saying: "0 Lord! Guide his heart and make him speak the truth." Indeed, 'Ali proved to be an excellent judge, and resolved many difficult cases.
'Ali described his own knowledge by saying: "By Allah, no verse of the Qur'an was ever revealed except that I knew concerning what it was revealed, and where and why it was revealed. My Lord has bestowed upon me a heart that is understanding and a tongue that is articulate."
Whenever a matter was referred to Ali for judgment, he would accept it without hesitation. And if he was asked to give a Fatwa, he would do so by citing from the Book of Allah, and then the Sunnah of the Prophet (PBUH). Indeed, the extent of his knowledge of the Qur'an and Sunnah was very well known.
'A'ishah said: "In regard to the Sunnah of the Prophet (PBUH), he was the most knowledgeable of all people."
'Ali used to formulate his own opinion by means of Ijithad based on al Qiyas, al Istishab27, al Istihsan28 and al Istislah29, always basing his opinion on the broader aims of the Shari'ah. when consulted concerning a possible increase in the Hadd-punishment for one found guilty of drinking alcohol, he compared drunkenness to the false basis that drunkenness could lead a person to make such an accusation.
During his Khilafah, 'Umar consulted 'Ali concerning the punishment of a group of people who jointly conspired to commit premeditated murder. 'Ali said, "0 Commander of the Faithful! If a group of people joined together in stealing, would you not cut one hand off of each of them?" when 'Umar replied in the affirmative, 'Ali said, "Then the same applies in this case." Consequently, 'Umar uttered his famous saying: "If all the citizens of San'a were to join together in murdering one man, I would execute the lot of them."
The analogy between murder and robbery was made because in each case there is a criminal motive shared between all who commit these acts, and it is this which requires rebuke and deterrent punishment.
Moreover, 'Ali preferred to burn alive those overzealous apostates and heretics who defied him, although he was well aware that the Sunnah ruling was merely to put such disbelievers and apostates to death. In this ruling, 'Ali showed himself keen to establish the strictest possible deterrent from the worst kinds of apostasy, because he considered this to be a very serious matter. Thus, he established the harshest punishment for such an act, so as to deter people from committing it. Moreover, to emphasize this, he recited the following verses of poetry extemporaneously:
"when I realized how grievous the matter was, I lit my bonfire and called for Qanbar."
Once 'Umar heard of a woman whose husband was away on a military expedition, and who was receiving strangers in her home. He therefore decided to send a messenger to her that she should not receive strangers while her husband was absent. when the woman heard that the Khalifah wanted to speak to her, she became fearful and, as she was pregnant, she miscarried the child on her way to see 'Umar.
'Umar, greatly disturbed by what had occurred, consulted the Sahabah about the matter. Some of them, including 'Uthman ibn 'Affan and 'Abd al Rahman ibn 'Awf, assured him: "You were merely attempting to educate her; you have done nothing wrong."
Then 'Umar turned to 'Ali, asking his opinion. 'Ali replied, "These men have spoken, and if this is the best opinion they can come up with, then fair enough. But, if they have spoken only to please you, then they have cheated you. I hope that Allah will forgive you for this sin, for He knows that your intention was good. But, by Allah, you should pay compensation for the child."
'Umar said, "By Allah, you have spoken sincerely to me. I swear that you should not sit down until you have distributed this money among your people."
THE FUQAHA' AMONG THE SAHABAH AND THE TABI'UN
This period is considered to have begun with the passing of the period that preceded it, in 40 AH, when the period of the "Rightly Guided" Caliphs ended. Thus began a new era, that of the Fuqaha' from among the Sahabah and the elder Tabi'un. Legislation at this stage was still very much as it had been during the previous stage, as the sources of that legislation, ie. the Qur'an, the Sunnah, al Ijma' and al Qiyas, remained the same. Nonetheless, legislation at this stage differed in many aspects from what had gone before.
Among the more significant changes were the following:
Scholars had become more interested in delving into what lay beyond the explicit meanings of the texts.
Their ways of dealing with the Sunnah underwent a great deal of change. Essentially, this difference was the outcome of political differences that accompanied the emergence of various sectarian and philosophical factions, such as the Shi'ah and Khawarij, whose attitude to the Sunnah was different. The Shi'ah refused to accept Hadith which were not narrated by their own followers; and the Khawarij refused to accept Hadith if, anywhere in the chain of the Hadith's narrators there was no more than a single narrator30. The Khawarij also rejected all Hadith not supported by a text from the Qur'an.
Owing to the divisions which had arisen, al Ijma' was no longer a possibility in this period. Basically, this was because every group mistrusted the scholars of every other group, and would no longer accept any of their opinions, whether they agreed or disagreed with them. In addition, the Fuqaha' from among the Sahabah had become scattered all over the Islamic world, so that it was no longer possible for them to meet in order to discuss matters.
Also in this period, the narration of Hadith and Sunnah became popular, whereas this had not previously been the case.
The fabrication of Hadith, for many well-known reasons which we do not need to discuss here, became widespread. In this respect, Muslim reported that Ibn Abbas said: "We used to narrate many Hadith from the Prophet (PBUH) without ever having to worry about fabrication. But when people started to be careless in narrating things attributed to the Prophet, we stopped narrating Hadith."
# CHAPTER THREE : LEGISLATION AFTER THE TIME OF THE SAHABAH
The time of the Sahabah came to an end between 90-l00 AH, and was followed by the time of the Tabi'un whose scholars became responsible for Fiqh and giving Fatawa. The last of the Sahabah in Kufah died in 86 or 87 AH. The last one in Madinah, Sahl ibn Sa'd al Sa'idi, died in 91 AH. The last one in Basrah, Anas ibn Malik, died in 91 AH (some say 93 AH). The last one in Damascus, 'Abd Allah ibn Yusr, died in 88 AH. The last one of the Sahabah, 'Amir ibn Wathilah ibn 'Abd Allah (Abu Tufayl), died in 100 AH.
Thereafter, those who became responsible for issuing Fatawa were the freed men Mawali, most of whom had lived with the Fuqaha' among the Sahabah, such as: Nafi', the freed man of Ibn 'Umar; 'Ikramah, the freed man of Ibn 'Abbas; 'Ata' ibn Rabah, the Faqih of Makkah; Tawus, the Faqih of the people of Yemen; Yahya ibn Kathir, the Faqih of Yamamah; Ibrahim al Nakha'i, the Faqih of Kufah; Hasan al Basri, the Faqih of Basrah; Ibn Sirin, also of Basrah; 'Ata' al Khurasani in Khurasan, and others. Indeed, Madinah was unique in having a Faqih from Quraysh, Sa'id ibn al Musayyab.
These Tabi'un very rarely altered the Fatawa of the Sahabah from whom they had gained their knowledge; hence it is difficult to find differences between their methods of deriving judgements and those of their predecessors. Even so, the methods of deriving judgements were, at this stage, starting to evolve and, in the process, to become clearer than ever before.
It is narrated that Hasan ibn 'Ubayd Allah al Nakha'i said: "I asked Ibrahim al Nakha'i: 'Did you hear from others all the Fatawa which I hear you giving?' He said, 'No.' I asked him: 'Then you give Fatawa that you did not hear?' He said: 'I heard what I heard; but when I was confronted with matters concerning which I had not heard anything, I compared them, by analogy, with matters which I had heard about.'"31
Among the significant features of this period was the emergence of differences of opinion between legal scholars on a variety of matters. This was underscored by two decisions taken by the Khalifah of the times, 'Umar ibn 'Abd al 'Aziz.
He ordered that practices attributed to the Prophet (PBUH) should be collected and written down. Accordingly, the people of every locality wrote down in books whatever they knew to be a part of the Sunnah32.
He restricted the authority to issue Fatawa, in most districts, to a few named individuals, as he did in Egypt, when he named only three people for this purpose. Interestingly, two of them were freedmen, Yazid ibn Abu Habib and Abd Allah ibn Abu J'afar, and the third was an Arab, Ja'far ibn Rabi'ah. When the Khalifah was questioned about appointing two freedmen and only one Arab, he answered : "What fault is it of mine if the freedmen are improving themselves and you are not?"33
In his letter to Abu Bakr Muhammad ibn 'Amr ibn Hazm al Ansari, the Khalifah explained his reasons for ordering that the practices attributed to the Prophet (PBUH) should be written down. He wrote: "Look for whatever Hadith of the Prophet (PBUH), or Sunnah, or practice you can find. Then write these down for me; for I fear that this knowledge will pass away with the passing of the scholars."34
AFTER THE TABI'UN: THE TIME OF THE MUJTAHID IMAMS
This period was described by Wali Allah al Dahlawi as follows:
"The Fuqaha' of the period took the Hadith of the Prophet (PBUH), the decisions of the early judges, and the legal scholarship of the Sahabah, the Tabi'un and the third generation, and then produced their own Ijtihad."
This was the way the legal scholars of those times worked. Basically, all of them accepted both the Musnad35 as well as the Mursal36 Hadith."
Moreover, it became their practice to cite the opinions of the Sahabah and Tabi'un as evidence. Essentially, there were two reasons for this:
Such opinions were actually Hadith of the Prophet (PBUH) which had been narrated by one of the Sahabah or the Tabi'un who had, for fear of misquoting, not dared to attribute the Hadith to the Prophet (PBUH).
The other likelihood is that such opinions were derived by the Sahabah from the texts of Hadith, and represented their own understanding of the Sunnah.
In this respect, of course, the Sahabah were better than those who came later, because they had known the Prophet (PBUH), and were thus more capable of interpreting what he had said. Therefore, their judgements and opinions were accepted as authoritative, except in cases where they themselves differed, or where their pronouncements were in clear contradiction to sound Hadith of the Prophet (PBUH).
On the other hand, in cases where two or more Hadith conflicted, the scholars would refer to the opinions of the Sahabah in order to determine which of the two Hadith was the correct one. Thus, if the Sahabah said that a Hadith had been abrogated, or was not to be understood literally; or if they did not expressly say anything about a Hadith, but had ignored it, and had not acted in conformity with it, thus indicating that the Hadith was in some way defective, or that it had been abrogated, or that its interpretation was other than the literal, then the Mujtahid Imams would accept their opinions.
When the pronouncements of the Sahabah and Tabi'un differed on any matter, then each Faqih would follow the rulings of those from the same region as himself, and his own teachers, because he would be more able to discern the authenticity, owing to his familiarity with the narrators, of the opinions and sayings that reached him on their authority. Likewise, the Faqih would be better acquainted with their legal methodology.
The legal school of thought based on the opinions of 'Umar, 'Uthman, Ibn 'Umar, 'A'ishah, Ibn Abbas and Zayd ibn Thabit, and their companions from among the Tabi'un, like Sa'id ibn al Musayyab (d 93 AH), 'Urwah ibn Zubayr (d 94), Salim (d 106), Ata' ibn Yasar (d 103), Qasim ibn Muhammad (d 103), 'Ubayd Allah ibn 'Abd Allah (d 99), al Zuhri (d 124), Yahya ibn Sa'd (d 143), Zayd ibn Aslam (d 136) and Rabi'at al Ra'i (d 136), was the school most acceptable to the people of Madinah. It was for this reason that Imam Malik based his legal arguments on their teachings.
In the same way, the legal opinions of 'Abd Allah ibn Mas'ud and his companions, the judgements of the Khalifah 'Ali, Shurayh (d 77), and al Sha'bi (d 104), and the Fatawa of Ibrahim al Nakha'i (d 96) were the most acceptable to the people of Kufah.
Commenting on this phenomenon, Wall Allah al Dahlawi wrote:
When Masruq (d 63 AH) followed Zayd ibn Thabit's opinion concerning sharing out the inheritance between the grandfather and the brothers [of the deceased], 'Alqamah (d 62) asked him, "Is any of you more knowledgeable than Abd Allah (ibn Mas'ud)?"
Masruq answered, "No, but Zayd ibn Thabit and the people of Madinah share the inheritance between the grandfather and the brothers..."
Thus, if the people of Madinah agreed on a matter, the scholars of the generation following the Tabi'un adopted it resolutely. This is what Malik meant when he said: 'The Sunnah concerning which we, the people of Madinah, have not differed is such-and-such.'
If the early scholars at Madinah had differed concerning any matter, the later scholars would follow those opinions which were stronger and more dependable either by virtue of their having been adopted by a majority of the early scholars, or of their having been the result of sound legal analogy, al Qiyas, or which were derived from some text in the Qur'an or the Sunnah. It is to this process that Malik refers when he says: 'This is the best that I have heard.' Then, if the later scholars could find no solution to a problem in the work of their predecessors, they would themselves turn to the relevant texts in order to formulate their own legal opinions.
At this stage, the scholars were inspired to start recording things in writing. So Malik (d 179) in Madinah, Ibn Abu Dhi'b (d 158), Ibn Jurayj (d 150?) and Ibn 'Uyaynah (d 196) in Makkah, al Thawri (d 161) in Kufah, and Rabi' ibn Subayh (d 160) in Basrah, began to write things down, and they all followed the same method.
When the Khalifah, Mansur, performed Hajj and met al Imam Malik, he said: 'I have decided to order that copies be made of these books which you have written. I will send a copy to every region of the Muslim world and order the scholars to act in accordance with them and not refer to any other works.'
Malik said '0 Amir al Mu'minin, do not do that! Already the people have heard different legal opinions, and listened to Hadith and narrations; and they have accepted whatever reached them first, so that this has contributed to differences in the prevailing practices among people. Leave the people of each town with the choice they have already made.'
The same story is told with reference to the Khalifah, Harun al Rashid, that he wanted to obligate the people to follow the Muwatta.'
But Malik said to him: 'Do not do that, for the Sahabah of the Prophet used to differ on the Sunnah. Then they scattered and settled throughout the Muslim world; and now their different ways are firmly established.'
... Malik was the most knowledgeable about the Hadith related by the people of Madinah from the Prophet (PBUH), and Malik's chains of narrators were the most reliable. He was also the most knowledgeable about the judgements of 'Umar and the legal pronouncements of 'Abd Allah ibn 'Umar and 'A'ishah and their companions from among the seven Fuqaha'. The sciences of Hadith narration and Fatawa were based on the knowledge of Malik and those like him.
Abu Hanifah was the most devoted to the legal interpretations of Ibrahim al Nakha'i and his colleagues, and would very rarely transgress their arguments. He was excellent at producing decisions based on Ibrahim's method, exact in employing that methodology in order to deal with details of case law.
If you wish to know the truth about what we have stated, then summarize the teachings of Ibrahim and his cohorts as recorded in the following works: Al Athar "Traditions" by Muhammad al Shaybani, the Jami' "The Compendium" of Abd al Razzaq and the Musannaf "Compilation' of Ibn Abu Shaybah, and compare them with Abu Hanifah's formal opinions. Indeed, you will find that Abu Hanifah departs only rarely from their way, and even then his opinion will not differ from the opinions of the jurists of Kufah."37
In fact, al Dahlawi's comments need to be considered. He was very eager to stress that al Imam Malik and Abu Hanifah, and their companions, were more or less conforming to the opinions of the Tabi'un and the Sahabah before them (as opposed to generating their own Ijtihad), and had not transcended the jurisprudence of their predecessors. This, however, is a conclusion with which it is difficult to agree.
It is well known that there are various approaches to Fiqh; and each of the Imams adopted a different approach to the subject. It is not a simple matter to claim that these were drawn from the Sahabah and the Tabi'un. Consider, for example, Malik's taking the customs and practices of the people of Madinah as a (secondary) source for legislation; or Abu Hanifah's use of al Istihsan and al 'Urf.38
Moreover, neither of them based their arguments on the Fatawa of the Tabi'un, but rather competed with them, saying: "They were men [of knowledge] and so are we."
In addition, unlike anyone before them, each had laid down his own set of conditions for accepting Hadith as authentic.
Moreover, the incidence of an increased circulation of Hadith in those times, in addition to the appearance of Hadith that had never been circulated at all, led, in some cases, to legal rulings and positions quite different from those held by the Sahabah.
RATIONALISTS AND TRADITIONISTS: AHL AL HADITH AND AHL AL RA'I
Perhaps this truth may become all the more intelligible when we mention the emergence of two informal schools of legal thought, the rationalists or Ahl al Ra'i, and the traditionists or Ahl al Hadith, and the appearance of differences between them concerning both source methodology, and issues of case law. While it is true that both of these schools had their roots in the approaches of the preceding two generations, it was at this time that their differences in matters of Fiqh become clear; and it was at this time that people began grouping themselves on the basis of their differences in deriving legal points from the sources.
Writers on Islamic legal history emphasize that the rationalist school of Ahl al Ra'i was an extension of the school of 'Umar and Abd Allah ibn Mas'ud who, among the Sahabah, were the most wide-ranging in their use of Ra'y (lit. opinion). In turn, 'Alqamah al Nakha'i (d. 60 or 70 AH), the uncle and teacher of Ibrahim al Nakha'i, was influenced by them. Ibrahim then taught Hammad ibn Abu Sulayman (d 120 AH) who, in turn, was the teacher of Abu Hanifah.
The same historians stress that the traditionist school of Ahl al Hadith was a continuation of the school of those Sahabah whose fear of contradicting the letter of the source texts Nusus made them circumspect to the point where they never went any further than the texts. This was the case, by and large, with 'Abd Allah ibn 'Umar ibn al Khattab, 'Abd Allah ibn 'Amr ibn al 'As, al Zubayr, and 'Abd Allah ibn 'Abbas.
The school of Ahl al Hadith became widespread in the Hijaz for many reasons, of which perhaps the most important were the great number of Hadith and other narrations known to the people of that area, and the fact that the region was more stable after the seat of the Khilafah had been moved, and most of the political activity had been transferred, first to Damascus, then to Baghdad. The Imam of Madinah, Sa'id ibn al Musayyab (d 94 AH), once noted that the people of Makkah and Madinah had not lost much of the Hadith and Fiqh, because they were familiar with the Fatawa and reports of Abu Bakr, 'Umar, 'Uthman, 'Ali (before he became Khalifah), 'A'ishah, Ibn Abbas, Ibn 'Umar, Zayd ibn Thabit and Abu Hurayrah, and thus did not need to use Ra'i in order to derive law.
The school of Ahl al Ra'i, on the other hand, gained currency in Iraq. The scholars of this group thought that legal interpretations of the Shari'ah should have a basis in reason, should take into account the best interests of the people, and should be backed by discernable wisdom. Indeed, these scholars felt it their duty to uncover these meanings and the wisdom behind the laws, and to make the connection between them; so that if the reasons for any law were to lose relevance with the passing of time and the changing of circumstances, the law would no longer be valid. If they found the reasons behind the law, they would sometimes prefer to cite arguments based on an analytical treatment of those reasons. Thus, in many cases, reason would be accorded legalistic preference when such reasoning conflicted with the evidence of certain categories of Hadith.
The spread of this method in Iraq was helped by the numbers of Sahabah influenced by the methods of 'Umar. Among them were Ibn Mas'ud, Abu Musa al Ash'ari, 'Imran ibn Husayn, Anas ibn Malik, Ibn Abbas and others. The spread was also assisted by the transfer of the Khilafah to Iraq, and the settling there of 'Ali and his supporters.
When the sects, like the Shi'ah and Khawarij, appeared in Iraq, conflict arose and the fabrication of Hadith became widespread39. Consequently, the legal scholars of Iraq were forced to lay down conditions for the acceptance of Hadith, according to which only a few of the reports given by the Sahabah living in Iraq were acceptable. Moreover, the great number of legal problems and the constant increase in unprecedented legal issues in that area were more than could be dealt with on the basis of reliable Hadith.
So, it was in this way that the Ummah, those who had not become involved with either the Shi'ah or the Khawarij, was divided into two groups, Ahl al Hadith and Ahl al Ra'i; and the conflict between them intensified.
Thus, Ahl al Ra'i often used to criticize Ahl al Hadith for having little intelligence and less Fiqh-understanding; while Ahl al Hadith claimed that the opinions of Ahl al Ra'i were based on no more than conjecture, and that they had distanced themselves from the necessary circumspection in those matters of religious significance which could only be ascertained through recourse to the source-texts.
In fact, Ahl al Ra'i agreed with all Muslims that once a person has clearly understood the Sunnah, he may not reject it in favour of what is no more than someone's opinion. Their excuse in all those cases in which they were criticized for contradicting the Sunnah is simply that they did not know any Hadith concerning the matter in dispute, or that they did know a Hadith but did not consider it sound enough owing to some weakness in the narrators or some other fault they found in it (a fault which perhaps others did not consider to be damaging), or that they knew of another Hadith which they considered sound and which contradicted the legal purport of the Hadith accepted by others.
Moreover, Ahl al Hadith agreed with Ahl al Ra'i on the necessity of having recourse to reason whenever a matter occurs for which there is no specific ruling in the source texts. Still, in spite of these areas of agreement, the conflict and tension between the two groups remained acute.
# CHAPTER FOUR
AL IMAM AL SHAFI'I
Al Imam al Shafi'i was horn in 150 AH, the year in which al Imam Abu Hanifah died. He studied Fiqh, first in Makkah with some scholars of Ahl al Hadith, such as Muslim ibn Khalid al Zinji (d 179) and Sufyan ibn 'Uyaynah (d 198). Then he went to the Imam of Madinah and leader of Ahl al Hadith, Malik ibn Anas, and studied with him, and committed to memory (so as later to relate it) his collection of Hadith and legal opinions, the Muwatta. Indeed, al Imam al Shafi'i ever felt himself indebted to al Imam Malik.
It is reported that Yunus ibn 'Abd al A'la heard al Imam al Shafi'i say: "whenever the 'Ulama' are mentioned [and their work and knowledge compared], Malik outshines them all. No one has ever done me a greater favour than Malik ibn Anas."40 This is what al Imam al Shafi'i said after he had studied language, poetry, literature, some of the natural and mathematical sciences, and history.
Al Imam al Shafi'i was not impressed with all that he learned of the work of Ahl al Hadith. For example, he criticized them for their accepting a Hadith which Munqati'41, saying: "The Munqati' is nothing."
Al Imam al Shafi'i also criticized them for accepting the Mursal42 variety of Hadith, (though he himself made an exception in the case of Mursal Hadith related by Sa'id ibn al Musayyab,) and for imposing overly strict conditions for the acceptance of narrators as reliable (and the Hadith they related as authentic).
When al Imam al Shafi'i went to Iraq, the stronghold of Ahl al Ra'i, he noticed that they were ever eager to find fault with the legal methods and opinions of the people of Madinah, and especially of his teacher, al Imam Malik. Thus, al Imam al Shafi'i stood up in defense of his teacher, his school of thought and his methods. It is narrated that he once said:
Muhammad ibn al Hasan said to me: "Our teacher (i.e. Abu Hanifah) was more knowledgeable than yours. Your teacher should not have spoken, but our teacher would have been wrong to remain silent." I became angry and said to him: "I ask you by Allah, who had more knowledge of the Sunnah of the Prophet, Malik or Abu Hanifah?" He said, "Malik. But our teacher was more adept at Qiyas." I replied, "Yes, and Malik was more knowledgeable than Abu Hanifah about the Qur'an, about its abrogation, and about the Sunnah of the Prophet. Whoever has more knowledge of the Qur'an and Sunnah has more right to speak!"43
Al Imam al Shafi'i studied the books of Muhammad ibn al Hasan and other Iraqi scholars44. Indeed, he became Muhammad ibn al Hasan's pupil, and discussed his opinions, all the while supporting the Sunnah and Ahl al Hadith.
Al Imam al Shafi'i left Baghdad for a period of time, and when he returned, in 195 AH, there were forty or fifty study-circles that met regularly in the great mosque. Al Imam al Shafi'i began moving from one circle to another, explaining what "Allah and the Prophet said", while other teachers spoke only of what their teachers said. Eventually, there were no study groups in the mosque other than al Imam al Shafi'i's study group.
Some of the great scholars of the Ahl al Ra'i, like Abu Thawr, al Za'farani, al Karabisi and others, attended the study circles of al Imam al Shafi'i. Many abandoned the way of Ahl al Ra'i and began to follow al Imam al Shafi'i. Al Imam Ahmad ibn Hanbal also attended this circle, and it is narrated that he said: "Any narrator of Hadith who ever carried an inkpot benefited in some way from al Imam al Shafi'i". when al Imam Ahmad was asked to explain, he said: "The Ahl al Ra'i used to laugh at Ahl al Hadith until al Imam al Shafi'i taught them otherwise, and vindicated the traditionist position through sound arguments."45
Moreover, it was in response to a request from Ahl al Hadith, that al Imam al Shafi'i wrote his book, Al Hujjah (The Argument), in Baghdad, in order to refute the arguments which Ahl al Ra'i brought against him.46
Thereafter, al Imam al Shafi'i travelled to Egypt where he found that most of the people adhered strictly and unquestioningly to the opinions of Malik. Consequently, al Imam al Shafi'i began a critical analysis of Malik's legal opinions, and found that in some cases, "...he (Malik) formulates opinions on the basis of a general principle, while ignoring the specific issue; whereas at other times he gives a ruling on a specific issue and ignores the general principle."
Al Imam al Shafi'i also found that Malik sometimes rejected a sound Hadith in favour of a statement made by one of the Sahabah or the Tabi'un, or in preference to his own reasoning. Sometimes, al Imam al Shafi'i discovered, Malik rejected the statement of one of the Sahabah in favour of the opinion of a Tabi'i, or his own personal opinion; and that he would do this in individual cases, and in extrapolating legal details, without taking general principles into account. Moreover, Malik claimed in many cases that there was Ijma' concerning the matter, when there was, in fact, disagreement about it.
Al Imam al Shafi'i also found that Malik's opinion that the Ijma' of the people of Madinah could be treated as source-evidence was, in fact, not very strong. He wrote a book entitled Al Ikhtilaf Ma'a Malik "Disagreement with Malik; in which he dealt with all of the matters mentioned above.47
According to al Imam al Shafi'i, al Imam Malik exceeded proper bounds in applying his principle of al Masalih al Mursalah (the Interest of the Greater Good) without having recourse to the abundance of source-evidence available. His opinion in regard to Abu Hanifah was that, in many cases, he concentrated on the particular, on minor issues and details, without regard for basic rules and principles.48
With these matters in mind, then, al Imam al Shafi'i came to the conclusion that the undertaking most deserving of attention was the collection of the principles of jurisprudence, the organization of the basic rules for their application, and the development of a source methodology by means of which questions of Fiqh may be decided through proper recourse to valid and relevant forms of evidence. Thus, Fiqh might become the practical application of this methodology, so that a new Fiqh might emerge as an alternative to the two established schools of legal thought.
It was for this reason that al Imam al Shafi'i wrote the Risalah, and built his Fiqh and legal teachings on the foundations of the principles and methodology he expounded in his book.
Al Imam Ahmad ibn Hanbal said: "Until al Imam al Shafi'i came along, we never thought of things like the general and the specific al 'Umum wa al Khusus".49
Al Imam al Shafi'i used to say to Imam Ahmad: "You have more knowledge about Hadith and narrators than I. So, if a Hadith is authentic, then tell me. If it is authentic, I will accept it, even if it is (reported by narrators) from Kufah, Basrah or Damascus.50 This statement clearly indicates that al Imam al Shafi'i was more concerned with establishing principles than with dealing with minor issues and details.
The scholars writing on the subject of the history of Usul al Fiqh are unanimously agreed that the first writer on the subject was al Imam al Shafi'i, and that the first book ever written on the subject was the Risalah51.
In his book, al Bahr al Muhit, al Zarkashi (d 794 AH) devoted a chapter to this, in which he said:
"Al Imam al Shafi'i was the first to write about Usul al Fiqh. He wrote the Risalah, Ahkam al Qur'an (Legal Interpretations of the Qur'an), Ikhtilaf al Hadith (Conflicting Hadith), Ibtal al Istihsan (The Invalidity of Juristic Preference), Jima' al 'Ilm (The Congruence of Knowledge), and al Qiyas (Analogical Reasoning)-the book in which he discussed the error of the Mu'tazilah group, and changed his mind about accepting their testimony. Then, other scholars followed him in writing books on al Usul."
In his commentary on the Risalah, Al Juwayni wrote:
"No one before al Imam al Shafi'i wrote books on the subject of al Usul, or had as much knowledge as he concerning it. It is related that Ibn 'Abbas mentioned something about the particularization of the general, and that some of the others among the early scholars made pronouncements which suggested they understood these principles. Still, those who came after them said nothing about al Usul, and they contributed nothing to it. We have seen the books of the Tabi'un and the third generation, and have found that none of them wrote books about al Usul."52
THE METHOD OF AL IMAM AL SHAFI'I IN HIS BOOK, AL RISALAH
Al Imam al Shafi'i began his book by describing the state of mankind just before the mission of the Prophet. In doing so, he divided them into two groups:
Ahl al Kitab "the People of the Book"; or, the followers of earlier revelation who had altered their scripture and tampered with some of its legal injunctions. Essentially, these people had lapsed into disbelief and then attempted to fuse their falsehood with the Truth which Allah had revealed.
The Mushrikun and Kafirun who worshipped idols instead of Allah.
Then al Imam al Shafi'i went on to say that Allah rescued all mankind by sending the Last of the Prophets, and revealing to him His Book, so that they might be delivered by means of it from the blindness of disbelief into the light of guidance:
Behold, it is a Divine Scripture, sublime. No falsehood can attain to it openly and neither in a stealthy manner; (since it is] bestowed from on high by One who is Truly Wise, Ever to be Praised (41 : 41-42).
Then al Imam al Shafi'i went on to discuss in detail the status of the Qur'an in Islam and its comprehensive statements about what Allah had permitted and prohibited, how man is to worship Allah, the rewards of those who obey Him, the punishments of those who disobey Him, and how He admonished them by telling the stories of those who had gone before.
Then, al Imam al Shafi'i explained that students seeking knowledge of Islam should learn as much of the Qur'an and its sciences as possible; and that when their intentions are pure they may both quote its verses and infer meanings from them.
At the end of his Introduction to the Risalah, al Imam al Shafi'i said: "No problem will ever beset any of the followers of Allah's religion except that there be guidance in the Book of Allah to indicate the right way. For, Allah, the Blessed and Most High, said:
A Book We send to you, that you may bring forth mankind from darkness to light, by the permission of their Lord to the path of the Almighty, the Praiseworthy (14:1).
He also said:
And We sent down to you the Reminder, that you may make clear to mankind what was sent down to them; and so haply they may reflect (16:46).
Also:
And We have sent down to you the Book as an explanation of everything; and as a guidance, and a mercy, and good tidings to the Muslims (16:91).
And:
Likewise, We have revealed to you a spirit of our bidding. You did not know what the Book was, nor the faith; but We made it a light by which We guide whomsoever We will of Our servants. And, verily, you shall be a guide unto a right path, the path of Allah (42:52).
There follows a chapter on al Bayan53 in which the word is defined as a legal term, and then divided into categories in explanation of the ways that the Qur'anic declaration indicates matters of legal significance. There are five such categories:
That which Allah expressed as a specific legal provision which admits of no interpretation other than its literal meaning. This category of al Bayan needs no other explanation than the Qur'an itself.
That which the Qur'an mentions in texts that may be interpreted in several ways; and for which the Sunnah provided an explanation as to exactly which one was intended.
That which was clearly stated to be obligatory; and which the Prophet, upon him be peace, explained in terms of how, why, upon whom, and when applicable and when not.
That which was explained by the Prophet, upon him be peace, but not mentioned in the Qur'an. Allah (SWT) commanded in the Qur'an that the Prophet be obeyed and his rulings accepted. Therefore, what is said on the authority of the Prophet, is said on the authority of Allah.
That which Allah requires His creation to seek through Ijtihad. This is Qiyas. According to al Imam al Shafi'i, Qiyas is a method for reaching a legal decision on the basis of evidence (a precedent) in which a common reason, or an effective cause, is applicable.
Al Imam al Shafi'i then went on to explain these five categories in five separate chapters, giving examples and evidence for each. Thereafter, the Risalah included the following chapters: The General Declaration revealed in the Qur'an is meant to be Comprehensive 'Amm, but includes the Particular Khass.
The Explicit General Declaration of the Qur'an in which the General and the Particular are included.
Explicit General Declaration of the Qur'an which appears to be General but is intended to be entirely Particular.
The Category of al Bayan in the Qur'an by means of which meaning is clarified by context.
The Category of al Bayan in the Qur'an the wording of which indicates the Implicit al Batin meaning rather than the Explicit al Zahir.
That, of the Qur'an, which was revealed as General but which the Sunnah specifically indicates is meant to be Particular.
In the above-mentioned chapter; al Imam al Shafi'i explained the validity of the Sunnah as evidence and its status in the religion. For this reason, he then included the following chapters: The duty imposed by Allah in the Qur'an to follow the Sunnan of His Prophet.
Allah's command ordering obedience to the Prophet is both associated with obedience to Him and ordered independently.
Matters in which Allah commanded obedience to the Prophet.
How Allah made it clear that the Prophet was obliged to follow what was revealed to him and to obey whatever commands Allah gave him; and that Allah will guide any who follow him.
In this chapter, al Imam al Shafi'i affirmed that parts of the Sunnah of the Prophet dealt with and were related to the Qur'an, whilst other parts explained matters concerning which there was no relevant text in the Book. Al Imam al Shafi'i also showed that the Sunnah existed independently of the Qur'an, and quoted evidence in refutation of those who disagreed with him in that matter. Then he said: "I shall explain what I have already said about the Sunnah, (whether) it particularizes the Qur'an or provides additional legislation for matters not mentioned therein; and this will illustrate what I have discussed above, Allah willing. I shall first speak of the Sunnah based on the Book of Allah, by dealing, by means of deductive reasoning, with the subject of the Sunnah in regard to the abrogating al Nasikh and abrogated al Mansukh passages of the Qur'an. Thereafter, I shall mention the Fard-duties specified (in the Qur'an) and the Sunnah in regard to them; the Fard-duties revealed in General terms which the Prophet (PBUH) made Particular through his specifying details relating to how and when; the General texts that were intended to be understood as General, and the General texts that were intended to be understood as Particular; and, finally, the Sunnah of the Prophet (PBUH) for which there is no textual authority from the Book of Allah."
There follows a chapter entitled, "The Origin of the Abrogating and the Abrogated"; which explains that Allah (SWT) used abrogation to make (the Shari'ah) easier and more flexible. This chapter also makes the point that a verse Ayah of the Qur'an can only be abrogated by another verse of the Qur'an; and that the Sunnah can only be abrogated by the Sunnah.
Then he dealt with the abrogating and the abrogated which are indicated in part by the Qur'an, and in part by the Sunnah.
Thereafter comes mention of the Fard-duty of Salah and the explanation in the Qur'an and the Sunnah concerning those who may be excused from performing it, and those whose Salah is not accepted because of some act of disobedience they may have committed.
Then al Imam al Shafi'i writes of the Abrogating and the Abrogated that are indicated by the Sunnah and al Ijma'; of the Fard-duties which Allah laid down in the text of the Qur'an,
of the Fard-duties laid down in the text of the Qur'an which the Prophet (PBUH) also dealt with in the Sunnah.
of the Fard-duties laid down in the text of the Qur'an which the Sunnah indicated were meant to be Particular in application,
of the Fard-duties in general which are clearly meant to be compulsory and for which the Prophet (PBUH) gave the explanation as to how they were to be performed; like Salah, Hajj, Zakah, the number of wives, women whom one is not permitted to marry, and dietary prohibitions.
In the next chapter he discussed defects in Hadith, and explained that the contradictions between Hadith could be attributed to many reasons. He then went on to explain some of these reasons. For example, a contradiction might appear because one Hadith was abrogated by another, or because mistakes occurred in the narration of the Hadith. He explained the mistakes which might cause contradictions in the Hadith, and many other reasons for such contradictions. Then he dealt with the various types of prohibitions, and explained that some Hadith clarify others.
Al Imam al Shafi'i also included a chapter on knowledge, and explained that there are two types of knowledge. The first is that sort of common knowledge which no sane, mature adult could possibly not know about. All of this knowledge can be found mentioned in the text of the Qur'an, and every Muslim knows all about it because it has been transmitted down from the Prophet (PBUH) to each succeeding generation in turn. There is no dispute concerning the authenticity of this knowledge, and all are agreed that it is binding. Indeed, the nature of this knowledge is such that there can be no mistakes in its transmission or interpretation.
The second type of knowledge is of the details which stem from the obligations, and the specific laws relating to them. These are not mentioned in the text of the Qur'an, and most of them are not mentioned in the text of the Sunnah, apart from single-individual narrations, Ahad.
Thus, al Imam al Shafi'i introduced a new subject, the single- individual narration, Khabr al Wahid. Al Imam al Shafi'i then explained what is meant by this term, and the conditions which determine whether or not a narration is of the single-individual variety. The difference between testimony and reporting, Shahadah and Riwayah, was explained; as were those matters which may be accepted through a single-individual narration, and those for which a Khabr al Wahid alone is not sufficient.
Then al Imam al Shafi'i discussed the authority of the Khabr al Wahid, and whether such reports could be adduced as evidence. His conclusion, supported by very sound arguments, was that indeed they could be used. Thus, al Imam al Shafi'i succeeded in refuting all the misgivings brought up by his opponents on this issue.
The following chapters then follow: On al Ijma': its definition, and legal authority.
On al Qiyas: its meaning and nature, the need for it, the varieties of Qiyas, and who is, and is not, competent to employ it.
On Ijtihad: how it is based first on the Qur'an, and then on the Sunnah; what constitutes correct and incorrect Ijtihad.
On al Istihsan, Juristic Preference: al Shafi'i was careful to explain that no Muslim is permitted to use al Istihsan in order to contravene the Hadith, nor may he pronounce any legal judgement which is not based on the Qur'an, Sunnah, al Ijma' or al Qiyas. He also explained the difference between al Qiyas and al Istihsan.
On disagreement among the scholars: al Imam al Shafi'i explained that these disagreements are of two types; the type that are prohibited and the type that are not. The types of disagreements which are not allowed are those concerning matters for which Allah has provided clear evidence in the texts of the Qur'an or Sunnah. Those disagreements which are permitted pertain to matters which could be interpreted in several ways and to which each scholar applies his own reasoning. Al Imam al Shafi'i then gave examples of both kinds of disagreements, and mentioned the reasons for each. He also gave examples of issues on which the Sahabah had disagreed, such as 'Iddah, oaths and inheritance. In this chapter; al Imam al Shafi'i mentioned something of his methodology for assigning preference to the opinions of the Sahabah when they differed.
The Risalah concludes with an explanation of al Shafi'i's opinion on the "categories of evidence" mentioned above:
"We base our judgements primarily on the Qur'an and the agreed-upon Sunnah concerning which there is no dispute, and say: 'This is our judgement after studying both the explicit and the implicit meanings of the texts.' Then, if we have to refer to the Sunnah that is narrated by only a few persons and concerning which there is no agreement, we say: 'We accept the Hadith as it is, but are aware that there could be some hidden fault in its narrators.' Then we will refer to at Ijma' then to al Qiyas. Al Qiyas is weaker than at Ijma' and it is used only when necessary because it is not lawful to use al Qiyas when there is a narration concerning the matter being dealt with."
From the writings of al Imam al Shafi'i, we know which sources of Islamic jurisprudence were agreed upon, and which were the cause of disagreement at that time.
The sources which were agreed upon were: The Qur'an and the Sunnah in general.
The sources concerning which there was disagreement included the Sunnah in its entirety, to some, and the Khabr al Wahid narrations (which al Imam al Shafi'i referred to as al Khassah) in particular. But al Imam al Shafi'i's contribution was that he examined these two issues in their entirety in the Risalah and in his Jim' al 'Ilm.
Other matters concerning which there were disagreements included:
Al Ijma': There were disagreements concerning its validity as evidence; concerning the different types of al Ijma'; whose Ijma' may be accepted as evidence; matters m which al Ijma' may be considered as evidence; and how the public may be made aware that there is Ijma' on any particular matter.
Al Qiyas and al Istihsan: There were disputes concerning the meaning of these terms, their nature, validity as evidence, the possibility and method of using them, and whether the actions of the Sahabah could be considered Qiyas or Istihsan.
There was also open disagreement concerning the significance of the Qur'anic command and prohibition, their meanings and their impact on the rest of the legal, Fiqh judgements. We may notice that in this period, the four Sunni Imams did not use strictly defined terminology such as al Tahrim "Prohibition", al Ijab "obligation", etc., as these words were not commonly used in their vocabulary. Rather, this kind of legal terminology appeared later on, as Ibn Qayyim has stated.54
Other sources of Islamic jurisprudence concerning which there are differences were not commonly discussed at the time of the early jurists. For example, such terms as al 'Urf, al 'Adah, and al Istishab were not part of their vocabulary.
# CHAPTER FIVE : USUL AL FIQH - AFTER AL IMAM AL SHAFI'I
Al Imam al Shafi'i's Risalah dominated studies in Islamic jurisprudence from the moment it appeared. Indeed, as a result of it, the scholars divided into two groups. One group, the majority of Ahl al Hadith, accepted it, and used it in support of al Shafi'i's school of legal thought. The other group, however, rejected most of what it contained, and attempted to refute whatever of al Imam al Shafi'i's work contradicted their own methods and practice before it had the chance to influence people. The members of this group were taken almost exclusively from the Ahl al Ra'i, all of whom were in complete disagreement with nearly all that al Imam al Shafi'i had written.
Ibn al Nadim mentioned books which were written in the field of Usul al Fiqh after the Risalah, including al Nasikh wa al Mansukh and al Sunnah by al Imam Ahmad ibn Hanbal (d 233 AH). Al Sunnah, however, is more a book on Tawhid and basic Islamic beliefs "Aqa'id" than of jurisprudence. There are two versions of this work in print; the longer version is the one printed in Makkah in 1349 AH, of which there are manuscript copies in the Dar al Kutub and Zahiriyyah libraries in Egypt and Damascus respectively. A smaller version, printed in Cairo without a date, deals with the fundamental beliefs of the Sunni Orthodoxy, or "Ahl al Sunnah".
Al Imam Ahmad also wrote Ta'at al Rasul "Obedience to the Messenger". Ibn Qayyim quotes from it often in his book, I'lam al Muwaqqi'in, and it seems that he possessed a copy of it. Nonetheless, I have looked for this book in many places, but have always been unable to find it. From the quoted passages in Ibn Qayyim's book, it is apparent that the book was indeed an important one on the subject of jurisprudence, and the methodology of dealing with the Sunnah. It may have been lost after Ibn Qayyim's time, or bound into another book, or the title page lost so that it may only be found after much searching.
The sources also mention that Dawud al Zahiri (d 270 AH) wrote al Ijma' "Consensus", Ibtal al Taqlid "On the Abolition of Imitation", Khabar al Wahid "On the Single-Individual Narration", al Khabar al Mujib "On the Obligating Narration", al Khusus wa al 'Umum "On the Particular and the General", al Mufassar wa al Mujmal "The Succinct and the Detailed", al Kafi fi Muqabalat al Muttalibi, i.e. al Imam al Shafi'i, "0n the Encounter with al Shafi'i", Mas'alatan Khalafa Fihima al Shafi'i "Two Issues on which He Differed with al Imam al Shafi'i".
During this period, the 'Ulama' who accepted the school of thought of al Imam Abu Hanifah devoted their attention to the study of Shafi'i's Risalah, both in order to refute what they disagreed with, and to derive their own source-methodology and principles of jurisprudence from the case law Fatawa of al Imam Abu Hanifah.
In this vein, the Hanafi scholars produced several works. 'Isa ibn Abban (d 220 Ah) wrote Khabar al Wahid, Ithbat al Qiyas, "Validating Analogical Deduction", and Ijtihad al Ra'i, "The Exercise of legal Reasoning".
Al Barza'i (d 317) wrote Masa'il al Khilaf "Issues of Disagreement", of which there is a 236-page copy in the Zaytunah Library in Tunis, number 1619.
Abu Ja'far al Tahawi (d 321) wrote Ikhtilaf al Fuqaha' "Disagreement of the Jurists", which was summarized by Abu Bakr al Jassas (d 37O). There is a copy of this hook in Cairo. For more details, refer to the Index of Ma'had al Makhtutat (1/329).55
Al Karabisi al Najafi (d 322) wrote al Furuq "Differences", of which there are manuscripts in the Ahmad III and Fayd Allah libraries in Istanbul.
Several untitled works on jurisprudence were also attributed to Ibn Sama'ah (d 233).56
Al Kannani (d 289) wrote al Hujjah fi al Radd 'Ala al Shafi'i, "The Evidence in Refutation of Imam Shafi'i".
'Ali ibn Musa al Qummi, the Hanafi (d 305) wrote Ma Khalafa Fihi al Shafi'i al 'Iraqiyin Fi Ahkam al Qur'an "Instances in which al Shafi'i Opposed the Iraqis in the Legal Interpretation of the Qur'an", Ithbat al Qiyas, al Ijtihad and Khabar al Wahid.
Abu al Hasan al Karkhi (d 340) wrote his well-known hook al Usul "The Sources", which was printed with a collection of other books in Cairo (no date).
Abu Sahl al Nawbakhti (d. circa 93 AH), who belonged to the Imamiyah, wrote Naqd Risalat al Shafi'i "A Critique of al Shafi'i's Risalah", Ibtal al Qiyas "Invalidating al Qiyas", and al Radd 'Ala Ibn al Rawandi Fi Ba'd Ara'ihi al Usuliyah ("Refutation of Certain of Ibn al Rawandi's Legal Opinions"). Ibn Junayd (d 347), who belonged to the Zaydiyyah group, wrote al Faskh 'Ala Man Ajaza al Naskh lima Tamma Shar'uhu wa Jalla Naf'uhu "The Nullification of those who Permitted Abrogation on Laws already Promulgated and Proved Beneficial", and al Ifham li Usul al Ahkam "Understanding Juristic Principles".
The adherents of al Imam al Shafi'i's school of legal thought produced the following works:-
Abu Thawr (d 240) wrote Ikhtilaf al Fuqaha' "Disagreement of the Jurists".
Abu 'Abd Allah Muhammad ibn Nasr al Marwazi (d 294) also wrote a book on the same subject.
Abu Abbas ibn Surayj (d 305) wrote a hook refuting both 'Isa ibn Abban and Muhammad ibn Dawud al Zahiri on matters in which they differed with al Imam al Shafi'i.
Ibrahim ibn Ahmad al Marwazi (d 340) wrote Al Umum wa al Khusus "The General and the Particular" and Al Fusul fi Ma'rifat al Usul57 "Chapters About Knowledge of Legal Source-Methodology".
Some of these scholars devoted their attention to producing commentaries on al Shafi'i's al Risalah; like Abu Bakr al Sayrafi (d 330), Abu al Walid al Nisaburi (d 365 or 363), Abu Bakr al Jawzaqi (d 388) and Abu Muhammad al Juwayni, the father of the famed Imam al Haramayn, teacher to al Imam al Ghazzali.
Commentaries on the Risalah are also attributed to five other scholars, namely: Abu Zayd al Jazuli, Yusuf ibn 'Umar, Jamal al Din al Afqahsi, Ibn Fakihani, and Abu al Qasim 'Isa ibn Naji. None of these commentaries, from which the scholars used to quote until after the seventh century, have come to light in modern times.
Shaykh Mustafa 'Abd al Razzaq58 mentioned that the public library in Paris held a copy of al Juwayni's commentary on the Risalah, and quoted some parts of it. I, myself, have tried to locate this manuscript in Paris; but failed. Perhaps it had been placed with other books under a different heading or title. Probably, the only way to find it is to sift through all the manuscripts. That, however, is a daunting task, as the researcher would need to spend a great deal of time on the undertaking.
DEVELOPMENTS IN USUL AL FIQH AFTER AL IMAM AL SHAFI'I
What we have mentioned so far can hardly be regarded as development, as it mainly revolves around criticizing, supporting or commenting on the Risalah, and really goes no further than that. Once the discipline had been established, this state of affairs obtained until about the beginning of the fifth century AH, when what could be considered as significant development in the field began to take place.
During this period, al Qadi al Baqillani (d 402) and al Qadi 'Abd al Jabbar al Hamadani (d 415) undertook to re-write the whole subject of the practice and principles of Shari'ah Source Methodology, or al Usul.
In his book al Bahr, al Zarkashi wrote: "... the two judges, the Qadi of Ahl al Sunnah, Abu Bakr Tayyib al Baqillani, and the Qadi of the Mu'tazilah, 'Abd al Jabbar, came and expanded upon what had been written, clarified what had previously been little more than indications, provided detail to what had been mentioned in a general way, and removed ambiguities."
Al Qadi al Baqillani earned the title Shaykh al Usuliyyin59 "Master of the Scholars of al Usul", after he wrote al Taqrib wa al Irshad "Clarification and Guidance". This hook has been lost for centuries; though it may yet turn up in one collection of manuscripts or another. In any case, the scholars of al Usul continued quoting from it until the ninth century AH.
For his part, al Qadi 'Abd al Jabbar wrote a book entitled either al 'Ahd "The Covenant" or al 'Amad "The Pillars" and wrote his own commentary on it.
Imam al Haramayn (d 478 AH) summarized al Baqillani's al Taqrib wa al Irshad, in a book entitled al Talkhis "The Summarizing" or al Mulakhkhas "The Summary", of which some pages are preserved in some manuscript collections. Later scholars of jurisprudence transmitted many of al Baqillani's ideas from this work.
Imam al Haramayn patterned his own book on al Usul, al Burhan "The Proof", on al Baqillani's al Taqrib, in that it included all fields of jurisprudence, was free in its method, and followed whatever evidence was available.60 He disagreed with his teachers, al Imam al Ash'ari and al Imam al Shafi'i, on so many issues that many of his fellow scholars from the al Shafi'i school of legal thought rejected his commentary and did not give it the attention it deserved, even though they transmitted a great deal from it in their own books.
Two Maliki scholars, al Imam Abu 'Abd Allah al Maziri (d 536 AH) and Abu al Hasan al Abyari (d 616), wrote commentaries on al Burhan; and a third Maliki scholar, Abu Yahya, combined the two commentaries. Still, all three of these scholars dealt harshly, if not somewhat unfairly, with Imam al Haramayn because of what they considered to be his audacity in refuting al Imam al Ash'ari on matters where he disagreed with him, and in refuting al Imam Malik on the question of al Masalih al Mursalah. Imam al Haramayn added introductions to al Imam al Shafi'i's book which dealt with matters not found in the Risalah. He began by discussing the knowledge of those sources and concepts which anyone who wishes to study any science in depth must have. He explained that the sources of Usul al Fiqh were 'Ilm al Kalam "Scholastic Theology", Arabic language and Fiqh. Then he dealt with legal judgements, duties, and competence, discussing in detail issues pertaining to various sciences, and explaining those which could be understood by reason, and which by religion. All the above matters formed an introduction to a discussion of the term al Bayan, "perspicuous declaration", the subject with which al Imam al Shafi'i began the Risalah.
It is quite apparent, however, when we see how Imam al Haramayn dealt with the subject of al Bayan, and with other of the subjects mentioned in the Risalah, that Imam al Haramayn defined the terms, including al Bayan, more precisely than al Imam al Shafi'i had done. He defined it, explained its essence, mentioned disagreements concerning it, and set forth its different categories. He also dealt with another matter which al Imam al Shafi'i had not dealt with, Ta'khir al Bayan ila Waqt al Hajah "Deferment of al Bayan until the time when it is Needed", and disagreements concerning it. Then, in discussing the different categories of al Bayan, he reiterated the five categories which al Imam al Shafi'i had mentioned, advocated Abu Bakr Dawud al Zahiri's comments on the subject, and then mentioned the other categories of al Bayan which some jurists had suggested.
Imam al Haramayn held the opinion that al Bayan meant "evidence", of which there are two types: 'Aqli "rational" and Sam'i "received". The basis for "received" evidence is the miraculous Qur'an; so that the closer the evidence is to the Qur'an, the more precedence it has. Hence the order of priority in "received" evidence is: the Qur'an, the Sunnah, al Ijma' Khabar al Wahid, al Qiyas.
Then he dealt with languages, and explained that the scholars of jurisprudence have dealt with linguistic matters which the scholars of Arabic had omitted, such as Awamir "commands"; Nawahi "prohibitions", and al 'Umum wa al Khusus "the General and the Specific" which Imam al Shafi'i had dealt with.
In the course of this linguistic discussion, he mentioned some of al Baqillani's ideas, which clearly indicates that al Baqillani had already made these additions to al Imam al Shafi'i's methods.
When al Imam al Ghazzali was the student of Imam al Haramayn it was only natural that he be influenced by him. In fact, al Imam al Ghazzali wrote four books on the subject of al Usul. The first of these works was al Mankhul "The Sifted", a medium-sized volume written as though for beginners or intermediate level students of al Usul. Of the second book nothing is known except that it was referred to in al Mustasfa61, and that its title was Tahdhib al Usul "On the Refinement of Usul". The third book is entitled Shifa' 'al Ghalil fi Bayan al Shibh wa al Mukhayyal wa Masalik al Ta'lil, and was edited and published in Baghdad in 1390/1971. Al Imam al Ghazzali's Encyclopedia of Shariah Source Methodology, his fourth book on the subject, and his last word, was al Mustasfa, which has been printed several times in Egypt and elsewhere. Indeed, this is the work he wrote after coming out of his period of meditation and seclusion62.
Al Imam al Ghazzali began his book with an introduction in which he covered nearly all of Aristotelian logic, a subject in which he had always been deeply interested. Then he wrote about the Hadd "Prescribed Punishment", about the conditions that must be satisfied before it can be applied, and about the different types of Hudud. He then discussed the Dalil "Evidence" and its various types.
At this point in the book, al Imam al Ghazzali proceeds to discuss the four poles of his work, headings under which everything in the field of al Usul is covered, and which his teacher, Imam al Haramayn, and predecessors, such as al Baqilani, were most concerned with. As his teacher had his own opinions that differed from those of al Imams al Shafi'i and al Ash'ari, so also did al Imam al Ghazzali hold opinions which differed from those of his predecessors. Likewise, among al Imam al Ghazzali's contemporaries there were those who accepted his views and those who did not.
These were the most important developments made by the followers of al Imam al Shafi'i in the field of Usul.
The second group to contribute to the development of the discipline were the Mu'tazilah. After al Qadi Abd al Jabbar had written his book, al Amad or al 'Ahd, and written a full commentary on it, he recorded some of his opinions on al Usul in his encyclopedia, some parts of which have been found and printed under the title al Mughni. The seventeenth volume of this encyclopedia was devoted to studies in al Usul.
As Imam al Haramayn concerned himself with the book of al Baqillani, so Abu al Husayn al Basri al Mu'taziuli (d 435 AH) concerned himself with the books of al Qadi 'Abd al Jabbar, and wrote a commentary on al Amad/al 'Ahd. When he felt that this commentary was too long, he summarized it in his well-known book al Mu'tamad "The Reliable", which is in print and widely available.
During this period, al Shaykh Abu Ishaq al Shirazi (d 476 AH) wrote his two books. al Lam' "The Bright Light" and al Tabsirah "Enlightenment", both of which are in print.
Al Qadi Abu Yahya al Farra' al Hanbali wrote a book on Usul entitled al 'Uddah fi Usul al Fiqh "The Tools of Usul al Fiqh", which was edited and published in Saudi Arabia in 1400/1980.
Ibn 'Aqil al Baghdadi, another Hanbali scholar, wrote al Wadih Fi al Usul "What is Clear in Usul".
Abu al Khattab wrote his well-known book, al Tamhid "The Preface", which was recently edited and published in Makkah.
Among the books written by scholars of the Maliki school of legal thought at that time was 'Uyun al Adillah Fi Masa'il al Khilaf Bayna Fuqaha' al Amsar "Profusion of Evidence or Controversial Issues Among the Jurists of the New Muslim Settlements", by Ibn al Qassar al Baghdadi (d 398 AH), of which there is a copy at Qarawiyin University in Fez.63 Al Shirazi considered this to be the best book by any Maliki scholar on the subject of juristic differences. Ibn al Qassar also wrote Muqaddimah fi Usul al Fiqh "Introduction to Usul al Fiqh", of which there is a copy at the Azhar University library.
The books of the Shafi'iyah, Hanabilah, Malikiyah and Mu'tazilah all followed a similar pattern in the order of their chapters and the treatment of their subject matter. Eventually, this pattern became known as "the method of the Mutakallimun."
THE ROLE OF THE FOLLOWERS OF ABU HANIFAH IN THE WRITING OF AL USUL
Some historians of Usul al Fiqh have suggested that al Qadi Abu Yusuf and Muhammad ibn al Hasan wrote about jurisprudence,64 but this claim has not been proven.
The author of Kashf al Zunun65 quoted 'Ala' al Din's saying from Mizan al Usul "Usul in the Balance":
"Know that Usul al Fiqh is a branch of Usul al Din; and that the composition of any book must of necessity be influenced by the author's beliefs. Therefore, as most of the writers on Usul al Fiqh belong to the Mu'tazilah who differ from us in basic principles, or to Ahl al Hadith who differ from us in questions of detail, we cannot rely on their books.
Our (Hanafi) scholars' books, however, are of two types. The first type is of books that were written in a very precise fashion, because their authors knew both the principles and their application. Examples of this type are: Ma'khadh al Shar' "The Approach of the Shari'ah" and al Jadal "Argument" by Abu Mansur al Maturidi (d 333 AH).
"The second type of book dealt very carefully with the meanings of words and were well-arranged, owing to the concern of their authors with deriving detailed solutions from the explicit meanings of narrations. They were not, however, skillful in dealing with the finer points of al Usul or questions of pure reason. The result was that the writers of the second type produced opinions in some cases agreeing with those with whom we differed. Yet, books of the first type lost currency either because they were difficult to understand or because scholars lacked the resolution to undertake such works."
There is much that could be said about how accurately this statement depicts the development of Hanafi studies of al Usul, even if it was made by a Hanafi. The statement does, nonetheless, come close to reality in explaining the role of the Hanafi yah in the development of Usul al Fiqh. In the first period, these scholars concentrated, even before al Imam al Maturidi, on discussing the issues brought up by al Imam al Shafi'i in his Risalah, as 'Isa ibn Abban and others did.
During the following period, one of the most prominent writers of al Usul was Abu al Hasan al Karkhi (d 340 AH). His book on al Usul consists of a limited number of pages that were printed with Abu Zayd al Dabusi's book, Ta'sis al Nazar "Establishing Opinion", which has been published in several editions in Cairo.
Then, Abu Bakr al Jassas (d 370 AH) wrote his work, Al Fusul Fi al Usul as an introduction to his Ahkam al Qur'an "Legal Interpretations of the Qur'an"66. Al Fusul has been researched and edited for a doctoral thesis, and was published recently in Kuwait.
True development of the Hanafiyah writing on the subject of al Usul. may be considered to have begun with al Imam Abu Zayd al Dabusi (d 340) who wrote two important books on the subject: Taqwim al Adillah "Appraising Evidence", all or some of which has been researched and edited, but which has not yet been printed, and Ta'sis al Nazar67. Abu Zayd made use of the work on al Usul done by his predecessors, especially that of Al Karkhi and Al Jassas, but with the difference that he expanded the field and explained it in greater detail; he also made brief reference to the points on which the Hanafiyah agreed and disagreed with others on matters of Usul.
Abu Zayd was followed by Fakhr al Islam al Bazdawi (d 482), who wrote the well-known Kanz al Wusul Ila Ma'rifat al Usul "A Treasury On Attaining Knowledge of the Usul", in which he dealt with Usul in general. Later Hanafiyah scholars took great interest in the book and wrote many commentaries on it; the best and most important of which was Kashf al Asrar "Secrets Uncovered" by 'Abd al Aziz al Bukhari (d 830). This commentary has been published in several editions in both Istanbul and Egypt.
Likewise, Shams al A'immah al Sarkhasi (d 423 AH) wrote Usul al Sarkhasi, which has been printed in two volumes in Egypt. This book is considered to be in many ways an alternate reading of al Dabusi's Taqwim al Adillah. The Hanafiyah scholars of al Usul took great interest in the books of al Bazdawi and al Sarkhasi, and concerned themselves with teaching and commenting upon them for a long time.
From the above it should be clear that the development of Usul al Fiqh, as a specialized discipline, had been completed, and that its issues and academic parameters had been defined by the fifth century AH. Indeed, by that century, the scholars of every school of legal thought had recorded their own interpretations and understanding of Usul al Fiqh.
THE METHODS OF THE FOLLOWERS OF AL IMAM AL SHAFI'I OR, THE "MUTAKALLIMUN", AND THOSE OF THE HANAFIYAH
Writings on the subject of al Usul generally followed one of two methods. The first was al Shafi'i's method, or the method of the Mutakallimun. This was the method followed by the Shafi'iyah, the Malikiyah, Hanabilah and the Mu'tazilah68, and it was known as the "method of the Mutakallimun" because the authors of books written according to this method used to introduce them with discussions of theological and philosophical issues, such as al Hasan and al Qabih "The Good and the Reprehensible', Hukm al Ashya' Qabl al Shar' "The Legal Status of Matters Prior to the Revelation of Shari'ah", Shukr al Mun'im "The Necessity of Gratitude to the Bestower", and al Hakim "The Possessor of Sovereignty". A further reason for its being labeled "the method of the Mutakallimun" was the use of the deductive method in defining the principles of source methodology, in ascertaining the validity of those principles, and in refuting those whose opinions differed without paying much attention to the issues and details which stem from the application of these principles.
THE METHOD OF THE HANAFI SCHOLARS OF AL USUL
The Hanafi method of writing on al Usul involved defining the principles of Usul from the details of legal issues with which their earliest predecessors had already dealt. Thus, the basis for their studies of al Usul was derived from the details of previously settled legal issues, and not the other way round. Therefore, one who studies Usul al Fiqh according to this method will gather the details of issues concerning which the Hanafi Imams have already given Fatawa, and then analyze them. Through his analysis he will decide the basis on which these Fatawa were given.
Shah Wali Allah of Delhi commented:
"I found that some of them claimed the differences between Abu Hanifah and al Shafi'i were founded on the Usul mentioned in al Bazdawi's book and elsewhere. But the truth is that most of these Usul were themselves derived from the differing legal pronouncement of the Imams. My opinion of the matter is that such principles of al Usul as the rules which say that the specific "al Khass" is obvious "Mubayyan", and does not need to be followed by a declaration "Bayan"; that the addition of details to a text constitutes abrogation "Naskh"; that the comprehensive "al 'Amm" is definitive "Qat'i" like the specific "al Khass"; that mere numbers of narrations may not be taken as a factor in according preference Tarjih to one opinion or another; that the Hadith of one who is not a Faqih need not necessarily be adopted in cases where there can be no resort to reason; that there is no legitimacy to the notion of progressing from a precondition "Shart" or description "Wasf" to a legal deduction; that the imperative "al Amr" in a text always indicates legal obligation "Wujub"; and so on, all of these are examples of principles inferred from the judgements of the Imams. Indeed, there are no sound narrations to suggest that Abu Hanifah or his two companions, Muhammad and Abu Yusuf, adhered to any of these principles of source methodology. As such, then, these principles deserve no more to be preserved and defended, as al Bazdawi and the others did, than the opposing principles do."69
THE SCIENCE OF USUL AL FIQH DURING THE SIXTH CENTURY AH AND THE FOLLOWING PERIOD
Following the consolidation of the subject matter of this discipline, according to the method of the Mutakallimun, in four major works: al 'Ahd, al Mu'tamad, al Burhan and al Mustasfa, two great scholars from among the Mutakallimun summarized these four books in works of their own.
The first was al Imam Fakhr al Din al Razi (d 606 AH), who summarized them in his book al Mahsul "The Sum and Substance", which I had the honour of researching and editing. This work has been printed in six volumes by Imam Muhammad ibn Sa'ud University, and is now being reprinted.
The second was al Imam Sayf al Din al Amidi (d 631 AH), who summarized these four books in his al Ihkam Fi Usul al Ahkam "Precision in the Source Methodology of Law", which has been published in Riyadh, Cairo and elsewhere.
These two books are lengthier and certainly easier to read and understand than others. Of the two, al Mahsul is written in clearer language, and is more detailed in its explanations. Many glosses and commentaries have been written on these two books. Taj al Din al Armawi (d 656) summarized al Mahsul in his book al Hasil "The Outcome", which was researched and edited for a doctoral thesis at al Azhar University, but has not yet been published.
Al Imam al Razi himself also summarized it in a book entitled al Muntakhab "Selections", which one scholar has researched and edited.
Al Qadi al Baydawi (d 685) summarized al Hasil in his book Minhaj al Wusul Ila 'Ilm al Usul "The Way of Mastering the Science of Source Methodology"; but his summary was so abbreviated that the result is like a riddle, very difficult to understand. Thus, many scholars undertook to produce commentaries on the book. Among such commentaries, the best is that of al Isnawi (d 772), which is entitled Nihayat al Su'l "An End to Questioning" This book occupied the attention of the scholars in the field for a long time, and the Shafi'iyah scholars al Al Azhar are still devoted to it.
Al Amidi's book, al Ihkam "Precision" was summarized by Ibn al Hajib (d 646) of the Maliki legal school in his book Muntaha al Su'l wa al Aml Fi 'Ilmay al Usul wa al Jadal "The Ultimate in the Sciences of Jurisprudence and Argumentation", which is well-known among the followers of al Imam Malik.
The best available commentary on this work is that of 'Udad al Din (d 756), for which several glosses and commentaries have been written.
All of these books were written following the method of the Mutakallimun, defining the principles, basing evidence upon them, and seeking to refute by means of these those who held opposing views, until one of the two groups admitted defeat.
The Hanafiyah scholars of al Usul were likewise occupied in studying the books of al Bazdawi and al Sarkhasi. This situation remained the same until the end of the sixth century and the beginning of the seventh century AH, when the scholars of at Usul began using a new method. This method involved combining the methods of the Mutakallimun and the Hanafiyah scholars so as to produce books which combined the Usul of the two groups.
Following this method, Muzaffar al Din al Sa'ati (d 694) wrote Bad'i al Nizam al Jam'i Bayna Kitabay al Bazdawi wa al Ihkam. This book is one which is readily available in print.
Sadr al Shari'ah (d 747) wrote Tanqih al Usul "Refining al Usul", in which he summarized al Mahsul, Usul al Bazdawi and Mukhtasar ibn al Hajib. He then wrote a commentary on his own book entitled al Tawdih "Clarification", to which al Taftazani (d 792) added a marginal commentary entitled al Talwih. All three books, al Tanqih, al Tawdih and al Talwih are available in print.
Among the Shafi'iyah scholars, Taj al Din al Subki wrote his famous book, Jam' al Jawami' "The Compilation of the Comprehensive". In the introduction, he mentioned that he had compiled his work from one hundred different books on al Usul. Many scholars wrote commentaries and added footnotes to al Subki's book. Of these, perhaps the most important and most widely-available commentary is Sharh al Jalal al Muhalli, which remains even today the basis for studies in al Usul, especially for the Shafi'iyah scholars.
Badr al Din al Zarkashi (d 794) also wrote a commentary, entitled Tashnif al Masami' "To Please the Ears", part of which was printed in Cairo with footnotes by al Shaykh al Muti'i (d 1354). One of the students at Imam Muhammad ibn Sa'ud University has researched and edited part of this book recently for his doctoral thesis.
Al Zarkashi also wrote al Bahr al Muhit "The Vast Ocean", in which he collected the submissions of scholars of al Usul from over one hundred books. A student has stared to research and edit this book, under our supervision, for his doctoral thesis, and has already completed one volume and made it ready for publication.
Among the Hanabilah, Ibn Qudamah (d 620) wrote Rawdat al Nazir wa Jannat al Manazir, in which he summarized al Ghazzali's al Mustasfa, and added to it other useful material on matters in which the Hanabilah disagreed with others. This book has been printed several times, and the Hanabilah took great interest in it, to the extent that they ignored nearly all other books.
Sulayman al Tufi (d 716) summarized this work, and then commented upon his summary in two volumes.
Among the Malikiyah, al Qarrafi (d 684) wrote Tanqih al Fusul fi Ikhtisar al Mahsul "Refining Chapters in Summary of the Mahsul". Al Qarrafi also wrote a commentary on al Mahsul in a large volume entitled Nafa'is al Usul "Treasures of the Usul", part of which has been researched and edited under our supervision in Riyadh.
# CHAPTER SIX : ISSUES RELATED TO IJTIHAD
The subject of Ijtihad traditionally took up an entire chapter of a book of al Usul. In that chapter, the author would first deal with Ijtihad by defining it, explaining the conditions for its validity, and differentiating between the various kinds of Ijtihad. Thereafter, he would discuss whether or not the Prophet (PBUH) considered Ijtihad to be a form of worship 'Ibadah, whether or not it constituted a form of 'Ibadah for the Sahabah during the Prophet's lifetime, whether only one answer resulting from Ijtihad on any issue could be correct, or whether there could be several correct answers, and when Ijtihad was and was not permitted. Then the scholars dealt with the subject of Taqlid in the same fashion.
In the eighth century AH, Ibrahim ibn Musa al Shatibi (d 790) wrote al Muwafaqat "The Congruences", in which he spoke of Ijtihad in terms of its being an intellectual exercise based on two pillars. The first pillar was complete knowledge of the grammar and syntax of the Arabic language. He left this subject to the scholars of the Arabic language and other writers on al Usul. The second pillar of Ijtihad, in al Shatibi's opinion, was knowledge of the purposes behind the legislation of the All-Wise Lawgiver.
Al Shatibi's predecessors in the field of al Usul had never paid a great deal of attention to these purposes. Rather, the most they had done in this direction had been to search for principal causes 'Illah. Al Shatibi, on the other hand, wrote his book in order to deal with this important matter. Indeed, knowledge of the purposes Maqasid of the Shari'ah is essential to understanding the legislation of the Lawgiver. Yet, the scholars of al Usul have never given this book the attention it deserves. This may perhaps be explained by the notion fixed in the minds of many scholars that it is not permitted to seek reasons for legislation by the Almighty, for the reason that such speculation cannot be regulated or rendered precise.70 When this is the case, or so goes the reasoning of a great many scholars, the study of such matters is little more than a needless intellectual luxury.
Anyway, al Shatibi's book is in print and widely available; and we can only hope that teachers of al Usul and those responsible for drawing up curricula will direct their students' attention to this important work; especially those who are studying al Qiyas,al Ta'lil and Ijtihad. In our own times, the two great scholars, Ibn 'Ashur and 'Allal al Fasi have written on the subject of the purposes of the Shari'ah.
Ibn Humam (d 861) wrote al Tahrir "The Writing", and his student, Ibn Amir al Hajj (d 879) wrote a commentary on it entitled al Taqrir wa al Tahbir. Both are in print. Al Tahrir is one of the books written in the combined Hanafiyah- Mutakallimun method. There is another commentary, by Amr Badshah, entitled Taysir al Tahrir "Facilitating the Writing".
Al Qadi 'Ala' al Din al Mardawi (d 885) wrote a summary of Usul Ibn Muflih71 (d 763) entitled Tahrir al Manqul wa Tahdhib 'Ilm al Usul. This work has been researched and edited, and is due to be published soon. The same researcher has also dealt with Usul Ibn Muflih.
Later, Ibn al Najjar al Futuhi of the Hanbali school of legal thought wrote a summary of Tahrir al Mardawi, and wrote an excellent commentary on it. This commentary is considered to be one of the best and most comprehensive of the later books about al Usul. An incomplete version of the book was printed in Egypt before it was researched and edited by two prominent professors, Dr. Nazih Hammad and Dr. Muhammad al Zuhayli. Their work was published by the Center for Academic Research in the College of Shari'ah at Makkah. Most of the book has now been published, and what remains is at the press.
In the twelfth century AH, Muhibb Allah ibn 'Abd al Shakur al Bihari, of the Hanafi school (d 1119 AH) wrote his famous book on Usul, Musallam al Thubut. This is one of the most precise and comprehensive books written by the later generation of Hanafi scholars. The book has been printed on its own, and with a commentary, in India; and has also been printed, with its famous commentary Fawatih al Rahamut, on the margin of al Imam al Ghazzali's al Mustasfa, several times.
All of these books were written following the methods mentioned above, and all of them concentrated on supporting their author's Madhab and refuting those of his opponents. From the sixth century until the present, there is no book to be found which is concerned with presenting Usul al Fiqh as a research tool that will protect the Muslim jurist from making errors in Ijtihad; apart from one remark made in passing by al Shaykh Mustafa Abd al Razzaq in his book Tamhid li al Tarikh al Falsafah al Islamiyah "Preface to the History of Islamic Philosophy". His student, Dr. Nashshar, tried to explain this remark in his book Manahij al Bahth "Methods of Research".
In the thirteenth century AH, al Qadi al Shawkani (d 1255) wrote his well-known book on Usul, Irshad al Fuhul "Guidance of the Masters". This book, despite its diminutive volume, presents different opinions in the field of al Usul, and the evidence given by the proponents of each, in a brief but excellent fashion. The author also states which of the opinions he prefers. This book, which has been printed several times is a useful one for the student of Usul al Fiqh and comparative studies in jurisprudence. However, to the best of our knowledge, it has not been included in the curriculum of any institute, despite its suitability.
Muhammad Siddiq Khan (d 1307) summarized this work in a book entitled Husul al Ma'mul min 'Ilm al Usul "The attainment of the Hoped For in the Science of al Usul", which is in print.
Indeed, Irshad al Fuhul is considered to be an accurate summary of al Zarkashi's al Bahr al Muhit; and al Mahallawi's Tashil al Usul is considered to be a summary of Irshad al Fuhul.
After this period, we find that the study of al Usul has followed either one of two major trends:
Writing study guides, summaries and notes. This has been done by the professors at various colleges of Shari'ah and Law in order to make the study of Usul al Fiqh easier for their students; after they realized that their students were unable, or unwilling, to study this subject. Certainly, these notes represent no sort of advance in the field; and in most cases they are mere attempts at recasting the issues of Usul al Fiqh in a simplified modern idiom. The following scholars, al Marsafi, al Mahallawi, al Khudari, Abd al Wahhab Khallaf,al Shinqiti, al Sayis, Mustafa 'Abd al khaliq, 'Abd al Ghani 'Abd al Khaliq, Abu Zahrah, Abu Nur Zuhayr, Ma'ruf al Dawalibi, 'Abd al Karim al Zaydan, Zaki al Din Sha'ban, Muhammad Sallam Madkur, and others, all wrote books which were originally lectures they had delivered in the colleges of Law and Shari'ah where they taught.
The second trend has been the writing of university theses on different aspects of this science, and the researching and editing of unpublished manuscripts. Undoubtedly, both aspects of this trend are of great benefit, and I certainly do not intend to demean the efforts of anyone; but these nonetheless fall short of achieving any sort of development in the field, and the science of Usul al Fiqh remains in the same place our predecessors left it in the sixth century AH.
From the above, we may draw the following conclusions:-
1. Nothing of the discipline now known as Usul al Fiqh had emerged, with its particular terminology, during the time of the Prophet (PBUH) or his Sahabah.
Nonetheless, almost all of the various Ijtihad processes employed during these two periods could be classified under the principles articulated by this science. The reason for this is that they used to derive detailed legal rulings on particular issues from the sources of law as a matter of instinct, just as they used to speak Arabic instinctively, or without being aware of the grammatical rules which were still unknown at the time.
2. The first scholar to compile a book about the principles of the science of Usul al Fiqh was al Imam Muhammad ibn Idris al Shafi'i (150-204 AH).
The first comprehensive book on the subject was the Risalah, which he wrote in response to a request from al Imam 'Abd al Rahman ibn al Mahdi (135-198 AH). This was after the two famous schools of Fiqh, the school of Ahl al Hadith, led by al Imam Malik ibn Anas (93-179 AH), and the school of Ahl al Ra'i, led by al Imam Abu Hanifah (70-150 AH), had become established and widespread.
Following the widespread circulation of these two legal schools of thought, there arose between the followers of these two schools, in addition to the political, theological and philosophical conflicts of the period, what can be described as "The Fiqh Controversy".72
3. Usul al Fiqh is a method of research for the jurist,73 and its place in Fiqh is analogous to that of Logic in Philosophy.74 Therefore, it was defined as "the aggregate, considered per se, of legal proofs and evidence that, when studied properly, will lead either to certain knowledge of a Shari'ah ruling or to at least a reasonable assumption concerning the same; the manner by which such proofs are adduced, and the status of the adducer."75
So, Usul al Fiqh offers comprehensive guidelines which protect the Mujtahid from making mistakes in the various ways he uses source material for the purpose of deriving legal judgements.76 Nonetheless, it was not used in this way until al Imam al Shafi'i put it to use in his "New" Fiqh.77
4. An important fact which should be borne in mind is that scholars studied Fiqh, and made pronouncements concerning it, before anyone began to speak of its Usul (apart from al imam al Shafi'i in his "New" Fiqh).
Thus, the role given by others to Usul al Fiqh was little more than that of justification for legal pronouncements Fatawa that they made on specific issues, and of the substance of argument and debate among them. They did not view Usul al Fiqh as a comprehensive legal guideline, or as a methodology capable of regulating the entire legal system. The jurists Fuqaha, when faced with questions and situations, used to refer these back directly to the relevant evidence, without feeling the need to have recourse to the general principles articulated in Usul al Fiqh.
So, al Imam Abu Hanifah gave Fatawa on nearly half a million issues,78 which his students learnt and passed on. But, the legal principles on which al Imam Abu Hanifah based these Fatawa were never transmitted with anything like an uninterrupted line of authority from him,79 apart from a few reports in which he refers to some of the sources of his Ijtihad. He said, in one of those reports:
"I follow the book of Allah, and if I find no solution there, I follow the Sunnah of the Prophet, peace be on him. If I find no solution in either the Qur'an or the Sunnah, I follow whichever of the pronouncements of the Sahabah I prefer, and leave whichever I wish. If there is a pronouncement on a particular matter by any of the Sahabah, I would not adopt any other opinion made by any other scholar. But, if I found a solution only in the opinions of Ibrahim, al Sha'bi, Ibn Sirin, Hasan al Basri, 'Ata' or Sa'id ibn al Musayyab, I would make Ijtihad just as they did."80
When some people tried to turn the Khalifah, al Mansur, against him, Abu Hanifah wrote to the Khalifah:
"The situation is not as you have heard, 0 Amir al Mu'minin! I work according to the Book of Allah, then according to the Sunnah of the Prophet, then according to the judgements of Abu Bakr, 'Umar, 'Uthman and 'Ali, then according to the judgements of the rest of the Sahabah. Then, if there are any differences between their pronouncements, I resort to al Qiyas. No one of Allah's creatures is inherently closer to Him than any other."81
When he was accused of preferring al Qiyas to an explicit text Nass in the Qur'an, he replied: "By Allah, those who say that we prefer al Qiyas to a Nass have lied and slandered us. Is there any need for al Qiyas after [finding an explicit] Nass?"82
5. It is quite obvious that from the beginning of the Umawi period until the destruction of the Islamic Khilafah, authority and leadership in the Ummah were in the hands of those who were not qualified to perform Ijtihad, whilst the responsibility for Ijtihad passed to the 'Ulama' who had no authority. And it is difficult to find exceptions to this state of affairs, apart from the Khilafah of 'Umar ibn 'Abd al 'Aziz, from whom many judgements involving questions of jurisprudence have been narrated. This situation had the far-reaching effect of separating Fiqh and its Usul from the practical aspects of Muslim life, so that in many cases these subjects became theoretical and idealistic.83 Essentially, both subjects became descriptions of how Muslim life ought to be; not how it really was, or what it might become.
6. The writers and historians of this science classified it among the sciences of the Shari'ah that are based on transmitted evidence,84 even though some writers said that its principles are taken from the Arabic language, the rational sciences, and certain other Islamic disciplines.85 One of the most prominent writers in the field, al Imam al Ghazzali, wrote:
The noblest sciences are those in which reason 'Aql and received evidence Sama' are married, and in which conclusions based on reason accompany those based on revelation. The science of Fiqh and its Usul is one of these sciences. It draws equally from the purity of revelation and the best of reason. Yet, it does not rely purely on reason in a way that would be unacceptable to revealed law, nor is it based simply on the kind of blind acceptance that would not be supported by reason.86
The statements of al Imam al Ghazzali and other writers on the subject of al Usul enable us to suggest that there are three sources of Fiqh:
Wahy Divine revelation: this includes both the recited, or the inimitable Qur'an, and the unrecited, or the Sunnah.
'Aql or reason: to explain the texts, to seek ways in which they may be applied and ways in which various parts may be connected to the whole, to search for the reasons behind legislation that seems to have no reason, to derive laws in matters for which the Lawgiver did not lay down an explicit judgement in the texts, and other similar matters which can be defined and explained.
Experience, customs and the public interest.
All the Usul, both those which scholars have agreed upon and those concerning which there are disagreements, may be classified under the above three headings, as follow: The Qur'an, the Sunnah, al Ijma', al Qiyas, the idea that what is basically beneficial is permitted and what is basically harmful is prohibited, al Istishab and al Istihsan. In addition, the pronouncements of the Sahabah which were well-known among them and which none of them opposed; the principle of always adopting the least rigorous alternative; studying a few of the available relevant cases for purposes of comparison; common interest and customs which were neither commanded nor prohibited in any Islamic source; the conclusion that there is no law when there is nothing to indicate any law; the laws of nations before Islam, and closing the door on justifications.
7. There were certain factors in our history, some of which were mentioned above, that both intimidated and imposed many restrictions upon us. Thus, the focus of our Islamic mentality and intellectual attention was diverted to minor issues, so that we were distracted from thinking in comprehensive terms, characteristics considered to be the distinguishing features of Islamic thought. This had a far-reaching effect on the way we dealt with Fiqh and on the solutions we produced, in that these also bore the same characteristics and features.
8. It is well-known that in every science and sphere of life, there are some matters that naturally accept development, that sometimes require it in order to realize their full potential. Yet, there are other matters that are fixed and immutable. According to the logic of Islam, the two must be integrated. Hence Usul al Fiqh has fixed rules which cannot be changed, and others which rely on continual development and renewal. This is clear from the foregoing discussion of Ijtihad.
Hence, while we urge all Muslim scholars not to begin from a vacuum, but to benefit from the reasoning and Ijtihad of the scholars who went before them, we affirm that no one can claim that it is obligatory to follow any Mujtahid in matters where his pronouncements were based solely on his individual reasoning. The best we can say in this matter is that his pronouncements are "an opinion, and an opinion can be shared."87
9. From studying the methods of the early Muslims, it is clear to us that their aim was not simply to ascertain the law and then to produce Fatawa. On the contrary, their objective was always the establishment of Allah's rule through the application of His law. What this means, essentially, is that the circumstances surrounding the application of law cannot be separated from the conditions attached to it.
If, having understood the above, we wish to restore this science to its rightful place among the Islamic sciences, and transform it into a method of research into the source evidence of the Shari'ah from which we may derive rulings on, and solutions to, our contemporary problems, (thus maintaining the sovereignty of the Shari'ah), we must do the following:
i. Review the topics covered by this science, and eliminate those without relevance to the modern scholar or jurist. These might include, Hukm al Ashya' Qabl al Shar" "Rulings before the Shari'ah", Shukr al Mun'im "How one is required to thank the Almighty Bestower", Mabahith Hakimiyyat al Shar' "Studies about the Sovereignty of the Shari'ah", and excessive concern with definitions. We should also dispense with disputes concerning the uncommon Qira'at Shadhdhah "Alternate Recitations" of the Qur'an, and the Arabic nature of the entire Qur'an. Likewise, we should now end the long disagreement about single-narrator Hadith by saying that if such a narration is proven to have met the conditions of being authentic Sahih it will be acceptable, and laws may be derived from it.
Moreover, we should re-examine all the conditions, laid down by certain early jurists, that seem to have been dictated by circumstances. For example, the condition that a Hadith should not contradict the general principles they established, that it should not be narrated by other than a Faqih, that it should not contradict al Qiyas, or the traditions of the people of Madinah, or the explicit meaning Zahir of the Qur'an. Or the condition that a Hadith, if it deals with a common issue or hardship or affliction, must be widely known. All of these conditions should be rejected, and the same must be done with other conditions which were and are still controversial and a source of disagreement among Muslims, and which still occupy the time of scholars.
ii. Undertake linguistic studies relating to Fiqh which will examine the styles of expression used by the Arabs at the time of the Prophet (PBUH), and note the stages of development which these styles later passed through, and the various meanings assigned to words in current usage at the time. This will enable us to understand the texts as they should be understood.
iii. Pay special attention to the methods and the principles involved in performing Ijtihad, such as al Qiyas, al Istihsan, al Maslahah, and others, and study them from a historical perspective, taking into account the circumstances which dictated the pronouncements of the Mujtahidun. We should also try to instil a juristic frame of mind into those who are researching in the fields of al Fiqh and al Usul.
iv. Realize that it is impossible at this time for there to be a Mujtahid Mutlaq, or one who is a legal authority (on the interpretation of the sources) in his own right, to pass judgements on issues. As long as this is so, academic councils are the best alternative.
In order to enable these councils to meet the needs of the Ummah in matters of legislation, they should be composed of experts whose specializations cover all aspects of life, and who would be able to clearly perceive any problem presented to them. In addition to this, they would have to have complete knowledge of the general rules and principles of the Shari'ah of Islam. Such councils would also include jurists of the highest level possible, knowledgeable in both the sciences of the Shari'ah and the detailed source evidence. Perhaps one of our great jurists was referring to this idea when he was approached by someone who wanted to break his fast in the month of Ramadan and the jurist told the man to seek the opinion of a trustworthy Muslim doctor; adding that if the doctor considered the fast injurious to his health, then it would be permissible for him to abstain.
v. We must make it easier for specialists in other fields to study what they need of the sciences of the Shari'ah.
vi. We must become familiar with the Fiqh of the Sahabah and Tabi'un; and especially with the principles on which they derived their judgements. In particular, the Fiqh of the Khulafa' Rashidun and their contemporaries deserves deep study. Then, this knowledge may be presented to those whose task it is to formulate legislation and make judgements in response to the demands of contemporary Muslim society.
vii. We need to take an interest in knowing the aims and purposes of the Shari'ah, and in developing the study of this matter, by setting down rules and guidelines.
And Allah is the Giver of Tawfiq (success and prosperity)!
THE END
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BOOK 2:
"Usul al-Fiqh"
By Shah Abdul Hannan
Contents:
Introduction
The Quran
The Sunnah
Interpretation-I
Interpretation-II
Command, Prohibitions and Nask
Ijma (Consensus Of Opinion)
Qiyas (Analogical Deduction)
Revealed Laws prior to Shariah of Islam & Fatwa of Sahaba
Istihsan and Maslaha
Urf and Istishab
Sadd al Dharai and Hukm Sharii
Taarud and Ijtihad
Reference Books
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# Introduction
Usul al Fiqh discusses both the sources (Adillah) of Islamic law and the law (Fiqh). This view is held by a group of jurists, according to 'Nurul Anwar' written by Sheikh Ahmad Ibn Abu Sayiid, known as Mullah Jaiun, who was the house tutor of Aurangzeb, the Mughal emperor. However, primarily Usul al Fiqh deals with the sources or roots of Islamic law.
Usul al Fiqh (Usul is plural of Asl), the bases or roots of Islamic Law, expound the methods by which Fiqh (detail Islamic law) is derived from their sources. In this view, Usul is the methodology and the Fiqh is the product.
Usul deals with the primary sources of Islamic law, the Quran and the Sunnah, i.e., Usul discusses the characteristics of the Quran and Sunnah, and what are the methods of deduction of law from the Quran and the Sunnah. In doing that, Usul discusses various kinds of words used in the Quran and the Sunnah in particular and Arabic language in general, such as, Amm (general) and Khass (particular), Mutlaq (unconditional) and Muqayyid (conditional), Haqiqi (literal) and Majaji (Metaphorical), various types of clear words and unclear words. Methods of deductions from the legal verses of the Quran and the legal Ahadith (singular Hadith) are what the Fuqaha (jurists) have called Ibarah al Nass (whereby Ahkam or rules are derived from the obvious words and sentences themselves), Isharah al Nass (where Ahkam are inferred from signs and indications inherent in the text), Dalalah al Nass (where Ahkam are derived from the spirit and rationale of a legal text) and
Iqtida al Nass (whereby Ahkam are derived as a requirement of the provision of the text though the text is silent on the issue). For details, please read the chapters on Interpretation in Hashim Kamali's book "Principles of Islamic Jurisprudence".
Usul al Fiqh also discusses the secondary sources of Islamic law, the Ijma (consensus), Qiyas (analogical deduction), Istihsan (Juristic preference) and other methods of Ijtihad (reasoning and investigation). All the secondary sources are either directly or indirectly based on the primary sources of Islamic law, the Quran and the Sunnah. For instance, three main elements of Qiyas, that is Asl (original case), Hukm (ruling on asl) and the Illah (effective cause ) are based on primary sources. Usul al Fiqh also discusses other main issues involving Islamic law such as the effect of custom on law or custom as a source of law, and grades of the Islamic legal provision (i.e., what is Haram, what is Maqruh; what is Farz, what is wazib and what is Mandub (recommended) and also the methods of removal of conflict (i.e., Taa'rud).
In some books of Usul, grammar of Arabic language is discussed at length. Of course the knowledge of Arabic language and grammar is a must for one who wants to be a Usuliuun or a Jurisprudent. However, this is not really a subject matter of Usul.
The benefits of the study of Usul al Fiqh are many. From a study of Usul, we come to know the methods of interpretations of the Quran and Sunnah, all the secondary sources of Islamic law, the views on Usul of major scholars of the past and present, the rules of Qiyas and other methods of Ijtihad, the history of development of Islamic law and legal theory. All these make anybody who studies Usul cautious in approach to Islamic law. He develops respect for the methodology of past masters and becomes aware of the need to follow rules in the matters of deduction of new rules of Islamic law. He then is likely to avoid careless utterance and action. Ummah can produce great mujtahid only by study of Usul in addition to other sciences. The principal objective of Usul is to regulate Ijtihad and guide the jurist in his effort at deducing the law from the sources.
Imam Shafii is considered to be the father of the science of Usul. This is true in the sense that the systematic treatment of the principles of Usul al Fiqh was first made by him. Before him, the jurists off course followed some principles in the deduction of law but these principles were not integrated and systematized. After Shafii, many scholars have contributed in the study of Usul, of them, the most famous are: Abul Hasan al Basri (d. 436), Imam al Haramayn al Juwayni (d. 487), Abu Hamid al Gazali (d. 505), Fakhruddin al Razi (d. 606), Saifuddin Al Amidi, Abul Hasan Al Karkhi (d. 349), Fakhruddin Al Bazdawi (d. 483), Abu Bakr Al Jassas (d. 370), Sadr Al Shariah (d. 747), Tajuddin Al Subki modern times, particularly in Arab lands.
Initially two approaches developed in the study of Usul, the theoretical and the deductive. The theoretical approach was developed by Imam Shafii who enacted a set of principles which should be followed in the formulation of Fiqh. On the other hand, primarily the early and later Hanafi scholars looked into the details of law given in the Quran and Sunnah and derived legal rules or Usul principles therefrom. However, the later scholars combined the two approaches and presently the subject essentially follows the same format.
# The Quran
In some classical books of Usul (such as, 'Nurul Anwar', by Sheikh Ahmad Ibn Abu Said or 'Manar', by Sheikh Abul Barakat Abdullah Ibn Ahmad Nasaki) most of the discussion of Usul have been made under the heading "Kitabullah" (that is the Quran). Such discussion includes discussion on the classification of words in the Quran (or Arabic language), grammatical issues pertinent to interpretation of the Quran and Sunnah, such as Haruful Maa'ni (words with meaning), Haruful Atf (conjunction), Haruful Zar (which gives Kasra to the noun when it is used before noun), Haruful Asmauz Zaruf (Haruf which indicate time, place, etc.) and Haruful Shart (haruf which indicates conditions). Discussion under Kitabullah also includes the methods of interpretation such as Ibaratun Nass, Isharatun Nass, etc.
we shall not discuss any of the aforesaid things. In following some modern Usul scholars, we shall take the discussion on the methods of interpretation and classification of words under "Methods of Interpretation". We shall not discuss rules of grammar in Usul and ask the readers to study Arabic language and its grammar separately. In this part, we shall discuss some of the characteristics of Quran as its introduction.
Quran is the book which Allah revealed in His speech to His Prophet Muhammad (SM) in Arabic and this has been transmitted to us by continuous testimony or tawatur.
There are 114 surahs of unequal length. The contents of the Quran are not classified subjectwise. The Quran consists of manifest revelation (Wahy Zahir) which is direct communication in the words of Allah. This is different from Wahy Batin (non-manifest revelation) which consists of inspiration and concepts. All the Ahadith of the Prophet (SM) fall under this category.
Hadith Qudsi, in which the Prophet (SM) quotes Allah in the Hadith, is also not equivalent to the Quran. In fact, this kind of Hadith is also subject to examination of Isnad (chain of narrators from the Prophet (SM) to the compiler of the Hadith compilation). If the sanad (chain) is weak, the Hadith will be treated as weak, even though it is Hadith Qudsi. It should be noted that the Prophet (SM) did not make any distinction between Hadith Qudsi and other Hadith.
Only meaning (Maa'ni) or text (Nazm) is not the Quran. Jurisprudents agree that text and meaning together constitute the Quran.
Quran was revealed in stages (17:106), and gradually (25:32). Graduality in the revelation afforded opportunity to reflect over it and memorize it. The Ulama are in agreement that the entire text of the Quran is "Mutawatir", i.e., its authenticity is proven by universally accepted testimony.
The larger part of the Quran was revealed in Mecca (about 19/30th part) and rest in Madinah. The Meccan revelations mostly deal with beliefs, disputation with unbelievers and their invitation to Islam. But the Madinan surahs, apart from the aforesaid, deal with legal rules regarding family, society, politics, economics, etc. The surah is considered Meccan if its revelation started in Mecca, even if it contains Madinan period Ayats. The information regarding which one is Meccan or Madinan are based on the sayings of the Sahabis or the following generation.
The legal material of the Quran is contained in about 500 Ayats, according to various estimates. These injunctions were revealed with the aim of repealing objectionable customs such as infanticide, usury, gambling, unlimited polygamy; prescribing penalties and core Ibadah like Salat, Siam, Zakat, Hajj. Other legal Ayats deal with charities, oaths, marriage, divorce, Iddah, revocation of divorced wife (Rijah), dower, maintenance, custody of children, fosterage, paternity, inheritance, bequest; rules regarding commercial transaction such as sale, lease, loan, mortgage, relations between rich and poor, justice, evidence, consultation, war and peace.
Qati & Zanni: One of the things that has been discussed is about Qati (definitive) and Zanni (speculative). Qati and Zanni concepts have been discussed in terms of text and in terms of meaning. The whole of the Quranic text in Qati (definitive) that is its Riwyah (report) is conclusive and beyond doubt. Only other text, which has been considered Qati is only Mutawatir Sunnah or Hadith (at least in essence). Other Hadith and Ijtihad are Zanni material.
The text of the Quran which has been reported in clear words (Alfaz al Waziha) which has only one meaning are considered Qati also in terms of meaning (Dalalah). Qati and Zanni have significance in the matter of belief and in the gradation of Ahkam into Farz, Wazib, Sunnah, Haram, Makruh, etc. Articles of faith can be determined only by Qati text with Qati meaning. A person can be declared Kafir if he denies the Qati text of the Quran or Mutawatir Sunnah, otherwise not. Similarly Farz is determined only by Qati text with Qati meaning (please see chapter 17 of Kamali's book).
Most of the text of the Quran are Qati in meaning. Example of Zanni in meaning are the words "banatukum" in Nisa:23 and "yanfaw minal ard" in Maida:33.
In the discussion on Qati and Zanni, Quran and Sunnah are integral to one another. Zanni of one verse can be made Qati by another verse or by definitive Sunnah. Similarly, the Zanni Sunnah can be elevated to Qati by Qati Ayat of the Quran or by other corroborative evidence of Qati Sunnah.
By far, the large part of the Quranic legislation have been given in broad outlines; only in a few area, the Quran has given instruction in considerable details. Hardly there is anything where Quran has given all details. We are dependent on Sunnah and Ijtihad to fill up the gaps or for explanations.
One issue of concern is whether it is permissible to research the cause (talil) of Ahkam. Majority of scholars hold that this is permissible, indeed a must for development of Islamic law through Ijtihad (primarily Qiyas).
However, a few hold that talil is not permissible and as such deny legality of Qiyas. This view is weak and appears to have been born out of misunderstanding the purpose of talil.
Another issue is Asbab al-Nazul or events which are related to revelation of the Ayats. The Hakm (law) is not limited to the events or circumstances. However, Asbab al-Nazul helps to understand the Quran and its law.
# The Sunnah
Literal meaning of Sunnah in Arabic is beaten track or established course of conduct. Pre-Islamic Arabs used the word for ancient or continuous practice. According to Ulama of Hadith, Sunnah refers to all that is narrated from the Prophet (SM), his acts, his sayings and whatever he tacitly approved. The Jurisprudents exclude the features of the Prophet (SM) from Sunnah. In the Hadith literature, there are uses of the word Sunnah in the sense of sources of law, for instance, in the Prophet's farewell Hajj address and at the time of sending Muadh (R.A.) to Yemen.
The term Sunnah was introduced in the legal theory towards the end of the first century. It may be noted that in the late 2nd Century Hijra, Imam Shafii restricted the term to the Prophetic Sunnah only. In the Usul al Fiqh, Sunnah means the source of Shariah next to the Quran. But to the Ulama of Fiqh, Sunnah primarily refers to a Shariah value which is not obligatory but falls in the category of Mandub or recommended. But as a source, Sunnah can create obligation (wajib), Haram, Makruh, etc. In the technical usage Sunnah and Hadith have become synonymous to mean conduct of the Prophet (SM). The Sunnah of the Prophet (SM) is a proof (Hujjah). The Quran testifies that Sunnah is divinely inspired (53:3). The Quran enjoins obedience to the Prophet (SM) (59:7; 4:59; 4:80; 33:36). Allah asked the believers to accept the Prophet as judge (4:65).
One classification of Sunnah is Qawli, Faili and Taqriri (verbal, actions and tacit approval).
Legal and non-legal Sunnah: A very important classification is legal and non-legal Sunnah. Legal Sunnah (Sunnah tashriyyah) consists of the Prophetic activities and instructions of the Prophet (SM) as the Head of the State and as Judge. Non-legal Sunnah (Sunnah Ghayr tashriyyah) mainly consist of the natural activities of the Prophet (Al-afal-al-jibilliyyah), such as the manner in which he ate, slept, dressed and such other activities, which do not form a part of Shariah. This is called adat (habit) of the Prophet in the 'Nurul Anwar', a text book of Usul. Certain activities may fall in between the two. Only competent scholars can distinguish the two in such areas. Sunnah which partake of technical knowledge such as, medicine, agriculture is not part of Shariah according to most scholars. As for the acts and sayings of the Prophet that related to particular circumstances such as, the strategy of war, including such devices that misled the enemy forces,
timing of attact, siege or withdrawal, these too are considered to be situational and not a part of the Shariah.
Certain matters are particular to the Prophet (SM) such as, the case of number of wives, marriage without dower, prohibition of remarriage of the widows of the prophet (SM). The Quran has priority over Sunnah, because of nature of revelation (wahy zahir over wahy Batin), authenticity and also because Sunnah is basically and mostly an elaboration of the Quran. In case of real conflict, the Quran should prevail. Never the Quran was abandoned in favor of the Sunnah.
It may be noted that Sunnah in many instances confirms the Quran. Please look into examples given in the book. There is no disagreement on this. Sunnah also explains and clarifies the Quran as in the case of Salat, Zakat, Hajj, Riba and many other matters of transactions. Another part of Sunnah which is called Sunnah al-Muassisah or founding Sunnah (such as, prohibition of marrying paternal or maternal aunt, or the right of pre-emption in property (shuf')) cannot be traced in the Quran and originated in the Sunnah.
Implication of verse 16:44 (Surah Nahl) does not clearly over-rule the recognition of Sunnah as an independent source, at least in some respects. It may be noted from other books (not discussed in Hashim Kamali's book) that the experts in Hadith literature at the stage of collection of Hadith examined all Hadith before recording in their collections (particularly the claim of transmission from the Prophet (SM) downward) and classified Hadith into strong (sahih/hasan), weak (daif) and forged (Mawdu). It is now re-examination of Hadith literature is continuing. In current century, Nasiruddin Albani had good work on this subject. Anybody who knows Arabic well, can look into Albani's works (see also 'Studies in Hadith Methodology', by M.M. Azami, published by American Trust Publications).
Mutawatir Hadith has been considered Qati (definitive) in concept (Mutawatir bil Ma'na) mostly. There are only a few Hadith which are Mutawatir bil Lafz (Mutawatir word by word). Also note that because of large number of reporters of Mutawatir Hadith, diversity of residence of the reporters, it is impossible to concoct a lie in this manner. The main conditions of Mutawatir Hadith are:
large number of reporters,
reports must be based on direct knowledge and through sense perception,
reporters must be upright,
reporters are free from sectarian or political bias of that time.
According to the majority of Ulama of Usul, the authority of Mutawatir is equivalent to the Quran. It gives positive knowledge, the denial of Mutawatir Hadith or Sunnah is equivalent to denial of the Quran.
Mashhur Hadith is a kind of Hadith, which is reported by one or two companions, then become well known. The majority of Ulama considered Mashhur as a kind of Ahad Hadith and it gives speculative knowledge, not positive knowledge. Ahad Hadith (in most cases reported by a single companion and which did not become well-known in the 2 or 3 generations) does not give positive knowledge. Majority of Jurists hold that if Ahad is reported by reliable reporters, it establishes a rule of law. Some hold acting upon Ahad is only preferable. Aqidah (beliefs) or Hadud (prescribed punishment) should not be based on Ahad Hadith.
If a Hadith is narrated by a number of narrators and there is additional words in some of them, then it should be looked into whether the Hadith was originally uttered in one sitting. In that case, the words narrated by more narrators will be accepted. Imam Malik did not rely on Ahad Hadith, if it was in conflict with the practice of Madinah. Most Imams considered Ahad Hadith to be authoritative in principle if reported by reliable reporters. Majority of Ulama do not insist on verbatim transmission (rewait bil Lafz) of Ahad. Transmission of a part of Hadith is permitted, if it is not in conflict with the full Hadith.
Muttasil (connected) & Ghair al-Muttasil (disconnected) Hadith: What is the difference between Muttasil (connected) and Ghair al-Muttasil (disconnected) Hadith? Mutawatir, Mushhur and Ahad are kinds of Muttasil hadith. Mursal, Mudal and Munqati are various types of Ghair al-Muttasil Hadith.
According to majority, Mursal means that a successor (Tabii), narrates a Hadith without mentioning the name of companions. Majority of Ulama of Hadith do not accept the Mursal as evidence. Imam Ahmad and Imam Shafii do not rely on Mursal unless reported by famous successor, even then Mursal have to meet certain conditions as mentioned in books on Usul. Imam Abu Hanifa and Imam Malik are less stringent in their acceptance of Mursal.
Munqati refers to a Hadith whose chain of narrators single missing link somewhere of the middle of the chain.
Mudal is a Hadith in which two consecutive links are missing.
Sahih, Hasan & Daif:The Hadith has also been classified into Sahih, Hasan and Daif. Hadith is called Sahih (that is excellent in terms of quality of narrators - not in the sense of Qati or absolutely correct), if it is reported by Thiqat Sabitun (highly trustworthy) or by Thiqat (trustworthy) narrator.
A Hadith is considered Hasan if among the narrators are included (apart from the categories of narrators of Sahih Hadith) some persons who are Sadiq (truthful), Sadiq Yahim (truthful but commits error) and Maqbul (accepted that is there is no proof that he is unreliable).
A Hadith is considered Daif if among the reporters are any Majhul person (that is unknown person in terms of identity or conduct) or if there is any Fasiq (violator of any important practice) or any liar.
# Interpretation-I
An important issue in Usul-al-Fiqh is how to interpret the basic sources of Islam, the Quran and the Sunnah. This would require understanding the Quran and the Sunnah i.e., their text and meaning of their texts. As such a person who wants to interpret the Quran and the Sunnah at any level (in depth or otherwise) would require the knowledge of Arabic language. For this reason, Ulama of Usul include the classification of words and understanding their meaning in the study of Usul-al-Fiqh.
Interpretation is not normally attempted if the text itself is self-evident. However, the greater part of Fiqh or law is derived through interpretation because most of the legal texts not self-evident. It should be noted that Tawil (interpretation) and Tafsir (explanation) is not the same thing. Tafsir aims at explaining the meaning of the given text and deducing a Hukum (rule) from it within the confines of its sentences. Tawil (interpretation) goes beyond the literal meaning of the text and bring out hidden meaning, which is often based on speculative reasoning and Ijtihad.
All words are presumed to convey their absolute (Mutlaq), general (Amm) and literal (Hakiki) meaning unless departure to alternative is justified. (Discussion of these terms will come later in this discussion). If the explanation or Tawil of one part of the Quran and the Sunnah is provided in another part of the Quran and Sunnah, it is called Tafsir Tashrii that is considered integral part of the law. However, if Tafsir or Tawil take the nature of opinion or Ijtihad, this is not considered integral part of the law (the status of this part of law is less than the first one, there is more difference among jurists on this part of law). Interpretation (tawil) can be relevant. This type of Tawil is accepted by all. However, interpretation can be very far-fetched which is not accepted by a majority of scholar (for example, see Hashim Kamali's book or any other text book on Usul). Zahiri scholars do not normally accept interpretation. However, this position is
weak and impractical.
Clear words are of four types, according to a major classification. They are Zahir, Nass, Mufassar and Muhkam.
Zahir (manifest) is a word which has a clear meaning and yet open to Tawil, primarily because the meaning is not in harmony with the context. Nass is a clear word that is in harmony with the context, but still open to Tawil. The distinction between Zahir and Nass is whether the meaning is in harmony with the context or whether the meaning is primary or secondary in the text concerned (see example in usul text books). The obvious meaning of Zahir and Nass should be followed unless there is reason to warrant recourse to Tawil. By Tawil (interpretation), Amm may be specified, Mutlaq may be made Muqayyad, Hakiki meaning may be abandoned in favor Mazazi. (See examples in usul text books). Nass, apart from the above meaning has another important meaning used by Fuqaha which means definitive text or ruling of the Quran and Sunnah (we are not using this meaning here).
Mufassar (unequivocal) and Muhkam (perspicuous) are words whose meaning is absolutely clear and there is no need to take recourse to Tawil. (Here is the difference between these words and Zahir and Nass). There is no real distinction between Mufassar and Muhkam in terms of clarity. However, the jurists have made a distinction between Muhkam and Mufassar, which one is liable to abrogation and which one is not. They hold Muhkam is not liable to abrogation and Mufassar is liable to abrogation. However, there is not much purpose in the distinction because nothing can be abrogated now. (For examples, see Kamali's book).
Unclear words (Al Alfaz Ghairal Wadiha) are of four types - Khafi (obscure), Mushkil (difficult), Mujmal (ambivalent) and Mutashabih (the Intricate). [see details and examples in the text books on Usul].
instance, the word Sariq (thief) is unclear as to whether it includes a pickpocket. This has important implication because if pickpocket is not included (as the majority holds) then, he would not be liable to Hadd (that is, punishment prescribed in the Quran or Sunnah) but will be liable to Tazir (punishment prescribed by the legislative authority in the present day world, punishment given by judges in the past).
Mushkil (difficult) is a word which has several meanings. So Ijtihad and Tawil would be required in determing the correct position in the context (there may be difference of opinion in this area). Mushkil is inherently an ambiguous word, whereas Khafi has a clear basic meaning. A text may become Mushkil in the existence of conflicting text (see the conflict in verse 4:79 and 3:154 cited by Kamali in his Islamic Jurisprudence).
Mujmal denotes a word or text which is inherently unclear and gives no indication as to its precise meaning. It may have several meanings or it may be unfamiliar word or the lawgiver may not have explained the word to clarify it. For instance, the words such as Salah, Hajj, Riba and Siam. They have lost their literal meaning and taken a technical meaning given by the lawgiver. However, these words have become totally clear or Mufassar due to explanations provided in the Sunnah. The word Al-qariah in the verses 101:1-5 is a mujmal word. However, it has been explained by the Quran itself and has become clear. If the explanation provided by the lawgiver is insufficient, Mujmal turns into Mushkil which is open to Ijtihad and Tawil.
Mutashabih (Intricate) is a word whose meaning is a mystery. Harful Muqattaat (such as Alif Lam Mim) are Mutashabihat. Nobody knows their meaning (please see various opinions regarding the use of these words in the text books on Usul). Many scholars hold that passages of the Quran which draw resemblance between man and God are Mutashabihat. Some scholars hold there is no Mutashabihat except Haruful Muqattaat. Mutashabihat do not occur in the legal texts.
# Interpretation-II
Amm (General) and Khass (specific): From the point of view of scope, words are classified into Amm (General) and Khass (specific).
Amm is basically a word which has a single meaning and which applies to many things, not limited in number, and it includes everything to which it is applicable. Insan (human being) 'whoever' are example of Amm. When the article Al (the) precedes a noun, the noun becomes Amm (see example in the text book quoting 24:2, etc.). The Arabic expressions Jami (all), Kaffah (all), Kull (all, entire) when precede or succeed a word, the word becomes Amm. An indefinite word (al-Nak?rah) when used to convey the negative becomes Amm. For instance the Hadith 'la darar wa la dirar fil Islam' (no harm shall be inflicted, no harm shall be accepted), [see usul text books]. When a command is issued by Amm words, it shall be applicable to all it applies. In determining the scope of Amm, reference is made not only to the rules of the language but also to the usage of the people; and in case of conflict, priority is given to the latter. Amm can be of 3 types -
a) Absolutely general [ref. The words "ma min dabbatin" in Hud 11:6]
b) Amm which is meant to imply [Al Imran : 97].
c) An Amm which has been specified elsewhere [see Baqarah : 228 and Ahzab : 49 together, see also usul text books for other examples and explanations].
The word "man" (in Arabic meaning he who) is Khass in application but when used in conditional speech it becomes Amm. (ref. The Al-Quran - 4 : 92, 2 : 185). Khass is a word which is applied to a limited number of things but applies to everything to which it can be applied. The words one, two, one hundred, Dina, Jannah, Imran, Boby, a horse, a human being are Khass. Legal rules or commands conveyed in specific terms are definite in application and are not normally open to Tawil. There is general agreement that Khass is Qati (definitive), i.e. it's meaning and application are beyond doubt clear.
Ulama have differed on Amm, whether it is Qati or Zanni. The majority holds it to be Zanni, minority holds it to be Qati. The result of this disagreement becomes clear in the event of conflict between Khass and Amm. In the case of two rulings on the same point, one Amm and one Khass (in the Quran or the Sunnah), according to the majority, Khass only explains the Amm. Minority holds that Khass specifies the Amm (see the example in Kamali's book under conflict between Amm and Khass).
According to all, Khass is Qati (Amm is not), as such it will prevail over Amm. According to minority, Amm is also Qati, and as such, Amm will be specified by Khass, if the two rulings are chronologically parallel. Khass will be abrogated if Amm is of later origin. Amm will be partially specified if Khass is of later origin. According to majority, an Amm (general) proposition may be specified by a dependent clause which may occur in the same text (same verse or in another text (another verse). This may be done by introducing an Istisna (an exception reference - 2 : 282), a Shart (condition, ref. 4 : 12) or Sifah (quality, ref. 4 : 23) or by indicating extent of application (ghayah, ref. 5 : 6).
The effect of Amm is that it remains in force unless specified. Even after partial specification, Amm remains legal authority for unspecified portion. According to the majority, Amm is speculative as a whole, whether before or after Takhsis (limitation) and as such open to Tawil. The cause (Sabab) of general ruling can not limit the application of the ruling. For instance, Asbab an Nazul (causes of revelation of verses of the Quran) will not limit the application of law based on the verse to the cause only.
Mutlaq and Muqayyid: Mutlaq denotes a word which is neither qualified nor limited in its application. When we say 'a ? book', it applies to any book without restriction. Mutlaq is unspecified and unqualified. When Mutlaq word is qualified by another word or words, it becomes Muqayyad. For instance, 'a red book'. Whereas Amm and Khass deal with scope of the words, Mutlaq and Muqayyad deal with essentially qualification (though Mutlaq has resemblance to Amm and Muqayyad has resemblance to Khass). An example of Mutlaq is "Fa tahriru rakabatin" (freeing a slave) in Sura Al-Maida (5 : 92). An example of Muqayyad is "freeing of a believing slave" in Sura Nisa (4 : 92).
Mutlaq remains absolute in application unless there is a limitation to qualify it (see example in the textbook). When Mutlaq is qualified into Muqayyad, the latter will get priority (see example in the textbook based on Quran 5 : 3 and 6 : 145). If there are two texts on the issue, one Mutlaq and the other Muqayyad, if they differ in their ruling and cause, both will operate, neither will be qualified. This is the majority view. Imam Shafii differs some what. He says that if the two texts vary in ruling but has the same cause, the Mutlaq will be qualified by the Muqayyad (see example based on verses 5 : 7 and 4 : 43 of the Quran). Early Hanafi scholars think that if Mutlaq and Muqayyad differ in their causes, one does not qualify the other.
Haqiqi (literal) and Majazi (metaphorical): Words are normally used in their Haqiqi (literal) sense. Literal will normally prevail over metaphorical, particularly in law. Most of the Quran is Haqiqi. But Majazi also occurs in the Quran. For instance, the Quran says in 40 : 13 that "Allah sends down sustenance from the heavens" which in fact means 'rain' (other examples, see textbook).
If the metaphorical (Majazi) meaning becomes dominant, it will prevail over the literal. For instance, the literal meaning of "talaq" (that is release or removal of restriction) has been abandoned for metaphorical meaning of divorce.
Haqiqi has sub-divisions of linguistic, customary and juridical (please see the textbook). Haqiqi and Majazi have been subdivided into "Sarih" and "Kinayah".
Sarih (plain) is a word where the meaning is plain. You need not ask the speaker or writer to know the meaning. Kinayah (allusive) is a form of speech which does not disclose the intention of the speaker, you require further explanation from the speaker to know the intention. For instance, the use of the word 'Itaaddi' (start counting). Divorce is not clearly indicated (see, Kamali).
Mushtarak: A Mushtarak is a word which has more than one meaning. 'Ayn' in Arabic is a Mushtarak which may mean eye, water-spring, gold and spy. Plurality of meaning of Mushtarak may be because of usage or acquisition of metaphorical meaning over time. The rule in regard to commands and prohibitions of the Shariah is that the lawgiver does not intend to hold more than one meaning of the Mushtarak (see examples in Kamali). The Mushtarak is in the nature of Mushkil and it is for the expert (Mujtahid) to determine the correct meaning in the context (Mujtahids may differ in this - this happens always with Ijtihad).
Textual Implications (Al-Dala?ah): There are two major analysis regarding levels of meaning of words and texts, the Hanafi and Shafii. There is not much difference in essence between the two.
The Hanafi Ulema of Usul have distinguished four levels of meaning:
1. First level is Ibarah al Nass (the explicit meaning): Ibarah al Nass is obviously perceptible from the text and also represents the principal theme of the text, if there are subsidiary themes also. (For example, limiting polygamy is a conclusion derived by Ibarah an Nass from the verse 4 : 3) Most of the Nasus (legal texts) of Shariah convey their rulings by way of Ibarah Al Nass. Ibarah Al Nass conveys a Hukm Qati (definitive ruling) on its own and does not require corroborative evidence.
2. Second level is Isharah Al Nass: This is an indicative meaning or alluded meaning present in the text. An example of indicative meaning is the verse 2:236 where it is not clearly said that marriage can be contracted without prior fixation of marital gift but deeper investigation suggests so. (see, Kamali for this and other examples. It may be noted that in any event marital gift has to be given to wife in terms of verse 4 : 4 of the Quran).
3. Third method of deduction is Dalalah Al Nass (inferred meaning): This is a meaning derived from the spirit and rationale of a legal text even if it is not indicated in the text. For instance, from verse 17 : 23, we can infer that not only we can not say "Uff" to parents, we can not use any abusive language (see Kamali or other Usul books for examples).
4. Fourth method of deduction or level of meaning is Iqtida Al Nass (required meaning): That is a meaning on which the text is silent, yet it must be assumed to fulfill proper objective. For instance, in verse 4: 22, it must be assumed that prohibition of marriage of mother or daughter means who are mothers or daughters through marriage (see examples in Kamali and other Usul books). In case of conflict, the first level (Ibarah Al Nass) will take precedence over second level (Isharah Al Nass) and so on (for examples, see Kamali).
The Shafii Ulama of Usul have classified Texual implications into two basic types - Dalalah Al Mantuq (pronounced meaning) and Dalalah Al Mafhum (implied meaning). Dalalah Al Mantuq has been divided into Dalalah Al Iqtida (required meaning) and Dalalah as Isharah (alluded meaning). Dalalah Al Mafhum (implied meaning) has been subdivided into Mafhum al Muwafaqah (harmonious meaning) and Mafhum Al Mukhtalifa (divergent meaning or meaning not in accord with the purpose of text). Shafiis do not accept Mafhum al Mukhtalifa unless they fulfil six conditions (see Kamali for explanation and examples). They have also imposed restrictions in regards to Sifah (attribute), Shart (condition) and Ghayah (extent).
Hanafi scholars are more opposed to Mafhum Al Mukhtalifa. They do not accept any meaning which is not in accord with the text or its spirit. They do not accept it at all in the case of interpretation of the Quran and the Sunnah.
# Command, Prohibitions and Nask
Command: A command (Amr) is defined as a verbal demand to do something from a position of superiority to an inferior. Command (also prohibition) may occur in a variety of form.
Command is mostly in imperative mood. In some cases, use of a simple past tense in Arabic may also indicate command to do something (2:178). A Quranic injunction may occur in a form of moral condemnation (2:189, see also Kamali for explanation).
Quranic command may be conveyed as a promise of reward or punishment (see Kamali, see also 4:13-14). Important questions are: What is primary in command? Is it obligation or a recommendation or simple permissibility (as 'command' may mean all of these)? According to the majority, command implies obligation unless there are clues to suggest otherwise. Some have held that Amr (i.e., command) is in the nature of Mushtarak or which impart all (i.e., obligation, recommendation and permission). Some have held it implies only obligation or recommendation (Nadb). Some others have held that Amr means permission to do something. Clearly, the majority opinion is more rational and justified.
Command (Amr) may sometimes mean permissibility. For instance, when the Quran says, "Kulu Washrabu" (eat and drink - ref. 7:31), the context suggests that it is mere permissibility. Similar examples can be seen in verse 5:2 (wa idha halaltum Fastadu) and 62:10 (Fantashiru fil Ard), (see also Kamali.) A command may convey a recommendation in some cases (see Kamali, also 2:282). A command in a few cases may indicate threat, i.e., advise to desist from doing a particular thing (ref. 24:33 and 17:64 - also textbook of the course). A command may imply supplication or prayer also (Ref. 2:286). However, command (Amr) mostly means obligation (Farz or Wazib, depending on whether the text and meaning both are Qati or not).
Majority of Ulama held that a command following a prohibition means permissibility, not obligation (Ref. 5:2 and 62:10). According to majority, a single instance of compliance of the command is an obligation, in the absence of indications for repeated compliance. When a command is issued in conditional terms, then it must be complied whenever it (condition) occurs (Ref. 5:7). When a command is dependent on a cause or attribute, it must be fulfilled whenever the cause is present (Ref. 17:18).
As regard immediate or delayed execution of an Amr, it depends on the text and its indications. If the command does not itself specifies time limit (such as, the times of prayers), it may be delayed. As regards whether the command implies the prohibition (Nahy) of the opposite, the majority thinks so.
Prohibitions: Prohibition (Nahy) is the opposite of command. It is a demand to avoid doing of something. Prohibition may occur in the form of a statement (Ref. 2:221) or in the form of an order not to do something (62:9; 22:30). Nahy may convey Tahrim (total prohibition) or guidance (irshad) or reprimand (tadib). Nahy which implies reprehension may be seen in Quran 5:87. Nahy which conveys moral guidance may be seen in Quran 5:104. Majority hold that Nahy primarily implies Tahrim, if there is no other indication to think otherwise.
If the act (other than Ibadat) is not prohibited in itself but becomes prohibited because of an extraneous reason, it is Batil (void) according to Shaffi's, and Fasid according to Hanafii's (please read carefully the textbook on this case). Batil means, it can not be corrected (there are many instances where marriage becomes Fasad according to some scholars and Batil according to other scholars - so is the case of many business transactions. Read a book on marriage or on business in Islamic Law). The position is different about Ibadat (devotional matters). The Fasid here is equaivalent to Batil. In other words, there is only Batil, not Fasid in this area.
Prohibition requires immediate and repeated compliance, whenever the prohibition is applicable. If the prohibition is conditional, it will be applicable where the condition is present (Ref. 60:10). When a prohibition succeeds a command, it conveys Tahrim (illegality).
Explicit (Sarih) injunctions (whether Amr or Nahy) require total compliance. However, the spirit of the Law should also be kept in view, not only letters (as for instance, in "Fazah ila zikrillah" in Quran 62:9). Implicit injunctions, unless made explicit elsewhere, can be understood by scholars and they may differ therein. The means which lead to observance of command or prohibition are covered by the same ruling which applies to commands and prohibitions. Only a small portion of Nasus (texts) gives precise meaning. The larger portion of Nasus have to be interpreted by Mujtahid or scholars in the light of the general principles and objectives of Shariah.
Naskh (Abrogation): Naskh iterally means obliteration. Naskh has been defined as the suspension or replacement of one Shariah ruling by another. Naskh operates only in law, not in beliefs. Naskh operates only when,
two evidences are of equal strength,
these are present in 2 separate texts,
there is genuine conflict which can not be reconciled, and
the two texts are of two timeframe (one is later to the other).
There are scholars who do not agree that there is abrogation in the Quran (please see in Kamali's book and argument against Naskh in the Quran). They say that in 2:106 and 16:106, reference of "Ayah" is not to abrogation within the Quran but abrogation of earlier scriptures by the Quran. They also say that the 'so-called' conflict in the Quran can all be reconciled. Muhammad Asad has also mentioned in his Tafsir that there is no Naskh in the Quran. Abdul Hamid Abu Suleman feels that it was wrong on the part of earlier Ulama to turn Naskh into a doctrine of permanent validity instead of understanding as the circumstance of history (Ref. 'Islamic Theory of International Relations', by Abdul Hamid Abu Sulayman, a IIIT's publication. Please also read the discussion in the book by Kamali on Naskh). Abu Sulayman suggests that Naskh's application should be limited to clear cases only, such as, change of Qiblah.
According to the majority, there is Naskh in the Quran and the Sunnah. According to majority, Ijma can not abrogate a ruling of the Quran and the Sunnah. Qiyas can not repeal a text of the Quran or the Sunnah. Abrogation may be explicit (sarih) or implicit (dimni) Please read Kamali for examples. According to Imam Shafii, there are two types of Naskh -
Naskh of Quran by Quran and
Naskh of Sunnah by Sunnah.
According to majority there are 4 types of Naskh:
Quran by Quran,
Quran by Sunnah,
Sunnah by Quran,
Sunnah by Sunnah. (Please see examples in Kamali).
There is also another classification:
Naskh al Hukm,
Naskh al Qiraah, and
Naskh al Hukm Wal Tilwah.
Naskh al Hukm means that ruling has been abrogated but the text remains.
Naskh al Qiraah means that the text has been abolished but the ruling remains.
In Naskh al Hukm wal Tilwah, both the text and rulings are treated as abrogated. Of the above three, Nakh al Hukm has some basis but the other two have very weak basis. Sayyid Abul Ala Maududi has explained in his "Rasail wa Masail", why Naskh wal Qiraah is not acceptable?
There is difference between Naskh (abrogation) and Takhsis (specification or qualification of a general text). There is no real conflict in Takhsis. Another issue is whether addition (Tazid) amounts to abrogation. The majority answer is negative, which is correct.
# IJMA (Consensus Of Opinion)
Ijma is the verbal noun of the Arabic word Ajma'a which has two meanings: to determine and to agree upon something. Ijma is considered the third proof of Shariah after the Quran and the Sunnah. As a proof of Shariah, it is basically a rational proof. An Ijtihad or an Interpretation of one or a few scholars when becomes universal, becomes Ijma.
The classical definition of Ijma, as laid down by Ulama of Usul, is categorical on the point that the universal consensus of the scholars of the Muslim community as a whole can be regarded as conclusive Ijma. Only such Ijma are considered binding by early Usuliun (Usul scholars). However, universal Ijma are indeed very few. As evidence show, it is extremely difficult to prove Ijma on particular issues, particularly in the case of issues open to ijtihad or tawil. There is no authentication of Ijma through Isnad (chains of narrators).
The only form of Ijma upheld by majority is the Ijma of Sahabis only. Majority of Ulama of Usul think that Ijma can take place on Sharii and devotional (Ibadah) and dogmatic (Itiqad) matters. For the first time, Ijma occurred among the companions of the Prophet (SM). Ijma initially helped unity of Ummah in some matters. Ijma also ensures correct interpretation as broad consensus is unlikely to take place on incorrect matter. Ijma also enhances the authority of the rule on which there is Ijma. Unanimity of Ulama on an issue of a particular time is a requirement of Ijma. The agreement must be expressed by clear opinion of all scholars of the time. Ijma must consist of the agreement of all Mujtahidun, though many Ulama consider majority to consist Ijma.
Any agreement of majority can be a proof but can not be a binding proof because to be binding, it must fulfill the conditions stated in the Ahadith quoted in support of Ijma (which is nothing short of Ijma of all people, at least all scholars.) There is no good ground to exclude any scholar of any school of Islam, as long as the school or group itself is not considered outside Islam by the Muslims.
The Ulama have on the whole maintained that the textual evidence in support of Ijma does not amount to conclusive proof. The Ayats quoted in support of Ijma (4:59, 4:83, 4:115, etc.) are not conclusive for Ijma. Imam Gazali says these Ayats are indications, not clear Nass on Ijma. Suyuti's interpretation is the same. Abduh does not find any Ijma in these Ayat. Al Amidi says, "these give rise to probability (Zann), not positive knowledge" (see Kamali).
About 10 Ahadith are quoted in support of Ijma (see Kamali). Ahmed Hassan observes that these hadith are inconclusive on Ijma. A number of Ulama (including Shafii and Mutazila scholars) have said that Ijma of classical definition is not feasible because of the huge number of the Ummah or its scholars or distances. It is for this reason that Imam Shafii confines the occurrence of Ijma to the obligatory duties only. For the same reason, Zahiris and Imam Ahmad refer by Ijma to the consensus of companions only.
Abdul Wahab Khallaf is of the view that Ijma of classical definition is no longer possible in modern times (because of huge number of scholars spread over continents). Khallaf is right. Old style Ijma is no longer possible. You can have only local Ijma, which is useful in lawmaking through Parliament but they can not be (by definition) binding forever.
Ijma are of two types - Ijma al-Sariah (explicit Ijma) and Ijma al-Sukuti (Ijma by silence). Ijma al-Sukuti (which occurs when one or a few scholars agree on something and no dissent is known) is not a proof according to a majority of scholars. According authority (Quran and Sunnah) or Ijtihad. There are 3 views on whether Qiyas can be a basis of Ijma or not (see Kamali). Some agree, some disagree, and some partially agree.
Ijma can be transmitted by Ahad or Mutawatir report of scholars. There is no Mutawatir report of Ijma except those of Ijma of companions. Muhammad Iqbal gives a proposal to transfer performance of Ijma to the legislative assembly, which is only possible form of Ijma in modern times. Iqbal is right. His ideas require acceptance. However, such Ijma can not be of universal validity nor can it be considered binding (unless made into a local law - which then remains valid until revoked). In conclusion, we can say that Ijma can be of limited use only in future. Qiyas, Istihsan, Maslaha are more important in future.
# QIYAS (Analogical Deduction)
Literally Qiyas means measuring or ascertaining the length, weight or quality of something. Qiyas also means comparison to establish equality or similarity between two things. In the language of Usul, Qiyas is the extension of a Shariah ruling from an original case (Asl) to a new case (Far') because the new case has the same effective cause (Illah) as the original case.
The original case is regulated by a text of the the new case. The emphasis of Qiyas is identification of a common cause between the original and new case. Jurists do not consider law derived through Qiyas as a new law. However, for all practical purposes, Qiyas leads to new ruling on a different matter.
Qiyas is a methodology developed by jurists through which rulings in new areas are kept close to the Quran and Sunnah because new rulings are based on the Illah (causes) discovered in the legislation of the Quran and Sunnah. Rulings on new areas could diverge a lot, if Qiyas was not applied. This is a major justification for validity of Qiyas.
Qiyas is a rationalist doctrine (because intellect is largely used to find out the Illah), but in Qiyas personal opinion (Ra'y) is kept subservient to divine revelation (in that Illah is discovered from the text of the Quran and the Sunnah). Qiyas does not change any law of the text (Quran or Sunnah) for expediency. Qiyas as a methodology means that the jurists accept that the rules of Shariah follow certain objectives (Maqasid) which are in harmony with reason. Zahiris (a group of literalist scholars) do not accept Qiyas. However, majority is right on this point.
Qiyas does not give rise to certainty. Qiyas is therefore speculative. Law derived through Qiyas can not be of same authority as that of textual ruling (of Quran or Sunnah). There can be difference of opinion on the law derived through Qiyas, as is the case with almost all Ijtihadi law. (See examples of Qiyas in pp. 199-200 in Kamali's book). The essential requirement of Qiyas are Asl (original case, on which a ruling has been given), Hukm (ruling on the original), Illah (cause of ruling in the original case) and Far' (new case on which ruling is to be given). In the case of prohibition of wine drinking (Surah Maida : 90), if it is to be extended to narcotic drugs, the requirement of analogy would be fulfilled in the following manner.
Asl
(original case) Far'
(new case) Illah
(cause of ruling) Hukm
(ruling)
Wine drinking Taking narcotic drugs Intoxicating Effects Prohibition
One condition of Asl (the subject matter of original ruling) is that the Quran and Sunnah are the source of the Asl. (Many scholars do not consider Ijma to be basis of Asl). According to majority, one Qiyas can not form Asl of another Qiyas. However, Maliki jurist Ibn Rushd thinks a Qiyas can be basis for another Qiyas. Modern jurists Abu Zahrah and Muhammad Al Zarka agree. Minority seems to be right as long as it does not contradict Nusus (clear texts or rulings) of the Quran and Sunnah.
Conditions pertaining to Hukm (a ruling in the original case) are :
It must be a practical Sharii ruling (Qiyas does not operate in the area of belief).
Sharii ruling must not be an abrogated one,
The Hukm must be amenable to understanding through human intellect (see examples in the text book).
Hukm must not be limited to exceptional situations (in that case it can not be basis of Qiyas, such as the others).
Qiyas is operative or extendable in Hadud (prescribed penalties), according to majority.
New case on which ruling is to be given (Far') must not be covered by Nasus (texts). Qiyas ma'al tariq (analogy with discrepancy) is not permitted (see example in Kamali).
The effective cause (Illah) must be :
Munasib (proper, according to Mujtahid or scholar of Fiqh)
It must be a constant attribute (mundabit)
It must be evident (Zahir, see example in Kamali)
According to majority, Illah must be muta'addi (that is transferable to other cases). Some hold different view with regard to Tadiyah (tranferability). The effective cause must not run counter to Nasus. The effective cause may be clearly stated in the nass (text) but such cases are not many (Ref. 4:43, 59:7; and also reference of the hadith in Kamali).
Arabic expression, such as, Kay-la (so as not to), li ajli (because of ), li (for), fa (so), bi (because), anna, inna, also indicate Illah in many cases (Ref. 5:38, 4:34). The word "Sabab" (cause) is also used as a substitute for Illah. However, some scholars make distinction between the two. The distinction is not substantive or even clear. However, Illah has become popular in usage.
When the Illah is not clearly stated in the nass, it is the duty of the Mujtahid to find out the Illah (reason) for the ruling of the text through Ijtihad. This is done by a 2-stage process. The starting point is "Takhrij al manat" (extracting Illah - manat is another word for Illah).
Now Illah for a ruling may appear to be a few instead of one (see the example of Illah of prohibition of riba in p.214 in Kamali). In that case, the Mujtahid proceeds to eliminate the improper Illah and find out the proper (munasib) Illah. This process is called tanqih al manat (isolating the Illah).
Tahqiq al manat consists of investigation of the presence or otherwise of Illah in the new case (far') where the ruling is to be extended. (whether analogy can be extended to pick-pocket from thief or whether herbal drink has the same Illah as wine).
Classification of Qiyas:
One classification of Qiyas is,
(a) Qiyas-al-awla (superior Qiyas),
(b) Qiyas-al-musawi (analogy of equals) and
(c) Qiyas-al-adna analogy of inferior).
Qiyas al-awla (superior Qiyas) means where the effective cause is more evident in the new case (far') than the original case (asl) (Ref. 17:23; see also text book).
In Qiyas-al-musawi (analogy of equals), Illah is present in Asl and Far' equally (Ref. 4:2).
In Qiyas-al-adna (analogy of inferior), Illah in Far' is present less clearly than the original case (Asl). This Qiyas also is accepted by Usulian.
There is another classification of Qiyas as,
(a) Qiyas jali (obvious analogy) and
(b) Qiyas Khafi (hidden analogy).
Qiyas is accepted by majority, including four Sunni schools and Zaydi Shias. Proofs of Qiyas are in verse 59:2 of the Quran, and indications in verses 4:105, 2:79 and 59:7. Sunnah also supports Qiyas in that Ijtihad has been referred to in Sunnah and Qiyas is the most important method of Ijtihad (see Kamali, proof of Qiyas, see also discussion under "Talil" in the Chapter on Quran in Kamali).
Arguments against Qiyas have been put forward by mainly Zahiri school. They contend that Quran 6:89 ('we have neglected nothing in the Quran') is against Qiyas. They also say, Qiyas is based on Illah which is based on conjecture. They also say Quran 49:1 is against Qiyas. All these are very weak arguments and most of Ummah could not accept them. Majority hold that Qiyas is applicable in Hadud (prescribed penalties). Hanafis say that Qiyas is applicable to "Tazir" penalties (penalties which have been laid down by Parliament/Courts - not by Quran and Sunnah specifically) but not to Hadud (punishments prescribed in the Quran and the Sunnah). Hanafi opinion in this regard is more cautious.
Qiyas is redundant where Nass is there, according to majority. Some hold that Qiyas (which is speculative) can specify or qualify speculative of the Quran and the Sunnah (see Kamali). Some Ulama hold that Qiyas can take priority over Ahad hadith, if Qiyas is supported by other strong evidence. Qiyas will continue to be a major instrument of Ijtihad in future, along with Istihsan and Maslaha (will be discussed later in the course).
# Revealed Laws prior to Shariah of Islam & Fatwa of Sahaba
Revealed Laws Prior to Shariah of Islam: Islam believes that all truly divine laws emanate from Almighty Allah (Ref. Quran 42:13). The Quran contains that the Torah was a source of guidance (5:44). The question is what it means in terms of source of law after the revelation of the Quran. The general rule to be stated is that laws revealed before Islam are not applicable to the Muslims (except as mentioned hereunder)
The Ahkam (laws) of Islam (Shariah) is self-contained. The rules of Shariah should not be sought in any source other than the Quran and Sunnah because the rules of other religions do not constitute binding proof for the Muslims.
The Quran refers to the previous Shariah in three forms :
The Quran may refer to the Previous Shariah and make it also obligatory on the Muslims. For instance, fasting was prescribed on the earlier nations and has also been prescribed for Muslims (Baqarah 2:183). Such rulings of the previous Shariah are parts of Islamic Shariah.
Secondly, the Quran (or Sunnah) may refer to a ruling of previous Shariah and may abrogate it. For instance, some restrictions on food on the Jews have been withdrawn from the Muslims in the Quran (Ref. 6:146). Muslims can not follow previous Shariah in these respects.
Thirdly, the Quran may mention a ruling of the previous Shariah without mentioning whether it is upheld or abrogated (for instance, 5:35, 5:48). Majority of Jurists consider these to be part of Shariah of Islam which should be followed. Minority does not accept this position (see, the arguments of both sides in the text book). Majority position is correct in this respect according to Hashim Kamali.
Fatwa of Sahaba (companion of the Prophet(SM)): Fatwa (opinion or ruling) of Sahaba is indeed very important and deserves highest consideration, they being close to the Prophet (SM) and because of their direct knowledge from the Prophet (SM). There is some disagreement as to who is a Sahabi. Majority hold that anybody who met the Prophet (SM) while believing, is a Sahabi. Minority hold that "Suhbat" (continuity of companionship) is a requirement to call person Sahabi of the Prophet (SM) (Shawqani, Irshad quoted by Kamali). Both points of view have justifications and can not be ignored. The fact of being Sahabi can be established by continuous Testimony (tawatur) or by affirmation of any other companion or even by own claim (if the person is upright).
Fatwa of Sahaba means an opinion reached by a Sahaba by way of Ijtihad. As regards whether fatwa of Sahaba constitute a proof on succeeding generations, there are three views:
1. First view: It is an absolute proof. The proponents of this view quote the Quranic verses 9:100 and 3:109. They also quote Hadith like "my companions are like stars" or "Honour my companions". First view is held by Imam Malik. Imam Shafii and Ahmad Bin Hanbal also have been quoted in its support.
Against this view, it has been suggested that these refer to the status and dignity of Sahaba. These are not categorical (Qati) regarding compulsion to obey their decisions).
2. Second view: Ijtihad of a companion is not a proof and does not bind the succeeding generations. Hanafi jurist Abul Hasan al Karkhi, Imam Ahmed (according to one view of him) and Asharite and Mutazilite scholars hold this view. They quote the Quranic Ayat 59:2 ("Consider, O You who have vision"). It is argued that the Ayat makes Ijtihad an obligation of all who are competent and makes no distinction between Sahabis and others. Imam Gazali and Amidi consider it preferred view. To me this is the best view.
3. Third view is that of Abu Hanifa himself. He says that ruling of a companion is a proof if in conflict with Qiyas, but not when it agrees with Qiyas. The aforesaid are the main views. There are some other views which may be seen in the books of Usul or in the text book by Hashim Kamali.
It can be concluded that the Fatwa of a companion is a source of guidance which merits careful consideration (though not binding except in case of their clear Ijma).
# Istihsan and Maslaha
Istihsan (Juristic Preference): Istihsan literally means to deem something preferable. In its juristic sense, Istihsan is a method of exercising personal opinion (ray) in order to avoid any rigidity and unfairness that might result from literal application of law. Istihsan as a concept is close to equity in Western law. However equity in Western law is based on natural law, whereas Istihsan is essentially based on divine law.
Istihsan is not independent of Shariah, it is integral part of Shariah. Istihsan is an important branch of law to the changing needs of society. Istihsan has been validated by Hanafi, Maliki and Hanbali jurists. Imam Shafi, Shii and Zahiri Ulama have rejected it as a method of deduction. However, in effect Majority have accepted Istihsan.
It has been mentioned that decision of Umar Bin Khattab to suspend "hadd" penalty (penalty prescribed by the Quran and Sunnah) of amputation of hand during famine is an example of Istihsan. Here positive law of Islam was suspended as an exceptional measure in an exceptional situation (for other examples see text book). A major jurist Al-Sarakhsi considers Istihsan as a method of seeking facility and ease in legal injunctions and is in accord with the Quran (2:183). Kamali says that companions (Sahabi) and successors (Tabiun) were not merely literalist. On the contrary, their rulings were often based on their understanding of the spirit and purpose of Shariah. Kamali gives a new example. Oral testimony was the standard form of evidence in Islamic law. However, now in some cases photography, sound recording and laboratory analysis have become more reliable means of proof. Here is a case of Istihsan by which method we can prefer these means of proofs over
oral testimony in many cases.
Hanafi jurist Abul Hasan al Karkhi defines Istihsan as a principle which authorizes departure from an established precedent in favor of a different ruling for a stronger reason. The Maliki jurists are more concerned with Istislah (consideration of public interest) than Istihsan. They validate Istihsan as more or less similar to Istislah or as a part of Istislah. (See Maliki and Hanbali definitions in the Text book).
There is no Qati (definitive) authority for Istihsan in the Quran and the Sunnah. However, verses 34:18 and 39:55 of the Quran have been quoted in support. Similarly, a very famous Hadith: "La darara wa la dirara fil Islam" [no harm shall be inflicted or tolerated in Islam] has been quoted in support. Istihsan is closely related to 'ray' (opinion) and Qiyas (analogical deduction). Both in Qiyas and Istihsan, 'ray' is an important component, more heavily in case of Istihsan.
Sahabis were careful not to apply 'ray' at the expense of Sunnah. Ahlal Hadith mostly avoided using 'ray'. Most Fuqaha, on the other hand, liberally used 'ray' in deducing law and they came to be known as "Ahlur Ray".
Many hold that one kind of Istihsan is essentially Qiyas Khafi (Hidden analogy). They think that Istihsan is a departure from Qiyas Jali (obvious analogy) to Qiyas Khafi. There is another form of Istihsan in which exception is made to the general rule for the sake of equity and justice on the basis of some 'nass' (textual evidence), approved custom, darurah (necessity) or Maslaha (public interest). Examples of Istihsan of the above two types may be seen in the text book (Kamali - pages 254-257).
Al-Shafii has criticized Istihsan on the basis of Quranic verses 4:59 and 75:36. However, these verses are not categorical on Istihsan. Al-Ghazali has criticised Istihsan but stated that Shafii's recognize Istihsan based on detail from the Quran and the Sunnah. Al-Amidi (a Shafii jurist) has stated that Al-Shafii also resorted to Istihsan. Modern jurists have stated that the essential validity of Istihsan is undeniable.
Maslahah Mursalah: Maslahah literally means benefit or interest. When qualified as Maslahah Mursalah it refers to unrestricted public interest. Maslahah Mursalah is synonymous with Istislah which is also called Maslahah Mutlaqah. Al Ghazali thinks Maslahah consists of considerations which secure a benefit or prevent a harm. Protection of life, religion, intellect, lineage and property is Maslahah.
On the basis of Maslahah, the companions decided to issue currency, to establish prisons and impose Kharaj (agricultural land tax). The Ulama of Usul are in agreement that Istislah is not a proof in respect of devotional matters (Ibadah) and in respect of specific Shariah injunctions, for example, shares of inheritance. The majority of Ulama maintain that Istislah is a proper ground for legislation. Al-Shatibi points out that this is the purpose of Quranic Ayat No. 107 of sura Al Anbiya that "We have not sent you but as a mercy for all creatures". There is support for Maslahah in the Quran in Sura Younus (10:7), in Sura Hajj (22:78) and in Sura Al-Maidah (5:6).
The Ulama have quoted a number of Hadith in support, such as the following :
"No harm shall be inflicted or tolerated in Islam".
"The Prophet (SM) only chose the easier of two alternatives so long as it did not amount to a sin".
"Allah loves to see that His concessions (rukksah) are observed, just as He loves to see that His strict laws (azaim) are observed".
The above would confirm that no unnecessary rigour is recommended in the enforcement of Ahkam and that the Muslims should avail of the flexibility and concessions of Shariah.
All the Khulafa-I-Rashidun acted in pursuance of Maslahah. Abu Bakr (RA) compiled the Quran. Umar (RA) held his officials responsible for abuse of public office. Usman (RA) distributed the authenticated copy of the Quran and destroyed the copies of variant texts. Ali (RA) held the craftsmen and traders responsible for the loss of goods that were placed in their custody.
Maslahah has been upheld by the majority of Ulama. However, strong support for it comes from Imam Malik (See Kamali). Maslahah has been divided into three types by Shatibi and some other scholars -
essentials [daruriyyat],
the complementary [hajjiyat] and
beautifications [tahsiniyaat].
From the point of view of availability or otherwise of textual authority, Maslahah has been further sub-divided into the following :
al-Maslahah al-Mutabarah [accredited Maslahah] which has been upheld in the Shariah such as defending the right ownership by penalizing the thief.
Maslahah Mursalah is that which has upheld nor nullified by the Shariah such as provision in law in many Muslim countries for documentary evidence to prove marriage or ownership of property.
Maslahah Mulgha which has been nullified either explicitly or by indications in Shariah (for examples of all these, see Kamali).
To validate Maslahah the following conditions have to be met :
Maslahah must be genuine,
Maslahah must be general (Kulliyah) - that is it secures Maslahah for all.
it must not be in conflict with clear Nass.
In his book "Masalih al Mursalah", Al Tufi maintains that except for Ibadah (devotional matters) or specific Shariah injunctions, Masalih (plural of Maslahah) should take precedence over other proofs. [See Kamali for full explanation]. However, this view is not held by majority.
As regards relation among Qiyas, Istihsan and Istislah, it may be stated that Qiyas and Istihsan are essentially based on Illah in the Nasus (hidden or obvious). Law is expanded by Qiyas or Istihsan on the basis of Illah of Nasus. But when law can not be made on the basis of Nasus or through Qiyas and Istihsan, law is made on the basis of Maslahah or public interest. A group of scholars have seriously disagreed with Maslahah. But they are a minority and their arguments are not very solid (see Kamali). To meet the new situations in the changing world, Maslalah is a major instrument in the hands of jurists of Islam.
# Urf and Istishab
Urf (Custom): Urf (custom) is defined in Usul as "recurring practices which are acceptable to people of sound nature. Urf and its derivative 'Maruf' both occur in the Quran, mostly in the sense of "good" (as opposed to "bad or evil") adehrence to Allah's injunctions (3:110; 7:199). However, Urf has been used in the sense of custom also in some places in the Quran (Ref. 2:233 with regard to maintenance of children). The Shariah, therefore, has in principle approved custom in determination of rules regarding 'halal' and 'haram'. Fuqaha also adopted Urf in the determination of the Ahkam of Shariah. The rules of Fiqh which are based on juristic opinion (ray) or Ijtihad have often been formulated in the light of prevailing custom. It is, therefore, permissible to depart from them if the custom on which they were founded changes in the course of time.
A rule propounded by some Fuqaha (Suyuti and Sarakhsi) is that "what is proven by Urf is alike that proven by Shariah". This was adopted by Turkish Khilafat in Al-Majallah. However, this rule is applicable in the case of Urf of the Muslim nations and when the Urf is not in conflict with the rules, essence and spirit of Shariah. Urf of non-Muslim societies must be very carefully examined.
Customs which were prevalent in Arabia in the lifetime of the Prophet (SM) and which were not over-ruled by the Prophet (SM) are treated to have received his tacit approval and considered as a part of Sunnah taqririyyah. An example of this is payment of Diat (compensation for murder) to the family of murdered by "Aqilah" (male kinsmen of the murderer - female relations have no obligatory liability in this regard, they can, however pay, if they want), where payment of Diat has been agreed upon. For details on the rules of Qiyas and Diat, refer to some Islamic law books.
The followings are the conditions of Urf:
It must be common and recurrent.
Urf must be in practice at the time of transaction, i.e., past Urf is no basis.
Custom or Urf must not violate the nass or clear stipulation of the Quran and the Sunnah.
Custom must not contravene the terms of a valid agreement (valid according to Shariah).
There is difference between Urf and Ijma. Urf is essentially a local or national practice, whereas Ijma is on agreement of Ulama across places and countries. There are other differences which are not substantial in character (See Kamali). Urf has been sub-divided into Qawli (verbal) and Fili (actual). Verbal Urf consists of agreement of people on the meaning of words. As a result, the customary meaning becomes dominant meaning and literal meaning is reduced to the status of an exception. Actual Urf consists of commonly recurrent practices which are accepted by the people.
Urf Qawli and Urf Fi'li are both sub-divided into two further types:
Al-Urf al-amm or practice of all people everywhere (such Urf is almost non-existent).
Al-Urf al-Khass is the practice of a particular country or locality or some places. This is the Urf with which Usul is mostly concerned.
Urf has also been classified as Urf al-Sahih (valid Urf - valid according to the Quran and the Sunnah) and Urf al-Fasid (disapproved Urf, not valid according to the Quran and the Sunnah).
Dr. Jamal Badwai has divided Urf into 3 (three) types - positive, neutral and negative. An example of positive Urf is generosity or hospitality. A neutral Urf is preference for particular diet of a particular place. A negative Urf is a tradition which goes against Islamic law and teaching. Dr. Jamal mentions th if a local custom is negative, then it must be rejected. (Ref.: Dr. Jamal Badawi, 'Islamic Teaching Course', Lecture No. G-23).
Urf as a source of Islamic law is quite sensitive. In this area, we should depend on the views of the majority of senior scholars. Urf has been justified on the basis of Quranic Ayats 22:78 and 7:199, but these verses are not Qati in this respect. Some traditions have also been quoted in support (see Kamali) but these are also not clear evidence in support. Urf is not an independent proof on its right. However, it can play useful part in interpreting and implementing Islamic law. It is also noted that the rise of codified statutory legislation in modern states has, to some extent, reduced the need for Urf.
As we have noted earlier, rules based on Urf are liable to be changed. Some examples can be seen in the text book. In future also, rules based on Urf or Ijtihad will continue to change, where needed.
In conclusion, I will say that Urf is no longer an important proof or source of Islamic law. However, it may help sometimes in understanding, interpretating, and implementing Islamic law. A very cautious approach should be taken in this regard.
Istishab: Istishab literary means courtship or companionship. In Usul-al-Fiqh, Istishab means presumption of existence or non-existence of facts. It can be used in the absence of other proofs (dalil).
It has been validated by a large member of scholars, though not all. In its positive sense, Istishab presumes continuation of a fact (marriage or a transfer of ownership) till the contrary is proved. However, the continuation of a fact would not be proved, if the contract is of temporary nature (for instance, Ijara or lease). Istishab also presumes continuation of negative.
Because of its basis in probability, Istishab is not a strong ground for deduction of the rules of Shariah. Hence when it comes in conflict with another proof (dalil), the latter takes priority. Istishab is of four types:
Presumption of original absence (Istishab al-adam al-asli) which means that a fact or rule which had not existed in the past is presumed to be non-existent.
Presumption of original presence (Istishab al-wujud al-asli). This means that the presence of that which is indicated by law or reason is taken for granted. For instance, a husband is liable to pay "Mohr" by virtue of existence of a valid marriage.
Istishab al-hukm which presumes the continuity of general rules and principles of law. For instance when there is a ruling in the law (whether prohibitory or permissive), it willl be presumed to continue.
Istishab al-wasf (continuity of attribute) means to presume continuity of an attribute until the contrary is established (for instance, clean water will be continued, to be treated as clean water). Please see other examples in the text book.
The Ulama of Usul are in general agreement on the first three types of Istishab. There is more disagreement on the fourth.
Some important legal maxims have been founded on Istishab, such as:
Certainty can not be disproved by doubt (Al-Yaqin la Yazul bil Shakk).
Presumption of original freedom from liability (bara'ah al-dhimmah al-asliyyah).
Hasan Turabi, the famous jurist, has highlighted the significance of Istishab in his book "Tajdid Usul al-Fiqh al-Islami". He thinks that it has the potential of incorporating within its scope the concept of natural Justice and the approved customs and mores of society.
# Sadd al-Dharai and Hukm Sharii
Sadd al-Dharai (Blocking the means): Dharai (means) is the plural of Dhariah which signify means. Sadd means 'to block'. In Usul, it means 'blocking the means to evil'. Sadd al-Dharai is often used when a lawful means is expected to produce an unlawful result.
The concept of Sadd al-Dharai is founded on the idea of prevention of evil before it materializes. There are examples of Sadd al-Dharai in the Quran (for instance, 6:108 and 2:104). The 'means' must conform to the 'ends' (objectives of Shariah) and 'ends' must prevail over the 'means'. If the 'means' violate the purpose of Shariah, these must be blocked. The purpose (Maqasid) of Shariah are identifiable from the texts.
A general principle has been adopted by jurists that 'preventing harm takes priority over securing a benefit'. As such means, if they lead to evil, these must be rejected. Authority for Sadd al-Darai is also found in Sunnah. Prophet (SM) forbade a creditor to take a gift from debtor (as it could lead to taking of interest). He (SM) also forbade killing of hypocrites (as it could lead to dissention within community, also lead to wrongful killing on suspicion).
Despite the aforesiad, the Ulama of Usul are not in agreement over Sadd al-Dharai. Some accept it, some do not accept it. However, Shatibi is of the opinion that most Ulama have accepted it in principle, they differ only in application. Abu Zahra is also of the same opinion. (see textbook).
Dharai have been divided into the following four types from the point of view of their probability of leading to evil ends :
Means which definitely lead to evil. Such means are totally forbidden.
Means which most likely to lead to evil and rarely leads to benefit. Examples of this are selling weapons during war time and selling grapes to a wine-maker. Most Ulama have invalidated such means.
Means which frequently lead to evil, but there is no certainty or even dominant probability. Ulama differ widely on the illegality of such means (see text book).
Means which rarely lead to evil. Examples are digging well in a place which is not likely to cause harm or speaking a word of truth to a tyrannical ruler. Ulama have ruled in favour of permissibility of these means.
Sadd al-Dharai should not be used too much, particularly in the 3rd category stated above. Such use would render the 'mubah' (lawful) and the 'mandub' (recommended) as unlawful, which can not be accepted.
Ibnul Arabi and Abu Zahra are in favour of moderation in its use. People of extremist tendencies can use sadd al-Dharai to restrict human freedom granted by Allah and the Prophet (SM) which must not be allowed to happen.
Hukm Sharii (Value of Shariah Rules): Hukm Sharii is the communication from the lawgiver (Allah and the Prophet (SM) on the authority of Allah) concerning the conduct of Mukallaf (on whom law is applicable, that is, a sane and adult person) which may be in the form of a demand or an option or only as an enactment.
When the communication is made in the form of a demand or option, the Hukm is called Al-Hukm al-taklifi (defining law). If the communication is made in the form of an enactment only, it is called Al-Hukm al-Wadi (declaratory law) [see explanation below ].
Al-Hukm al-taklifi (defining law) may be in the form of Fard, Wajib, Mandub, Mubah, Makruh and Haram. According to majority, Fard and wazib are synonymous. If there is binding demand from the lawgiver to do something, it is wazib. However, the Hanafi's consider the demand Fard when both text and the meaning are definitive (qati) and wazib when either the text or meaning is speculative (Zanni - because Zanni is liable to interpretation of meaning or investigation of authenticity). Difference between Fard and Wazib has important consequence. Denial of binding nature of a command established by definitive proof (Fard by Qati evidence) leads to unbelief. However, denial of Wazib (according to Hanafi's) or 2nd category of Fard (according to the majority) lead to transgression (Fisq). Wazib has (and Fard) been variously classified into the following:
Wazib ayni (personal obligation of all Mukallaf) and Wazib Kafai (collective obligation, performance of some of the community would suffice).
Wazib Muwaqqat (Wazib contingent on time-limit, such as, Salah and Siam) and Wazib Mutlaq (absolute wazib which is free from time-limit, such as, Hajj).
Wazib Muhaddad (quantified Wazib, such as, Zakah and Salah) and Wazib Ghair Muhaddad (unquantified Wazib, such as, charity to poor, paying Mohr to wife).
A consequence of distinction between quantified wazib and unquantified wazib is that quantified wazib becomes a liability on the person who has not paid it in proper time.
Mandub (recommended) denotes a demand not binding on the Mukallaf. Compliance earns spiritual reward but no punishment is inflicted for failure. This is the difference between Wazib and Mandub. Examples of Mandub are creation of charitable endowment (Waqf), giving alms to the poor and attending to sick. Mandub is also called Sunnah, Nafl and Mustahab.
Sunnah (Mandub) has been clasified into
(a) Emphatic sunnah (Sunnah al-Muakkadah) - Examples are adhan, attending congregational prayer) and
(b) Supererogatory Sunnah (Sunnah Ghair al-Muakkadah) - Examples are Nafl prayers and non-obligatory charity.
Neglect of sunnah al-Muakkadah is blameworthy but not punishable. Neglect of Sunnah Gair al-Muakkadah is neither blameworthy nor punishable. Examples of Mandub in the Quran can be seen in verses 2:282, 24:3.
Haram (also known as Mahzur) is a binding demand of lawgiver to abandon something. The level of proof required to establish prohibition is the same as Fard (as explained by early Hanafi Ulama) and of Wazib (as explained by the majority Ulama of Usul).
The texual evidence for Haram may occur in various forms such as:
It may start with "Hurrimat alaykum" (forbidden to you) [5:3]
It may be conveyed in negative terms such as "la taqtulu" (do not kill), "la takulu" (do not eat or take) [5:90; 2:188].
It may be in the form of a command to avoid (5:90, to avoid wine-drinking and gambling).
It may be stated that it is not permissible (La yahilla lakum, 4:19)
Prohibition may be proved by punishment provided for a conduct (Quran - verses on hadd penalties and also verses mentioning punishment of fire in the hereafter).
Prohibition has also been classified into:
a) haram li-dhatih (which is forbidden for its own sake such as wine, gambling) and
b) haram li-Ghayrih (which is forbidden for an external reason, such as, marrying a woman only to make her legal for another man) (tahlil).
Makruh is opposite of Mandub. It is preferable to omit it than to commit it. Committing Makruh is not liable to punishment or moral blame. This is the majority view. Hanafi's divide Makruh into :
Makruh Tanzihi and
Makruh Tahrimi.
According to Hanafis, the commitment of Makruh Tahrimi entails moral blame but not punishment. There are traditions (Hadith) in which the word Kariha or its derivative has occurred. These are the textual basis for Makruh.
Mubah (also termed halal and Jaiz) is a communication of the lawgiver which gives option to the Mukallaf (Quran 5:6; 2:235, 2:173). The Ulama of Usul include "Mubah" under Hukm Shari although including it under al-Hukm al-Taklifi is on the basis of probability as there is basically no liability.
Al-Hukm al-wadi (declaratory law) enacts something as a cause (sabab), a condition (shart) or a hindrance (Mani) to the defining law. An explicit example is the hadith which says, "there is no 'nikah' without two witnesses". Thus the presence of witnesses has been made a condition of a valid marriage. Another example is the hadith, "there shall be no bequest to an heir" which enacts a hindrance (ma'ni) to bequest (wasiah).
Declaratory law is divided into
cause,
condition,
hindrance,
Azimah, and
Rukhsha.
Azimah is the law as the lawgiver had intended in the first place without any softening for any reason (example: all Ibadah in normal circumstances). A law is a Rukhsah when the law embodies the exception to take care of difficulties (example is granting concession to traveller to break fast).
Rukhsah may occur
in the form of permitting a prohibited thing on the ground of necessity,
omitting a Wazib when conformity to wazib causes hardship (example is the provision for traveller to shorten salah or not to observe fast during Ramadan) and
in the form of validating contracts which would normally be disallowed (for example, advance sale [salam] and order for the manufacture of goods [Istisnah], though the goods are non-existent).
There is another kind of Shariah values called,
Sahih (valid),
Fasid (irregular), and
Batil (void).
The classification is made on the basis of compliance with essential requirements (arkam) and conditions (shurut) of Ahkam. When all these are fulfilled, the act is valid or sahih. If these are not fulfilled, the act is void or Batil.
The Ulama are in agreement that Ibadah can only be sahih or batil. In the matter of transactions also, the majority hold the same view. However, the Hanafis have validated an intermediate category in transactions called Fasid (irregular, not Batil) when there is some deficiency in the Shart (condition). If the deficiency is made up, it becomes Sahih.
The pillars of Hukm Shari are -
Hakim or lawgiver,
Mahkum Fih or subject matter,
Mahkum Alayh, i.e., on whom law is applied.
The source of all law in Islam is ultimately Allah (6:57; 5:45). Mahkum Fih denotes the acts, obligations of the Mukallaf which may be in the form of Wazib, Mandub or Mubah. Mahkum Alayh deals with the legal capacity of the individuals or bear the rights and obligations imposed by Shariah.
A person acquires active legal capacity when he attains a certain level of intellectual maturity and competence. Active legal capacity is only partial in case of a child (because of age) and in case of a person in death bed.
Hukm Shari has also been classified into
Haqq-al-Allah and
Haqq-al-Ibad.
Haqq-al-Allah or the rights of Allah is so called not because Allah benefits from them but because these are beneficial for the community at large. In other words, these are public rights. Worship, Hadud, Uqubah (minor punishments), Kaffarah, Jihad, etc. are within rights of Allah.
# Taa'rud and Ijtihad
Taa'rud (conflict of evidences): Taa'rud means conflict. In Usul al Fiqh, Taarud means that two evidence of Shariah are of equal strength and they require opposite of each other. A conflict is thus not expected to occur if the two evidences are of unequal strength, because the stronger evidence will prevail. For this reason, there will be no conflict between a Qati and Zanni proof.
If, however, the opposite is required by 2 Quranic Ayat or by a Quranic Ayat and a Mutawatir Hadith (these two are considered equal in authenticity as explained earlier in the course) or by two Ahad Hadith, then, there is a conflict.
Conflict can only arise, if the rulings of the two evidences can not be reconciled, that is the subject matter of one can not be distinguished from the other or the time sequence of them can not be distinguished (that is it can not be ascertained which one is the latter).
A genuine conflict can hardly arise between Qati proofs. All such conflicts are apparent rather than real. Such apparent conflicts can be resolved by
reconciliation,
by specification or
by giving preference of one over the other.
A conflict between Nasus (texts of the Quran and the Sunnah) and Ijma is inconceivable as Ijma can not violate Nass.
A Mujtahid must therefore, try to reconcile the apparent conflict in which case both the evidence will be applicable in different sets of circumstances. If this is not possible, he will try to prefer one over the other, thus at least one evidence will be kept. If this is not possible, then, he would see the time sequence and apply the principle of abrogation. In this way the later evidence will be retained and the earlier one in time will stand abrogated (However, such cases are very few). Please see the lectures on Naskh that is discussed earlier. If this is also not possible, both the evidences will be abandoned. When two evidences in conflict are Amm (general), one may try to distinguish the subject matter of application (for instance, one may be applicable to adult and the other to the minor or one may be applicable to married people and the other to unmarried people). If one evidence is Amm and the other Khass, the solution is Takhsis al Amm
(specification of a part of Amm).
As regards, cases where both the rulings can not be retained because of apparent conflict, the following rules of preference should be applied:
Clear texts will be preferred over unclear texts.
Sarih (plain) will be preferred over Kinayah (allusive), Haqiqi (literal) over Majaji (metaphorical) and so on.
Ibarah al Nasss will be preferred over Isharah al Nass and so on. (see Interpretation chapter of this course).
Mutawatir Hadith will be preferred over Mashhur and Mashhur will be preferred over Ahad.
Hadith transmitted by Faqih or leading companions are preferred over others.
Another rule of preference is that affirmative rule takes priority over regative (please see example in the text book).
Similarly prohibition takes priority over permissibility.
If attempts at reconciliation or preference fail, then resort should be taken to abrogation (Naskh).
Rules or view points on Naskh may be seen in earlier discussion. In the case of conflict of two Qiyas (analogies), if the two can not be reconciled, one may be given preference.
Ijtihad: Ijtihad has been derived from the root word Jahada. Ijtihad literally means striving or self-exertion. Ijtihad consists of intellectual exertion. Ijtihad is a very broad source of Islamic law and comes after the Quran and the Sunnah.
The Quran and the Sunnah were completed at the time of death of the Prophet (SM). Ijtihad, however, continues and this is the source or methodology which gives Islamic law, its adaptability to new situations and capacity to tackle all new issues and its harmony with the Quran and the Sunnah.
The sources of Islamic law other than the Quran and the Sunnah are essentially manifestations of Ijtihad. When clear rule is available in the text (Nass) of the Quran and the Sunnah, Ijtihad is not applicable. The findings of Ijtihad are essentially Zanni in character. The subject matter of Ijtihad is the practical rules of Shariah not covered by Nasus. Ijtihad is a duty of the scholars. If the issue is urgent, Ijtihad is compulsory on each competent scholar (Fard al Ayn or Wajib al Ayn). If the issue is not urgent, it is a collective obligation (Fard al Kafai or Wazib al Kafai).
A scholar is supposed to avoid Taqlid (blind following of another scholar). Taqlid is permissible only for a layman. Ibn Hazm believes Taqlid is not permissible for any one. Shah Wali Ullah says, Taqlid is not permitted for a person who can investigate even some matters (Ref.: 'Al-Insaf fi Bayan-al-Asbabil Ikhtilaf', by Shah Wali Ullah).
Ijtihad is validated by the Quran and the Sunnah and the practice of the Sahabas. The Quran - 59:2; 9:122; 29:69; 4:59 have been quoted in support of Ijtihad. These Ayats are Zahir in nature (i.e., liable to interpretation and as such only give rise to probability).
Several hadith are quoted in support of Ijtihad. Of them, two are very important. First is the hadith in which Muadh bin Jabal replied to the Prophet (SM) that he would resort to Ijtihad, if he does not find a solution in the Quran and the Sunnah and the Prophet (SM) affirmed him (Narrated by Abu Dawood). Second is the hadith in which the Prophet (SM) said that the Mujtahid will get two rewards if he is corrrect and one reward if he commits a mistake (Abu Dawood).
Requirements of Ijtihad have been laid down by some scholars. Nothing has been mentioned in this regard in the Quran and the Sunnah. Abul Hussain al Basri, laid down for the first time the qualifications of a Mujtahid in the 5th century Hijra which was later accepted by Gazali and Amidi. It is true that Ijtihad is the function of the competent scholars. The following are the requirements:
Good knowledge of Arabic language.
He must be knowledgeable in the Quran and the Sunnah and related subjects.
He must be knowledgeable of previous scholars on the Ijtihad carried out by them.
He must know the Maqasid of Shariah.
He must be an upright person and must be capable of distinguishing between strong and weak evidence.
It may appear that the qualifications are very tough. But it is not really so. These are all attainable in reasonable time by any sincere and competent person. The majority of Ulama hold that if a person is capable of making Ijtihad in one area, he can do Ijtihad in all areas. Procedure of Ijtihad is that the Mujtahid must first look at the Quran and the Sunnah. Only if solution is not found there, he may resort to Ijtihad. Rules of discussed previously (in the respective chapters on these).
The majority hold that Ijtihad is liable to error. The minority hold that each of the several verdicts may be regarded as truth on their merit. (Shawkani, Irshad).
Mujtahids have been classified in various ways by some scholars according to their understanding (See Kamali). The basic classification can be as follows:
Major Mujtahids, who made their own rules of Ijtihad and did comprehensive Ijtihad.
Average or other Mujtahids who in most part followed the rules of Ijtihad of other schoars and who undertook Ijtihad in some areas only.
Some scholars were against Ijtihad after the first few centuries. This view has now been rejected. Shawkani said that this view is to be utterly rejected. Iqbal says that closure of gate of Ijtihad is 'a pure fiction'. Progress of Islamic civilization in future depends on Ijtihad by competent scholars. In future, more and more Ijtihad is likely to be collective.
Reference Books:
Principles of Islamic Jurisprudence, by Mohammad Hashim Kamali, The Islamic Texts Society, 5 Green Street, Cambridge, CB2 3JU, UK, 1991.
The Doctrin of Ijma in Islam, by Ahmad Hasan, Islamic Research Institute, Islamabad, 1970.
The Philosophy of Jurisprudence in Islam, by Subhi Rajab Mahmassani, E.J. Brill, Leiden, 1961.
Principles of Muhammadan Jurisprudence, by Abdur Rahim, Luzac and Co., London, 1911.
Various books and papers on "Usul al-Fiqh" by Dr. Taha Jabir al-Alwani, published by IIIT, USA.
Usul al-Fiqh, by Abu Zahrah, Dar al-Fikr al-Arabi, Cairo, 1958.
Ilm Usul al-Fiqh, by Abd al-Wahhab Khallaf, Dar al-Qalam, Kuwait, 12th Ed., 1978. (Arabic)
Usul al-Fiqh, by Shaykh Muhammad Al-Khudari, Dar al-Fikr, Cairo, 1981. (Arabic)
THE END
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