USUL AL FIQH AL ISLAMI: SOURCE METHODOLOGY IN ISLAMIC JURISPRUDENCE


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  • USUL AL FIQH AL ISLAMI: SOURCE METHODOLOGY IN ISLAMIC JURISPRUDENCE


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    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.1

    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.2

    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:

    a. 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.

    b. 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.

    c. 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.

    d.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
    3,
    the condition of the text of a Hadith and its chain of narrators, and so on.

    e.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:

    1.  Recited revelation Wahy Matlu; or the Qur'an with its absolute inimitability I'jaz

    2.  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."4

    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."5

    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."6

    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."7

    '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."8

    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."9

    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 experience10,
    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."11

    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."12

    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."13

    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."14

    Thus, we may state that the concept of Ijtihid or
    "opinion", at that stage, went no further than one of the following:

    a.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

    b.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

    c.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.

     

     

     

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