Chapter 1Introduction to Usul Fiqh

(The Principles of Islamic jurisprudence)

Reference:Principles of Islamic Jurisprudence by Prof.

Mohammad Hashim Kamali, 3rd edition (2005)

Made by:Nor Izzuddin Bin Norrahman

LecturerManagement, Banking and Islamic Finance

Astin College

Content…

• Definition and scope– Definition– Usul al-fiqh vs fiqh– The essential in Usul al-fiqh– Objective of Usul al-fiqh– Purpose of Usul al-fiqh– The need of Usul al-fiqh– The development of Usul al-fiqh

• Two approaches to the study of Usul al-fiqh

• Proof of Shari’ah (Al-Adillah As-Shar’iyyah)

DEFINITION AND

SCOPE

Definition

• Usul al-fiqh, or the roots of Islamic law, expound the indications and methods by which the rules of fiqh are derived from their sources.

• Some writers have described usul al-fiqh as the methodology of law, a description which is accurate but incomplete.

• Why it is incomplete?

Definition

• To say that Usul al-fiqh is the science of the sources and methodology of the law is accurate in the sense that the Qur’an and Sunnah constitute the sources as well as the subject matter to which the methodology of usul al-fiqh is applied.

• The Qur’an and Sunnah themselves, however, contain very little by way of methodology, but rather provide the indications from which the rules of Shari’ah can be deduced.

Definition

• The methodology of usul al-fiqh really refers to methods of reasoning such as analogy (qiyas), juristic preference (istihsan), presumption of continuity (istishab) and the rules of interpretation and deduction.

• These are designed to serve as an aid to the correct understanding of the sources and ijtihad.

Usul al-fiqh vs fiqh

• The main difference between fiqh and usul al-fiqh is that fiqh is concerned with the knowledge of the detailed rules of Islamic law in its various branches, and usul al-fiqh with the methods that are applied in the deduction of such rules from their sources.

• Fiqh, in other words, is the law itself whereas usul al-fiqh is the methodology of the law.

The essential in Usul al-fiqh

• Knowledge of the rules of interpretation is essential to the proper understanding of a legal text. Unless the text of the Qur’an or the Sunnah is correctly understood, no rules can be deduced from it, especially in cases where the text in question is not self-evident.

The essential in Usul al-fiqh

• An adequate grasp of the methodology and rules of interpretation also ensures the proper use of human reasoning in a system of law which originates in divine revelation.

Objective of Usul al-fiqh

• The principal objective of usul al-fiqh is to regulate ijtihad and to guide the jurist in his effort at deducing the law from its sources.

• The need for the methodology of usul al-fiqh became prominent when unqualified persons attempted to carry out ijtihad, and the risk of error and confusion in the development of Shari'ah became a source of anxiety for the ulema.

Purpose of Usul al-fiqh

• The purpose of usul al-fiqh is to help the jurist to obtain an adequate knowledge of the sources of Shari’ah and of the methods of juristic deduction and inference.

• Usul al-fiqh also regulates the application of qiyas, istihsan, istishab, istislah,etc., whose knowledge helps the jurist to distinguish as to which method of deduction is best suited to obtaining the hukm shar'i of a particular problem.

Purpose of Usul al-fiqh

• Purpose of Usul al-fiqh – to create Fiqh.

• Usul al-fiqh enables the jurist to ascertain and compare strength and weakness in ijtihad and to give preference to that ruling of ijtihad which is in close harmony with the nusus.

The need of Usul al-fiqh

• It is nevertheless accurate to say that fiqh precedes the usul al-fiqh and that it was only during the second Islamic century that important developments took place in the field of usul al-fiqh. – [Khallaf, 'Ilm, p. 16;Abu Zahrah, Usul, p. 10.]

The need of Usul al-fiqh• For during the first century there was no pressing

need for usul al-fiqh.

• When the Prophet was alive, the necessary guidance and solutions to problems were obtained either through divine revelation, or his direct ruling.

• Similarly, during the period following the demise of the Prophet, the Companions remained in close contact with the teachings of the Prophet and their decisions were mainly inspired by his precedent.

The need of Usul al-fiqh• However, with the expansion of the territorial domain of

Islam, the Companions were dispersed and direct access to them became increasingly difficult.

• With this, the possibility of confusion and error in the understanding of the textual sources became more prominent.

• Disputation and diversity of juristic thought in different quarters accentuated the need for clear guidelines, and the time was ripe for al-Shafi'i to articulate the methodology of usul al-fiqh.

The development of Usul al-fiqh• Al-Shafi’i came on the scene when juristic controversy had

become prevalent between the jurists of Madinah and Iraq, respectively known as Ahl al-Hadith and Ahl al-Ra'y. This was also a time when the ulema of Hadith had succeeded in their efforts to collect and document the Hadith.

• Once the fuqaha were assured of the subject matter of the Sunnah, they began to elaborate the law, and hence the need for methodology to regulate ijtihad became increasingly apparent.

• The consolidation of usul al-fiqh as a Shari’ah discipline was, in other words, a logical conclusion of the compilation of the vast literature of Hadith.

The development of Usul al-fiqh

• Among the factors which prompted al-Shafi'i into refining the legal theory of usul al-fiqh was the extensive influx of non-Arabs into Islamic territories and the disconcerting influence that this brought on the legal and cultural traditions of Islam.

• Al-Shafi'i was anxious to preserve the purity of the Shari’ah and of the language of the Qur’an.

The development of Usul al-fiqh• Broadly speaking, the so-called closure of the gate of ijtihad at

around the fourth Islamic century did not affect the usul al-fiqh in the same way as it might have affected the fiqh itself.

• The era of imitation(taqlid) which followed might even have added to the strength and prominence of usul al-fiqh in the sense that the imitators observed, and relied on, the methodology of the usul as a benchmark of validity for their arguments.

• Consequently usul al-fiqh gained universal acceptance and was, in a way, utilised as a means with which to justify taqlid.

TWO APPROACHES TO THE STUDY

OF USUL AL-FIQH

• Following the establishment of the madhahib, the ulama’ of the various schools adopted two different approaches to the study of usul al-fiqh:– Theoretical approach– Deductive approach

Theoretical approach

• Adopted by the Shafi’i school and the Mutakallimun (Kalam & Mu’tazilah)

• Known as usul al-Shafi'iyyah or tariqah al-Mutakallimin.• Al-Shafi’i was mainly concerned with articulating the

theoretical principles of usul al-fiqh without necessarily attempting to relate these to the fiqh itself.

• Concerned with the clarification of theoretical doctrines

• Concerned with the clarification of principles

Deductive approach

• Mainly attributed to the Hanafis• Known as usul al-Hanafiyyah, or tariqah al-

fuqaha'.• Orientation rather than substance• Practical in the sense that theory is formulated in

light of its application to relevant issues• Tends to develop a synthesis between the

principle and the requirements of a particular case

PROOFS OF SHARI'AH (Al-Adillah Al-Shar'iyyah)

• The laws or values that regulate the conduct of the mukallaf are:– Adillah Shar’iyyah– Ahkam

• The ahkam are derived from the adillah and are therefore subsidiary to them.

• Literally, dalil means proof, indication or evidence.

• Technically it is an indication in the sources from which a practical rule of Shari’ah, or a hukm is deduced.

• The hukm obtained may be :– definitive(qat’i') – speculative (zanni) depending on the nature of the subject, clarity of the text, and the value which it seeks to establish.

• In the terminology of usul al-fiqh, adillah Shar’iyyah refer to four principal proofs, or sources of the Shari’ah, namely:– Qur’an,– Sunnah, – Consensus (Ijma’)– Analogy (Qias)

• Dalil in this sense is synonymous with asl, hence the four sources of Shari’ah are known both as adillah and usul.

• There are a number of ayat in the Qur’an which identify the sources of Shari’ah and the order of priority between them.

• The proofs of Shari'ah have been further divided into:– transmitted proofs (adillah naqliyyah)– rational proofs (adillah 'aqliyyah)

• The authority of the transmitted proofs is independent of their conformity or otherwise with the dictates of reason. It can also be rationally justified.

• The rational proofs, on the other hand, are founded in reason and need to be rationally justified. They can only be accepted by virtue of their rationality.

• Qiyas, istihsan, istislah and istishab are basically all rationalist doctrines although they are in many ways dependent on the transmitted proofs.

• Rationality alone is not an independent proof in Islam, which is why the rational proofs cannot be totally separated from the transmitted proofs.

• The adillah Shar’iyyah have been further classified into:– Mustaqill (Independent)– Muqayyad, (Dependent) proofs respectively.

• The first three sources of the Shari'ah are each an independent asl, or dalil mustaqill, that is, a proof in its own right.

• Qiyas on the other hand is an asl or dalil muqayyad in the sense, as indicated above, that its authority is derived from one or the other of the three independent sources.

End of Chapter 1