Footnotes

Taha Jabir Al ‘Alwani Author of Usul Al Fiqh Al Islami.

  • Dr. Taha Jabir al Alwani was born in Iraq in 1354/1935. He received his primary and secondary education in his native land and then graduated with an Honors Degree from the College of Shariah and Law at Al Azhar University in Cairo in 1378/1959. From the same university he was awarded his Master’s Degree in 1388/1968, and a Doctorate in Usul al Fiqh in 1392/1973.
  • For ten years (from 1395/1975 to 1405/1985) Dr al ‘Alwani was a Professor of Fiqh and Usul al Fiqh at Imam Muhammad b. Sa’ud University in Riyadh.
  • Dr. al ‘Alwani participated in the founding of the International Institute of Islamic Thought (IIIT) in the USA in 1401/1981, and is now the Institute’s President and a member of its Board of Trustees.
  • He is a founder-member of the Council of the Muslim World League in Makkah.
  • A member of the OIC Islamic Fiqh Academy in Jeddah since 1407/1987.
  • President of the Fiqh Council of North America 1408/1988.
  • Among his works on Islamic Jurisprudence are:
    • His edition of Al Mahsul fi `Ilm Usul al Fiqh “The Sum and Substance of Usul al Fiqh“, by al Imam Fakhr al Din al Razi, in six volumes.
    • Al Ijtihad wa al Taqlid fi al Islam “Legal Reasoning and Imitation in Islam”
    • Huquq al Muttaham fi al Islam “Rights of The Accused in Islam.”
    • Adab al Ikhtilaf fi al Islam“The Ethics of Disagreement in Islam.”

1 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.

2 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.

3 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.

4 See ‘Abd Allah ibn ‘Abd al Rahman al Darimi, Sunan, I, 51.

5 al Darimi, op. cit., I, 50.

6 al Darimi, op. cit., I, 49.

7 Ibid., I, 51.

8 Ibid.

9 Quoted by Shaykh ‘Ali Abd al Razzaq in Tamhid li Tarikh al Falsafah, Cairo, p. 152.

10 al Dahlawi, Hujjatullah al Balighah, (Egypt) I, 289.

11 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.

12 See Ibn Qayyim, I’lam al Muwaqqi’in, passim.

13 See al Imam al Shafi’i, Al Risalah, (Cairo), p.476.

14 Ibn Qayyim, op. cit., I, 54: Ibn ‘Abd al Barr, Jami’ Bayan al ‘Ilm, II, 134.

15 The Prophet (PBUH) sent out a party of Muslims with the dircctions, “Perform the ‘Asr Salah at Banu Qurayzah.” Interpreting this literally, one group of Muslims in the party continued on their journey through to sunset, without stopping for ‘Asr Salah at its prescribed time. A second group, however, more inclined to follow the spirit rather than the letter of the Prophet’s words, stopped short of Banu Qurayzah in order to perform the Salah at the prescrihed time. When informed of what each group had done, the Prophet (PBUH) said that hoth had been right. (Ed.)

16 This Hadith is a well-known and authentic one, and was included by Imams al Bukhiri, Abu Dawud, al Nasa’i, Ibn Mijah, and Ahmad in their Hadith collections. (Ed.)

17 This Hadith is a sound one and was related by al Bukhiri, Muslim, and several others in their collections of authentic Hadith. (Ed.)

18 See Ibn Hazm, Al Ihkam, V, 92-93.

19 al Dahlawi, op. cit, I, 315.

20 There is disagreement about the meaning of the word Kalalah. According to some, it denotes those who die leaving no lineal heirs, neither issue nor father or grandfather. Others, however, see it as referring to those who die without issue, regardless of whether succeeded by father or grandfather. The relevant verse in the Qur’an is found in Surat al Nisa, 4:176. And it was on the basis of this verse that Abu Bakr ruled as he did. Abu Bakr’s reasoning was that the verse specifies that the sister of the Kalalah is to receive a half of the inheritance; and if the father had been alive, the sister would not have inherited from the Kalalah at all. Thus, while the Qur’an does not specify the matter; it is fairly clear that the implied meaning is that the Kalalah is one who dies leaving no lineal heirs in either direction. (Ed.)

21 This Hadith is an authentic one and was related by Imams al Bukhari, Muslim, al Tirmidhi, Ibn Majah, Ahmad, al Tayalisi, and others. (Ed.)

22 Abu Bakr meant to say that the interpretation he gave to the words of the Hadith was not a strictly literal one. Rather, Abu Bakr felt that the credal formula, “There is no god but Allah”, is actually to be understood topically as an indication of faith; where faith includes several articles, including Zakah, in addition to profession of the creed. (Ed.)

23 Ibn Qayyim, op. cit.

24 al Dahlawi; op. cit., I, 278.

25 Ibid.

26 Perhaps the most popular Hadith to use this format is the one about brushing the teeth before Salah (siwak). (Ed.)

27 Al Istishab: The consideration of circumstances in the process of adducing a legal argument.

28 Al Istihsan: The acceptance of a Qiyas-analogy that appears juridically superior in comparison with an obvious analogy. It is in this context that al Istihsan has been sometimes been translated as “Juristic Preference”. (Ed.)

29 Al Istislah: Legal consideration of the welfare and well-being of both the individual and society as a whole. (Ed.)

30 Such Hadith are called single-individual narrations “Khabar al Wahid”, or, in the plural, Ahad. The question of the status of such Hadith is discussed later in this volume. (Ed.)

31 Ibn Hajar, Al Isabah IV, 112; and Ibn ‘Abd al Barr, Al Isti’ab (on the margins of Al Isabah) p.415.

32 Ibn Abd al Barr Jami’ Bayan al ‘Ilm, I, 33.

33 Al Maqrizi, Khutat, IV, 143.

34 This letter was narrated by al Imam al Bukhari in his Sahih without a formal chain of narrators (ie. Ta’liqan; as a Mu’allaq Hadith). It was also included by al Imam Malik in his Muwatta; See al Zarqani’s commentary, I, 10.

35 Al Musnad: A Hadith with an unbroken chain of narrators, all the way back to the Prophet (PBUH).

36 Al Mursal: A Hadith whose chain of narrators is broken at the end, ie. one ascribed by a Tabi’i as having come directly from the Prophet (PBUH). Essentially, as the Tabi’i could not possibly have heard the Hadith from the Prophet (PBUH), the Hadith he related in this manner must have been told to him either by another Tabi’i, or by one of the Sahabah. But, as the Tabi’i scholar had no doubts concerning the trustworthiness of the one from whom he had heard the Hadith, he felt it unnecessary to name him. For the later generations of Fiqh and Hadith scholars, however, the question of whether the Mursal Hadith could be accepted became a serious issue. The reason for their concern was that the chain of such a Hadith is, after all, a broken one; and there is no certainty that, if the Tabi’i narrator had related the Hadith from another of his generation, that the other Tabi’i was a reliable narrator. For the Fiqh and Hadith scholars of the early generations, however, this was not a great problem, as they were familiar with the Tabi’i narrators and the Shuyukh from whom they had heard and related Hadith. Thus, beth Imams Abu Hanifah and Malik accept the Mursal Hadith; while the two later Imams, al Shafi’i and Ahmad, reject the Mursal. (Ed.)

37 Summarized with liberty from Dahlawi, op. cit., I, 205-308.

38 What the author is saying here is that these were methodological tools unknown to the Sahabah, yet widely applied and employed by these two Imams. (Ed.)

39 As each sect strove to outdo the other, and gain converts from mainstream Islam, they took to distorting the meanings of the Prophet’s words as recorded in the Hadith, and to manufacturing, and then ascribing to the Prophet, words and meanings designed to suit their own purposes. (Ed.)

40 Ibn ‘Abd al Barr, Al Intiqa’ p.23.

41 A Hadith with a break at any place in the chain of its narrators is called Munqati’. As it may not, therefore, he established with certainty that the Hadith was passed on from an earlier generation, and thus not from the Prophet, upon whom be peace, such a Hadith was rejected by all the later Fuqaha’ (Ed.)

42 An explanation of what a Mursal Hadith is, and of the controversy surrounding it, was given in chapter 3. See the footnote on page 25.

43 Ibn Abd al Barr, op. cit., p.24.

44 It should be mentioned here that Muhammad ibn Hasan had also studied under al Imam Malik, and that his version of Malik’s Muwatta is considered by many to be the most authentic. Al Imam Muhammad’s Kitab al Radd ‘Ala Ahl al Madinah is an eloquent expression of the difference in the methodological approaches taken by the two schools of legal thought, Maliki and Hanafi, in particular, and by the Ahl al Ra’i and the Ahl al Hadith, in general. (Ed.)

45 Ibn ‘Abd al Barr, op. cit., p.86.

46 Ibn ‘Abd al Barr, op. cit.

47 See Fakhr al Razi, Manaqib al Shafi’i, p.26.

48 Imam al Haramayn, ‘Abd al Malik Juwayni’, Mughith al Khalq.

49 Al Zarkashi, Al Bahr al Muhit, MS.

50 Ibn ‘Abd al Barr, op. cit., p.25.

51 There has been little dissention from agreement on this matter; apart, of course, from certain followers of the earlier schools of legal thought who produced but faint evidence to support their claims that scholars before al Imam al Shafi’i, like al Imam Abu Yusuf of the Hanafi school, wrote about this important branch of the Shari’ah sciences. (Ed.)

52 See ‘Abd al Razzaq, op. cit., p.234.

53 In his introduction to the translation of the Risalah, Professor Majid Khadduri discusses the meaning of al Bayan, and refers to the definitions propounded by the classical jurists. Professor Khadduri writes:

“Some say that it merely means a declaration, embodying certain legal provisions: others argue that it not only declares them, but also makes them clear. Al Shafi’i, however; seems to emphasize the legal content of the provisions on the grounds that all Quranic communications are clear, ‘although some are more sharply clarified than others’ and only to those who are ignorant of the Arab tongue do some communications seem less clear than others.”

Accordingly, the term al Bayan is translated by Professor Khadduri as “perspicuous declaration”. See, Khadduri, Islamic Jurisprudence, The Johns Hopkins Press, p.32-33.

54 Ibn Qayyim, op. cit., I, 32.

55 An edition of a section of Jassas’s summary of this hook was published in Pakistan by the Islamic Research Institute. The editor of that volume, however, mistakenly attributed the work directly to Abu Ja’far al Tahawi. (Ed)

56 see Ibn al Nadim, Al Fihrist, p 284.

57 Ibn al Nadim, op. cit., p 299.

58 See, ‘Abd al Razzaq, op. cit.

59 See, al Qurrafi, Nafa’is, 1, 149

60 A fine edition of Al Burhan has been published recently in Qatar.

61 See al Ghazzali, al Mustasfa, I, 187 An excellent translation into English of al Ghazzali’s al Mustasfa was done by Dr. Ahmad Zaki Hammad and will soon he published.

62 Ibid.

63 See Brockelmann, appendix II, p.963, No.49.

64 See al Makki, Manaqib al Imam Abu Hanifah, II, 245; the introduction to Usul al Sarkhasi, I, 3; Qutubzadeh, Miftah al Sa’adah, II, 37; and Ibn al Nadim, Al Fihrist. Everyone who made this claim based his information on Ibn al Nadim’s comment in his biography of Muhammad ibn al Hasan: “He has a book of Usul which includes chapters on Salah, Zakah and Hajj.” This, however, would appear to refer to work on Usul al Din. (In fact, what is more likely, is that the reference is to al Imam Muhammad ibn al Hasan’s work on Fiqh, Kitab al Asl, which was recently published in Pakistan. furthermore, the suggestion that Abu Yusuf first wrote about Usul comes from a narration included by the Khatib of Baghdad in his Tarikh Baghdad. Ed.)

65 See Vol. I, p. 11O-111.

66 Al Jassas’s main work, Ahkam al Qur’an, was the subject of this editor’s thesis, and is presently being translated, along with detailed annotation, into English. (Ed.)

67 Taqwim al Adillah has been edited in ten volumes and is soon to be published, Allan willing. (Ed.)

68 Each of these groups of scholars added something of their own to their books, though they used the same format for writing and the same method of presenting evidence and arguments.

69 See al Dahlawi, op. cit., I, 336-341; also al Dahlawi, Al Insaf fi Bayan Asbab al Ikhtilaf (Salafiyah, Cairo), p.3840.

70 A further reason is the implication that the scholar is attempting to “second guess” the Almighty. (Ed.)

71 Part of this work has been edited by a student as his master’s thesis; and he is editing the rest for his doctorate.

72 See Ibn Khaldun, Al Muqaddimah, III, 1163-64.

73 al Nashshar, Manahij al Bahth, p. 55.

74 See Musallam al Thubut and its commentary accompanying al Ghazali’s al Mustasfa, I,9-10. The author denied that logic was like this, and claimed that the position of logic in relation to both philosophy and Usul al Fiqh was the same. He may have been influenced by the suggestion that logic is the standard of all sciences.

The Work can be Downloaded here: usul al fiqh al islami

Advertisements

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s