Conceptualisation and Insight into the History of Islamic Law

Legal Methodology

The discipline of legal methodology teaches us how to derive legal rulings from the primary sources of Islamic Law, such as the Quran and the prophetic sunna. It teaches us how to read the primary sources in an honest and unbiased manner to figure out what Allah Most High really wants from us.

The Question arose when Islam spread throughout the world into different cultures and lands (whose ideas and way’s of thinking where foreign to the origins of Islam) how do these muslims interprate the Quran and Sunnah in an unbiased manner, in a logical and reasoned method, the answer by the early scholars was to extract the rules of interpretation for the Quran and Sunnah as employed by the sahabah and tabiin. These rules ensured that people from different cultures did not make grave mistakes in there understanding and applying the religion and protected Islam from the corruption of foreign interpretation not in line with it’s original meaning and intentions (maqasid shariah).

The Prophet (S), while sending Mu’adh to Yemen, asked him as to on what he would base his judgement. “In accordance with the Book of Allah”, replied Mu’adh, “But what if you don’t find it there?” inquired the Prophet (S). “According to the Sunnah of the Apostle of Allah”, replied Mu’adh. “But what if you don’t find it there too?” asked the Prophet (S) again. ‘I will exert my own opinion’, replied Mu’adh.  The Prophet (S) put his hand on Mu’adh’s chest and said: “Thank God for assisting His Apostle with what he loves.”

The rules (principles) of Law ensured that when a scholar exerted his own opinion it was in line with the essence of the prophet and sahaba’s understanding of the religion, it defined a way of understanding, faithful to the first generations of Muslims.

It was said that Imam Abu hanifah treated around five hundred thousand issues in his life. The expansion of Islam into new lands and societies, as well as the development in a new lifestyle amongst the Muslims was the main reasons for the emergence of issues and questions, which had not been tackled in the previous era of Islam. Scholars formulated legal principles to facilitate the treatment of the increasing number of fiqh Issues. This is evident within the multiple chapters of the early fiqhi works. To give some examples, Abu Yusuf said (choosing from the different views within the hanafi school of law about determining the ta’zir – discretionary punishment), “it is left to the leader or judge to decide an appropriate discretionary punishment considering the proportionate (nature) of the offence”. In the context of explaining a Prophetic tradition on personal property, Abu Yusuf also said, “it is not allowed for the Imam (leader) to take away someone’s property without an established and well-known right”.

If we look at some of the principles (usul) used by Imam Abu Hanifah we can see how well thought out he was in making his rulings (Ahkam), mentioned below are some of these rules;

1) The narration of a Tabi’i, which he narrates directly from Rasulullah sallallahu `alayhi wa sallam is called mursil. Imam Abu Hanifah rahimahullah accepts a mursil narration only if:

a) Its’ narrator is reliable,

b) It is not in conflict with a stronger daleel (proof).

2) The Khabr ul-Waahid is a Hadith that was narrated by only one person in every era until the period of tadween (codification) of Hadith. Imam Abu Hanifah rahimahullah does not practice on the Khabr ul-Waahid if:

a) it contradicts any ruling of the Qur’an that is `aam (general) or zaahir (apparent). The rulings of the Qur’an that are `aam or zaahir are qat’ee (categorical) while the Khabr ul-Waahid is not qat’ee. Thus when the Khabr ul-Waahid contradicts a ruling of the Qur’an that is `aam or zaahir, Imam Abu Hanifah rahimahullah prefers the ruling of the Qur’an because it is the stronger daleel (proof).

b) it contradicts a widespread Sunnah of Rasulullah sallallahu `alayhi wa sallam.

c) it contradicts the continuous practice (al ‘amal ul-mutwaarith) of the Sahabah radiyallahu anhum and Tabi’in.

d) it contradicts any of the usool (principles) which he (i.e. Imam Abu Hanifah) had deduced after thorough and exhaustive study of the Shari’ah. In other words, contradiction of any of these usool is regarded by Imam Abu Hanifah rahimahullah as an `illat (weakness) in the narration.

e) The Sahabi who narrates the Hadith does not practice on it himself.

f) There was Umoom ul-Balwa (general involvement) of the Sahabah radiyallahu anhum and Tabi’in  in the issue discussed in the Khabr ul-Waahid. In other words, Imam Abu Hanifah rahimahullah argued that if so many people knew about the issue, why did so few of them narrate it?

3) When there is some contradiction between two Khabr ul-Waahid, he compares the narrators. Thus, he gives preference to the Khabr ul-Waahid whose narrator is a Faqih (jurist). And if both narrators are Faqih, he prefers the narration of the narrator who is a greater Faqih.

4) When there are two conflicting narrations, he prefers the narration that is supported by a greater number of statements and fatawa of the Sahabah radiyallahu anhum.

5) When there are two conflicting narrations regarding a particular Shar’i punishment, he prefers the narration which mentions a lighter punishment.

The Scholars who extracted these principles from the actions of the sahaba and tabiin and then developed it into a science agree on about 75% of these rules, They differ in only 25% of their legal conclusions, differences in how one derives rulings from a set methodology, the authentication of evidence, how one views evidence in relation to other sources (Quran orther ahadith), these differences go all the way back to the sahaba themselves and cannot be considered blameworthy. In The time of the Righteous Caliphs, the Fiqh principle of Ijmaa’ (decisions by consensus) evolved and Ijtihaad became an independent principle of Fiqh under the name Qiyaas (analogy). The Madh-hab during this period was, in reality, that of each of the Righteous Caliphs, since the final say in legal matters rested with them. However, all legal decisions were subject to alteration on the basis of recorded statements or practices of the Prophet (s.w.) that is, Hadeeth.

After the time of the four Khalif al Rashidun the four living schools of law did all the homework for us. They sifted through over 500,000 hadith and over 6,000 ayat of quran to package it for everyday people to follow. This wasnt the work of one Imam but the work of countless top ranked scholars over 1300 years who reevaluated and upgraded the work of previous generation’s in terms of evidence and legal rulings. The whole point of the madhhab is to be as accurate as humanly possible in knowing what Allah and his messenger (salla llahu alayhi wa sallam) expect of one. They are explainers in essence not mere legislators. For example in the Shafi’i school, if we are concerned about dalil (proof) and all that it entails, we should get al majmu’ sharh al muhadhdhab of Imam Nawawi. In most additions it runs over 25 volumes long in very high level classical arabic with almost 18,000 total pages. This is true for other madhahib. Their proof text encyclopedias are there, but they are usually reserved only for scholars who have attained that high level, to be able to understand such works. If that isnt what concerns one, we can always stick to a basic fiqh primer that is about 15 to 25 pages that goes over the five pillars, because that is what most of us are on anyway.

Definition and Scope of Usul al Fiqh

Usul al-fiqh, or the roots of Islamic law, expound the indications and methods by which the rules of fiqh are deduced from their sources. These indications are found mainly in the Qur’an and Sunnah, which are the principal sources of the Shari’ah. The rules of fiqh are thus derived from the Qur’an and Sunnah in conformity with a body of principles and methods which are collectively known as usul al-fiqh. Some writers have described usul al-fiqh as the methodology of law, a description which is accurate but incomplete. Although the methods of interpretation and deduction are of primary concern to usul al-fiqh, the latter is not exclusively devoted to methodology. 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. 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.

To deduce the rules of fiqh from the indications that are provided in the sources is the expressed purpose of usul al-fiqh. Fiqh as such is the end product of usul al-fiqh; and yet the two are separate disciplines. The main difference between fiqh and usul al-fiqh is that the former is concerned with the knowledge of the detailed rules of Islamic law in its various branches, and the latter with the methods that are applied in the deduction of such rules from their sources [the Quran and Sunnah]. Fiqh, in other words, is the law itself whereas usul al-fiqh is the methodology of the law. The relationship between the two disciplines resembles that of the rules of grammar to a language, or of logic (mantiq) to philosophy. Usul al-fiqh in this sense provides standard criteria for the correct deduction of the rules of fiqh from the sources of Shari’ah. An adequate knowledge of fiqh necessitates close familiarity with its sources. This is borne out in the definition of fiqh, which is ‘knowledge of the practical rules of Shari’ah acquired from the detailed evidence in the sources’. [Amidi, Ihkam, I, 6; Shawkani, Irshad, P. 3.] The knowledge of the rules of fiqh, in other words, must be acquired directly from the sources, a requirement which implies that the faqih must be in contact with the sources of fiqh. Consequently a person who learns the fiqh in isolation from its sources is not a faqih. [Cf. Abu Zahrah, Usul, p. 6] The faqih must know not only the rule that misappropriating the property of others is forbidden but also the detailed evidence for it in the source, that is, the Qur’anic ayah (2:188) which provides: ‘Devour not each other’s property in defiance of the law.’ This is the detailed evidence, as opposed to saying merely that ‘theft is forbidden in the Qur’an’.

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. Hence rules by which one is to distinguish a speculative text from the definitive, the manifest (zahir) from the explicit (nass), the general (‘aam) from the specific (khaas), the literal (haqiqi) from the metaphorical (majazi) etc., and how to understand the implications (dalalat) of a given text are among the subjects which warrant attention in the study of 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. For instance, analogy (qiyas) is an approved method of reasoning for the deduction of new rules from the sources of Shari’ah. How analogy should be constructed, what are its limits, and what authority would it command in conjunction, or in conflict, with the other recognized proofs are questions which are of primary concern to usul al-fiqh. Juristic preference, or istihsan, is another rationalist doctrine and a recognized proof of Islamic law. It consists essentially of giving preference to one of the many conceivable solutions to a particular problem. The choice of one or the other of these solutions is mainly determined by the jurist in the light of considerations of equity and fairness. Which of these solutions is to be preferred and why, and what are the limits of personal preference and opinion in a particular case, is largely a question of methodology and interpretation and therefore form part of the subject matter 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. 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. Furthermore, 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.

It may be added here that knowledge of the rules of interpretation, the ‘Aam, the Khaas, the Mutlaq, the Muqayyad, etc., is equally relevant to modern statutory law. When the jurist and the judge, whether a specialist in the Shari’ah or in secular law, fails to find any guidance in the clear text of the statute on a particular issue, he is likely to resort to judicial construction or to analogy. The skill, therefore, to interpret a legal text and to render judicial decisions is indispensable for a jurist regardless as to whether he sits in a Shari’ah court or in a court of statutory jurisdiction. A specialist in usul al-fiqh will thus find his skill of considerable assistance to the understanding and interpretation of any legal text. [Cf. Badran, Usul, pp. 37-38.]

To what extent is it justified to say that al-Shafi’i was the founder of usul al-fiqh? One theory has it that usul al-fiqh has existed for as long as the fiqh has been known to exist. For fiqh could not have come into being in the absence of its sources, and of methods with which to utilize the source materials. [Cf. Abu Zahrah, Usul p. 8ff.] This would in turn, imply that usul al-fiqh had existed long before al-Shafi’i. Numerous examples could be cited to explain how in early Islam, the Companions deduced the rules of fiqh from their sources. Usul al-fiqh, in other words, had substantially existed before the period which saw the emergence of the leading imams of jurisprudence. But it was through the works of these imams, especially al-Shafi’i, that usul al-fiqh was articulated into a coherent body of knowledge. Even before al-Shafi’i, we know that Abu Hanifah resorted to the use of analogy and istihsan (juristic “preference”) while lmam Malik is known for his doctrine of the Madinese ijma’(consensus of the people of madinah). When al-Shafi’i came on the scene, he found a wealth of juristic thought and advanced levels of argumentation on methodological issues. But the existing works were not entirely free of discordance and diversity which had to be sifted through by the standards which al-Shafi’i articulated in his legal theory of the usul. He devoted his Risalah exclusively to this subject, and this is widely acknowledged to be the first work of authority on 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.] 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. Their proximity to the source and intimate knowledge of the events provided them with the authority to rule on practical problems without there being a pressing need for methodology. [Khallaf, ‘Ilm, p. 16; Abu Zahrah, Usul, pp. 16-17] 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. 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(personal reasoning) 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. [Cf. Badran, Usul, P. 12.]

And finally 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. In his Risalah, al-Shafi’i enacted guidelines for ijtihad and expounded the rules governing the Khaas and the ‘Aam, the nasikh and the mansukh, and articulated the principles governing ijma’ and qiyas. He expounded the rules of relying on the solitary Hadith (khabar al-wa’hid) and its value in the determination of the ahkam. Al-Shafi’i refuted the validity of istihsan and considered it to be no more than an arbitrary exercise in law-making. Admittedly al-Shafi’i was not the first to address these matters, but it is widely acknowledged that he brought a coherence to usul al-fiqh, which had hitherto remained scattered and unconsolidated. [Cf. Badran, Usul, P. 14.]

It will be noted in this connection that the Shi’i ulema have claimed that their fifth Imam, Muhammad al-Baqir, and his son and successor, Ja’far al-Sadiq, were the first to write on the subject of usul. According to Abu Zahrah, who has written extensively on the lives and works of the early Imams, the Shi’i Imams have written, like many others, on the subject, but neither of the two Imams have written anything of an equivalent order to that of the Risalah. Hence al-Shafi’i’s position and contribution to usul al-fiqh remains unique, and he is rightly regarded as the founder of usul at-fiqh. [Abu Zahrah, Usul, p. 113. Badran, Usul, P. 14.]

The basic outline of the four principal sources of the law that al-Shafi’i spelled out was subsequently accepted by the generality of ulema, although each of the various schools of jurisprudence has contributed towards its further development. The Hanafis, for example, added istihsan, and custom (‘urf) to the usul al-fiqh, and the Malikis reduced the concept of consensus (ijma’) to the Madinese consensus only, while the Hanbali approach to the subject closely resembled that of the Malikis. But even so, none departed significantly from the basic principles which al-Shafi’i had articulated. [Badran, Usul, P. 14.]

A brief word may be added here regarding the difference between the usul, and the maxims of fiqh (al-qawa’id al-fiqhiyyah), as the two are sometimes confused with one another. The maxims of fiqh refer to a body of abstract rules which are derived from the detailed study of the fiqh itself. They consist of theoretical guidelines in the different areas of fiqh such as evidence, transactions, matrimonial law’, etc. As such they are an integral part of fiqh and are totally separate from usul al-fiqh. Over 200 legal maxims have been collected and compiled in works known as al-ashbah wa al-naza’ir; [Two well known works both bearing the title Al-Ashbah wa al-Naza’ir are authored by Jalal al-Din al-Suyuti and Ibn Nujaym al-Hanafi respectively.] one hundred of these, have been adopted in the introductory section (i.e. the first 100 articles) of the Ottoman Majallah (
Majalla is a codification of Hanafi commercial law,  discussed further in part two). The name ‘al-qawa’id al-fiqhiyyah’ may resemble the expression usul al-fiqh, but the former is not a part of the latter and the two are totally different from one another.

And lastly, unlike its Western counterpart, Islamic jurisprudence is not confined to commands and prohibitions, and far less to commands which originate in a court of law. Its scope is much wider, as it is concerned not only with what a man must do or must not do, but also with what he ought to do or ought not to do, and the much larger area where his decision to do or to avoid doing something is his own prerogative. Usul al-fiqh provides guidance in all these areas, most of which remain outside the scope of Western jurisprudence.

Extracts from the book Principles of Islamic Jurisprudence by M. H. Kamali.

Other Sources.


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