An Introduction toIslamic Jurisprudence (Usul al-Fiqh)

Definition and Historical Background

Dr. Muhammad Yusuf SaleemInternational Center For Education in Islamic Finance (INCEIF)

© INCEIF 2014

Definition

• Usul literally means foundation or basis upon which something else is built.

• The meaning of Fiqh• The knowledge of the legal rules (Al Ahkam Al Shariyyah),

pertaining to conduct that have been acquired from the detailed evidence in the sources(the Quran and the Sunnah)

• أدلتها من المكتسبة العملية الشرعية األحكام معرفةالتفصيلية

• The early definition of fiqh was provided by Abu Hanifah as: the knowledge of self, its right and obligations

• عليها وما لها النفسما معرفة

• Usul al-Fiqh is a body of principles and methods by which the detailed rules of Fiqh are deduced from their sources

• استنباط إلى بها يتوصل التي بالقواعد العلمالتفصيلية أدلتها عن الفرعية الشرعية األحكام

• Usul al-Fiqh deals with the – Sources of Shariah and– Methods of deduction of rules and rules of interpretation

• Fiqh in contrast, is more concerned with the knowledge of the detailed rules of Islamic law

• The broader and technical meanings of Fiqh

Usul al-Fiqh as a Methodology

• Fiqh is the law while Usul al-Fiqh is the methodology of Fiqh• The words of Allah (swt) and human reason• Reason is not an independent source of knowledge • Reason is subjective• Need for a set of rules and standards to

– Release reason from subjectivity– Evaluate the arrangements of thought and propositions

• Reason has to rely on certain tools for the investigation of the truth

• These tools differ from discipline to a discipline

The Meaning and Significance ofMethodology

• A methodology deals with a particular field of enquiry• Methodology determines

– The sources from which a particular knowledge can be derived• By setting standards for the acceptability of sources/evidence • By determining the role of reason in an investigation

– The suitability of the methods and techniques of reasoning employed in a particular field of enquiry

• By providing standards for the acceptability of evidence and a set of methods for a systematic ordering of thoughts, a methodology liberates reason from subjectivity and personal inclinations

• Methodology – Provides a framework or guidance for reasoning– Puts certain restrictions and limitations on reasoning

The Meaning of Methods• A method is defined as a systematic arrangement and ordering of

thoughts • A method teaches us how to arrange thoughts, propositions and

arguments in a way appropriate to the investigation of a certain proposition or observation

• It refers to – a procedure or way of investigation according to a defined and regular plan – A structured reasoning such as induction or deduction where thoughts

progress in an orderly way from one stage to another until they reach a certain objective and convincing conclusion

• Method also refers to research techniques and tools used to gather data such as observation, case studies, or surveys or experimentation

Objectives of Usul al-Fiqh

• To enable a jurist to– Obtain adequate knowledge of the Sources of

Shariah– Provide the jurists with methods to guide them in

their efforts to derive rules from the sources– Identify the most suitable method for the

derivation of a particular Fiqh rule– Identify the weakness of an ijtihad and to give

preference to another ruling of ijtihad

The Academic Basis of Usul al-Fiqh• Although Usul al-fiqh is an independent discipline, it is based on certain

fundamental presumptions which are derived from several other disciplines

• Sciences of Quran and Hadith– The knowledge of causes of revelation, Makki and Madani surah, abrogation– Transmission of hadith and the criteria for its acceptability

• Logic– Conceptual principles, definitions, validity of conclusion based on inductive

reasoning, etc.• Scholastic theology (‘ilm al-kalam)

– Whether reason alone can decide what is right or wrong– The place and status of reason

• General linguistic rules– Classification of words into metaphorical and literal, general and specific, etc.

Historical Development

• Usul al-fiqh as a discipline did not exist during the time of the Prophet (pbAbuh) or the companions

• During Prophet's time all legal rulings of the Shariah and fundamentals of faith were derived from: – The Quran– The Sunnah of the Prophet

Ijtihad during the Prophet’s time• The ‘Madrasah’ of the Prophet• The use of personal opinions in matters of Shariah gets its legitimacy from the

– Quranic injunctions that commands the use of reason• Inviting people to read Al-kitab and use their rational power (‘Aql) and Tadabbur

– Instructions of the Prophet to his companions to apply reason to problem not addressed by the Quran or Sunnah

• The companions learned and understood the Quran, Sunnah and the objectives of Shariah and the wisdom behind it

• They witnessed all the situations in which the Prophet gave judgment • They understood the context in which the incidents took place and judgments

were given• If the Prophet would praise some one's action

– Approved• If the Prophet would not praise some one's action

– Disapproved

ctd• The companions practiced ijtihad in response to the situations

which actually occurred to them• Their ijtihad, if approved, would become part of the Sunnah• The concept of Ijtihad at that time was confined to the following:

– When a text had more than one interpretation, personal opinion would be used to apply the one which a companion thought was the most suitable meaning. • For e.g. when the Prophet ordered Muslims to move toward the territory of

Banu Quraidha and pray their ‘Asr there. Some prayed on their way and understood Prophet's order to mean to reach the place as soon as possible other delayed their prayer until they reached the place. The Prophet did not oppose the actions of both the groups– The literal understanding of the Prophet’s order– The purposive understanding of the Prophet’s order

ctd

– Analogy• when an issue or matter would be compared with

another issue or matter dealt with by the Quran

– Using personal opinion to allow beneficial things or to prohibit things or actions that would lead to harm and wrongdoing

– Deriving a particular ruling from a general statements

• Later on the understanding of the revelation necessitated the rules of interpretation and the existence of methods

• To understand the implications of a given text when it is not self evident– Is it literal meaning (haqiqi)or metaphorical (majazi)– Is it particular (khas) or general (‘aam)– whether it conveys obligation (wujub),

recommendation (mandub), permissibility (halal), abomination (makruh) or prohibition (haram)

Caliphs’ Period• Abu Baker's (r.a.) method• First he would refer to the Quran and the Sunnah• If a solution not found he would refer to companions if they knew of

the Sunnah of the Prophet on the point• If found he would give judgment according to the Sunnah• If not he would consult with the leaders of the companions and based

on their agreement he would give the judgment• If this method also failed, he would use his personal opinion or ijtihad

either by interpreting a text, or by providing his opinion ( اجتهاد)– E.g. waging war against those who refused to pay zakat

• Qiyas and Ijma' of the companions were widely used– E.g. the decision that a Caliph should be appointed, that apostates should be

fought, that the Quran should be collected and written

ctd

• Umar’s (r.a.) Method• In addition to the methods used by the first

Caliph• Umar (r.a.) would also refer to the purpose

and aim of shariah• The reason for prohibition• Prevent wrong doings or corruption (fasad)• Public interest

• Not giving a share of the zakat fund to those who had recently embraced Islam or would return to Islam

• Not to distribute the conquered land in Iraq among the soldiers• Suspension of the Hadd punishment for theft at the time of

famine• Permission to the women to remarry in case if their husbands

are not heard of for a period of 4 years- in place of the condition of information of the husband's death

• The punishment for a group of people who jointly killed one person

• The extension of the practice of ‘Aqila

• During Caliph Usman’ time there were not many decisions– collection of the Quran

• Ali (ra)Used to formulate his own opinions by means of Ijtihad, based on Qiyas, Istishab and the broader objectives of the shariah

• During Caliph Usman's time the companions spread out in different parts of the Muslim world and occupied the positions of intellectual and religious leadership

• They were approached by the people of their regions for decisions regarding various problems

• They gave their decisions either – According to what they had learnt and retained in their memory

from the commandments of the Prophet– According to what they understood from the Quran and the

Sunnah.• Often they formed an opinion by looking to the Shariah

value which led the Prophet to take a decision

Reasons for Differences of opinions• 1- Different interpretations of the Quranic verses

– The interpretation of the Quran caused differences of opinion among the companions.

– The points on which the Quranic injunctions were either silent or ambiguous were to be explained. These verses were some time interpreted in the light of the traditions from the Prophet, and some times on the basis of opinion

– " " قروء ثالثة بأنفسهن يتربصن 2:228والمطلقات – "Women who are divorced shall wait, keeping themselves apart, three

courses.– Abdullah ibn Mas’ud, Ali, and Umar (ra) interpreted قروء to mean

menstruations.– A’isha, Abdullah ibn Umar and Zaid ibn Thabit interpreted قروء to mean

the period of purity between menstruation

• 2- Differences also arose with regard to Hadith due to certain factors:– Non-availability of hadith – E.g. the Hadith on Riba al-fadhl

• According to Abdullah ibn Abas and Usamah ibn Zaid there is no Riba except on loan.

• Abu Sai’d al-Khudri, ‘Ibadah ibn Samit, Abu Hurairah and Uthman ibn ‘Affan reported the famous Hadith on Riba in six commodities in a hand-to-hand transaction.

• The first opinion was later rejected in favor of the second opinion on the basis of Ijma'

– In some case a Hadith was not known to a companion, and he therefore decided a problem brought to him on the basis of his opinion. When the relevant tradition was brought to his attention, he withdrew his personal judgment

• 3-Another factor that produced difference of opinion among jurists was the exercise of personal opinion (ijtihad)– For example Ibn Mswoud was asked about a woman’s

entitlement to dower (mahr) if her husband died without fixing its amount and consumatinging the marriage

– His view- she is entitled to the average dower which a woman of her social standing might expect, received full share in the inheritance of her husband and that there would be a period of waiting (‘iddah)

– In the opinion of Abdullah ibn Umar and Zaid ibn Thabit such a widow would not receive any dower but is entitled to her share in the inheritance

The Period of the scholars of the Successors’ (تابعين)

• Most of the successors who gave fatwa lived with the fuqaha among the sahabah. Their methods of giving fatawa did not differ from those of the sahabah

• The successors– Retained in their memory ahadith of the Prophet and the opinions of his

companions– Took their stand on the opinions expressed by the companions– Attempted to reconcile the opposite views

• With the end of the successors’ period, there began a period wherein the followings were in circulation in each principal town– Different interpretations of some Quranic verses– the traditions of the Prophet – the opinions and decisions of the companions and – the opinions and decisions of the successors

• There were also differences among the jurists in each principal town

• In the absence of a procedure to guide personal opinions differences increased

• Contradicting legal decisions were given on the same case in the same city and at the same time

• In order to unify legal opinions Umar bin Abdul Aziz decided that:– That the practices and sayings attributed to the Prophet should be

collected and written down– That fatwa should be given by certain scholars named by the

khalifa

The time of Imams of Ijtihad

• The fuqaha of this period took the– Ahadith of the Prophet– Legal decisions of the Caliphs– Legal scholarship of the sahabah and the 3rd

generation – and then produced their own ijtihad

• They cited the opinions of the companions and the successors as evidence to support their own arguments

The Traditionalist andRationalist Schools

• Differences in legal opinions were also due to local and regional factors • After the time of the Successors the people began grouping themselves on the

basis of their differences in deriving legal points from the sources• The jurists of different regions based their decisions and legal verdicts on the

opinion and decision of the Companions and successors who lived in their respective places

• The jurists of Madinah derived their legal knowledge from the reports and verdicts of Umar, Abdullah ibn Umar and ‘Aisha (ra)

• The jurists of Iraq derived their legal doctrine from the reports, opinions and judgments of Ali and Abdullah ibn Mas’ud (ra)

• There emerged the two early schools of– Hijazi or Medina School-the traditionalist ( الحديث ( أهل– Iraqi or Kufa School-the rationalist ( الرأى (أهل

• They were engaged in intense legal activities had different approaches on how to derive legal rules from the sources

• The center of Traditionalist school ( الحديث ( أهلwas in Madinah, Hijaz because the great number of ahadith was known to the people of that area

• In addition there were the fatwa and reports of the four caliphs and the Companions and they did not need to use deductive reasoning (رأى) in order to derive law

• The region was more stable- no changes-continuation

• The school of Rationalist ( الرأى was centered in (أهلKufah, Iraq – There were comparatively few ahadith in circulation– Kufah was the new capital of Caliphate and attracted new

people from different backgrounds– great number of legal problems, unprecedented legal issues– The fabrication of hadith became wide spread. The scholars

were forced to lay down condition for the acceptance of ahadith

– only few ahadith given by few Companions living in Iraq were accepted

• The scholars of this group thought that legal interpretations of the Shariah should– Have a basis in reason – Take into account the best interest of the people – Be backed by wisdom

• They in many cases would give legalistic preference to the reason when it conflicted with the evidence of certain categories of ahadith (ahad hadith)

• Applying different criteria for determining the authenticity of a certain ahadith

From Geography to Personalities

• The principal scholar and teacher in Madinah was Imam Malik– Taught Hadith and had his own collection of Ahadith (al-

Muwatta)– The practice of the people of Madinah (‘amal ahl-Madinah)

• The principal scholar and teacher in Kufah was Imam Abu Hanifa– Had access and relied on fewer Hadith– Deductive reasoning (Qiyas) and juristic preference

(Istihsan)– Custme (‘Urf)

• Imam Shafi'i was born in 150 AH– Studied Fiqh first in Mecca, went to Madinah studied hadith from Imām

Mālik ibn Anas and memorized his al-Muwatta– Went to Iraq and attended the study circles of Imam Muhammad al-

Shaybani.• Imam Shafi'i did not agree with some approaches of Ahl al Hadith,

– The practice of the people of Madina,– The ijma’ of the people of Madinah

• He also could not agree with the rationalist camp (ahl-al-rai) for imposing overly strict conditions for the acceptance of Hadith with regard to the narrators’ reliability.

• He was unavoidably drawn into disagreement

• At first Shafi'i was more inclined towards ahl al hadith, defending their positions, giving them leadership and supplying methods of defense against the advocates of rationalist school

• Later on after settling in Egypt, Shafi'i seems to have felt more strongly the need to strike a balance between the two schools of thought, and he sought to find a common ground of agreement

• When Shafi'i came on the scene, he found a wealth of juristic thought and arguments on methodological issues

• These were later sifted and articulated by Imām Shafi'I in his Risalah

• Imām Shafi'i came to the conclusion that a methodology was needed – to collect the principles of jurisprudence (usul al-fiqh)– to organize the basic rules for their application – to develop a methodology by means of which question of Fiqh may be

decided through proper recourse to valid and relevant forms of evidence. • The application of these methods would produce a Fiqh that would

provide an alternative to the two established schools of legal thought.

• It was for this purpose that he wrote al-Risalah ( الرسالة ) which is the first work of authority on Ushul al Fiqh.

• He built his Fiqh on the foundations and principles expounded in that book

• “With the expansion of conquest and the consequent widening of the outlook of Islam these early scholars and legists had to undertake a wide view of things, and to study local conditions of life and habits of new peoples that came within the fold of Islam.” Mohammad Iqbal, The Reconstruction of Religious Thought in Islam. Iqbal referring to the emergence of almost 19 schools of law from the middle of the 1st century to the beginning of the 4th century.

• He further says: The schools of law are "individual interpretations and as such cannot claim any finality".

• The founders of our school never claimed finality for their reasoning. Each generation should be permitted to solve its own problems in the light of their own experience guided by Qur'an and the Sunnah.

• “It was due to the needs of everyday practical life that fiqh, and not economics and social sciences in general, got the greatest attention from the Muslim jurists in the formative history of Islamic law. This focus on the actions, rights, and duties of an individual Muslim has subsequently influenced the later efforts of Muslim jurists in developing a methodology for fiqh. Usul al-fiqh has the most comprehensive methods for legal reasoning.” Saleem, Methods and Methodology in Fiqh and Islamic Economics, Review of Islamic Economics

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Dr. Muhammad Yusuf SaleemTel No. 603 7651 4161Email: yusuf@inceif.org