Introduction to Usul al-Fiqh
From:
Principles of Islamic Jurisprudence
Mohammad Hashim Kamali
I. Definition and Scope
Usul al-fiqh is concerned with the sources of Islamic law,
their order of priority, and the methods by which legal rules may be
deduced from the source materials of the Shari’ah. It is also
concerned with regulating the exercise of ijtihad. The sources
of the Shari’ah are of two kinds: revealed and non-revealed.
Whereas the former provide the basic evidence and indications from which
detailed rules may be derived, the latter provide the methodology and
procedural guidelines to ensure correct utilisation of the source
evidence. Usul al-fiqh, or the roots of Islamic law, thus
expound the indications and methodology by which the rules of fiqh
are deduced from their source evidence. The rules of fiqh are
thereby 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 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 contain both specific
injunctions and general guidelines on law and religion, but it is the
broad and general directives which occupy the larger part of the legal
content of these sources. The general directives that are found in the
Qur’an and Sunnah are concerned not so much with methodology
as with substantive law, and they provide indications which can be used
as raw material in the development of law. The methodology of usul
al-fiqh refers mainly to methods of reasoning such as analogy (qiyas),
juristic preference (istihsan), presumption of continuity (istishab)
and the rules of interpretation and deduction. These are all designed to
serve as an aid to the correct understanding of the sources of Shari’ah
and ijtihad. While the clear directives of the Qur’an and the
Sunnah command permanent validity, the methodology of usul
does not, for it was developed after the revelation of the Qur’an and Sunnah
came to an end, and most of it consists of juristic propositions and ijtihad
advanced by scholars and ‘ulama’ of different periods. As
an instrument of legal construction and ijtihad, the
methodology of usul al-fiqh must therefore remain open to
further adaptation and refinement in order to respond to the changing
needs of society and civilisation.
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. 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 the language. 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’. 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 fiqh in isolation from its sources is not a faqih.
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
states: ‘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’. Fiqh is acquired knowledge
which is obtained by study and self-application and is therefore
different from inherent knowledge, for example that of God, who is
All-Knowing; it is also different from the knowledge of the Prophet, and
that of the angel Gabriel, as theirs was given or transmitted to them
essentially through revelation.
The word asl has several meanings,
including proof, root, origin and source, such as in saying that the asl
(proof) of this or that rule is ijma’; or in the expression usul
al-fiqh, which means the roots of fiqh or its underlying
evidence. It is also used in the sense of the original rule or norm as
in the legal maxim that ‘the asl in all things is
permissibility’, or when it is said that al-asl bara’ah al-dhimmah,
the norm is absence of liability. Asl also means the foundation
on which something is constructed. When it is said, for example, that qiyas
or analogy must have an asl, this may be the Qur’an or the Sunnah.
Asl also means that which is preferable (al-rajih),
such as in the saying that al-asl fi’l kalam al-haqiqah (the
literal meaning is preferable to the metaphorical one). And lastly, asl
and usul denote rules or principles on which a branch of
knowledge may be founded, such as in usul al-hadith, which is
equivalent to qawa’id al-hadith, that is, the rules governing
the science of hadith.
Knowledge of the rules of interpretation is
essential to the proper understanding of a legal text. Unless the texts
of the Qur’an or the Sunnah are correctly understood, no
rules can be deduced from them, especially in cases where the text in
question is not self-evident. Hence, the rules by which one is to
distinguish a speculative text from a definitive one, the manifest (zahir)
from the explicit (nass), the general (amm) from the
specific (khass), 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 the attention 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. 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 its limits are, and what
authority it would command in conjunction, or in conflict, with other
recognised proofs are questions which are of primary concern to usul
al-fiqh. Juristic preference, or istihsan, is another
rationalist doctrine and a recognised 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 the limits are of personal preference and
opinion in a particular case, is largely a question of methodology and
interpretation and therefore forms 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 apparent 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 ‘ulama’.
The purpose of usul al-fiqh is to help the jurist 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
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 ‘amm, the khass, 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 of 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 use in the understanding and
interpretation of any legal text.
To what extent is it true 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 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 utilise these source
materials. This would, in turn, imply that usul al-fiqh 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 existed
well before the period that 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, while Imam Malik
is known for his doctrine of the Medinese ijma’, subjects we
shall have occasion to return to. 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 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, since 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 sources and intimate knowledge of
events, provided them with the authority to rule on practical problems
without there being a pressing need for methodology. 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 ‘ulama’ 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 thus the need for a 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.
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 about 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 rules governing the khass and the amm,
the nasikh and the mansukh, and articulated the
principles governing ijma’ and qiyas. He set out the
rules for relying a the solitary hadith (khabar al-wahid)
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 coherence to usul al-fiqh, which
had hitherto remained scattered and unconsolidated.
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