Q abeelat
HAYL
AlMaghrib Institute
THE
CODE
OF SCHOLARS:
USOOL AL-FIQH
Taught by Sheikh Yasir Birjas
Notes compiled by Qabeelat Hayl
o What is halal and haram?
o Philosophy of the Islamic law
o Usool Al-Fiqh is a science that has an exact methodology for deriving
and dictating Islamic Law.
o Anyone deprived from the principles of law are deprived from their
God.
This class is beneficial because
1) We can set our priorities, in terms of the obligatory and recommended
acts
2) It will help in understanding the complexity and perfection of the
shari’ah and its suitability and flexibility for every time and purpose
3) It will help in going through different books of fiqh without getting
bogged down by the differences in opinion. It will also help in
understanding where those opinions came from.
4) It will help to develop the skill to recognize a fiqh opinion that is only
pertinent to the 21st century
5) It will help in recognizing if a “proof” or evidence for a law is valid
regarding your own fiqh issues.
Some recommended books on Usool Al Fiqh are:
o “The Evolution of Fiqh” by Bilal Phillips
o “The Principles of Islamic Jurisprudence” by Mohammad Ibn
Hashim Kemal
o “Introductory text in Islamic Jurisprudence” by Imam Ahmad Al-
Basyouni.
PART ONE: UNDERSTANDING USOOL AL-FIQH
Breaking down the study of Usool al-Fiqh Binder Page 3
History of Islamic Law:
o The legal science which studies the historical factors behind the
formulation of Fiqh (Islamic Law), its source (the Shari’ah), the
emergence of Fuqaha’ (Jurists), and the development of the various
Mad’habs (Schools of thought) and their Usool afterwards, starting
with the beginning of the revelation throughout the different eras until
today.
Example:
The historical factors behind the formulation of the two primary
schools of Usool:
1) Tareeq Al-Mutakallimeen: that of the Ahl al-Hijaz who
relied on Taqleed (uncritical following)
2) Tareeq Al-Fuqahaa: that of Ahl al-Iraq who relied on Ijtihad
(personal reasoning)
Rules of Islamic Law (Values of Islamic Law):
o The study of the Hukum Shar’ee (The command of Allah) and its
various values and related principles, including how that command is
to be carried out and its conditions for doing so.
1. Hukum Takleefee (constituting a demand or an option).
a. Allah tells us to establish prayers and fast during Ramadan.
2. Hukum Wad’ee (constituting an enactment).
a. The prerequisites of prayer (such as facing the qiblah).
Example:
1. Hukum Takleefee: Wajib and Haram.
2. Hukum Wad’ee: Sabab (cause) and Shart (condition)
PART ONE: UNDERSTANDING USOOL AL-FIQH
Sources of Islamic Law:
o The study of the sources of legislation and enactment of
Islamic Law and principal proofs of the Hukum Shar’ee,
both the sources agreed upon by the majority of Muslim
jurists and not agreed upon.
Example:
· Sources about which there is agreement:
o The Qur'an, Sunnah, Ijmaa’, and Qiyas.
· Sources about which there is disagreement:
o Statement of the Companions and Istihsaan (Juristic
preference).
Dalalat ul-Alfaadh (Textual Implications):
o The study of the implications of the legal texts, language codes, and
the methodology and rules of interpretation. It is necessary in
understanding how a ruling can be derived from certain evidences.
Example:
Words used for a specific inclusion or exclusion such as Al-
Mutlaq (the Absolute) and Al-Muqayyad (the Qualified) and the
methodology practiced to determine such texts and reconciling
between them.
Ijtihad and Taqleed (Personal Reasoning and Uncritical Following):
o The study of the two methods Muslim Jurists follow in the process of
legislation and enactment of the law and issuing the legal verdict
(Fatwa).
Example:
· Rules and regulations of Ijtihad and Taqleed, the conditions
of the benefactors; both the Mujtahid and Muqallid (layman).
· The etiquettes of Fatwa (issuing the legal verdict) and the
Mufti who is the authority of such a verdict.
PART ONE: UNDERSTANDING USOOL AL-FIQH
Al-Qawaa’ed Al-Fiqhiyyah: Binder page 4
o The study of the maxims governing the Islamic Law.
Maxims of Islamic law refer to a body of abstracts
rules which are derived from the detailed study of Fiqh
itself. A legal code under which many Hukum Far’ee
rules from various areas of the law are systematically
arranged.
Hanafi scholars have developed five main principles for deriving fiqh called
Al-Qawaa’ed Asliyah. Scholars of other mad'habs followed along and added
sub rules under each maxim.
Example:
“Certainty is not removed because of mere doubt” is one of five
absolute maxims under which many other secondary maxims
are arranged.
· In purification, one who is certain about his/her wudu and
doubtful about the nullification of the wudu is considered
in a state of purification.
· If you have a habit of making wudu and you walk of the
restroom, and then you start prayer and start doubting
that you have wudu, do you still need to make wudu’?
Then you have to assume that you didn’t make wudu
because there is certainty that you used the restroom but
not making wudu.
· On the other hand, if you know you made wudu but aren’t
sure if you lost it, you should assume that you still have it
because you are certain that you had made it.
· In business transactions, one who admits the reception of
debt and doubts the payment (has no proof), even when
they had in fact paid is considered liable until he/she
provides a proof that suggests otherwise.
Maqasid Ash-Shari’ah:
o The study of the intents and higher objectives of
Shari’ah and Islamic Law. The general and specific
purpose behind the enactment of a particular rule
or value in different areas into Islamic Law. The
study of the essential human values be it a
PART ONE: UNDERSTANDING USOOL AL-FIQH
necessity, a need or an accessory. This was
developed by Imam Ash-Shatibi.
Example:
five values that all the Prophets shared was to protect and
preserving religion (deen), intellect, life, progeny, and wealth.
Welcome to Usool al-Fiqh Binder page 5
Usool al-Fiqh (as a genitive construction) is defined by its two components:
· Usool (plural of Asl):
The proof, the foundation, that which is preferable (Al-Rajih), the
continuous (original) rule and the original case in rules of Qiyas. [For
the purpose of this class, we will be using the first definition]
Example: Eating pig and a dead animal is haram, which is the Asl. In
the case we are lost or in a situation that we have to eat or we die,
then we can eat it and it becomes Wajib for us to eat it.
o Usooli: jurist; one who knows the sources and evidence behind
rulings knows why it’s wajib to pray five times a day
· Al-Fiqh:
Linguistically: (faqiha) The understanding for what is intended.
Technically: (fiqh) The knowledge of the practical rules of Shari’ah
acquired from the detailed evidences in the sources of Shari’ah; it does
not deal with Aqeedah
o Faqih: one who understands the rulings of Fiqh knows it’s
wajib to pray five times a day
Usool Al-Fiqh (as a term made up of both words): The sciences of
knowing what the sources of Fiqh are and how to use those sources, and
the circumstances of the benefactor [i.e. the Mujtahid or the Layman
(Muqlid-confined to one school of thought)].
A Mujtahid needs to follow all the rules of the Islamic law and cannot
be confined in a single school of thought when deriving laws. He also
needs to be aware of laws that were abrogated (Nasikh Mansookh).
Sources: Qur’an, Sunnah, ijmaa', ijtihad
PART ONE: UNDERSTANDING USOOL AL-FIQH
Example 1:
110: Muhsin Khan: And perform As-Salat (Iqamat-as-Salat), and
give Zakat, and whatever of good (deeds that Allah loves) you send
forth for yourselves before you, you shall find it with Allah. Certainly,
Allah is All-Seer of what you do. [Surah Al-Baqarah, 2:110]
· This is a specific verse from the Qur’an. We learn from this verse that
we must establish salah and we must give zakah. How did we come to
that conclusion?
o The order: Establish Salah!
· The Usool al-Fiqh principle: If Allah commands us to do something
(Amr), the default is that it is compulsory for us to do it NOW.
o Thus: establish salah is compulsory (fard).
Example 2: The order: Give Zakah!
· The Usool Al-Fiqh principle: If Allah commands us to do something, the
default ruling is that it is compulsory for us to do it.
o Thus: Giving zakah is compulsory (fard).
· The way we can tell if something is wajib or mustahab and so on is by
the way the order is given, such as by direct command or by
encouragement
Subject: The legal proofs which lead to the deduction of rules of Fiqh.
Purpose:
· To deduce the rules of Fiqh from indications that are provided in the
sources of Islamic Law, and to help the jurist obtain an adequate
knowledge of the sources of Islamic Law and of the methods of juristic
deduction and inference.
Objective:
· To regulate Ijtihaad and guide jurists in their effort at deducing the law
from its sources.
· To protect the Islamic System from corruption by those who are unfit
to make Ijtihad but do so anyway [Surah A’raf (7:33) forbids speaking
about Allah about which one has no knowledge]
PART ONE: UNDERSTANDING USOOL AL-FIQH
·
33: Muhsin Khan: Say (O Muhammad SAW): "(But) the things that my
Lord has indeed forbidden are AlFawahish (great evil sins, every kind
of unlawful sexual intercourse, etc.) whether committed openly or
secretly, sins (of all kinds), unrighteous oppression, joining partners
(in worship) with Allah for which He has given no authority, and
saying things about Allah of which you have no knowledge."
[Surah al-A’raaf, 7;33]
The need for Usool al-Fiqh:
· It 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 Muslim scholars.
· The only people that need to use it are the ones that are in the
position of implementing the Shari’ah. It is not needed to be used by
everyone.
The ruling of Usool al-Fiqh:
· Fard Kifaya: obligatory upon the community except for the Mujtahid
and Muslim jurist where it becomes Fard Ayn (personally obligatory).
Other Usool al-Fiqh principles include (among others): Binder page 6
· If Allah forbids us from something, the default is that it is forbidden to
do that action.
· The Prophet’s (sallallahu aleyhiwasalam) actions are proofs for Islamic
Law.
o To what extent? E.g.: he (sallallahu aleyhiwasalam) loved eating
pumpkins; do we have to love it too?
· If a statement was made and no scholars comment (or make an
objection) on it, that statement does not carry the strength of Ijmaa’.
Fiqh speaks about everything that is needed to be done in terms of the fard
and the haram within our actions.
Usool al-Fiqh deals in where we get those rules and regulations from.
PART ONE: UNDERSTANDING USOOL AL-FIQH
Fiqh vs. Usool Al-Fiqh Binder page 7
Rulings vs. Where one derives rulings from and how to understand evidences
in general
Fiqh teaches us: Usool Al Fiqh teaches us:
It is only Fard to pray if
one is sane and has
reached the age of
puberty
What does Haram mean, what is Mustahab, etc.
If someone talks in Salah,
it breaks their Salah
How to derive a ruling from an Islamically
acceptable source (i.e. How do we understand
some commandments as being sunnah as
opposed to being fard)
It is Haram to eat pork Which humans are authorized to issue legal
verdicts and deduce rules of Islamic Law from
the sources of Islamic Law
In other words, what are the conditions of a
Mujtahid and what should he do when sources
of legislation apparently contradict
Giving Zakah is Fard What can be used as proof for a fatwa (i.e. a
Mufti can use the Qur’an or a Mufti cannot use
today’s horoscope)
If someone passes wind it
breaks their wudu
How to reconcile between two different
evidences when they appear to contradict each
other
It is only Fard to pray if
the time for Salah has
arrived
How to interpret different language codes
It is Fard (compulsory) to
pray five times a day
How to deduce a new ruling based on a ruling of
an original case mentioned in the sources of
Islamic Law
PART ONE: UNDERSTANDING USOOL AL-FIQH
How did scholars come to these Fiqh conclusions? They had to use the tools
taught by Usool Al-Fiqh (The Methodology of deriving Fiqh)
· Fiqh deals with actions of you and I and within the details of those
actions.
· Usool Al-Fiqh deals with where Islamic rules come from, or its sources,
and why we can use the sources in such a manner.
2. Where do these Usool al-Fiqh Principles come
From? Binder page 8
Just like specific Fiqh rulings (like praying five times a day) need proof, such
is the case with the principles of Fiqh. Here we will look at where
principles/codes come from.
One: From the Qur’an
Example: There is an Usool al-Fiqh principle that “there can be no
commandment upon a person which is more than what that person is
capable of.”
This is derived from the verse:
."
286: Muhsin Khan: Allah burdens not a person beyond his scope. He
gets reward for that (good) which he has earned, and he is punished for that
(evil) which he has earned. "Our Lord! Punish us not if we forget or fall into
error, our Lord! Lay not on us a burden like that which You did lay on those
before us (Jews and Christians); our Lord! Put not on us a burden greater
than we have strength to bear. Pardon us and grant us Forgiveness. Have
PART ONE: UNDERSTANDING USOOL AL-FIQH
mercy on us. You are our Maula (Patron, Supporter and Protector, etc.) and
give us victory over the disbelieving people. [Surah Al-Baqarah, 2:286]
With this ayah, we cannot excuse ourselves from the obligatory
acts in Islam without a valid reason. This is for the optional acts
in Islam or for those with valid reasons.
Two: From the Sunnah
Example: There is an Usool al-Fiqh principle that states, “If we are
commanded to do something, the default ruling is that it is compulsory
for us to do it.”
If it is an order and command, the thing would become wajib
and we need to do it immediately, but if He gave a command
with only words of encouragement without direct command, it
would be considered mustahab.
This is derived from the statement of the Prophet SAW,
“If it were not for the burden placed on my Ummah, I would have
commanded the use of Miswak at each Salah.” [Agreed Upon]
Three: From the Arabic language
Example: There is an Usool al-Fiqh principle that states, “If a
command is given it requires that the person do it immediately.”
This is derived from the science of the language, something that
linguists understand. For example, they’ll say, if a master tells his
servant, “Get me water,” that servant would be blameworthy if he
delayed in bringing the water.
The Qur’an was revealed in clear, pure Arabic language “lisanin
Arabeeyin mubeen.” We can understand the language of the Arabs and
their culture and the way they use certain terms to understand the
Qur’an.
Four: From Logic
Example: There is an Usool al-Fiqh principle that states, “If two
Mujtahids disagree on a specific ruling then one of them is wrong.”
PART ONE: UNDERSTANDING USOOL AL-FIQH
This is derived from pure logic. If two people make two opposing
opinions, one says apples and the other says oranges, then logically
one of them is wrong. However, this only refers to completely
contradictory rulings. For example, some pray two rak’ahs before ‘Asr
and some pray 4, but both are justified.
Also, both opinions could be acceptable, even if only one was correct.
The sahaba once differed on when to pray ‘Asr, as Muhammad
(sallallahu aleyhiwasalam) told them not to pray until they had
reached their destination. As the sun began setting, some Sahaba
decided the Prophet (sallallahu aleyhiwasalam) only meant they should
hurry, not that they should actually miss the prayer, and decided to
pray. Another group decided to take the Prophet (sallallahu
aleyhiwasalam) literally and prayed ‘Asr after the sun had set.
Muhammad (sallallahu aleyhiwasalam) accepted both approaches, but
those who prayed on time chose the correct option according to Sheikh
Uthaymin rahimahu Allah.
History of Usool al-Fiqh Binder page 9
Era of the Prophethood:
No need for methodology because solutions to problems were obtained
through either divine revelation or the Messenger’s(sallallahu aleyhiwasalam)
direct ruling. Many Usool principles were founded and obviously practiced by
the Messenger of Allah(sallallahu aleyhiwasalam) and therefore laid the
foundation down for this science.
After the Prophet (sallallahu aleyhiwasalam) died, the first two sources were
established, Qur’an and Sunnah, and Ijmaa' and Qiyas began coming out
Example:
Encouraging Ijtihaad of the Sahaba:
“If the Hakim exerts an Ijtihaad and appeared to be correct, he
will get double reward and if the Hakim exerts an Ijtihaad and
appeared to be wrong he will get one reward.” [Bukhari and
Muslim]
PART ONE: UNDERSTANDING USOOL AL-FIQH
The usage of Qiyas in comparing a kiss during the month of
Ramadhan to rinsing one’s mouth, as both don’t break the fast.
Era of the companions:
· Their decisions remained in close contact with the teaching of the
Messenger of Allah(sallallahu aleyhiwasalam) as a source of law.
· Their decisions were mainly inspired by the Messenger’s(sallallahu
aleyhiwasalam) precedent.
· They exercised Ijtihaad and Qiyas widely to answer many
unprecedented events.
· The principle of Ijmaa’ was developed.
Ibn Umar: “It is feared that rocks fall down from the skies upon you,
I tell you the Messenger of Allah (sallallahu aleyhiwasalam) said such
and such and you tell me Abu Bakr and Umar said such and such.”
Umar ibn Al-Khattab: “Recognize similar cases and, using your
intelligence, make an analogy.”
Umar was known for doing shura and deriving laws by using reasoning
based on the sources
Ear of the Taabi’een:
At the time of the Taabi’een, many new nations entered into Islam.
With those nations came new issues. Many of the Mujtahids of this time
period fell back on specific principles to derive those Islamic rulings.
Disputation and diversity of juristic thought in different quarters accentuated
the need for clear guidelines. New sources for deriving fiqh were developed
at this time, including Al-Istihsaan (Juristic Preference).
Imam Malik considered the practice of people of Madinah to be a source
The first Usool al-Fiqh book by Imam Shaafi’ee: In 204H (820 CE), he
wrote a book called Ar-Risaalah. In it he gathered and articulated the
principle by which a scholar could come to his conclusions. He called his book
Ar-Risalah (the message). His methods weren’t based so much on philosophy
as his mad'hab now uses.
PART ONE: UNDERSTANDING USOOL AL-FIQH
Two Classical Approaches Binder page 10
The Theoretical Approach
Formed independently of fiqh
The Deductive Approach
Formed in light of fiqh
Name of
School
Tareeqat Al-Mutakallimeen,
Usool Ash-Shafi-eyyah
Tareeqat Al-Fuqahaa,
Usool Al-Hanafiyyah
Mad’hab
of School
Maliki, Shafi'ee, Hanbali, and the
Mu'tazilah (aka Usool Al-
Shafa'eeye)
Hanafi - Limited amount of
linguistic and very practical.
They would follow the imams.
Main
Approach
1. The exposition of the
theoretical doctrine prior to the
application of the issue of Fiqh.
1. The theory is formulated in
the light of its application to
relevant issues of Fiqh.
2. Articulating the theoretical
principles of Usool al-Fiqh
independently without
necessarily attempting to relate
these to Fiqh itself. (like
discussing the physical attributes
of angels)
2. In a pragmatic approach,
principles of Usool Al-Fiqh are
expounded in conjunction with
Fiqh itself. (If it didn’t have any
effect on fiqh, it was not to be
discussed for the purpose of
deriving Usool principles)
3. Engaging into complex issues
of philosophical character which
may or may not contribute to the
development of the practical
rules of Fiqh. Such as the issue
of the Prophet's(sallallahu
aleyhiwasalam) infallibility
before the prophetic mission.
They only discuss these in order
to perfect the theory.
3. A principle of Usool which
appears to be in conflict with an
established Fiqh principle
entails an adjustment to the
theory in different ways.
Theoretical conversations would
not be found in this Mad’hab.
Since it doesn't concern the
practicality of the theory. Like
we won't concerns ourselves
about the infallibility before
Prophethood.
Major
Books
1. Al-Mutamad by Abdul Hussayn
Al-Bassri 436H (1044 CE).
1. Kitab fil Usool by Abul
Hassan Al-Karhi 340H (951
CE).
2. Al-Burhan by Imam Al-
Haramayn Al-Juwayni 487H
(1094 CE).
2. Usool Abu Bakr Al-Razi Al-
Jassas 370H (980 CE).
3. Al-Mustasfa by Al-Ghazali
505H (1111 CE).
3. Ta'sees Al-Nadhar by Al-
Dabboossi 430H (1038 CE).
4. Al-Mahsoul by Fakhruddin Al-
Razi 606H (1209 CE).
4. Usool Al-Bazdawi 482H
(1089 CE).
5. Al-Ihkaam Fi Usool Al-Ahkam
by Al-Aamidi 713H (1314 CE).
5. Usool Al-Sarakhsi 490H
(1096 CE).
PART ONE: UNDERSTANDING USOOL AL-FIQH
· The Theoretical or rational approach was used by the people in the
Hijaz area only to derive principles of Usool Al-Fiqh. After deriving the
principles from the Qur’an and Sunnah, scholars attempted to fit their
mad’habs opinions to them. If they didn’t fit, they were to be modified.
o When it came to deriving Islamic Law, they relied on Taqleed,
limiting themselves to whatever texts they had, and were
therefore also known as the literalists. Those in the Hijaz area
followed this approach because they had access to many more
ahadith.
o Independent of previous imams’ opinions
o Don’t look into opinions of fiqh
o Engage in conflicts of theory and philosophy for no reason
· E.g.: infallibility of Prophet (sallallahu aleyhiwasalam)
before Prophethood We’re not obliged to follow his
actions before he became a Prophet
o The followers of the mad’hab developed the principles
· The Deductive or traditional approach was used by the people of Iraq
who were exposed to Persian culture, which emphasized rational
reasoning. It is called traditional because the principles of Usool were
derived based on Imam Abu Hanifa’s opinions on fiqh issues. If one of
his opinions contradicted a principle of Usool, the principle itself had to
be modified. This is why it is difficult for the Hanafi school of thought
to say the imam was wrong. Imam Karkhi says: if it contradicts the
statement of the sheikh, then maybe the source can be understood in
two ways or this opinion is a better one
o When it came to deriving Islamic Law, Imam Abu Hanifa used
Ijtihad if he had no available source (though there could have
been sources which he didn’t know about). Therefore, his
mad’hab is rational in terms of how Islamic Law was
derived practical and easy to understand
o number of principles limited because Hanafis just follow the
example of the imam
Even though there is only one major mad’hab that used Tareeqat Al-Fuqaha,
it has the maximum number of followers. In general
· The Hanbali mad'hab is followed by those in Saudi Arabia
PART ONE: UNDERSTANDING USOOL AL-FIQH
· The Maliki mad’hab is followed by those in North Africa and Spain
· The Shafi’ee mad’hab is followed by those in Yemen, East Africa and
Indonesia, and Malaysia
· The Hanafi mad’hab is followed by those in India, Pakistan, Turkey,
Iraq, and most other Muslims in the world
Tareeqat Al-Muta’akhireen:
This is a third approach to deriving principles of Usool which developed after
the first two and reconciled them both. Most contemporary scholars use this
approach.
Most books come from the Hanafi approach
Badee’un Midham: Imam As-Sa’ati 694 H
Tanqeeh Al-Usool: Sadrush Shar’iah 747 H
Jam’ul Jawaami: Tajuddin As-Subki (Shafi’) 771 H
At-Tahreer: Abil Humam Al-Hanafi 861 H
Musallam Ath-thuboot: Ibn Abdish-Shakoor (Hanafi) 1119 H
Fawatih Ar-Rahamoot (commentary on ^): Ibn Nidhamuddin Ansari
PART ONE: UNDERSTANDING USOOL AL-FIQH
Notes compiled by Qabeelat Hayl
o What is halal and haram?
o Philosophy of the Islamic law
o Usool Al-Fiqh is a science that has an exact methodology for deriving
and dictating Islamic Law.
o Anyone deprived from the principles of law are deprived from their
God.
This class is beneficial because
1) We can set our priorities, in terms of the obligatory and recommended
acts
2) It will help in understanding the complexity and perfection of the
shari’ah and its suitability and flexibility for every time and purpose
3) It will help in going through different books of fiqh without getting
bogged down by the differences in opinion. It will also help in
understanding where those opinions came from.
4) It will help to develop the skill to recognize a fiqh opinion that is only
pertinent to the 21st century
5) It will help in recognizing if a “proof” or evidence for a law is valid
regarding your own fiqh issues.
Some recommended books on Usool Al Fiqh are:
o “The Evolution of Fiqh” by Bilal Phillips
o “The Principles of Islamic Jurisprudence” by Mohammad Ibn
Hashim Kemal
o “Introductory text in Islamic Jurisprudence” by Imam Ahmad Al-
Basyouni.
PART ONE: UNDERSTANDING USOOL AL-FIQH
Breaking down the study of Usool al-Fiqh Binder Page 3
History of Islamic Law:
o The legal science which studies the historical factors behind the
formulation of Fiqh (Islamic Law), its source (the Shari’ah), the
emergence of Fuqaha’ (Jurists), and the development of the various
Mad’habs (Schools of thought) and their Usool afterwards, starting
with the beginning of the revelation throughout the different eras until
today.
Example:
The historical factors behind the formulation of the two primary
schools of Usool:
1) Tareeq Al-Mutakallimeen: that of the Ahl al-Hijaz who
relied on Taqleed (uncritical following)
2) Tareeq Al-Fuqahaa: that of Ahl al-Iraq who relied on Ijtihad
(personal reasoning)
Rules of Islamic Law (Values of Islamic Law):
o The study of the Hukum Shar’ee (The command of Allah) and its
various values and related principles, including how that command is
to be carried out and its conditions for doing so.
1. Hukum Takleefee (constituting a demand or an option).
a. Allah tells us to establish prayers and fast during Ramadan.
2. Hukum Wad’ee (constituting an enactment).
a. The prerequisites of prayer (such as facing the qiblah).
Example:
1. Hukum Takleefee: Wajib and Haram.
2. Hukum Wad’ee: Sabab (cause) and Shart (condition)
PART ONE: UNDERSTANDING USOOL AL-FIQH
Sources of Islamic Law:
o The study of the sources of legislation and enactment of
Islamic Law and principal proofs of the Hukum Shar’ee,
both the sources agreed upon by the majority of Muslim
jurists and not agreed upon.
Example:
· Sources about which there is agreement:
o The Qur'an, Sunnah, Ijmaa’, and Qiyas.
· Sources about which there is disagreement:
o Statement of the Companions and Istihsaan (Juristic
preference).
Dalalat ul-Alfaadh (Textual Implications):
o The study of the implications of the legal texts, language codes, and
the methodology and rules of interpretation. It is necessary in
understanding how a ruling can be derived from certain evidences.
Example:
Words used for a specific inclusion or exclusion such as Al-
Mutlaq (the Absolute) and Al-Muqayyad (the Qualified) and the
methodology practiced to determine such texts and reconciling
between them.
Ijtihad and Taqleed (Personal Reasoning and Uncritical Following):
o The study of the two methods Muslim Jurists follow in the process of
legislation and enactment of the law and issuing the legal verdict
(Fatwa).
Example:
· Rules and regulations of Ijtihad and Taqleed, the conditions
of the benefactors; both the Mujtahid and Muqallid (layman).
· The etiquettes of Fatwa (issuing the legal verdict) and the
Mufti who is the authority of such a verdict.
PART ONE: UNDERSTANDING USOOL AL-FIQH
Al-Qawaa’ed Al-Fiqhiyyah: Binder page 4
o The study of the maxims governing the Islamic Law.
Maxims of Islamic law refer to a body of abstracts
rules which are derived from the detailed study of Fiqh
itself. A legal code under which many Hukum Far’ee
rules from various areas of the law are systematically
arranged.
Hanafi scholars have developed five main principles for deriving fiqh called
Al-Qawaa’ed Asliyah. Scholars of other mad'habs followed along and added
sub rules under each maxim.
Example:
“Certainty is not removed because of mere doubt” is one of five
absolute maxims under which many other secondary maxims
are arranged.
· In purification, one who is certain about his/her wudu and
doubtful about the nullification of the wudu is considered
in a state of purification.
· If you have a habit of making wudu and you walk of the
restroom, and then you start prayer and start doubting
that you have wudu, do you still need to make wudu’?
Then you have to assume that you didn’t make wudu
because there is certainty that you used the restroom but
not making wudu.
· On the other hand, if you know you made wudu but aren’t
sure if you lost it, you should assume that you still have it
because you are certain that you had made it.
· In business transactions, one who admits the reception of
debt and doubts the payment (has no proof), even when
they had in fact paid is considered liable until he/she
provides a proof that suggests otherwise.
Maqasid Ash-Shari’ah:
o The study of the intents and higher objectives of
Shari’ah and Islamic Law. The general and specific
purpose behind the enactment of a particular rule
or value in different areas into Islamic Law. The
study of the essential human values be it a
PART ONE: UNDERSTANDING USOOL AL-FIQH
necessity, a need or an accessory. This was
developed by Imam Ash-Shatibi.
Example:
five values that all the Prophets shared was to protect and
preserving religion (deen), intellect, life, progeny, and wealth.
Welcome to Usool al-Fiqh Binder page 5
Usool al-Fiqh (as a genitive construction) is defined by its two components:
· Usool (plural of Asl):
The proof, the foundation, that which is preferable (Al-Rajih), the
continuous (original) rule and the original case in rules of Qiyas. [For
the purpose of this class, we will be using the first definition]
Example: Eating pig and a dead animal is haram, which is the Asl. In
the case we are lost or in a situation that we have to eat or we die,
then we can eat it and it becomes Wajib for us to eat it.
o Usooli: jurist; one who knows the sources and evidence behind
rulings knows why it’s wajib to pray five times a day
· Al-Fiqh:
Linguistically: (faqiha) The understanding for what is intended.
Technically: (fiqh) The knowledge of the practical rules of Shari’ah
acquired from the detailed evidences in the sources of Shari’ah; it does
not deal with Aqeedah
o Faqih: one who understands the rulings of Fiqh knows it’s
wajib to pray five times a day
Usool Al-Fiqh (as a term made up of both words): The sciences of
knowing what the sources of Fiqh are and how to use those sources, and
the circumstances of the benefactor [i.e. the Mujtahid or the Layman
(Muqlid-confined to one school of thought)].
A Mujtahid needs to follow all the rules of the Islamic law and cannot
be confined in a single school of thought when deriving laws. He also
needs to be aware of laws that were abrogated (Nasikh Mansookh).
Sources: Qur’an, Sunnah, ijmaa', ijtihad
PART ONE: UNDERSTANDING USOOL AL-FIQH
Example 1:
110: Muhsin Khan: And perform As-Salat (Iqamat-as-Salat), and
give Zakat, and whatever of good (deeds that Allah loves) you send
forth for yourselves before you, you shall find it with Allah. Certainly,
Allah is All-Seer of what you do. [Surah Al-Baqarah, 2:110]
· This is a specific verse from the Qur’an. We learn from this verse that
we must establish salah and we must give zakah. How did we come to
that conclusion?
o The order: Establish Salah!
· The Usool al-Fiqh principle: If Allah commands us to do something
(Amr), the default is that it is compulsory for us to do it NOW.
o Thus: establish salah is compulsory (fard).
Example 2: The order: Give Zakah!
· The Usool Al-Fiqh principle: If Allah commands us to do something, the
default ruling is that it is compulsory for us to do it.
o Thus: Giving zakah is compulsory (fard).
· The way we can tell if something is wajib or mustahab and so on is by
the way the order is given, such as by direct command or by
encouragement
Subject: The legal proofs which lead to the deduction of rules of Fiqh.
Purpose:
· To deduce the rules of Fiqh from indications that are provided in the
sources of Islamic Law, and to help the jurist obtain an adequate
knowledge of the sources of Islamic Law and of the methods of juristic
deduction and inference.
Objective:
· To regulate Ijtihaad and guide jurists in their effort at deducing the law
from its sources.
· To protect the Islamic System from corruption by those who are unfit
to make Ijtihad but do so anyway [Surah A’raf (7:33) forbids speaking
about Allah about which one has no knowledge]
PART ONE: UNDERSTANDING USOOL AL-FIQH
·
33: Muhsin Khan: Say (O Muhammad SAW): "(But) the things that my
Lord has indeed forbidden are AlFawahish (great evil sins, every kind
of unlawful sexual intercourse, etc.) whether committed openly or
secretly, sins (of all kinds), unrighteous oppression, joining partners
(in worship) with Allah for which He has given no authority, and
saying things about Allah of which you have no knowledge."
[Surah al-A’raaf, 7;33]
The need for Usool al-Fiqh:
· It 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 Muslim scholars.
· The only people that need to use it are the ones that are in the
position of implementing the Shari’ah. It is not needed to be used by
everyone.
The ruling of Usool al-Fiqh:
· Fard Kifaya: obligatory upon the community except for the Mujtahid
and Muslim jurist where it becomes Fard Ayn (personally obligatory).
Other Usool al-Fiqh principles include (among others): Binder page 6
· If Allah forbids us from something, the default is that it is forbidden to
do that action.
· The Prophet’s (sallallahu aleyhiwasalam) actions are proofs for Islamic
Law.
o To what extent? E.g.: he (sallallahu aleyhiwasalam) loved eating
pumpkins; do we have to love it too?
· If a statement was made and no scholars comment (or make an
objection) on it, that statement does not carry the strength of Ijmaa’.
Fiqh speaks about everything that is needed to be done in terms of the fard
and the haram within our actions.
Usool al-Fiqh deals in where we get those rules and regulations from.
PART ONE: UNDERSTANDING USOOL AL-FIQH
Fiqh vs. Usool Al-Fiqh Binder page 7
Rulings vs. Where one derives rulings from and how to understand evidences
in general
Fiqh teaches us: Usool Al Fiqh teaches us:
It is only Fard to pray if
one is sane and has
reached the age of
puberty
What does Haram mean, what is Mustahab, etc.
If someone talks in Salah,
it breaks their Salah
How to derive a ruling from an Islamically
acceptable source (i.e. How do we understand
some commandments as being sunnah as
opposed to being fard)
It is Haram to eat pork Which humans are authorized to issue legal
verdicts and deduce rules of Islamic Law from
the sources of Islamic Law
In other words, what are the conditions of a
Mujtahid and what should he do when sources
of legislation apparently contradict
Giving Zakah is Fard What can be used as proof for a fatwa (i.e. a
Mufti can use the Qur’an or a Mufti cannot use
today’s horoscope)
If someone passes wind it
breaks their wudu
How to reconcile between two different
evidences when they appear to contradict each
other
It is only Fard to pray if
the time for Salah has
arrived
How to interpret different language codes
It is Fard (compulsory) to
pray five times a day
How to deduce a new ruling based on a ruling of
an original case mentioned in the sources of
Islamic Law
PART ONE: UNDERSTANDING USOOL AL-FIQH
How did scholars come to these Fiqh conclusions? They had to use the tools
taught by Usool Al-Fiqh (The Methodology of deriving Fiqh)
· Fiqh deals with actions of you and I and within the details of those
actions.
· Usool Al-Fiqh deals with where Islamic rules come from, or its sources,
and why we can use the sources in such a manner.
2. Where do these Usool al-Fiqh Principles come
From? Binder page 8
Just like specific Fiqh rulings (like praying five times a day) need proof, such
is the case with the principles of Fiqh. Here we will look at where
principles/codes come from.
One: From the Qur’an
Example: There is an Usool al-Fiqh principle that “there can be no
commandment upon a person which is more than what that person is
capable of.”
This is derived from the verse:
."
286: Muhsin Khan: Allah burdens not a person beyond his scope. He
gets reward for that (good) which he has earned, and he is punished for that
(evil) which he has earned. "Our Lord! Punish us not if we forget or fall into
error, our Lord! Lay not on us a burden like that which You did lay on those
before us (Jews and Christians); our Lord! Put not on us a burden greater
than we have strength to bear. Pardon us and grant us Forgiveness. Have
PART ONE: UNDERSTANDING USOOL AL-FIQH
mercy on us. You are our Maula (Patron, Supporter and Protector, etc.) and
give us victory over the disbelieving people. [Surah Al-Baqarah, 2:286]
With this ayah, we cannot excuse ourselves from the obligatory
acts in Islam without a valid reason. This is for the optional acts
in Islam or for those with valid reasons.
Two: From the Sunnah
Example: There is an Usool al-Fiqh principle that states, “If we are
commanded to do something, the default ruling is that it is compulsory
for us to do it.”
If it is an order and command, the thing would become wajib
and we need to do it immediately, but if He gave a command
with only words of encouragement without direct command, it
would be considered mustahab.
This is derived from the statement of the Prophet SAW,
“If it were not for the burden placed on my Ummah, I would have
commanded the use of Miswak at each Salah.” [Agreed Upon]
Three: From the Arabic language
Example: There is an Usool al-Fiqh principle that states, “If a
command is given it requires that the person do it immediately.”
This is derived from the science of the language, something that
linguists understand. For example, they’ll say, if a master tells his
servant, “Get me water,” that servant would be blameworthy if he
delayed in bringing the water.
The Qur’an was revealed in clear, pure Arabic language “lisanin
Arabeeyin mubeen.” We can understand the language of the Arabs and
their culture and the way they use certain terms to understand the
Qur’an.
Four: From Logic
Example: There is an Usool al-Fiqh principle that states, “If two
Mujtahids disagree on a specific ruling then one of them is wrong.”
PART ONE: UNDERSTANDING USOOL AL-FIQH
This is derived from pure logic. If two people make two opposing
opinions, one says apples and the other says oranges, then logically
one of them is wrong. However, this only refers to completely
contradictory rulings. For example, some pray two rak’ahs before ‘Asr
and some pray 4, but both are justified.
Also, both opinions could be acceptable, even if only one was correct.
The sahaba once differed on when to pray ‘Asr, as Muhammad
(sallallahu aleyhiwasalam) told them not to pray until they had
reached their destination. As the sun began setting, some Sahaba
decided the Prophet (sallallahu aleyhiwasalam) only meant they should
hurry, not that they should actually miss the prayer, and decided to
pray. Another group decided to take the Prophet (sallallahu
aleyhiwasalam) literally and prayed ‘Asr after the sun had set.
Muhammad (sallallahu aleyhiwasalam) accepted both approaches, but
those who prayed on time chose the correct option according to Sheikh
Uthaymin rahimahu Allah.
History of Usool al-Fiqh Binder page 9
Era of the Prophethood:
No need for methodology because solutions to problems were obtained
through either divine revelation or the Messenger’s(sallallahu aleyhiwasalam)
direct ruling. Many Usool principles were founded and obviously practiced by
the Messenger of Allah(sallallahu aleyhiwasalam) and therefore laid the
foundation down for this science.
After the Prophet (sallallahu aleyhiwasalam) died, the first two sources were
established, Qur’an and Sunnah, and Ijmaa' and Qiyas began coming out
Example:
Encouraging Ijtihaad of the Sahaba:
“If the Hakim exerts an Ijtihaad and appeared to be correct, he
will get double reward and if the Hakim exerts an Ijtihaad and
appeared to be wrong he will get one reward.” [Bukhari and
Muslim]
PART ONE: UNDERSTANDING USOOL AL-FIQH
The usage of Qiyas in comparing a kiss during the month of
Ramadhan to rinsing one’s mouth, as both don’t break the fast.
Era of the companions:
· Their decisions remained in close contact with the teaching of the
Messenger of Allah(sallallahu aleyhiwasalam) as a source of law.
· Their decisions were mainly inspired by the Messenger’s(sallallahu
aleyhiwasalam) precedent.
· They exercised Ijtihaad and Qiyas widely to answer many
unprecedented events.
· The principle of Ijmaa’ was developed.
Ibn Umar: “It is feared that rocks fall down from the skies upon you,
I tell you the Messenger of Allah (sallallahu aleyhiwasalam) said such
and such and you tell me Abu Bakr and Umar said such and such.”
Umar ibn Al-Khattab: “Recognize similar cases and, using your
intelligence, make an analogy.”
Umar was known for doing shura and deriving laws by using reasoning
based on the sources
Ear of the Taabi’een:
At the time of the Taabi’een, many new nations entered into Islam.
With those nations came new issues. Many of the Mujtahids of this time
period fell back on specific principles to derive those Islamic rulings.
Disputation and diversity of juristic thought in different quarters accentuated
the need for clear guidelines. New sources for deriving fiqh were developed
at this time, including Al-Istihsaan (Juristic Preference).
Imam Malik considered the practice of people of Madinah to be a source
The first Usool al-Fiqh book by Imam Shaafi’ee: In 204H (820 CE), he
wrote a book called Ar-Risaalah. In it he gathered and articulated the
principle by which a scholar could come to his conclusions. He called his book
Ar-Risalah (the message). His methods weren’t based so much on philosophy
as his mad'hab now uses.
PART ONE: UNDERSTANDING USOOL AL-FIQH
Two Classical Approaches Binder page 10
The Theoretical Approach
Formed independently of fiqh
The Deductive Approach
Formed in light of fiqh
Name of
School
Tareeqat Al-Mutakallimeen,
Usool Ash-Shafi-eyyah
Tareeqat Al-Fuqahaa,
Usool Al-Hanafiyyah
Mad’hab
of School
Maliki, Shafi'ee, Hanbali, and the
Mu'tazilah (aka Usool Al-
Shafa'eeye)
Hanafi - Limited amount of
linguistic and very practical.
They would follow the imams.
Main
Approach
1. The exposition of the
theoretical doctrine prior to the
application of the issue of Fiqh.
1. The theory is formulated in
the light of its application to
relevant issues of Fiqh.
2. Articulating the theoretical
principles of Usool al-Fiqh
independently without
necessarily attempting to relate
these to Fiqh itself. (like
discussing the physical attributes
of angels)
2. In a pragmatic approach,
principles of Usool Al-Fiqh are
expounded in conjunction with
Fiqh itself. (If it didn’t have any
effect on fiqh, it was not to be
discussed for the purpose of
deriving Usool principles)
3. Engaging into complex issues
of philosophical character which
may or may not contribute to the
development of the practical
rules of Fiqh. Such as the issue
of the Prophet's(sallallahu
aleyhiwasalam) infallibility
before the prophetic mission.
They only discuss these in order
to perfect the theory.
3. A principle of Usool which
appears to be in conflict with an
established Fiqh principle
entails an adjustment to the
theory in different ways.
Theoretical conversations would
not be found in this Mad’hab.
Since it doesn't concern the
practicality of the theory. Like
we won't concerns ourselves
about the infallibility before
Prophethood.
Major
Books
1. Al-Mutamad by Abdul Hussayn
Al-Bassri 436H (1044 CE).
1. Kitab fil Usool by Abul
Hassan Al-Karhi 340H (951
CE).
2. Al-Burhan by Imam Al-
Haramayn Al-Juwayni 487H
(1094 CE).
2. Usool Abu Bakr Al-Razi Al-
Jassas 370H (980 CE).
3. Al-Mustasfa by Al-Ghazali
505H (1111 CE).
3. Ta'sees Al-Nadhar by Al-
Dabboossi 430H (1038 CE).
4. Al-Mahsoul by Fakhruddin Al-
Razi 606H (1209 CE).
4. Usool Al-Bazdawi 482H
(1089 CE).
5. Al-Ihkaam Fi Usool Al-Ahkam
by Al-Aamidi 713H (1314 CE).
5. Usool Al-Sarakhsi 490H
(1096 CE).
PART ONE: UNDERSTANDING USOOL AL-FIQH
· The Theoretical or rational approach was used by the people in the
Hijaz area only to derive principles of Usool Al-Fiqh. After deriving the
principles from the Qur’an and Sunnah, scholars attempted to fit their
mad’habs opinions to them. If they didn’t fit, they were to be modified.
o When it came to deriving Islamic Law, they relied on Taqleed,
limiting themselves to whatever texts they had, and were
therefore also known as the literalists. Those in the Hijaz area
followed this approach because they had access to many more
ahadith.
o Independent of previous imams’ opinions
o Don’t look into opinions of fiqh
o Engage in conflicts of theory and philosophy for no reason
· E.g.: infallibility of Prophet (sallallahu aleyhiwasalam)
before Prophethood We’re not obliged to follow his
actions before he became a Prophet
o The followers of the mad’hab developed the principles
· The Deductive or traditional approach was used by the people of Iraq
who were exposed to Persian culture, which emphasized rational
reasoning. It is called traditional because the principles of Usool were
derived based on Imam Abu Hanifa’s opinions on fiqh issues. If one of
his opinions contradicted a principle of Usool, the principle itself had to
be modified. This is why it is difficult for the Hanafi school of thought
to say the imam was wrong. Imam Karkhi says: if it contradicts the
statement of the sheikh, then maybe the source can be understood in
two ways or this opinion is a better one
o When it came to deriving Islamic Law, Imam Abu Hanifa used
Ijtihad if he had no available source (though there could have
been sources which he didn’t know about). Therefore, his
mad’hab is rational in terms of how Islamic Law was
derived practical and easy to understand
o number of principles limited because Hanafis just follow the
example of the imam
Even though there is only one major mad’hab that used Tareeqat Al-Fuqaha,
it has the maximum number of followers. In general
· The Hanbali mad'hab is followed by those in Saudi Arabia
PART ONE: UNDERSTANDING USOOL AL-FIQH
· The Maliki mad’hab is followed by those in North Africa and Spain
· The Shafi’ee mad’hab is followed by those in Yemen, East Africa and
Indonesia, and Malaysia
· The Hanafi mad’hab is followed by those in India, Pakistan, Turkey,
Iraq, and most other Muslims in the world
Tareeqat Al-Muta’akhireen:
This is a third approach to deriving principles of Usool which developed after
the first two and reconciled them both. Most contemporary scholars use this
approach.
Most books come from the Hanafi approach
Badee’un Midham: Imam As-Sa’ati 694 H
Tanqeeh Al-Usool: Sadrush Shar’iah 747 H
Jam’ul Jawaami: Tajuddin As-Subki (Shafi’) 771 H
At-Tahreer: Abil Humam Al-Hanafi 861 H
Musallam Ath-thuboot: Ibn Abdish-Shakoor (Hanafi) 1119 H
Fawatih Ar-Rahamoot (commentary on ^): Ibn Nidhamuddin Ansari
PART ONE: UNDERSTANDING USOOL AL-FIQH
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