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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