Islambasics Library: USUL AL FIQH AL ISLAMI: SOURCE METHODOLOGY IN ISLAMIC
JURISPRUDENCE
|
CHAPTER
ONE
USUL AL FIQH: METHODOLOGY FOR
RESEARCH AND KNOWLEDGE IN ISLAMIC JURISPRUDENCE
Definition:
The
science of Source Methodology in Islamic Jurisprudence Usul al Fiqh
has been defined as the aggregate, considered per se, of legal proofs and
evidence that, when studied properly, will lead either to certain knowledge
of a Shari'ah ruling or to at least a reasonable assumption concerning the
same; the manner by which such proofs are adduced, and the status of the
adducer.1
Subject Matter:
As
its subject matter, this science deals with the proofs in the Shari'ah
source-texts, viewing them from the perspective of how, by means of Ijtihad,
legal judgements are derived from their particulars; though after, in cases
where texts may appear mutually contradictory, preference has been
established.2
Benefit:
The
science of Usul al Fiqh engenders the ability to have knowledge of Shari'ah
rulings through study, on the part of those qualified to perform Ijtihad and
who meet all its requirements, of the legal proofs revealed in the sources by
the Lawgiver.
The
benefit to be had from this science to those not qualified to perform Ijtihad
is that, through their study of the classical schools of legal thought madhahib
of the mujtahidun (those who practise Ijtihad) and the reasoning behind
their rulings, the student of Source Methodology in Islamic Jurisprudence is
enabled to understand the various schools of thought, to analyze them, to
choose from among their interpretations and assign preference, and to adduce
legal arguments on the basis of the principles formulated by the classical mujtahidun.
THE SCIENCES FROM WHICH USUL AL FIQH DERIVED ITS ACADEMIC
BASIS
The
science of Usul al Fiqh is in fact an independent and autonomous field. It is,
however, based on certain fundamental predications muqaddamat,
knowledge of which the Islamic legal scholar cannot do without. These
predications have been derived from several other disciplines:
a.
Some are derived from
the science of Aristotelian logic which the philosopher-theologian writers mutakallimun had become accustomed to discussing in the
introductions to their works. These academic discussions dealt, for example,
with the ways in which words convey meanings, the division of subjects into
present and predicable, the need for, and varieties of, discourse depending
on conceptual principles taken from interpretations and definitions, the
validity of conclusions based on inductive reasoning, and discussions about
evidence and how it may be used to prove the claims of the one who is
adducing it, or to refute contradictions, and so on.
b.
Some are derived from Ilm al Kalam Scholastic Theology, and include discussions
of such questions as the nature of the Sovereign Hakim, in the sense of whether it is the Shari'ah
itself or reason which decides what is right and what is wrong; or such as
whether one can have knowledge of right and wrong before revelation; or such
as whether rendering thanks to the Bounteous Creator is a duty derived from
the Shari'ah or from human reasoning.
c.
Some are general
linguistic rules which the scholars of al Usul developed through linguistic research and presented in a
crystallized form, such as research dealing with languages and their origins,
the classification of words into metaphorical and literal, discussions of
etymology, synonymity, emphasis, generalization, specification, the meanings
of grammatical particles and so on.
d.
Some are derived from
the classical sciences of the Qur'an and the Sunnah, such as discussions
concerning the transmission of Hadith by a single narrator Ahad, or by an impeccable plurality of narrators Tawatur, the non-standard recitations of the Qur'an
and the rules about them, the criteria for the acceptance Ta'dil or rejection Jarh of narrators of Hadith, abrogation of
legislation al Nasikh wa al Mansukh3, the condition of the text of a Hadith and
its chain of narrators, and so on.
e.
Finally, the examples
cited by the scholars of al Usul in illustration of
their arguments are derived from the specifics of Fiqh, and from the detailed
evidence for the same as taken from the Qur'an and the Sunnah.
The
issues with which the scholars of al Usul are primarily concerned include the
following:
·
Logic and its
predications
·
Linguistics
·
Commands and
Prohibitions
·
Comprehensive al 'Amm and Particular terms al Khass
·
Inconclusive al Mujmall and Determined concepts al Mubayyan
·
Abrogation al Naskh
·
Deeds (in particular,
those of the Prophet, upon whom be
·
peace, and their significance)
·
Consensus al Ijma'
·
Narrations relating to
the Sunnan
·
Analogical reasoning al Qiyas
·
Indicating preference
in cases of apparent contradiction
·
Exercising legal
acumen and scholarship Ijtihad
·
Following a specific
school of legal thought Taqlid
·
Disputed Sources
(those other than the four "agreed" sources)
ORIGINS AND DEVELOPMENT OF USUL AL FIQH
It
is difficult to attempt a study of Usul
al Fiqh and its development without
considering the history of Fiqh, the practical precepts of Shari'ah that have
been gleaned from detailed source-evidence.
The
lexical meaning of Usul is foundation, or basis Asl; plural
Usul or that upon which something else is built. In the legal
system of Islam, Fiqh is built upon and stems from the bases Usul which
constitute its source-evidence. Hence, in order to understand the origins of Usul al Fiqh,
we need to have a general idea of the history of Islamic legislation Tashri'.
Establishing
Shari'ah legislation, prescribing law, laying down rules and regulations, and
defining systems is a function which is specific to Allah alone. Anyone who
presumes to ascribe these functions to any other than Allah commits the sin
of al Shirk, as, in doing so, he has effectively contradicted the
belief in the Oneness of Allah Tawhid.
Allah
has provided articulate proofs and clear source-evidence in order that the
believers should have no trouble in finding their way to the particulars of
His legislation, or Ahkam. with reference to some of this source-evidence, the
Islamic Ummah has agreed on its validity and its relevance to the Ahkam, and
has accepted it as such. However there are differences with regard to other
source-evidence.
The
source-evidence upon which the whole Ummah fully agrees, and on the validity
of which there is general consensus, comprises the two sources that formed
the basis of legislation at the time of the Prophet (PBUH). These two sources
of legislation are:
1.
The Qur'an: This may be defined as the words
revealed to the Prophet (PBUH) the recitation of which itself constitutes an
act of worship, the shortest Surah of which is a challenge to mankind to produce anything
the like thereof, every letter of which has been transmitted to us via an
indisputably authentic chain of authority Tawatur; which is written between the two covers of the Holy Book
Mushaf beginning with Surat
al Fatihah "The Opening Chapter"
and ending with the Surat al Nas.
2.
The Sunnah: This includes everything, other
than the Qur'an, which has been transmitted from the Prophet(PBUH); what he
said, did, and agreed to.
Thus,
every utterance of the Prophet (PBUH), apart from the Qur'an, and his every
deed, from the beginning of his mission to the last moment of his life,
constitute his Sunnah, in the general sense of the word, whether these
establish a ruling which is generally applicable to all members of the Ummah,
or a ruling which applies only to the Prophet himself or to some of his Sahabah.
Regardless
of whether what the Prophet (PBUH) did was instinctive or otherwise, his
every word, deed and approval may be taken as the basis for evidence in a
legal ruling. This is so regardless of whether his utterances or actions
related to matters of faith or practice, or whether they were concerned with
commanding or recommending, prohibiting, disapproving, or allowing; and
regardless of whether his word or action was based on a ruling previously
revealed in the Qur'an, or whether it served independently to establish
legislation.
During
the lifetime of the Prophet (PBUH), all the legal rulings Ahkam of the
Shari'ah, inclusive of all of its classifications, such as principal and
derived rulings, teachings on the fundaments of the faith, and regulations
regarding personal practice and legalities, were derived from these two
sources, the Qur'an and the Sunnah.
3.
Ijtihad was practiced by the Prophet
(PBUH) and by those of his companions with legal proclivities Ahl al Nazar.
The Prophet's Ijtihad was sometimes confirmed by the Qur'an and sometimes
not; in which case it was explained that the better solution was other than
that which he had adopted.
The
Ijtihad made by the Companions was always in response to situations which
actually occurred to them. Later, when they met the Prophet (PBUH), they
would explain what happened and tell him what they had decided. Sometimes he
(PBUH) approved of their Ijtihad, and such decisions of theirs (having gained
the approval of the Prophet) became a part of the Sunnah. If he (PBUH)
disapproved of their Ijtihad, his explanation of the correct procedure would
become the Sunnah.
Thus,
we can say that at that stage legislation depended on the two forms of Divine
revelation Wahy:
1.
Recited revelation Wahy Matlu; or the Qur'an with its absolute
inimitability I'jaz
2.
Non-recited revelation
Wahy
Ghayr Matlu; or the Sunnah of the
Prophet (PBUH)
Indeed,
the Ijtihad made by the Prophet (PBUH) set a precedent for his Sahabah
and later Muslims, that clearly proved the legitimacy of Ijtihad, so that
when they could not find an express legal ruling in the Qur'an or Sunnah,
they were to make use of Ijtihad in order to arrive at a judgement on their
own.
Moreover;
probably to reinforce and establish this concept, the Prophet (PBUH) used to
order certain of his Companions to make Ijtihad concerning certain matters in
his presence. Then he would tell them who was correct and who was mistaken.
METHODS FOR DERIVING RULINGS FROM THE SOURCES
As to the Qur'an..
The
Qur'an was learned and understood by the Sahabah without their ever having recourse to formal rules of
grammar. Likewise, endowed as they were with clear vision, sharp wits and
common sense, they readily understood the aims of the Lawgiver and the wisdom
behind His legislation.
Indeed,
the Sahabah rarely used to question the Prophet (PBUH) about any
matter unless he himself mentioned it first.
It
is reported that Ibn Abbas said: "I have never seen any people better
than the Sahabah of the Prophet, may Allah bless him and grant him peace.
Throughout his mission, until he passed away, they only asked him about
thirteen matters, all of which are mentioned in the Qur'an. For example, [the
meaning of]: 'They ask you about fighting in
the sacred month...'
(2:212); and 'They ask you about the
menstruating woman...'
(2:222)" Ibn Abbas said, "They only asked him about matters which
were of actual concern to them."4
Ibn
'Umar said in this respect: "Don't ask about something that hasn't
happened, for I heard my father, 'Umar ibn al Khattab, curse one who asked
about something which had not occurred."5
Qasim
said (to the third generation of Muslims): "You ask about things we
never asked about, and quarrel about things we never quarrelled about. You
even ask about things which I'm not familiar with; but if we did know, it
would not be permitted for us to remain silent concerning them."6
Ibn
Ishaq said: "I met more of the Prophet's Sahabah
than anyone else did; and I have never seen a people who lived more simply,
or who were less demanding on themselves."7
'Ubadah
ibn Nusay al Kindi said: "I have known a people whose austerity was not
as rigid as yours, and whose questions were quite other than the ones you
ask."8
Abu
'Ubaydah said in his book Majaz al
Qur'an: "It has never been reported
that any of the Sahabah went to the Prophet (PBUH) for knowledge of anything
which could be found in the Qur'an."9
As to the Sunnah...
The
parts of the Sunnah which consist of the Prophet's words were in the
Companions' own language, so they knew its meaning and understood its phrases
and context.
As
far as the Prophet's deeds were concerned, they used to witness them, then
tell others exactly what they had seen. For example, hundreds of people saw
the Prophet (PBUH) making ablutions Wudu' and then adopted his practice without asking him about
details; like which of the various actions in Wudu' were
obligatory and which were recommended, which were merely allowed and which
were not. Likewise, they witnessed him (PBUH) performing Hajj and Salah, and
the other acts of worship.
People
were heard asking the Prophet (PBUH) to give Fatawa
concerning various matters, and he did so. Cases were referred to him, and he
would pronounce his judgement. Problems would arise amongst the Sahabah,
and he would give a definite answer; whether the problems concerned mutual
relations, personal conduct, or various political matters. They witnessed all
these situations and they understood the context in which they took place, so
that the wisdom and purposes of the Prophets judgements were not hidden from
them.
People
also saw how the Prophet (PBUH) used to notice the conduct of his Sahabah
and others. Thus, if he (PBUH) praised anybody, they knew that the person's
act had been a good one; and if he (PBUH) criticized anybody, they knew that
there had been something wrong with what the person had done.
Moreover,
all the reports concerning the Prophet's Fatawa, rulings, decisions and approval or disapproval of
various matters indicate that they took place in the presence of many people.
So, just as the colleagues of a doctor know, due to their long association
and experience10,
the reasons for his prescribing certain medicines, so also the Sahabah
of the Prophet (PBUH) knew exactly the reasoning behind his decisions.
As to Ijtihad...
The
indications that Ijtihad is valid and relevant in the contemporary context
are many. For example, Mu'adh ibn Jabal states that when the Prophet (PBUH)
sent him to Yemen, he asked:
"what
will you do if a matter is referred to you for judgement?" Mu'adh said:
"I will judge according to the Book of Allah." The Prophet asked:
"what if you find no solution in the Book of Allah?" Mu'adh said:
"Then I will judge by the Sunnah of the Prophet." The Prophet
asked: "And what if you do not find it in the Sunnah of the
Prophet?" Mu'adh said: "Then I will make Ijtihad to formulate my
own judgement." The Prophet patted Mu'adh's chest and said "Praise
be to Allah who has guided the messenger of His Prophet to that which pleases
Him and His Prophet."11
This
Ijtihad and forming of one's own judgement, as mentioned by Mu'adh, is
further explained in the advice 'Umar gave to Abu Musa when he appointed him
a judge: "Judgement is to be passed on the basis of express Qur'anic
imperatives or established Sunnah practices.." Then he added:
"Make
sure that you understand clearly every case, that is brought to you for which
there is no applicable text of the Qur'an or the Sunnah. Yours, then, is a
role of comparison and analogy, so as to distinguish similarities -in order
to reach a judgement that seems nearest to justice and best in the sight of
Allah."12
Consequently,
al Imam al Shafi'i explained "opinion" as meaning Ijtihad, and
Ijtihad as meaning al Qiyas. He said: "They are two names for the same
thing."13
Abu
Bakr al Siddiq, Khalifat Rasul Allah, said: "As far as the Prophet is concerned, his
opinion was always correct because Allah always guided him. In our case,
however, we opine and we conjecture."14
Thus,
we may state that the concept of Ijtihid or "opinion", at that
stage, went no further than one of the following:
a.
Applying one or
another of the possible meanings in cases where a sentence may lend itself to
two or more interpretations, e.g. when the Prophet (PBUH) ordered the Muslims
to pray among Banu Qurayzah.15
b.
Comparative Qiyas; which deals with a matter by comparing it
with another, similar matter which is dealt with in the Qur'an or Sunnah. For
example, the Qiyas of 'Ammar who
compared the case of Tayammum when in a state of Janabah to Ghusl, and therefore rubbed his whole body with dust.16
c.
Ijtihad by taking into
account something which is potentially beneficial; or prohibiting something
which could lead to wrongdoing; or deriving a particular ruling from general
statements; or adopting a specific interpretation; and so on.
The
extent of the Prophet's concern with encouraging the Sahabah
to make Ijtihad and training them in its use can be seen in his saying
"When a judge makes Ijtihad and reaches a correct conclusion, he
receives a double reward; and if his conclusion is incorrect, he still
receives a reward."17
The
Ijtihad of many of the Sahabah was so accurate that in many cases the revelations of the
Qur'an confirmed it, and the Prophet (PBUH) supported it. Obviously, their
close association with the Prophet (PBUH) had afforded them a keen sense of
the aims of the All-wise Lawgiver, of the basic purposes behind the Qur'anic
legislation, and of the meanings of the texts; opportunities which those who
came after them did not directly enjoy.
|
Saturday, June 2, 2012
USUL AL FIQH AL ISLAMI: SOURCE METHODOLOGY IN ISLAMIC JURISPRUDENCE
Subscribe to:
Post Comments (Atom)
It is effective for all Islamic studies department students.
ReplyDelete