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Uṣūl Al‐fiqh

By:
Farhat J. Ziadeh
Source:
The Oxford Encyclopedia of the Modern Islamic World What is This? Provides global coverage of the Muslim experience from the end of the eighteenth century through the twentieth century

Uṣūl Al‐fiqh

Muslim jurists generally define uṣūl al‐fiqh (“roots of law”) as the body of principles and the investigative methodology through which practical legal rules are derived from their particular sources. Its scope of interest may be likened to the field of jurisprudence in English law as discussed by John Austin or Carleton Allen, as well as to the field of interpretation of statutes. Of prime importance in its inquiry is the question of the legitimacy of rules and whether such rules depend on a certain or a probable base. Rules of probable legitimacy, according to most jurists, are binding in law, whereas in theology beliefs must depend on bases that are certain.

The primary base or source, certain as to its being the word of God that came down to us in a concurrent transmission (tawātur), is the Qur'ān. The second source for legal rules is sunnah, the reports about the sayings, actions, or tacit approvals of the Prophet. Depending upon the probity and number of the transmitters, these reports can be considered certain or probable. Those of many concurrent transmissions (mutawātir) are considered certain; those that are well known and of slightly lesser standing of authenticity (mashhūr) are also considered by Ḥanafī jurists as certain; but those that depend upon one or a few transmitters (āḥādī) are considered of probable authenticity (ẓannī).

The third source is the consensus of all Muslim interpretive scholars in a specific age on a legal rule about a new happening not covered in the Qur'ān or sunnah. Most Sunnī scholars consider such consensus binding for all times; other scholars, including Shī῾ī scholars, say this consensus is impossible. Jurists also differ on the value of consensus by silence (sukūtī), a situation in which some scholars would not give an opinion on a happening or a measure, and are presumed to have agreed with the expressed opinion of other scholars. Most jurists would not accept such a consensus as binding, but Ḥanafī scholars accept it as such.

The fourth source is analogy, which has been defined as making a situation with no textual provision as to its rule follow the rule of another situation with such a textual provision, because both situations share in the cause (῾illah) of such rule. The classic example is the making of all intoxicants follow the rule of wine, which was specifically prohibited in the Qur'ān (5.90), because the cause of the prohibition is intoxication, common to all of them. Jurists make a distinction between the cause and the underlying reason (ḥikmah) of the rule. The latter, which is deemed either to bring a benefit to people or ward off a harm from them, is often not apparent or, at least, too indefinite to be the basis for the rule. On the other hand, the cause (῾illah) must be apparent and definite for it to be the basis for the rule. Analogy, therefore, operates when the cause, not the underlying reason, is the same in both situations.

In addition to these four basic sources, several principles and presumptions aid the interpretive jurist in arriving at a rule. One such principle is preference (istiḥsān); using this principle a jurist would abandon the result of a clear analogy for a latent analogy or would reject a general rule for an exceptional rule, because of “an indication that sparks in his mind.” For example, despite the general rule that the subject of a contract must be in existence, the contract of rent (the subject of which is a future benefit) was allowed by preference because of the peoples' need for it. Ḥanafī jurists were prominent in the articulation of this principle.

Another principle is that of unregulated interest (al‐maṣlaḥah al‐mursalah), which serves as a basis for a rule. It is an interest that no legal provision has approved or disapproved; examples are the establishment of prisons and the coinage of money. The interest to be served must be real, of a general nature, and not in conflict with a principle established by a legal provision or consensus.

A third principle is the presumption of continuity (istiṣḥāb): a situation subsisting previously is presumed to be continuing at present until the contrary is proven. Accordingly, a person is presumed to be free from liability (his original situation at birth) until the contrary is proven.

In interpreting the Qur'ān and the sunnah, jurists dealt with the workings of language in detail in an attempt to arrive at the intended meaning. They dealt with such questions as the ways in which words indicate meanings, what is general and what is specific, how the specific limits the general, whether the imperative signifies an obligation and the prohibitive signifies forbiddenness, what is capable of a hidden meaning and what is not, and so forth. These questions are similar to those dealt with by the field of interpretation of statutes.

The rudiments of this science started to appear in the second century AH. The Fihrist of Ibn al‐Nadīm mentions that the Ḥanafī jurist Abū Yūsuf (d. AH 182/798 CE) collected its principles in a separate volume, but that volume must have been lost. The earliest book that has come down to us is Al‐risālah of Muḥammad ibn Idrīs al‐Shāfi῾ī (d. 204/820); therefore, its author has been reputed as the founder of this science, which was later named uṣūl al‐fiqh. Subsequent jurists followed two distinct methodologies in their expositions. One group, made up mostly of Mālikīs and Shāfi῾īs, followed a theological and logical methodology and paid scant attention to the concrete rules of the particular law school. These men included Abū Ḥāmid al‐Ghazālī (d. 505/1111) in Al‐mustasfā and al‐Āmidī (d. 631/1233) in Al‐iḥkām. The other, made up of Ḥanafīs, deduced the principles from the concrete rules of their school. Hence, they often cite the rules to exemplify the principles; these men included al‐Dabūsī (d. 430/1039) in Taqwīm, al‐Bazdawī (d. 482/1089) in Uṣūl al‐fiqh, and al‐Nasafī (d. 710/1310) in Al‐manār. Later jurists combined the two methodologies.

In modern times jurists who have written about the subject have, in the main, adopted a progressive approach to accommodate this science to the changing times. Muḥammad al‐Shawkānī (d. 1250/1834), a Yemeni jurist, railed against those who stick to imitating the established schools (taqlīd) and called for interpretation (ijtihād) with due consideration given to public interest (maṣlaḥah). The modern reformer Muḥammad ῾Abduh (d. 1323/1905) and his student Muḥammad Rashīd Riḋā (d. 1354/1935) found support in his writings for their progressive ideas. Several other writers and jurists also supported in varying ways the principle of public interest (maṣlaḥah) as a factor for modernization. These include ῾Abd al‐Wahhāb Khallāf (d. 1375/1956), Muḥammad al‐Khuḋarī (d. 1354/1927), Muṣṭafā Zayd, Ṣubḥī Maḥmaṣānī, Ma῾rūf Dawālībī, Muṣṭafā al‐Shalabī, Aḥmad Zakī Yamānī, Kemal Faruki, and Khālid Mas῾ūd. Some harked back to Najm al‐Dīn al‐Ṭūfī (d. 716/1316), a Ḥanbalī jurist who had held that the principle of maṣlaḥah could restrict (takhṣīṣ) the application of consensus as well as that of the Qur'ān and sunnah if such application were harmful to public interest. Others invoked the Andalusian jurist al‐Shāṭibī (d. 790/1316) for similar views. Most seemed to widen the doctrine of maṣlaḥah from the confined field of an unregulated interest (maṣlaḥah mursalah) to an independent principle for the interpretation of law; thereby it could prevail over precise rules or over contradictory regulations provided it remained faithful to the higher objectives of law, which aim at preserving religion, physical well‐being, progeny, property, and mental faculty. Many also expanded the restricted principle that rules change with changing times to become a cardinal principle of interpretation, or, at least, called for an eclectic approach whereby rules could be drawn from any Islamic school of law if they better conform to the requirements of modern life. Jurists who have written in a more traditional vein include Muḥammad Abū Zahrah, Sa῾īd Ramaḋān al‐Būṭī, and the Shī῾ī jurist Muḥammad Bāqir al‐Ṣadr. [See the biography of Ṣadr.]

The jurists mentioned above as being progressive managed to stay within the main stream of Muslims, although some of them were subject to criticism by traditional elements. Two highly progressive jurists, however, may be considered nonconformist in calling for the reinterpretation of basic Islamic rules. One is the Indian Fāṭimid jurist A. A. A. Fyzee, who called for a “Protestant” Islam that would separate the church and state, would question the authority of “ancient scholars and imāms,” and would reinterpret the Qur'ān according to modern exigencies. [See the biography of Fyzee.] The other is ῾Abd Allāh al‐Na῾īm, the Sudanese student of the late Maḥmūd Muḥammad Ṭāhā who was killed by the Sudanese President Ja῾far Nimeiri in 1985 for “heresy.” Al‐Na῾īm, following his master, would distinguish Qur'ānic verses meant to apply in the early stages of the Islamic community from those that were meant to have permanent validity, and so derive rules more consonant with modern life.

See also Law, articles on Legal Thought and Jurisprudence and Modern Legal Reform.

Bibliography

The following works and/or authors have been discussed in the article. Additional annotation has been provided when appropriate.

  • Abū Zahrah, Muḥammad. Mālik. Cairo, 1946.
  • Āmidī, ῾Alī ibn Muḥammad al‐. Al‐Iḥkām fī uṣūl al‐aḥkām. 4 vols. Cairo, 1967. For an appreciation of this work, see Weiss, below.
  • Bazdawī, ῾Alī ibn Muḥammad al‐. Uṣūl al‐fiqh. On the margin of ῾Abd al‐῾Azīz al‐Bukhārī. Kashf al‐asrār ῾an uṣūl Fakhr al‐Islām al‐Bazdawī, 4 vols. (Istanbul, ah 1308).
  • Dabūsī, ῾Abd Allah ibn ῾Umar al‐. Taqwīm al‐adillah fī uṣūl al‐fiqh. Dublin, Chester Beatty MS 3343.
  • Dawālībī, Ma῾rūf. Al‐Madkhal ila ῾ilm uṣūl al‐fiqh. Damascus, 1959. Textbook for law schools.
  • Faruki, Kemal A. Islam Today and Tomorrow. Karachi, 1974.
  • Fyzee, Asaf A. A. A Modern Approach to Islam. New York, 1963.
  • Ghazālī, Abū Ḥāmid al‐. Al‐Mustaṣfā min ῾ilm al‐uṣūl. Edited by Muḥammad Muṣṭsafā Abū al‐῾Alā'. Cairo, 1971.
  • Khadduri, Majid. Islamic Jurisprudence: Shāfi῾i's Risāla. Baltimore, 1961. Masterful translation of the first extant work on uṣūl al‐fiqh.
  • Khallāf, ῾Abd al‐Wahhāb. ῾Ilm uṣūl al‐fiqh. Kuwait, 1972. Very lucid introduction to the subject, with examples from the sharī῾ah and positive law.
  • Khuḋarī, Muḥammad al‐. Uṣūl al‐fiqh. Cairo, 1933.
  • Maḥmaṣānī, Ṣubḥī. Falsafat al‐tashrī῾ fī al‐Islām. Translated by Farhat Ziadeh as Philosophy of Jurisprudence in Islam. Leiden, 1961. Excellent introduction by a liberal jurist who is also familiar with Western jurisprudence.
  • Masud, Muhammad Khalid. Islamic Legal Philosophy: A Study of Abū Isḥāq al‐Shāṭibī's Life and Thought. Islamabad, 1977. Study of the most original jurist of Andalusia.
  • Naim, ῾Abd Allah Ahmad. Toward an Islamic Reformation: Civil Liberties, Human Rights, and International Law. Syracuse, N.Y., 1990.
  • Nasafi, ῾Abd Allah ibn Aḥmad al‐. Kashf al‐asrār fī sharḥ al‐manār. 2 vols. Cairo, 1898.
  • Ṣadr, Muḥammad Bāqir al‐. A Short History of ῾Ilmul Uṣūl. Accra, London, and New York, 1984. Shī῾ī work by an ayatollah who was liquidated by the Iraqi regime in 1980. The translation into English is especially good.
  • Shalabī, Muṣṭafā al‐. Al‐Fiqh al‐Islāmī bayna al‐mithālīyah wa‐al‐wāqi῾ īyah. Beirut, 1982.
  • Shawkānī, Muḥammad ibn ῾Alī al‐. Al‐Qawl al‐mufīd fī adillat al‐ijtihād wa‐al‐taqlīd. Cairo, 1934.
  • Shawkānī, Muḥammad ibn ῾Alī al‐. Irshād al‐fuḥūl ilā taḥqīq al‐ḥaqq min ῾ilm al‐uṣūl. Cairo, 1937.
  • Weiss, Bernard G. The Search for God's Law: Islamic Jurisprudence in the Writing of Sayf al‐Dīn al‐Āmidī. Salt Lake City, 1992.
  • Yamānī, Aḥmad Zakī. Al‐Sharī῾ah al‐khālidah wa‐mushkilāt al‐῾aṣr. Jiddah, 1983.
  • Zayd, Muṣṭafā. Al‐Maslaḥah fī al‐tashrī῾ al‐Islāmī wa‐Najm al‐Dīn al‐Ṭūfī. Cairo, 1954.
  • Zysow, Aron. The Economy of Certainty: An Introduction to the Typology of Islamic Legal Theory. Forthcoming.
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