Principles of Islamic jurisprudence

Principles of Islamic jurisprudence otherwise known as Uṣūl al-fiqh (Arabic: أصول الفقه‎‎) is the study and critical analysis of the origins, sources, and principles upon which Islamic jurisprudence is based.

Traditionally four main sources (Qur’an, Sunnah, consensus (Ijma), analogical reason (Qiyas)) are analysed along with a number of secondary sources and principles.

The main subject areas of discussion are these:

Etymology

Uṣūl al-fiqh comprises the conjunction of two Arabic terms, uṣūl and fiqh. Uṣūl is derived from the root letters hamza, sad and lām which refers to basis. Fiqh linguistically refers to knowledge, deep understanding or comprehension.

Technically the term is used to refer to the body of evidences and principles that Islamic jurists utilise to provide solutions to problems.

Definition of the Science of Uşūl al-Fiqh

The science of uşūl al-fiqh is a science in which such rules whose results are placed in ways of deduction of juristic precepts are discussed. For instance, performing the prayers (şalāt) is mandatory in Islam, and this Qur’ānic verse proves that obligation: “And that perform the prayers” (6, 72). However, denotation of the verse is dependent upon the imperative, like “perform” in that verse, being apparent in the obligation on the one hand and Qur’ānic apparent meanings being authoritative on the other. Those two issues are dealt with in the science of uşūl al-fiqh. Now, when the jurist learns through this science that the imperative is apparent in the obligation and that the Qur’ānic apparent meanings are authoritative proofs, he can infer from the said verse that the prayers is mandatory.

Primary sources

The Qur'an has always been regarded as the primary legal source of Islam, the speech of Allah. It has been transmitted through numerous chains (mutawatir) and proven through rational argument.

This has been supplemented by further revelation termed sunnah. It comprises explanations from Muhammad in terms of his speech, actions and silences which have been historically compiled and verified through chains of narrations called hadiths. Sunnah is referred to for elaboration of the Quran or for clarification of a matter that is not mentioned in the Quran and is second in prioritisation to Quran.

The Muslim jurists have found that some revelation has been captured through collective agreements expressed after the death of Muhammad through consensus of his companions which were transmitted over the ages. These are compiled as instances of consensus of the companions (ijma al-sahaba).

Only when these failed to provide the authority sought did jurists resort to interpretation ijtihad.

In the very early days of Islam Muslim authorities tended to rely on their own opinions to establish their interpretation of what a prescribed law should be for any given situation not founded on the Qur'an, a practice known as ra'y.

The jurist ash-Shafi'i, however, preferred to rely solely on traditions from Muhammad and thereafter on the method known as qiyas (analogy) where interpretations were to be derived from comparisons with relative subjects dealt with in the Qur'an or the traditions.

It is now the scholarly consensus, amongst both orientalist and traditional scholarship, that the following is a myth:

"Once Shafi'i's school of law was fully established together with the other schools founded by Ahmad ibn Hanbal, Abu Hanifa and Malik, the "door" of ijtihad was closed and it was considered that ijma had been reached on all necessary points of law (though the schools differ in many matters to this day but mostly on minor points of interpretation). Accordingly, Islamic jurisprudence has changed little for centuries and is based fundamentally on the four sources mentioned above. There is much debate and critique as to whether closing the gates of ijtihad was acceptable and whether it contributed to the intellectual and civislisational decline of the Muslims."

Wael Hallaq is widely credited for decisively discrediting this myth in the western world, whereas others such as Qasim Zaman continue to show how the Ulema continued to actively engage in Ijtihad. However, there is a valid debate over the degree to which the Ulema remained active in such endeavours ever since colonialism and modernity intruded Muslim lands. In fact, faced with such drastic change, there are certain cases that do show the Ulema to be initially dismissive of sociopolitical realities and hence lagging in their response- Nevertheless, eventually finding legal stratagems to solve dilemmas. A case in point is the issue of women's divorce in the time of Ashraf Ali Thanvi.[1]

In the Shi'a schools, they have continued with ijtihad to the present day. They however disputed the methodology of compilation of narrations of sunnah and also limited consensus of the companions to consensus of the family of Muhammad (ijma ahl al-bayt)

Secondary sources

Benefit of the Science of Uşūl al-Fiqh

Since it is clearly known that any human voluntarily act has a precept in Islam, whether obligation, unlawfulness, or any of the five-fold burdensome precepts, on the one side, it is known that not all those precepts are known to everyone by self-evident knowledge but most of them are in need of survey and proof, i.e., they are deductive on the second, and uşūl al-fiqh is the only science formulated for proving juristic precepts on the third, the benefit of this science would be seeking assistance for deducing precepts from their proofs.

The schools of thought

The schools of Sunni Islam are each named by students of the classical jurist who taught them. The Sunni schools (and where they are commonly found) are

The schools of Shia Islam comprise:

The schools of Khawarij comprise:

These schools share many of their rulings, but differ on the particular hadiths they accept as authentic and the weight they give to analogy or reason (qiyas) in deciding difficulties.

Principles within Sunni Islam

Islamic law within the Sunni understanding draws from numerous sources. The most basic two sources  – indeed, the defining characteristics of Sunni Islam  – are the Qur'an, believed by Muslims to be the literal word of God, and the prophetic tradition including the statements and actions of Muhammad passed down through historically verifiable reports. consensus is also accepted by Sunni Muslims, though there is much differing over its exact definition. Analogical reason is typically referred to as a fourth primary source by later and modern Muslim authors, though its exact definition and even validity are not unchallenged.

Beyond the four main sources, other methods such as juristic discretion, public welfare and local custom are often considered, though discussions regarding how these sources are to be applied is ongoing.

The contribution of al-Shafi'i

Al-Shafi'i documented a systematized set of principles, developing a cohesive procedure for legal derivation of verdicts. His approach contrasted with the Hanafite methodology that determined the sources from the sayings and rulings of the companions and successors. Furthermore, he raised the Sunnah to a place of prominence and restricted its legal use. According to Shafi'i, only practices directly passed down from Muhammad were valid, eliminating the legitimacy of practices of Muhammad's followers. Prior to Shafi'i, legal reasoning included personal reasoning thus suffering from inconsistency. Shafi'i is probably best known for writing Risala, a prime example of applying logic and order to Islamic jurisprudence.[2] While Risala is considered a seminal work in the field of principles, it has been noted that the term "usul" is neither found in the title of the book nor is it used as such within the text.[3]

Evolution of methods

Between Shafi'i's Risala and the next attested works of usul is a gap of several hundred years. These later works were significantly different from Shafi'is book, likely due to the insertion of Mu'tazilite and Ash'arite theology into works of jurisprudence.[4] The difference between Shafi'i's work and these later works  – in terms of both content and the large chronological gap between which they were all composed  – is so great that modern scholarship has questioned the status of Shafi'i as the founder of Islamic jurisprudence.[5][6][7] Topics which became staples of written work on the principles of jurisprudence, such as reason versus revelation and interfaith debates regarding abrogation after revelation in Islam versus Judaism, were not even discussed by Shafi'i.

Indeed, even the division of the sources of Sunni law into four  – Qur'an, prophetic tradition, consensus and analogical reason  – was not present in Shafi'is books at all, despite Muslim scholarship generally attributing this division to him.[8] According to Qadi al-Nu'man, one of the earliest jurists to write about usul after Shafi'i did - perhaps during Shafi'is lifetime - was Abū 'Ubaid al-Qāsim b. Sallām, who actually considered the sources of law to consist of only three  – the Qur'an, the prophetic tradition, and consensus consisting of either scholarly consensus or consensus of the early generations.[3] This division into four sources is most often attributed to later jurists upon whose work most Sunni jurisprudence has been modeled such as Baqillani and Abd al-Jabbar ibn Ahmad,[9] of the Ash'arite and Mu'tazilite schools respectively. Thus, the four main sources often attributed to Shafi'i evolved into popular usage long after his death.

Additionally, the later scholars of the four mainstream Sunni schools of law all increased beyond four sources; while the four sources are the most widely accepted, other practices such as the Fatwas of the first generation of Muslims and the application of pure reason are not universally accepted.

Application of sources

Even after this evolution, there are still some disputes among Sunni jurists regarding these four sources and their application. Malik ibn Anas, Ahmad ibn Hanbal and in particular Dawud al-Zahiri rejected all forms of analogical reason in authentic narrations from them,[10][11][12] yet the later Malikites and Hanbalites  – and in some cases, even Zahirites  – gravitated toward the acceptance of varying levels of analogical reason already accepted by Shafi'ites and Hanafites.[11] Malik and Abu Hanifa both accepted pure reason as a source of law; Ahmad and Shafi'i did not, and Shafi'i was especially hostile to juristic preference as implemented by Abu Hanifa, yet pure reason later found its way into all Sunni schools of law.

The question of consensus has evolved considerably. Abu Hanifa, Ahmad and Zahiri only accepted the consensus of the first generation of Muslims,[13][14] while Malik was willing to accept the consensus of the first generation in general or the consensus of later generations within the community of Medina.[11][15] Shafi'i insinuated that consensus was not practically possible to confirm.[16] Later scholars of all schools eventually followed the views of Al-Ghazali and Ibn Taymiyyah in expanding the definition of accepted consensus to include scholarly consensus and silent consensus as well.[14][17]

Principles within Shia Islam

In Shi'a legal theory, analogical reason isn't recognised as a source of law; pure reason is, however.[18] Shi'ites may differ in the exact application of principles depending on whether they follow the Ja'fari, Ismaili or Zaidi subdivisions of Shi'ism.

Ja'fari principles

There are two interpretations of what constitutes sources of law among jurists of the Ja'fari school.

Javadi Amoli wrote about source of revelation in Shiism:

  1. The most important source in Shiite law is the Quran itself, which interprets itself
  2. The other source is the tradition of the infallibles (the family of the prophet) peace be upon them, according to the successive tradition (Saqalain) passed down by the family of the prophet (peace upon them) as well as according to the Quran itself: to accept one without the other is equivalent to rejecting both of them.
  3. A third source is theoretical wisdom where it is impossible to conceive the contrary, which proves the existence of God and the necessity of his unity, eternity, pre-existence, power, will and other exalted attributes: this cannot be denied with any verse.
  4. Although we cannot impose science upon the Quran, we can use verified scientific, experimental, historical, artistic, logical and other evidence to interpret the subject addressed in a given passage, rather than through another verse.[19]

In doubtful cases the law is often derived not from substantive principles induced from existing rules, but from procedural presumptions (usul 'amaliyyah) concerning factual probability. An example is the presumption of continuity: if one knows that a given state of affairs, such as ritual purity, existed at some point in the past but one has no evidence one way or the other whether it exists now, one can presume that the situation has not changed.[20]

The analysis of probability forms a large part of the Shiite science of usul al-fiqh, and was developed by Muhammad Baqir Behbahani (1706-1792) and Shaykh Murtada al-Ansari (died 1864). The only primary text on Shi'ite principles of jurisprudence in English is the translation of Muhammad Baqir as-Sadr's Durus fi 'Ilm al-'Usul.

Parts of the Shiite Uşūl al-Fiqh

Discussions of this science are presented in various parts in the works of uşūl al-fiqh. However, the best division is presented by al-Muhaqqiq al-Isfahani (d. 1940) in his last course of teaching (as narrated by his great student Muhammad Rida al-Muzaffar in his Uşūl al-Fiqh, p. 11) according to which all uşūlī topics are discussed in the four following parts: Discussions of “terms,” of “intellectual implications,” of “the authority,” and of “practical principles.” Discussions of terms deal with denotations and appearances of terms from a general aspect, such as appearance of the imperative in the obligation, that of the prohibition in the unlawfulness, and the like. Discussions of intellectual implications survey implications of precepts even though such precepts may not be inferred from terms, such as discussing truthfulness of mutual implication of intellectual judgments and juristic precepts, of obligation of something necessitating obligation of its preliminaries (known as “the problem of preliminary of the mandatory act”), of obligation of something necessitating unlawfulness of its opposite (known as “the problem of the opposite”), of possibility of conjunction of the command and the prohibition, and so on. Discussions of the authority investigate whether some specific thing is juristically treated as a proof; for instance, whether report of a single transmitter, appearances, appearances of the Quran, Sunna, consensus, intellect, and the like are authoritative proofs. Discussions of practical principles deal with what the jurist refers to when he cannot find a persuasive proof, such as the principle of clearance from obligation, that of precaution, and so forth. For more on this science, see An Introduction to Methodology of Islamic Jurisprudence(A Shiite Approach)

Ismaili principles

Most early Ismaili works within the field of the principles of jurisprudence were actually responses to Sunni works on the topic.[21] Qadi al-Nu'man's Differences Among the Schools of Law is most likely the first of such written responses.

Famous classical Muslim jurists (usoolis)

Famous contemporary Muslim jurists (usoolis)

See also

References

  1. ↑ http://deepblue.lib.umich.edu/bitstream/2027.42/60731/1/fareehak_1.pdf
  2. ↑ "USUL AL FIQH �AFTER AL IMAM AL SHAFI'I". Retrieved 2011-02-15. replacement character in |title= at position 14 (help)
  3. 1 2 Stewart, pg. 105.
  4. ↑ Devin J. Stewart, "Muhammad b. Dawud al-Zahiri's Manual of Jurisprudence." Taken from Studies in Islamic Law and Society Volume 15: Studies in Islamic Legal Theory. Edited by Bernard G. Weiss. Pg. 102. Leiden: 2002. Brill Publishers.
  5. ↑ Wael Hallaq, Was al-Shafi‘i the Master Architect of Islamic Jurisprudence?, International Journal of Middle East Studies, 4 (November 1993), pg. 587-605.
  6. ↑ George Makdisi, Juridical Theology, pg. 16.
  7. ↑ Stewart, pg. 103.
  8. ↑ "Does Shafi'i Have a Theory of 'Four Sources' of Law?, taken from the PhD dissertation of Joseph E. Lowry, The Legal-Theoretical Content of the Risala of Muhammad B. Idris al-Shafi'i, University of Pennsylvania, 1999.
  9. ↑ Hallaq, A history of Islamic legal theories : an introduction to Sunnī uṣūl al-fiqh. Pg. 30-35. New York: Cambridge University Press, 1997.
  10. ↑ Chiragh Ali, The Proposed Political, Legal and Social Reforms. Taken from Modernist Islam 1840-1940: A Sourcebook, pg. 280. Edited by Charles Kurzman. New York City: Oxford University Press, 2002.
  11. 1 2 3 Mansoor Moaddel, Islamic Modernism, Nationalism, and Fundamentalism: Episode and Discourse, pg. 32. Chicago: University of Chicago Press, 2005.
  12. ↑ Reuben Levy, Introduction to the Sociology of Islam, pg. 237, 239 and 245. London: Williams and Norgate, 1931-1933.
  13. ↑ Muhammad Muslehuddin, "Philosophy of Islamic Law and Orientalists," Kazi Publications, 1985, p. 81
  14. 1 2 Dr. Mohammad Omar Farooq, "The Doctrine of Ijma: Is there a consensus?," June 2006
  15. ↑ Muslehuddin, p. 81
  16. ↑ Majid Khadduri, Introduction to Al-Shafi'i's al-Risala, pg.33
  17. ↑ Khadduri, pg. 38-39.
  18. ↑ Moaddel, pg. 33.
  19. ↑ Tasnim (tafsir), Vol 1, Page 57
  20. ↑ One can compare, in Western legal systems, the presumption of innocence and the presumption in favour of possession. Similarly Catholic moral theology distinguishes between "direct principles" and "reflex principles", the latter being the equivalent of Murtada al-Ansari's usul 'amaliyyah.
  21. ↑ Stewart, pg. 116.
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