Lessons In Usool And Fiqh From Various Madhaahib
(legal schools of Jurisprudence)
Takhreej by Yahya Ibraheem (hafidhahullah)
Edited & Distributed by al-Mustaqeem
The benefits of the study of Usul al Fiqh are many. From a study
of Usul, we come to know the methods of interpretations of the Quran and Sunnah, all the secondary sources of Islamic law,
the views on Usul of major scholars of the past and present, the rules of Qiyas and other methods of Ijtihad, the history
of development of Islamic law and legal theory. All these make anybody who studies Usul cautious in approach to Islamic law.
He develops respect for the methodology of past masters and becomes aware of the need to follow rules in the matters of deduction
of new rules of Islamic law. The principal objective of Usul is to regulate Ijtihad and guide the jurist in his effort at
deducing the law from the sources.
Primarily Usul al Fiqh deals with the sources or roots (Adillah) of Islamic law
and the law itself. Usul al Fiqh (Usul is plural of Asl) the bases or roots of Islamic Law, expound the methods by which Fiqh
(detail Islamic law) is derived from their sources. In this view, Usul is the methodology and the Fiqh is the product.
there have been two dominant paradigms in approaching usul al-fiqh:
The first approach involves discovering an Imam's
principles by analyzing his legal decisions
The second approach involves setting down legal principles from which legal
decisions are derived.
Both approaches prove the preponderance of their principles using Qur'an; sunnah; precedence
from the Prophet (Allah bless him and give him peace), his Companions (Allah be pleased with them) and the righteous forbears;
linguistics; and logical.
The first approach is known as the way of the fuqaha, and it is an approach popularized by
The second approach is known as the way of the mutakallimin, and it was first systematically formulated
by Imam al-Shafi`i but is also followed by the Malikis and Hanbalis.
There is a third approach that follows a path
between the preceding two approaches.
In other words, Initially two approaches developed in the study of Usul, the
theoretical and the deductive. The theoretical approach was developed by Imam Shafii who enacted a set of principles which
should be followed in the formulation of Fiqh. On the other hand primarily the early and later Hanafi scholars looked into
the details of law given in the Quran and Sunnah and derived legal rules or Usul principles therefrom. However, the later
scholars combined the two approaches and presently the subject essentially follows the some format.
of their madhhab— who wishes to read usul al-fiqh should start with Al-Mahalli's commentary on Abu Ishaq al-Shirazi's
Al-Qaraqat fi Usul al-Fiqh and then read the sections on usul in Ibn Badran's Al-Madkhal and Ibn Mubrid's book. Usul is not
a difficult subject, but it is systematic and exact.
The founders of the four mathabs, Imams Abu Hanifa Al-Nu`man,
Malik bin Anas, Muhammad bin Idris Al-Shadi`i, and Ahmad bin Hanbal (may Allah be pleased with them all), were not arbitrary
in forming their legal opinions. Each one of these imams had a legal theory regarding legal sources of law, the principles
for interpreting these sources, and an actual methodology for applying these principles.
The four schools agree on
the use of Qur’an, hadith, scholarly consensus (ijma`), and analogical reasoning (qiyas). But even though the schools
agree on the use of these four sources, there are slight differences in how each one is used. In addition, each school adds
additional sources to this list.
This leads to the obvious conclusion that differences the usul lead to differences
in the furu`.
It also leads to a less obvious conclusion that we cannot determine which opinion is strongest until
we have determined which usul is strongest. This is not always a trivial task.
As for the usul of the Hanbali mathab,
the basic list, since at least the times of Ibn Qayyim Al-Jawziya, includes five:
An-Nass which includes the Qur’an
and accounts from the Prophet (Allah bless him and give him peace) that are rigorously- or well- authenticated (respectively:
A fatwa from one of the Companions when the other Companions (Allah be well pleased with them one and
all) are not known to differ with it
When there is a difference of opinion between the Companions (Allah be well pleased
with them one and all), then whichever one is closest to the Qur’an and sunna; if it was not clear which opinion was
closest, then he would mention that there is a difference of opinion without being convinced [of the superiority of any particular
Hadiths that are mursal, where one of the tabi`in (someone who met at least one of the Companions (Allah be well
pleased with them)) ascribes a hadith to the Prophet without mentioning the narrator(s) between himself and the Prophet (Allah
bless him and give him peace);
Hadiths which are weakly authenticated (da`if) when there is nothing to refute it, however
there is disagreement concerning the meaning of “dha`if” here
Analogical reasoning (qiyas)
Fuqaha have also listed:
Al-Istishab, which is projecting a known ruling into the past or present
al-Mursala, which looking at the public interest
Al-Dhar`i, which is giving something the ruling of that which it leads
Usul deals with the primary
sources of Islamic law, the Quran and the Sunnah, i.e. Usul discusses the characteristics of the Quran and Sunnah, and what
are the methods of deduction of law from the Quran and the Sunnah.
In doing that, Usul discusses various kinds of
words used in the Quran and the Sunnah in particular and Arabic language in general such as the Amm (general) and the Khass
(particular), Mutlaq (unconditional) and Muqayyid (conditional), Haqiqi (literal) and the Majazi (Metaphorical), various types
of clear words and unclear words.
Methods of deductions from the legal verses of the Quran and the legal Ahadis (singular
Hadis) are what the Fuqaha (jurists) have called Ibarah al Nass (whereby Ahkam or rules are derived from the obvious words
and sentences themselves), Isharah al Nass (where Ahkam are inferred from signs and indications inherent in the text) Dalalah
al Nass (where Ahkam are derived from the spirit and rationale of a legal text) and Iqtida al Nass (whereby Ahkam are derived
as a requirement of the provision of the text though the text is silent on the issue).
Usul al Fiqh also discusses
the secondary sources of Islamic law, the Ijma (consensus), Qiyas (analogical deduction), Istihsan (Juristic preference) and
other methods of Ijtihad (reasoning and investigation).
All the secondary sources are either directly or indirectly
based on the primary sources of Islamic law, the Quran and the Sunnah. For instance, three main elements of Qiyas, that is
Asl (original case), Hukm (ruling on asl) and the Illah (effective cause ) are based on primary sources.
Usul al Fiqh
also discusses other main issues involving Islamic law such as the effect of custom on law or custom as a source of law, and
grades of the Islamic legal provision (i.e. what is Haram, what is Maqruh; what is Fard, what is wajib and what is Mandub/Mustahab
(recommended) and also the methods of removal of conflict (i.e. Taa'rud).
In some books of Usul, grammar of Arabic
language is discussed at length. Of course the knowledge of Arabic language and grammar is a must for one who wants to be
a Usuliuun or a jurisprudent. However, this is not really a subject matter of Usul.
The Quran In some classical books of Usul (such as Nurul Anwar by Sheikh Ahmad Ibn Abu Said or Manar
by Sheikh Abul Barakat Abdullah Ibn Ahmad Nasaki) most of the discussion of Usul have been made under the heading "Kitabullah"
(that is the Quran).
Such discussion include discussion on the classification of words in the Quran (or Arabic language),
grammatical issues pertinent to interpretation of the Quran and Sunnah.
Therefore you should come to apprereciate the
beauty and structure of the arabic language if you ever hope to accomplish anything to do with the Islamic sciences.
Usuliyeen refer to things such as Haruful Maa'ni (words with meaning), Haruful Atf (conjunction), Haruful Jar, (which gives
Kasra to the noun when it is used before noun), Haruful Asmauz Zaruf (Haruf which indicate time, place, etc.) and Haruful
Shart (haruf which indicates conditions). Discussion under Kitabullah also include the methods of interpretation such as Ibaratun
Nass, Isharatun Nass, etc.
I shall not discuss rules of grammar in Usul and ask the readers to study Arabic language
and its grammar separately. In this part we shall discuss some of the characteristics of Quran as its introduction.
is DEFINED as:
Quran is the book which Allah revealed in His speech to His Prophet Muhammad in Arabic and this has
been transmitted to us by continuous testimony or tawatur.
There are 114 suras of unequal length. The contents of the
Quran are not classified subjectwise. The Quran consists of manifest revelation ('Wahy Dhahir) which is direct communication
in the words of Allah. This is different from Wahy Batin (non-manifest revelation) which consists of inspiration and concepts.
All the Ahadeeth of the prophet fall under this category.
Hadeeth Qudsi, in which the Prophet quotes Allah in the
Hadith, is also not equivalent to the Quran. In fact, this kind of Hadith is also subject to examination of Isnad (chain of
narrators from the Prophet (SM) to the compiler of the Hadith compilation). If the sanad (chain) is weak, the hadith will
be treated as weak, even though it is Hadith Qudsi. It should be noted that the Prophet did not make any distinction between
Hadth Qudsi and other Hadith.
The jurisprudents agree that text and meaning together constitute the Quran.
larger part of the Quran was revealed in Mecca (about 19 of 30 parts) and rest in Madinah. The Meccan revelations
mostly deal with beliefs, disputation with unbelievers and their invitation to Islam. But the Madinan suras, apart from the
aforesaid, deal with legal rules regarding family, society, politics, economics, etc. The sura is considered Meccan if its
revelation started in Mecca, even if it contains Madinan period
Ayats. The information regarding which one is Makki or Madani are based on the sayings of the Sahaba or the following generation.
The legal material of the Quran is contained in about 500 Ayats, according
to various estimates. These injunctions were revealed with the aim of repealing objectionable customs such as infanticide,
usury, gambling, unlimited polygamy; prescribing penalties and core Ibadah like Salat,
Siam, Zakat, Hajj. Other legal Ayats deal with charities, oaths,
marriage, divorce, Iddah, revocation of divorced wife (Rijah), dower, maintenance, custody of children, fosterage, paternity,
inheritance, bequest; rules regarding commercial transaction such as sale, lease, loan, mortgage, relations between rich and
poor, justice, evidence, consultation, war and peace.
One of the things that has been discussed is about Qati (definitive)
and Dhanni (speculative). Qati and Dhanni concepts have been discussed in terms of text and in terms of meaning. The whole
of the Quranic text is Qati (definitive) that is its Riwyah (report) is conclusive and beyond doubt. Only other text, which
has been considered Qati is only Mutawatir Sunnah or Hadith (at least in essence). Other Hadith and Ijtihad are Dhanni material.
The text of the Quran which has been reported in clear words which has only one meaning are considered Qati also in
terms of meaning (Dalalah). Qati and Dhanni have significance in the matter of belief and in the gradation of Ahkam into Fard,
Wajib, Sunnah, Haram, Makruh, etc. Articles of faith can be determined only by Qati text with Qati meaning.
the text of the Quran are Qati in meaning.
In the discussion on Qati and Dhanni, Quran and Sunnah are integral to
one another. Dhanni of one verse can be made Qati by another verse or definitive Sunnah. Similarly, the Dhanni Sunnah can
be elevated to Qati by Qati Ayat of the Quran or by other corroborative evidence of Qati Sunnah.
By far, the large
part of the Quranic legislation have been given in broad outlines, only in a few area, the Quran has given instruction in
considerable details. Hardly there is anything where Quran has given all details. We are dependent on Sunnah and Ijtihad to
fill up the gaps or for explanations.
Another issue is Asbab al Nazul or events which are related to revelation
of the Ayats. The Hukm (law) is not limited to the events or circumstances. However Asbab al Nazul helps to understand the
Quran and its law. We shall look at this a little later.
Meaning of Sunnah
The Literal meaning of
Sunnah in Arabic is beaten track or established course of conduct. Pre-Islamic Arabs used the word for ancient or continuous
According to scholars of Hadith, Sunnah refers to all that is narrated from the Prophet,his acts,his sayings
and whatever he tacitly approved.
The Jurisprudents exclude the features of the Prophet from the Sunnah.In the Hadith
literature,there are uses of the word Sunnah in the sense of sources of law, for instance in THE Prophet's farewel Hajj address.
term Sunnah was introduced in the legal theory towards the end of the first century. It may be noted that in the late 2nd
Century Hijra Imam Shafii restricted the term to the Prophetic Sunnah only. The word SUNNAH is understood to represent
different things in the relative disciplines of Islamic Law
In the language of Usul
al Fiqh Sunnah means the source of Shariah next to the Quran.
But to the Ulama of Fiqh Sunnah primarily refers to a
Shariah value which is not obligatory but falls in the category of Mandub or recommended.
But as a source, Sunnah
can create obligation (wajib), Haram, Makruh, etc.
In the technical usage Sunnah and Hadith have become synonymous
to mean conduct of the Prophet.
The Sunnah of the Prophet is a proof (Hujjah). The Quran testifies that Sunnah is divinely
inspired (53:3). The Quran enjoins obedience to the Prophet [59:7;;
4:80; 33:36]. Allah asked the believers to accept the Prophet as judge (4:65)
Classification of Sunnah may be Qawli,
Faili and Taqriri (verbal, actions and tacit approval)
A very important classification is legal and non-legal Sunnah.
Legal Sunnah consists of the Prophetic activities and instructions of the Prophet as the Head of the State and as
Non-legal Sunnah (Sunnah Ghayr tashriyyah) mainly consist of the natural activities of the Prophet (Al-afal-al-jibilliyyah),
such as the manner in which he ate, slept, dressed and such other activities which do not form a part of Shariah. This is
called 'aadat (habit) of the Prophet in the Nurul Anwar,a text -book of Usul.
Certain activities may fall in between
the two. Only competent scholars can distinguish the two in such areas. Sunnah which partake of technical knowledge such as
medicine, agriculture is not part of Shariah according to most scholars. As for the acts and sayings of the Prophet that related
to particular circumstances such as the strategy of war, including such devices that misled the enemy forces, timing of attact,
siege or withdrawal, these too are considered to be situational and not a part of the Shariah.
Certain matters are
particular ONLY to the Prophet such as the case of number of wives, marriage without dower, prohibition of remarriage of the
widows of the prophet.
The Quran has priority over Sunnah, because of nature of revelation (wahy Dhahir over wahy
Batin), authenticity and also because Sunnah is basically and mostly an elaboration of the Quran. In case of real conflict,
the Quran should prevail. Never is the Quran abandoned in favor of the Sunnah.
as-Sunnah It may be noted that Sunnah in many instances
confirms the Quran. There is no disagreement on this. The Sunnah also explains and clarifies the Quran as in the case of Salat,
Zakat, Hajj, Riba and many other matters of transactions.
Another part of Sunnah which is called Sunnah al Muassisah
or founding Sunnah (such as prohibition of marrying paternal or maternal aunt or the right of pre-emption in property (shuf')
cannot be traced in the Quran and originate in the Sunnah.
It may be noted that the experts in Hadith literature at
the stage of collection of Hadith examined all Hadith before recording in their collections (particularly the claim of transmission
from the Prophet downward) and classified Hadith into strong (sahih/hasan), weak (daif) and forged (Mawdu). It is easy for
an expert in Hadith to find out the status of Hadith. Even now re-examination of Hadith literature is continuing. In our current
century, al-Imaam Mohammed Nasiruddin Al-Albani has done important work on this subject. Anybody who knows Arabic well, can
look into Albani's works to see this in practice.
Mutawatir Hadith were considered Qati (definitive) in concept (Mutawatir
bil Ma'na) mostly. There are only a few hadith which are Mutawatir bil Lafz (Mutawatir word by word). Also note that because
of large number of reporters of Mutawatir Hadith, diversity of residence of the reporters. It is impossible to concoct a lie
in this manner. The main conditions of Mutawatir Hadith are:
Large number of reporters reports must be based on
direct knowledge and through sense perception, reporters must be upright, reporters are free from sectarian or political
bias of that time.
According to the majority of Ulama of Usul, the authority of Mutawatir is equivalent to the Quran.
It gives positive knowledge, the denial of Mutawatir Hadith or Sunnah is equivalent to denial of the Quran.
Hadith is a kind of Hadith, which is reported by one or two companions, then become well known. The majority of Ulama considered
Mashhur as a kind of Ahad Hadith and it gives speculative knowledge, not positive knowledge. Ahad Hadith (in most cases reported
by a single companion and which did not become well-known in the 2 or 3 generations) does not give positive knowledge. Majority
of Jurists hold that if Ahad is reported by reliable reporters, it establishes a rule of law. Some hold acting upon Ahad is
only preferable. .
If a hadith is narrated by a number of narrators and there is additional words in some of them,
then it should be looked into whether the hadith was originally uttered in one sitting. In that case ,the words narrated by
more narrators will be accepted..
Imam Malik did not rely on Ahad., if it was in conflict with the practice of Madinah.
Most Imams considered Ahad to be authoritative in principle if reported by reliable reporters. Majority of Ulama do not insist
on verbatim transmission (rewait bil Lafz) of Ahad. Transmission of a part of Hadith is permitted, if it is not in conflict
with the full hadith.
What is the difference between Muttasil (connected) and Ghair al Muttasil (disconnected) Hadith?
Mutawatir, Mushhur an Ahad are kinds of Muttasil hadith. Mursal, Mudal and Munqati are various types of Ghair al Muttasil
According to the majority, Mursal means that a successor (Tabii), narrates a hadith without mentioning the
name of companions. Majority of Ulama of Hadith do not accept the Mursal as evidence. Imam Ahmad and Imam Shafii do not rely
on Mursal unless reported by famous successor, even then Mursal have to meet certain conditions as mentioned in books on Usul.
Imam Abu Hanifa and Imam Malik are less stringent in their acceptance of Mursal. Munqati refers to a Hadith whose
chain of narrator has a single missing link somewhere of the middle of the chain. The Mudal is a Hadith in which two consecutive
links are missing.
The Hadith has also been classified into Sahih, Hasan and Daif. Hadith is called Sahih (that is
excellent in terms of quality of narrators - not in the sense of Qati or absolutely correct), if it is reported by Thiqat
Taabitun (highly trustworthy) or by Thiqat (trustworthy) narrator. A Hadith is considered Hasan if among the narrators are
included (apart from the categories of narrators of Sahih hadith) some persons who are Sadiq (truthful), Sadiq Yoohim(truthful
but commits error) and Maqbul (accepted that is there is no proof that he is unreliable).
A hadith is considered Daif
if among the reporters are any Majhul person(that is unknown person in terms of identity or conduct) or if there is any Fasiq(violator
of any important practice) or any liar.
To be continued insha Allah (How are ruling derived from Quran and Sunnah)
The Quran and Sunnah at the Time of Rasool ul Allah 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.
the Sahabah rarely used to question the Prophet (PBUH) about any matter unless he himself mentioned it first.
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." [ See 'Abd Allah ibn 'Abd al Rahman al Darimi, Sunan, I, 51.]
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." [ al Darimi, op. cit., I, 50.]
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." [ al Darimi, op.
cit., I, 49.]
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." [ al Darimi, op. cit., I, 51.]
'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." [ al Darimi, op. cit., I, 51.]
Abu 'Ubaydah said in his book Majaz al Qur'an: "It has never been
reported that any of the Sahabah went to the Prophet for knowledge of anything which could be found in the Qur'an."
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 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 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 performing Hajj and Salah, and the other acts of worship.
People were heard
asking the Prophet 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 Prophet's judgements were not hidden from them.
People also saw how the Prophet used to notice the conduct of his Sahabah and others. Thus, if he praised anybody,
they knew that the person's act had been a good one; and if he criticized anybody, they knew that there had been something
wrong with what the person had done. This is uniquely and solely for the Prophet.
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 experience, the reasons
for his prescribing certain medicines, so also the Sahabah of the Prophet knew exactly the reasoning behind his decisions.
An important issue in Usul-al-Fiqh is how to interpret the basic sources of Islam, the Quran and the Sunnah. This
would require understanding the Quran and the Sunnah i.e. their text and meaning of their texts. As such a person who wants
to interpret the Quran and the Sunnah at any level (in depth or otherwise) would require the knowledge of Arabic language
. For this reason Ulama of Usul include the classification of words and understanding their meaning in the study of Usul-al-Fiqh.
is not normally attempted if the text itself is self-evident. However, the greater part of Fiqh or law is derived through
interpretation because most of the legal texts are not self-evident. It should be noted that Tawil (interpretation) and Tafsir
(explanation) is not the same thing. Tafsir aims at explaining the meaning of the given text and deducing a Hukum (rule) from
it within the confines of its sentences. Tawil (interpretation) goes beyond the literal meaning of the text and bring out
hidden meaning, which is often based on speculative reasoning and Ijtihad.
All words are presumed to convey their absolute
(Mutlaq), general (Amm) and literal (Haqiqi) meaning unless departure to alternative is justified.
This is a very
important principle and one that needs to be understood! Especially when today many people have their words twisted around
by sick hearted individuals.
PAY ATTENTION TO THE FOLLOWING!
Clear words are of four types, according to a
major classification. They are Zahir, Nass, Mufassar and Muhkam.
1- Zahir (manifest) is a word which has a clear meaning
and yet open to Tawil (Interpretation), primarily because the meaning is not in harmony with the context.
is a clear word that is in harmony with the context, but still open to Tawil.
The distinction between Zahir and Nass
is whether the meaning is in harmony with the context or whether the meaning is primary or secondary in the text concerned
(see example in usul text books... Ibn Rushd has a beneficial introduction of Bidayat al-Mujtahid that discuss this in part).
The obvious meaning of Zahir and Nass should be followed unless there is reason to warrant recourse to Tawil. By Tawil (interpretation),
Amm may be specified, Mutlaq may be made Muqayyad, Haqiqi meaning may be abandoned in favor Majazi.
Nass, apart from
the above meaning has another important meaning used by Fuqaha which means definitive text or ruling of the Quran and Sunnah
(we are not using this meaning here).
3- Mufassar (unequivocal) and
4 - Muhkam (perspicuous) are words whose
meaning is absolutely clear and there is no need to take recourse to Tawil. (Here is the difference between these words and
Zahir and Nass). There is no real distinction between Mufassar and Muhkam in terms of clarity.
However, the jurists
have made a distinction between Muhkam and Mufassar, which one is liable to abrogation and which one is not. They hold Muhkam
is not liable to abrogation and Mufassar is liable to abrogation. However, there is not much purpose in the distinction because
nothing can be abrogated now.
Unclear words (Al Alfaz Ghairal Wadiha) are of four types - Khafi (obscure),
Mushkil (difficult), Mujmal (ambivalent) and Mutashabih (the Intricate/intertwined).
1- Khafi is a word whose meaning
is partly unclear. For instance the word Sariq (thief) is unclear as to whether it includes a pickpocket. This has important
implication because if pickpocket is not included (as the majority holds) then, he would not be liable to Hadd (that is, punishment
prescribed in the Quran or Sunnah) but will be liable to Ta'zir (punishment prescribed by the legislative authority in the
present day world, punishment given by judges in the past). Not because the pickpocket steals that means he is a THEIF!
Mushkil (difficult) is a word which has several meanings. So Ijtihad and Tawil would be required in determing the correct
position in the context (there may be difference of opinion in this area). Mushkil is inherently an ambiguous word, whereas
Khafi has a clear basic meaning. A text may become Mushkil in the existence of conflicting text.
3- Mujmal denotes
a word or text which is inherently unclear and gives no indication as to its precise meaning. It may have several meanings
or it may be unfamiliar word or the lawgiver may not have explained the word to clarify it.
For instance the words
such as Salatul Hajj, Riba and Siyaam. They have lost their literal meaning and taken a technical meaning given by the lawgiver.
However, these words have become totally clear or Mufassar due to explanations provided in the Sunnah. The word Al-qariah
in the verses 101:1-5 is a mujmal word. However it has been explained by the Quran itself and has become clear. If the explanation
provided by the lawgiver is insufficient, Mujmal turns into Mushkil which is open to Ijtihad and Tawil.
(Intricate) is a word whose meaning is a mystery. Harful Muqattaat (such as Alif Lam Mim) are Mutashabihat. Nobody knows their
meaning Many scholars hold that passages of the Quran which draw resemblance between man and God are Mutashabihat. Some scholars
hold there is no Mutashabihat except Haruful Muqattaat. Mutashabihat do not occur in the legal texts.
If the explanation
or Tawil of one part of the Quran and the Sunnah is provided in another part of the Quran and Sunnah, it is called Tafsir
Tashrii that is considered integral part of the law. However, if Tafsir or Tawil take the nature of opinion or Ijtihad, this
is not considered integral part of the law (the status of this part of law is less than the first one, there is more difference
among jurists on this part of law).
Interpretation (tawil) can be relevant. This type of Tawil is accepted by all.
However, interpretation can be very far-fetched which is not accepted by a majority of scholar. Zahiri scholars do not normally
accept interpretation. However, this position is weak and impractical.
from Ibn Rushd regarding Istinbaat (extracting rulings)
My purpose in this treatise is to lay down in it for myself, by way of remembrance, the issues (Masa'il)
of the Ahkam that are agreed upon and those that are disputed, along with their evidences, and to indicate those bases of
the disputes that resemble general rules and principles, for the Faqih (jurist) may be presented with problems on which the
Shara' (law) is silent.
The issues are mostly those that are expressly stated in the Manthuq (unstated text of the
Nass), or are closely related to those that are so stated. They are the issues agreed upon by the Muslim Fuqaha (jurists)
since the generation of the Sahabah (Companions - God be pleased with them) till such time that Taqlid (following qualified
scholarship) was rampant, or those over which a difference of opinion among them became widely known.
these issues we will mention for you, as briefly as possible, the different channels through which the Ahkam of Shara' were
received, the various categories of such Ahkam, and the causes that necessitated differences of opinion.
We say: The
channels through which the Ahkam were received from the Prophet (God's peace and blessings be upon him) are three in classification:
1. Lafz (word), 2. al-Af'al (act), and 3. Iqrar (approval). With respect to the Ahkam about which the Lawgiver is silent,
the majority (Jumhur) say that the method of attaining them is through the use of Qiyas (analogy).
The Zahiri school
maintain that analogy in Shara' (law) is illegal and that about which the Lawgiver is silent has no Hukm (rule or an injunction).
They give the reason, as the incidents among individuals are unlimited, while Lafz (words), Af'al (acts), and Iqrar (approvals)
are limited, and it is impossible to compare the finite and the infinite.
The kinds of words through which the Ahkam
are received, by means of transmitted evidences, are four in number; three are agreed upon while the fourth is disputed. The
three that are agreed upon are:
Lafzahun 'Amun Yuhmalu 'ala 'Umumihi (the general word when applied to all its categories)
Lafzahun Khashshun Yuhmalu 'ala Khushushihi (the specific word applied to its single case) Lafzahun 'Amun Yuradu bihi
al-Khushush au Lafzahun Khashshun Yuradu bihi al-'Am (the general word when its application is specific, and the specific
word when its intended implication is general.)
Included in this category is: A. at-Tanbih bi A'la 'ala Adna (the
use of the higher meaning to denote the lower meaning)
B. at-Tanbih bi Adna 'ala A'la (the use of the lower meaning
to indicate the higher meaning)
C. at-Tanbih bi al-Musawiy 'ala al-Musawiy (the indication of equivalent meanings.)
example of the first (Lafzahun 'Amun Yuhmalu 'ala 'Umumihi) is found in the words of the Exalted, "Forbidden unto you [for
food] are carrion and blood and swine-flesh" (5:3). The Muslim Fuqaha agreed that the word swine (Khinzir) includes all kinds
of swine, unless it belongs to the category to which the name is not applied, except by way of Ishtirak (similar vocal phrase),
like the term "sea swine".
The example of the general word implying the specific (Lafzahun 'Amun Yuradu bihi al-Khushush)
is found in the words of Allah, "Take alms of their wealth, wherewith you may purify them and may make them grow" (9:103).
Based on this, the Muslim Fuqaha agreed that Zakah is not obligatory on all kinds of wealth.
The example of a specific
word having a general intent (Lafzahun Khashshun Yuradu bihi al-'Am) is evident in the words of the Exalted:
'Ah!' unto them nor repulse them, but speak to them a gracious word" (17:23). This is the case of "at-Tanbih bi Adna 'ala
A'la" as the prohibition includes beating, abuse, and whatever is more grievous.
The authority demanding the commission
of an act uses either the form of a command (amr) or the form of an account (or narration) implying a command. Similarly,
the authority demanding omission of an act employs the form of a 'Sighat Nahy' (prohibition), or the form of an account implying
prohibition. If words occur in these forms, is the demand for the commission of an act to be interpreted as an obligation
(Wajib) or a recommendation (Mandub) - as is discussed under the definition of Wajib and Mandub or is interpretation to be
abstained from till another evidence indicates either one of the two? There is a difference of opinion among the Fuqaha in
this, recorded in books on Usul al-Fiqh.
This is the same with the case with forms of prohibition, whether they indicate
Makruh (disapproval) or Haram (unlawful), or do not indicate either? In this too there is, recorded, a difference of opinion.
entities to which the Hukm is related are indicated by it either through a word with a single meaning (no annotations attached
to it), and this is known in the discipline of Usul al-Fiqh as Nass (explicit) and there being no dispute about the obligation
of acting in compliance with it - or through a word having more than one meaning and this is of two types:
may indicate an equal character toward the different meanings and is known in Usul al-Fiqh as Mujmal (having equal possibilities)
and there is no dispute that it does not require a Hukm. The word may be inclined toward some of these meanings more than
it is toward the others, and is known, as Dhahir (the clearer one), and with reference to other possible meanings as Muhtamal
(possibility or probable). If such a word is used in its Mutlaq (unqualified sense) it is to be applied to its most apparent
meaning, unless another evidence indicates its application to its Muhtamal meanings.
Thus there occurs a difference
of opinion among the Fuqaha about the Ahkam of the Lawgiver. It, in fact, takes place mostly due to three reasons:
the point of Ishtirak (similar vocal phrase) of the word applied to a Masa'il (issue) with which the Hukm is associated. From
the point of Ishtirak of the definite article "al" accompanying the classification of the Masa'il, whether the whole is hinted
at or a part; From the point of Ishtirak of the words used for amr (commands) and Sighat Nahy (prohibitions). A fourth
way through which Ahkam are received, is to know that from the obligation of the Hukm for an issue, the negation of things
besides it, and from the negation of a thing the obligation of all things besides it. This is known as the Dalil al-Khitab
(indirect indication of the communication). It is a rule that is disputed, like the words of the Prophet (God's peace and
blessings be upon him), "In the Sa'imah (pasturing) out of cattle there is Zakah". Some have understood from this that there
is no Zakah in cattle other than the Sa'imah (pasturing animals) i.e. wild cattle are not subject to Zakah.
analogy (Qiyas) is the assigning of the provided Hukm for an issue to another issue, from which the Shara' is silent, due
to its resemblance to the issue for which the law has provided the Hukm or in other words due to the presence of 'Illat (common
underlying cause) between them.
It is for this reason that legal analogy is of two types: Qiyas Shibh and Qiyas 'Illat..
The difference between legal Qiyas and the specific word (Lafz Khas) implying a general meaning is that analogy can be undertaken
only in the case of a specific word that implies just its single category. The other similar cases are then joined with it,
that is, those not covered by the text are joined to the one that is (Manthuq), due to a resemblance between them ('Illat),
not through an implication of the word. This is so because the extension of the Hukm to Manthuq (unstated) implied category
is not analogy, but an indication (connotation) of the word (Dalalah Lafz). These two kinds (of extensions of the Hukm to
the Manthuq condition) are very close as in both there is a joining of the explicit and the implicit cases and is often a
cause of confusion for the Fuqaha.
Examples of analogy are the joining of one who drinks Khamr (wine) with the Qadhif
(one who accuses wrongfully others of Zina) as regards with the fixed punishment (Hadd), and the joining of (the amount of)
Mahar (dower) with the Nisab (minimum scale) in the case of the cutting of the hand of the thief. The joining, on the other
hand, of things carrying Riba (usury) with food, things measured or eatables, is the case of a specific word implying the
general. So ponder over this as it is a source of confusion.
It is possible for the Zahiri school to dispute the first
Qiyas, while they are not obliged to dispute the second (specific word implying a general intent) for it is a case of authoritative
transmission (Dalil Bab as-Sam'u) and he who rejects this, rejects a style of Khitab (communication grammar) employed by the
The report of an act (al-Af'al), according to many, is one of the channels through which the Ahkam are received.
Some have said that reports of the Prophet's al-Af'al (actions) do not yield Ahkam, as they do not have linguistic patterns.
Those who accept that Ahkam can be received through al-Af'al differ about the kind of Hukm indicated by them. Some say that
they indicate obligation while others say that they indicate Mandub (recommendation).
The preferred opinion of the
learned scholars (specialists) is that if they occur as an explanation, of a Mujmal (obscure) obligatory act, they indicate
an obligation, and if they occur as an explanation of a Mujmal recommended act then they indicate recommendation. If they
do not occur as an explanation for a Mujmal act, but belong to a recommended category, then they indicate recommendation.
If they belong to the classification of Mubah (permissible acts) then they indicate permissibility.
on the other hand, indicates permissibility. These, then, are the kinds of channels through which the Ahkam are received.
(Ijma') relies on one of these four classifications, except that when it takes place on the basis of one of these channels,
which is not Qati'i (definitive) the Hukm that was considered zhan (unclear) is then considered Qati'i due to predominant
probability. Ijma', however, is not an independent source in itself unless reliance is placed on one of these four classifications
(above). Had it been so it would have amounted to the establishment of additional law after (the time of) the Prophet (God's
peace and blessings be upon him), as it would not have been based on one of the legally valid principles.
terms denoting the Ahkam derived from these literal modes for the subjects (mukallaf - the act of the subject) are, as a whole,
either a command for a thing or a prohibition or a choice between the two (Takhyir).
When the command is decisive and
an omission (to do the act) invokes punishment the act is called obligatory (Wajib). If there is reward (thawab) for the act
and punishment is absent it is called a recommended act (Mandub). Similarly, when the prohibition is decisive and the commission
of the act invokes punishment, the act is prohibited (Haram), and if there is an urging to abstain from the act without invoking
punishment for commission it is called disapproval (Makruh). Where a choice has been given (between commission and omission)
the act is permitted (Mubah or Takhyir).
The kinds of Ahkam acquired through these channels are five: obligatory, recommended,
prohibited, disapproved, and permissible. (Wajib, Sunnah or Mandub, Haram, Makruh or Mahzur, Mubah or Takhyir).
causes of conflict of opinion (ikhtilaf), by classification, are six. (It is well known that there is no conflict between
in the evidences of the Shara', only that the conflict exists in the mind of the Fuqaha that the Faqih seeks to resolve the
Ikhtilaf using Usul- al-Fiqh)
The First is the fluctuating of the words between these four modes:
that is between
the Lafz 'Am meant as a specific meaning, the Lafz Khas implying generality, Lafz 'Am which is sought for implies
generality, or that the Lafz is present, or absent with Dalil Khitab (an indirect indication of the communication), Lafz
Khas, but what is needed is the specific meaning, or there is present, or absent. The second cause is the presence of
Ishtirak (similar vocal phrases) in words.
This occurs sometimes in Lafz Mufrad (the individual word) like the word
"period" (qurun) that is usually applied both to purity (tuhr) and to menstruation (Haidh); similarly, the word command (amr)
whether it is to be given the (initial) meaning of obligation, sometimes is given the meaning of recommendation and the word
prohibition (Nahy) whether it is to be given the meaning of prohibition or of disapproval. Sometimes it occurs in Lafz
Murakkab (the compound word) as in the words of Allah: "They are transgressing save those who afterward repent" (24:4-5).
It is likely that this refers to the transgressing person (Fasiq) only and it is also possible that it refers to both the
transgressor and the witness. Thus, repentance can remove the consequences of transgression and it can also permit the testimony
of the Qadhif (slanderer). The third cause lies in the I'rab (different probabilities of the) grammatical structure.
fourth is the ability of the word to indicate its literal meaning (hakiki), and an allegorical or metaphorical sense (majasi)
resulting from an implied omission or addition or from the reversal of the normal order of the sentence by advancing or deferring
a word from its legitimate place, or it may be the vacillation of the word between its actual application (hakiki) and the
figurative meaning (Isti'arah).
The fifth cause is the occasional use of the word in its absolute/unqualified (Mutlaq)
meaning or in a qualified sense (muqayyad), like the unqualified use, on occasions, of the word al'Itqu and then qualifying
it with the absolute Taqyid.
The sixth cause is the conflict between two texts (Ta'arudh), in all kinds of words from
which the law derives the Ahkam. Moreover, the conflict may exist between reported acts (Af'al) or approvals (Iqrar) or between
different kinds of analogy themselves, or the conflict may be between one of these four channels with another channel: that
is, the conflict of a word (Lafz) with a reported act, approval, or analogy; the conflict of a reported act with approval
or Qiyas; and the conflict of approval with Qiyas.
End words of Ibn Rushd
If you have read this once and
you believe you understand it then you will never be a student of anything in life.
Analyze what you find displayed
here ikhwani wa Akhawati and see how it relates to the Halal and Haram questions you ask... And worse, how it relates to the
questions you seek to answer by quoting a hadeeth from Bukhari and thinking that you have done well.
Reread this numerous
times and post questions regarding it in a separate thread if need be.
Tawil - Interpretation Part TWO
After Ibn Rushd's discussion and seeing what is the intent behind all of the catagorization and understanding the
6 reasons for Ikhtilaaf (juristic) please follow that up with this discussion to understand things more clearly.
know that words are classified into Amm (General) and Khass (specific). Amm is basically a word which has a single meaning
and which applies to many things, not limited in number, and it includes everything to which it is applicable.
Insan (human being) 'whoever' are example of Amm. When the article Al (the) precedes a noun, the noun becomes Amm
(see example in 24 : 2 etc.).
The Arabic expressions Jami (all), Kaffah (all), Kull (all, entire) when precede or
succeed a word, the word becomes Amm.
An indefinite word (al-Nakirah) when used to convey the negative becomes Amm.
For instance the Hadith 'la darar wa la dirar fil Islam (no harm shall be inflicted, no harm shall be accepted), [see usul
When a command is issued by Amm words, it shall be applicable to all it applies. In determining the scope
of Amm, reference is made not only to the rules of the language but also to the usage of the people; and in case of conflict,
priority is given to the latter. Amm can be of 3 types - a) Absolutely general [ref. The words "ma min dabbatin" in Hud
b) Amm which is meant to imply [Al Imran : 97].
c) An Amm which has been specified elsewhere [ see Baqarah
: 228 and Ahzab : 49 together, see also usul text books for other examples and explanations].
The word "man" (in Arabic
meaning he who) is Khass in application but when used in conditional speech it becomes Amm. (ref. The Al-Quran - 4 : 92, 2
: 185). Khass is a word which is applied to a limited number of things but applies to everything to which it can be applied.
The words one, two, one hundred, Dina, Jannah. Imran, Boby, a horse, a human being are Khass. Legal rules or commands conveyed
in specific terms are definite in application and are not normally open to Tawil. There is general agreement that Khass is
Qati (definitive), i.e. it's meaning and application are beyond doubt clear.
Ulama have differed on Amm, whether it
is Qati or Zanni. The majority holds it to be Zanni, minority holds it to be Qati. The result of this disagreement becomes
clear in the event of conflict between Khass and Amm. In the case of two rulings on the same point, one Amm and one Khass
(in the Quran or the Sunnah), according to the majority, Khass only explains the Amm. Minority holds that Khass specifies
the Amm (see the example in Kamali's book under conflict between Amm and Khass).
According to all, Khass is Qati (Amm
is not), as such it will prevail over Amm. According to minority, Amm is also Qati, and as such, Amm will be specified by
Khass, if the two rulings are chronologically parallel. Khass will be abrogated if Amm is of later origin. Amm will be partially
specified if Khass is of later origin. According to majority, an Amm (general) proposition may be specified by a dependent
clause which may occur in the same text (same verse or in another text (another verse). This may be done by introducing an
Istisna (an exception reference - 2 : 282), a Shart (condition, ref. )
or Sifah (quality, ref. ) or by indicating extent of application
(ghayah, ref. 5 : 6).
The effect of Amm is that it remains in force unless specified. Even after partial specification
Amm remains legal authority for unspecified portion. According to the majority Amm is speculative as a whole, whether before
or after Takhsis (limitation) and as such open to Tawil. The cause (Sabab) of general ruling can not limit the application
of the ruling. For instance, Asbab an Nazul (causes of revelation of verses of the Quran) will not limit the application of
law based on the verse to the cause only.
Mutlaq and Muqayyid - Unspecified and Qualified
Mutlaq denotes a word which is neither qualified nor limited in its application.
When we say a book', it applies to any book without restriction. Mutlaq is unspecified and unqualified. When Mutlaq word is
qualified by another word or words, it becomes Muqayyad. For instance, 'a red book'. Whereas Amm and Khass deal with scope
of the words, Mutlaq and Muqayyad deal with essentially qualification (though Mutlaq has resemblance to Amm and Muqayyad has
resemblance to Khass). An example of Mutlaq is "Fa tahriru rakabatin" (freeing a slave) in Sura Al-Maida (5 : 92). An example
of Muqayyad is "freeing of a believing slave in Sura Nisa (4 : 92).
Mutlaq remains absolute in application unless
there is a limitation to qualify it. When Mutlaq is qualified into Muqayyad, the latter will get priority (see example in
the textbook based on Quran 5 : 3 and 6 : 145).
If there are two texts on the issue, one Mutlaq and the other Muqayyad,
if they differ in their ruling and cause, both will operate, neither will be qualified. This is the majority view. Imam Shafii
differs some what.
He says that if the two texts vary in ruling but has the same cause, the Mutlaq will be qualified
by the Muqayyad (see example based on verses 5 : 7 and of the
Early Hanafi scholars think that if Mutlaq and Muqayyad differ in their causes, one does not qualify the other.
Literal and Metaphorical - Haqiqi wal Majaazi
Haqiqi (literal) and Mujazi (metaphorical) Words are normally used in their Haqiqi
(literal) sense. Literal will normally prevail over metaphorical, particularly in law. Most of the Quran is Haqiqi. But Majazi
also occurs in the Quran. For instance, the Quran says in 40 : 13 that "Allah sends down sustenance from the heavens which
in fact means rain" (other examples, see textbook).
If the metaphorical (Majazi) meaning becomes dominant, it will
prevail over the literal. For instance the literal meaning of "talaq" (that is release or removal of restriction) has been
abandoned for metaphorical meaning of divorce.
Haqiqi has sub-divisions of linguistic, customary and juridical (please
see the textbook). Haqiqi and Majazi have been subdivided into "Sarih" and "Kinayah".
Sarih (plain) is a word where
the meaning is plain. You need not ask the speaker or writer to know the meaning. Kinayah (allusive) is a form of speech which
does not disclose the intention of the speaker, you require further explanation from the speaker to know the intention. For
instance, the use of the word 'Itaaddi' (start counting your days of divorce). Divorce is not clearly indicated.
Textual Implications (Al-Dalalah) There are two major analysis regarding levels
of meaning of words and texts, the Hanafi and Shafii. There is not much difference in essence between the two. The Hanafi
Ulema of Usul have distinguished four levels of meaning - First level is Ibarah al Nass (the explicit meaning). Ibarah al
Nass is obviously perceptible from the text and also represents the principal theme of the text, if there are subsidiary themes
also. (For example, limiting polygamy is a conclusion derived by Ibarah an Nass from the verse 4 : 3)
Most of the Nasus
(legal texts) of Shariah convey their rulings by way of Ibarah Al Nass. Ibarah Al Nass conveys a Hukm Qati (definitive ruling)
on its own and does not require corroborative evidence. Second level is Isharah Al Nass. This is an indicative meaning or
alluded meaning present in the text. An example of indicative meaning is the verse 2:236 where it is not clearly said that
marriage can be contracted without prior fixation of marital gift but deeper investigation suggests so. It may be noted that
in any event marital gift has to be given to wife in terms of verse 4 : 4 of the Quran.
Third method of deduction is
Dalalah Al Nass ( inferred meaning). This is a meaning derived from the spirit and rationale of a legal text even if it is
not indicated in the text. For instance from verse , we can infer
that not only we can not say "Uff" to parents, we can not use any abusive language.
Forth method of deduction or level
of meaning is Iqtida Al Nass (required meaning) that is a meaning on which the text is silent, yet it must be assumed to fulfil
proper objective. For instance in verse 4: 22, it must be assumed that prohibition of marriage of mother or daughter means
who are mothers or daughters through marriage. In case of conflict, the first level (Ibarah Al Nass) will take precedence
over second level (Isharah Al Nass) and so on.
The Shafiis have classified Texual implications into two basic types
- Dalalah Al Mantuq (pronounced meaning) and Dalalah Al Mafhum (implied meaning). Dalalah Al Mantuq has been divided into
Dalalah Al Iqtida (required meaning) and Dalalah as Isharah (alluded meaning). Dalalah Al Mafhum (implied meaning) has been
subdivided into Mafhum al Muwafaqah (harmonious meaning) and Mafhum Al Mukhtalifa (divergent meaning or meaning not in accord
with the purpose of text). Shafiis do not accept Mafhum al Mukhtalifa unless they fulfil six conditions. They have also imposed
restrictions in regards to Sifah (attribute), Shart (condition) and Ghayah (extent).
Hanafi scholars are more opposed
to Mafhum Al Mukhtalifa. They do not accept any meaning which is not in accord with the text or its spirit. They do not accept
it at all in the case of interpretation of the Quran and the Sunnah.
Commands and Prohibitions A command (Amr) is defined
as a verbal demand to do something from a position of superiority to an inferior. Command (also prohibition) may occur in
a variety of form.
Command is mostly in imperative mood. In some cases, use of a simple past tense in Arabic may also
indicate command to do something [Sura Baqarah : 178].
A Quranic injunction may occur in a form of moral condemnation
(Al-Baqara : 189).
Quranic commands may be conveyed as a promise of reward or punishment (see also the Quran - -14).
An important question is : What is primary in command, is it
obligation, a recommendation or simple permissibility? (as 'command' may mean all these).
Often you hear brothers
quoting a Hadeeth that carries an Amr. They then mistakenly understand from it that it is an obligation when it fact is a
recommendation or permissibility.
According to the majority, command implies obligation unless there evidence to suggest
otherwise. Some have held that Amr (i.e. command) is in the nature of Mushtarak or which impart all (obligation, recommendation
and permission). Some have held it implies only obligation or recommendation (Nadb). Some others have held that Amr means
permission to do something. Clearly, the majority opinion is more rational and justified.
Command (Amr) may sometimes
mean permissibility. For instance when the Quran says, "Kulu Washrabu" (eat and drink - ref. ), the context suggests that it is mere permissibility. Similar examples can be seen in verse 5:2
(wa idha halaltum Fastadu) and 62:10 (Fantashiru fil Ard).
A command may convey a recommendation in some cases (Sura
Baqara : 282). A command in a few cases may indicate threat, i.e. advise to desist from doing a particular thing (ref. 24:33
and 17:64) A command may imply supplication or prayer also (Ref. Baqara : 286). However command (Amr) mostly means obligation
(Fardh or Wajib, depending on whether the text and meaning both are Qati or not.) - Later we shall discover difference between
Fardh and Wajib.
Majority of Ulama held a command following a prohibition means permissibility, not obligation (ref.
Quran 5:2 and 62:10).
According to majority , a single instance of compliance of the command is an obligation, in
the absence of indications for repeated compliance.
When a command is issued in conditional terms, then it must be
complied whenever it (condition) occurs (Ref. The Quran 5:7).
When a command is dependent on a cause or attribute,
it must be fulfilled whenever the cause is present (Ref. Quran ).
regard immediate or delayed execution of an Amr, it depends on the text and its indications. If the command does not itself
specify a time limit (such as the times of prayers), it may be delayed.
As regards whether the command implies the
prohibition (Nahy) of the opposite, the majority thinks so.
Prohibition (Nahy) is the opposite of command. It is a
demand to avoid doing of something. Prohibition may occur in the form of a statement (ref. Quran 2 : 221) or in the form of
an order not to do something (62 : 9; ). Nahy may convey Tahrim
(total prohibition) or guidance (irshad) or reprimand (ta-dib).
Nahy which implies reprehension may be seen in Quran
5 : 87.
Nahy which conveys moral guidance may be seen in Quran 5 : 104).
Majority hold that Nahy primarily
implies Tahrim, if there is no other indication to think otherwise.
If the act (other than Ibadat) is not prohibited
in itself but becomes prohibited because of an extraneous reason, it is Batil (void) according to Shafi's and Fasid according
Batil means, it can not be corrected (there are many instances where marriage becomes Fasid according
to some scholars and Batil according to other scholars - so is the case of many business transactions - see a book on marriage
or on business in Islamic Law). The position is different about Ibadat (devotional matters). The Fasid here is equaivalent
to Batil. In other words, there is only Batil, not Fasid in the area.
Prohibition requires immediate and repeated
compliance, whenever the prohibition is applicable.
If the prohibition is conditional, it will be applicable where
the condition is present (Ref. Quran 60 : 10). When a prohibition succeeds a command, it conveys Tahrim (illegality).
(Sarih) injunctions (whether Amr or Nahy) require total compliance. However, the spirit of the Law should also be kept in
view, not only letters (as for instance in Quran 62 : 9).
Implicit injunctions, unless made explicit elsewhere, can
be understood by scholars and they may differ therein. The means which lead to observance of command or prohibition are covered
by the same ruling which applies to commands and prohibitions. Only a small portion of Nasus (texts) gives precise meaning.
The larger portion of Nasus have to be interpreted by Mujtahid or scholars in the light of the general principles
and objectives of Shariah.
Naskh (Abrogation) Naskh literally
means obliteration. Naskh has been defined as the suspension or replacement of one Shariah ruling by another.
operates only in law, not in beliefs!!
Naskh operates only when:
- two evidences are of equal strength,
they are present in 2 separate texts,
- there is genuine conflict which can not be reconciled, - and the two texts
are of two timeframe (one is later to the other).
There are some who do not agree that there is abrogation in
the Quran. They say that in Ayat 2 : 106 and 16 : 106, reference of "Ayah" is not to abrogation within the Quran but abrogation
of earlier scriptures by the Quran. They also say that the 'so-called' conflict in the Quran can all be reconciled. Muhammad
Asad has also mentioned in his translation that there is no Naskh in the Quran!?! Abdul Hamid Abu Suleman feels that it was
wrong on the part of earlier Ulama to turn Naskh into a doctrine of permanent validity instead of understanding as the circumstance
Abu Suleman suggests that Naskh's application should be limited to clear cases only such as change of
They are clearly mistaken in their "opinions."
According to the majority, there is Naskh in the Quran
and the Sunnah. According to majority, Ijma can not abrogate a ruling of the Quran and the Sunnah. Qiyas can not repeal a
text of the Quran or the Sunnah. Abrogation may be explicit (sarih) or implicit (dimni).
According to Imam Shafii,
there are two types of Naskh -
Naskh of Quran by Quran and Naskh of Sunnah by Sunnah.
According to majority
there are 4 types of Naskh :
Quran by Quran, Quran by Sunnah, Sunnah by Quran, Sunnah by Sunnah.
is also another classification :
Naskh al Hukm, Naskh al Qiraah, and Naskh al Hukm Wal Tilwah.
al Hukm means that ruling has been abrogated but the text remains.
Naskh al Qiraah means that the text has been abolished
but the ruling remains.
Naskh al Hukm wal Tilwah, both the text and rulings are treated as abrogated.
is difference between Naskh (abrogation) and Takhsis (specification or qualification of a general text). There is no real
conflict in Takhsis. Another issue is whether addition (Tazid) amounts to abrogation. The majority answer is negative, which
There is so much more that could be said.
(Consensus Of Opinion) Ijma is the verbal
noun of the Arabic word Ajma'a which has two meanings : to determine, to agree upon something. Ijma is considered the third
proof of Shariah after the Quran and the Sunnah. As a proof of Shariah, it is basically a rational proof. An Ijtihad or an
Interpretation of one or a few scholars when becomes universal, becomes Ijma.
The classical definition of Ijma, as
laid down by Ulama of Usul, is categorical on the point that the universal consensus of the scholars of the Muslim community
as a whole can be regarded as conclusive Ijma. Only such Ijma are considered binding by early Usuliun (Usul scholars). However
universal Ijma are indeed very few. As evidence show, it is extremely difficult to prove Ijma on particular issues, particularly
in the case of issues open to ijtihad or tawil. There is no authentication of Ijma through Isnad (chains of narrators).
only form of Ijma upheld by majority is the Ijma of Sahabis only. Majority of Ulama of Usul think that Ijma can take place
on Sharii and devotional (Ibadah) and dogmatic (Itiqad) matters. For the first time Ijma occurred among the companions of
the Prophet. Ijma initially helped unity of Ummah in some matters. Ijma also ensures correct interpretation as broad consensus
is unlikely to take place on incorrect matter. Ijma also enhances the authority of the rule on which there is Ijma. Unanimity
of Ulama on an issue of a particular time is a requirement of Ijma. The agreement must be expressed by clear opinion of all
scholars of the time. Ijma must consist of the agreement of all majtahidun. Though many Ulama consider majority to consist
Any agreement of majority can be a proof but can not be a binding proof because to be binding, it must fulfill
the conditions stated in the Ahadith quoted in support of Ijma (which is nothing short of Ijma of all people, at least all
scholars.) There is no good ground to exclude any scholar of any school
of Islam, as long as the school or group itself is not considered outside
Islam by the Muslims.
The Ulama have on the whole maintained that the textual evidence in support of Ijma does not
amount to conclusive proof. The Ayats quoted in support of Ijma (,
4:83; 4:115, etc.) are not conclusive for Ijma. Imam Gazali says these Ayats are indications, not clear Nass on Ijma. Suyuti's
interpretation is the same. Al Amidi says, "these give rise to probability (Zann), not positive knowledge".
10 Ahadith are quoted in support of Ijma. A number of Ulama (including Shafii scholars) have said that Ijma of classical definition
is not feasible because of the huge number of the Ummah or its scholars or distances. It is for this reason that Imam Shafii
confines the occurrence of Ijma to the obligatory duties only. For the same reason, Zahiris and Imam Ahmad refer by Ijma to
the consensus of companions only.
Ijma are of two types - Ijma al Sariah (explicit Ijma) and Ijma al Sukuti (Ijma
Ijma Sukuti (which occurs when one or a few scholars agree on something and no dissent is known) is not
a proof according to a majority of scholars. According to the majority Ijma must be founded in a Textual authority (Quran
and Sunnah) or Ijtihad. There are 3 views on whether Qiyas can be a basis of Ijma or not . Some agree, some disagree, some
partially agree. The reasons are too deep for our simple foundational discussions.
Ijma can be transmitted by Ahad
or Mutawatir report of scholars. There is no Mutawatir report of Ijma except those of Ijma of companions.
Maslaha are more important in future fiqh studies than seeking to find a point of Ijma in our contemporary times.
important to note that once scholars have differed upon an issue there can NEVER be Ijma by future generations since scholarship
QIYAS (Analogical Deduction) Part 1
Literally Qiyas means measuring or ascertaining the length, weight or quality of something. Qiyas also means
comparison to establish equality or similarity between two things.
In the language of Usul, Qiyas is the extention
of a Shariah ruling from an original case (Asl) to a new case (Far') because the new case has the same effective cause (Illah)
as the original case.
The original case is regulated by a text of the Quran or the Sunnah and Qiyas seeks to extend
the original ruling to the new case. The emphasis of Qiyas is identification of a common cause between the original and new
case. Jurists do not consider law derived through Qiyas as a new law. However, for all practical purposes , Qiyas leads to
new ruling on a different matter.
Qiyas is a methodology developed by jurists through which rulings in new areas are
kept close to the Quran and Sunah because new rulings are based on the Illah (causes) discovered in the legislation of the
Quran and Sunnah. Rulings on new areas could diverge a lot, if Qiyas was not applied. This is a major justification for validity
Qiyas is a rationalist doctrine (because intellect is largely used to find out the Illah), but in Qiyas personal
opinion (Ra'y) is kept subservient to divine revelation (in that Illah is discovered from the text of the Quran and the Sunnah).
Qiyas does not change any law of the text (Quran or Sunnah) for expediency. Qiyas as a methodology means that the jurists
accept that the rules of Shariah follow certain objectives (Maqasid) which are in harmony with reason. Zahiris (a group of
literalist scholars) do not accept Qiyas. However, majority is right on this point.
Qiyas does not give rise to certainty.
Qiyas is therefore speculative. Law derived through Qiyas can not be of same authority as that of textual ruling (of Quran
or Sunnah). There can be difference of opinion on the law derived through Qiyas, as is the case with almost all Ijtihadi law.
The essential requirement of Qiyas are: - Asl (original case, on which a ruling has been given), - Hukm (ruling on
the original), - Illah (cause of ruling in the original case) and - Far' (new case on which ruling is to be given).
In the case of prohibition of wine drinking (Maida : 90) if it is to be extended to narcotic drugs. The requirement
of analogy would be fulfilled in the following manner.
Asl Far' Illah Hukm . Wine drinking =>Taking narcotic drugs
=>Intoxicating Effects =>Prohibition.
One condition of Asl (the subject matter of original ruling) is that the
Quran and Sunnah are the source the Asl (many scholars do not consider Ijma to be basis of Asl).
According to majority,
one Qiyas can not form Asl of another Qiyas.
However, Maliki jurist Ibn Rushd thinks a Qiyas can be basis for
another Qiyas as long as it does not contradict Nusus (clear texts or rulings) of the Quran and Sunnah.
pertaining to Hukm (a ruling in the original case) are :
- It must be a practical Sharii ruling (Qiyas does not operate
in the area of belief). - Sharii ruling must not be an abrogated one, - The Hukm must be amenable to understanding
through human intellect (see examples in the text book). - Hukm must not be limited to exceptional situations (in that
case it can not be basis of Qiyas, such as the prohibition of marriage of widows of the Prophet (SM) with others).
is operative or extendable in Hadud (prescribed penalties), according to majority.
New case on which ruling is to
be given (Far') must not be covered by Nasus (texts). Qiyas ma'al tariq (analogy with discrepancy) is not permitted.
(Analogical Deduction) Part 2
cause (Illah) must be :
- Munasib (proper, according to Mujtahid or scholar of Fiqh)
- It must be a constant
- It must be evident (Zahir)
- According to majority, Illah must be muta'addi (that is
transferable to other cases. Some hold different view with regard to Tadiyah (tranferability).
- The effective cause
must not run counter to Nasus.
- The effective cause may be clearly stated in the nass (text) but such cases are not
many (Ref. Quran : , 59:7)
Arabic expression such as Kay-la
(so as not to), li ajli (because of ), li (for), fa (so), bi (because), anna, inna, also indicate Illah in many cases (Ref.
word "Sabab" (cause) is also used as a substitute for Illah. However, some scholars make distinction between the two. The
distinction is not substantive or even clear. However, Illah has become popular in usage.
When the Illah is not clearly
stated in the nass, it is the duty of the Mujtahid to find out the Illah (reason) for the ruling of the text through Ijtihad.
This is done by a 2-stage process. The starting point is "Takhrij al manaat" (extracting Illah - manaat is another word for
Now Illah for a ruling may appear to be a few instead of one. In that case the Mujtahid proceeds to eliminate
the improper Illah and find out the proper (munasib) Illah. This process is called tanqih al manat (isolating the Illah).
Tahqiq al manat consists of investigation of the presence or otherwise of Illah in the new case (far') where the ruling
is to be extended. (whether analogy can be extended to pick-pocket from thief or whether herbal drink has the same Illah as
Qiyas Part 3
One classification of
(a) Qiyas-al-awla, (b) Qiyas-al-musawi and (c) Qiyas-al- adna.
Qiyas al-awla (superior Qiyas) means
where the effective cause is more evident in the new case (far') than the original case (asl). [Ref. 17:23].
(analogy of equals), Illah is present in Asl and Far' equally (Ref. Quran- 4: 2 ).
In Qiyas-al-adna (analogy of inferior),
Illah in Far' is present less clearly than the original case (Asl). This Qiyas also is accepted.
There is another
classification of Qiyas into Qiyas jali (obvious analogy) and Qiyas Khafi (hidden analogy).
Qiyas is accepted by majority
including 4(four) Sunni schools and Zaydi Shias. Proofs of Qiyas are in verse 59:2 of the Quran, indications in verses 4:105,
2:79 and 59:7. Sunnah also supports Qiyas in that Ijtihad has been referred to in Sunnah and Qiyas is the most important method
Arguments against Qiyas have been put forward by mainly Zahiri school. They contend that Quran 6:89 ('we
have neglected nothing in the Quran') is against Qiyas. They also say, Qiyas is based on Illah which is based on conjecture.
They also say Quran 49:1 is against Qiyas.
All these are very weak arguments and most of Ummah could not accept them.
Majority hold that Qiyas is applicable in Hadud (prescribed penalties).
Hanafis say that Qiyas is applicable to "Ta'zir"
penalties (penalties which have been laid down by Parliament/Courts - not by Quran and Sunnah specifically) but not to Hadud
(punishments prescribed in the Quran and the Sunnah). Hanafi opinion in this regard is more cautious.
Qiyas is redundant
where Nass is there, according to majority. Some hold that Qiyas (which is speculative) can specify or qualify speculative
of the Quran and the Sunnah. Some Ulama hold that Qiyas can take priority over Ahad hadith, if Qiyas is supported by other
Qiyas will continue to be a major instrument of Ijtihad in future, along with Istihsan and Maslaha
(will be discussed later insha Allah).
means to deem something preferable. In its juristic sense, Istihsan is a method of exercising personal opinion (ra-y) in order
to avoid any rigidity and unfairness that might result from literal application of law. Istihsan as a concept is close to
equity in western law. However equity in western law is based on natural law, whereas Istihsan is essentially based on divine
Istihsan is not independent of Shariah, it is integral part of Shariah. Istihsan is an important branch of Ijtihad,
and has played a prominent role in adaptation of Islamic law to the changing needs of society. Istihsan has been validated
by Hanafi, Maliki and Hanbali jurists. Imam Shafi, Shii and Zahiri Ulama have rejected it as a method of deduction. However,
in effect Majority have accepted Istihsan.
It has been mentioned that decision of Umar Bin Khattab to suspend "hadd"
penalty (penalty prescribed by the Quran and Sunnah) of amputation of hand during famine is an example of Istihsan. Here positive
law of Islam was suspended as an exceptional measure in an exceptional situation.
A major jurist Al-Sarakhsi considers
Istihsan as a method of seeking facility and ease in legal injunctions and is in accords with the Quran (2:183). The Sahaaba
in their judgments were not blindly literalists. On the contrary, their rulings were often based on their understanding of
the spirit and purpose of Shariah.
Oral testimony was the standard form of evidence in Islamic law. However, now in
some cases photography, sound recording and laboratory analysis have become more reliable means of proof. Here is a case of
Istihsan by which method we can prefer these means of proofs over oral testimony in many cases.
Hanafi jurist Abul
Hasan al Karkhi defines Istihsan as a principle which authorizes departure from an established precedent in favor of a different
ruling for a stronger reason.
The Maliki jurists are more concerned with Istislah (consideration of public interest)
than Istihsan. They validate Istihsan as more or less similar to Istislah or as a part of Istislah. (See Maliki and Hanbali
definitions from their sources for examples - to advanced for this discussion).
There is no Qati (definitive) authority
for Istihsan in the Quran and the Sunnah. However, verses 34:18 and 39:55 of the Quran have been quoted in support. Similarly
a very famous Hadith : "La darara wa la dirara fil Islam" [no harm shall be inflicted or tolerated in Islam] has been quoted
Istihsan is closely related to 'ra-y' (opinion) and Qiyas (analogical deduction). Both in Qiyas and
Istihsan, 'ray' is an important component, more heavily in case of Istihsan.
Sahaaba were careful not to apply 'ra-y'
at the expense of Sunnah. Ahlal Hadith mostly avoided using 'ra-y'. Some Fuqaha on the other hand liberally used 'ra-y' in
deducing law and they came to be known as "Ahlur Ra-y".
Many hold that one kind of Istihsan is essentially Qiyas Khafi
(Hidden analogy). They think that Istihsan is a departure from Qiyas Jali (obvious analogy) to Qiyas Khafi.
is another form of Istihsan in which exception is made to the general rule for the sake of equity and justice on the basis
of some 'nass' (textual evidence), approved custom, darurah (necessity) or Maslaha (public interest).
criticized Istihsan on the basis of Quranic verses and 75:36. However,
these verses are not categorical on Istihsan. Al-Ghazali has criticised Istihsan but stated that Shafii's recognize Istihsan
based on detail from the Quran and the Sunnah. Al-Amidi ( a Shafii jurist) has stated that Al-Shafii also resorted to Istihsan.
Modern jurists have stated that the essential validity of Istihsan is undeniable.
Maslahah literally means benefit
or interest. When qualified as Maslahah Mursalah it refers to unrestricted public interest. Maslahah Mursalah is synonymous
with Istislah which is also called Maslahah Mutlaqah.
Al Ghazali thinks Maslahah consists of considerations which
secure a benefit or prevent a harm. Protection of life, religion, intellect, lineage and property is Maslahah.
the basis of Maslahah, the companions decided to issue currency, to establish prisons and impose Kharaj (agricultural land
tax). The Ulama of Usul are in agreement that Istislah is not a proof in respect of devotional matters (Ibadah) and in respect
of specific Shariah injunctions like shares of inheritance. The majority of Ulama maintain that Istislah is a proper ground
Al-Shatibi points out that this is the purpose of Quranic Ayat No. 107 of sura Al Anbiya that "We
have not sent you but as a mercy for all creatures". There is support for Maslahah in the Quran in Sura Younus (10:7), in
Sura Hajj (22:78) and in Sura Al-Maidah (5:6).
The Ulama have quoted a number of Hadith in support, such as the following
"The Prophet only chose the easier of two alternatives so long as it did not amount to a sin".
to see that His concessions (rukksah) are observed, just as He loves to see that His strict laws (azaa-im) are observed".
The above would confirm that no unnecessary rigour is recommended in the enforcement of Ahkam and that the Muslims
should avail of the flexibility and concessions of Shariah.
All the Khulafa-I-Rashidun acted in pursuance of Maslahah.
Abu Bakr compiled the Quran. Umar held his officials responsible for abuse of public office. Uthman distributed the authenticated
copy of the Quran and destroyed the copies of variant texts. Ali held the craftsmen and traders responsible for the loss of
goods that were placed in their custody.
Maslahah has been upheld by the majority of Ulama. However, strong support
for it comes from Imam Malik. Maslahah has been divided into three types by Shatibi and some other scholars -
[daruriyyat], the complementary [hajjiyat] and beautifications [tahsiniyaat].
From the point of view of availability
or otherwise of textual authority, Maslahah has been further sub-divided into the following :
[accredited Maslahah] which has been upheld in the Shariah such as defending the right ownership by penalizing the thief.
Maslahah Mursalah is that which has neither been upheld nor nullified by the Shariah such as provision in law in many
Muslim countries for documentary evidence to prove marriage or ownership of property.
Maslahah Mulgha which has been
nullified either explicitly or by indications in Shariah. To validate Maslahah the following conditions have to be met
Maslahah must be genuine, Maslahah must be general (Kulliyah) - that is it secures Maslahah for all. it
must not be in conflict with clear Nass.
As regards relation among Qiyas,- Istihsan and Istislah, - it may be stated
that Qiyas and Istihsan are essentially based on Illah in the Nasus (hidden or obvious).
Law is expanded by Qiyas
or Istihsan on the basis of Illah of Nasus. But when law can not be made on the basis of Nasus or through Qiyas and Istihsan,
law is made on the basis of Maslahah or public interest.
Al-Urf (Cultural Practices )
Urf (custom) is defined in Usul as "recurring practices which are acceptable
to people of sound nature. Urf and its derivative Ma'ruf both occur in the Quran, mostly in the sense of "good" (as opposed
to "bad or evil") adehrence to Allah's injunctions, (The Quran - 3:110; 7:199).
However, "Urf" has been used in the
sense of custom also in some places in the Quran (Ref. 2:233 with regard to maintenance of children).
therefore, has in principle approved custom in determination of rules regarding 'halal' and 'haram'. Fuqaha also adopted Urf
in the determination of the Ahkam of Shariah. The rules of Fiqh which are based on juristic opinion (raay) or Ijtihad have
often been formulated in the light of prevailing custom. It is therefore permissible to depart from them if the custom on
which they were founded changes in the course of time.
A rule propounded by some Fuqaha (Suyuti and Sarakhsi) is that
"what is proven by Urf is alike that proven by Shariah." This was adopted by Turkish Khilafat in Al-Majallah. However, this
rule is applicable in the case of Urf of the Muslim nations and when the Urf is not in conflict with the rules, essence and
spirit of Shariah. Urf of non-Muslim societies must be very carefully examined.
Customs which were prevalent in Arabia in the lifetime of the Prophet (SM) and which were not over-ruled by the Prophet (SM) are treated
to have received his tacit approval and considered as a part of Sunnah taqririyyah. An example of this is payment of Diat
(compensation for murder) to the family of murdered by "Aqilah" (male kinsmen of the murderer - female relations have no obligatory
liability in this regard, they can, however pay, if they want), where payment of Diat has been agreed upon.
are the conditions of Urf :
- It must be common and recurrent. - Urf must be in practice at the time of transaction,
i.e. past Urf is no basis. - Custom or Urf must not violate the nass or clear stipulation of the Quran and the Sunnah.
- Custom must not contravene the terms of a valid agreement (valid according to Shariah)
There is difference
between Urf and Ijma. Urf is essentially a local or national practice whereas Ijma is on agreement of Ulama across places
and countries. There are other differences which are not substantial in character.
Urf has been sub-divided into Qawli
(verbal) and Fili (actual). Verbal Urf consists of agreement of people on the meaning of words. As a result the customary
meaning becomes dominant meaning and literal meaning is reduced to the status of an exception. Actual Urf is the practiced
Urf Qawli and Urf Fi'li are both sub-divided into two further types :
Al-Urf-al amm or practice
of all people everywhere (such Urf is almost non-existent). Al-Urf-al Khass is the practice of a particular country or
locality or some places.
This is the Urf with which Usul is mostly concerned. Urf has also been classified as
Urf al Sahih (valid Urf - valid according to the Quran and the Sunnah) and Urf-al-Fasid (disapproved Urf, not valid according
to the Quran and the Sunnah).
Istishab - Continuity of existence
or Lack of
Istishab: Istishab literary means courtship or companionship. In Usul-al-Fiqh, Istishab
means presumption of existence or non-existence of facts. It can be used in the absence of other proofs (dalil).
has been validated by a large member of scholars, though not all. In its positive sense, Istishab presumes continuation of
a fact (marriage or a transfer of ownership) till the contrary is proved. However, the continuation of a fact would not be
proved, if the contract is of temporary nature (for instance, Ijara or lease). Istishab also presumes continuation of negative.
Because of its basis in probability, Istishab is not a strong ground for deduction of the rules of Shariah. Hence
when it comes in conflict with another proof (dalil) the latter takes priority.
Istishab is of four types :
of original absence (Istishab al-adam al-asli) which means that a fact or rule which had not existed in the past is presumed
to be non-existent.
Presumption of original presence (Istishab al-wujud al-asli). This means that the presence of
that which is indicated by law or reason is taken for granted. For instance, a husband is liable to pay "Mohr" by virtue of
existence of a valid marriage.
Istishab al-hukm which presumes the continuity of general rules and principles of law.
For instance when there is a ruling in the law (whether prohibitory or permissive), it willl be presumed to continue.
al-wasf (continuity of attribute) means to presume continuity of an attribute until the contrary is established (for instance,
clean water will be continued, to be treated as clean water).
The Ulama of Usul are in general agreement on the first
three types of Istishab. There is more disagreement on the fourth.
Some important legal maxims (QAWA'ID) have been
founded on Istishab, such as :
Certainty can not be disproved by doubt (Al-Yaqin la Yazul bil Shakk)
of original freedom from liability (bara'ah al-dhimmah al-asliyyah).
Soon we shall discuss the Qawa'id insha Allah.
al Dharai (Blocking the means)
(means) is the plural of Dhariah which signify means. Sadd means to block. In Usul, it means blocking the means to evil.
al Dharai is often used when a lawful means is expected to produce an unlawful result.
The concept of Sadd al-Dharai
is founded on the idea of prevention of evil before it materializes. There are examples of Sadd al-Dharai in the Quran (for
instance, 6:108; 2:104).
The means must conform to the ends (objectives of Shariah) and ends must prevail over the
means. If the means violate the purpose of Shariah, these must be blocked. The purpose (Maqasid) of Shariah are identifiable
from the texts.
A general principle has been adopted by jurists that 'preventing harm takes priority over securing
As such means, if they lead to evil, these must be rejected. Authority for Sadd al-Darai is also found
in Sunnah. Prophet forbade a creditor to take a gift from debtor (as it could lead to taking of interest). He also forbade
killing of hypocrites (as it could lead to dissention within community, also lead to wrongful killing on suspicion).
Shatibi is of the opinion that most Ulama have accepted it in principle, they differ only in application.
been divided into the following four types from the point of view of their probability of leading to evil ends :
Means which definitely lead to evil. Such means are totally forbidden.
- Means which most likely to lead to evil and
rarely leads to benefit. Examples of this are selling weapons during war time and selling grapes to a wine-maker. Most Ulama
have invalidated such means.
- Means which frequently lead to evil, but there is no certainty or even dominant probability.
Ulama differ widely on the illegality of such means.
- Means which rarely lead to evil. Examples are digging well
in a place which is not likely to cause harm or speaking a word of truth to a tyrannical ruler. Ulama have ruled in favour
of permissibility of these means.
Hukm ash-Sharii (Value of Shariah Rules)
"Hukm Sharii is the communication from the lawgiver (Allah and the Prophet on the
authority of Allah) concerning the conduct of the Mukallaf (on whom law is applicable, that is, a sane and adult person) which
may be in the form of a demand or an option or only as an enactment. "
When the communication is made in the form of
a demand or option, the Hukm is called "Al-Hukm al-taklifi (defining law).
If the communication is made in the form
of an enactment only, it is called al-Hukm al Wadi (declaratory law)
The pillars of Hukm Shari are
or lawgiver, - Mahkum Fih or subject matter, - Mahkum Alayh, i.e. on whom law is applied.
The source of all
law in Islam is ultimately Allah (; ). Mahkum Fih denotes the acts, obligations of the Mukallaf which may be in the form of Wajib, Mandub
or Mubah. Mahkum Alaih deals with the legal capacity of the individuals or bear the rights and obligations imposed by Shariah.
A person acquires active legal capacity when he attains a certain level of intellectual maturity and competence. Active
legal capacity is only partial in case of a child (because of age) and in case of a person in death bed.
has also been classified into:
haqq-al-Allah and Haqq-al-Ibad
Haqq-al-Allah or the rights of Allah is so called
not because Allah benefits from them but because these are beneficial for the community at large.
In other words these
are public rights. Worship, Hadud, Uqubah (minor punishments), Kaffarah, Jihad,etc. are within rights of Allah.
Al-Hukm at- taklifi (defining law)
Al-Hukm at- taklifi (defining law) may be in the form of Fard, Wajib, Mandub, Mubah,
Makruh and Haram.
According to majority, Fard and wajib are synonymous. If there is a binding demand from the lawgiver
to do something, it is wajib.
However, the Hanafi's consider the demand Fard when both text and the meaning are definitive
(qati) and wajib when either the text or meaning is speculative (Dhanni - because liable to interpretation of meaning or investigation
Difference between Fard and Wajib has important consequences. Denial in practice and belief of binding
nature of a command established by definitive proof (Fard by Qati evidence) leads to unbelief. However, denial of Wajib (according
to Hanafi's) or 2nd category of Fard (according to the majority) lead to transgression (Fisq).
The Hanafi's also hold
that the omission of a Fard results in the negation of any action that is built upon it. While omitting a wajib will cause
the built upon action to remain valid. For example: If you miss standing at Araafah during Hajj then your hajj is invalid
completely and totally even if you did all the other rituals since the standing of Arafaah is Fard. On the other hand, according
to the Hanafi scholars, if you miss the Sa'y (running between Safa and Marwa) - which is wajib - then your hajj may still
As well the Shafi scholars declare that a persons prayer is invalid if they do not recite the Fatiha.
The Hanafis believe that the prayer would still be acceptec since it is only wajib.
There are many other examples.
has (and Fard) been classified into the following :
Wajib ayni (personal obligation of all Mukallaf) and
Kafai (collective obligation, performance of some of the community would suffice).
Wazjb Muwaqqat (Wazib contingent
on time-limit such as Salah and Siam)
Wajib Mutlaq (absolute wajib which is free from time limit - such as Hajj). Wajib Muhaddad (quantified Wajib,
such as Zakah and Salah)
and Wajib Ghair Muhaddad (unquantified Wajib such as charity to poor, paying Mahr to wife).
A consequence of distinction between quantified wajib and unquantified wajib is that quantified wajib becomes a liability
on the person who has not paid it in proper time.
Denotes a demand not binding on the
Mukallaf. Compliance earns spiritual reward but no punishment is inflicted for failure. This is the difference between Wajib
Examples of Mandub are creation of charitable endowment (Waqf) giving alms to the poor and attending to
sick. Mandub is also called Sunnah, Nafl and Mustahab.
Sunnah (Mandub) has been clasified into:
sunnah (Sunnah-al Muakkadah (examples are adhan, attending congregational prayer) and
Examples are Nafl prayers and non-obligatory charity. Neglect of sunnah al-Muakkadah is blameworthy
but not punishable. Neglect of Sunnah Gair al-Muakkadah is neither blameworthy nor punishable. Examples of Mandub in the Quran
can be seen in verses 2:282, 24:3.
Haram (also known Mahzur) is a binding demand of lawgiver to abandon something.
The level of proof required to establish prohibition is the same as Fard (as explained by early Hanafi Ulama) and of Wajib
(as explained by the majority Ulama of Usul).
The texual evidence for Haram may occur in various forms such as :
may start with "Hurrimat alaykum" (forbidden to you). [Quran - 5:3]. It may be conveyed in negative terms such as "la
taqtulu" (do not kill), "la takulu (do not eat or take). [Quran - 5:90; 2:188].
It may be in the form of a command
to avoid (Quran - 5:90, to avoid wine-drinking and gambling).
It may be stated that it is not permissible (La yahilla
lakum, Quran - )
Prohibition may be proved by punishment
provided for a conduct (Quran - verses on hadd penalties and also verses mentioning punishment of fire in the hereafter.
has also been classified into :
a) haram li-dhatih (which is forbidden for its own sake such as wine, gambling) and
b) haram li Ghayrih (which is forbidden for an external reason such as, marrying a woman only to make her legal for
another man. (tahlil).
Makruh is opposite of Mandub. It is preferable to omit it than to commit it. Committing Makruh
is not liable to punishment or moral blame. This is the majority view. Hanafi's divide Makruh into :
Tanzihi and Tahrimi
According to Hanafis the commitment of Makruh Tahrimi entails moral blame but not punishment.
There are traditions (Hadith) in which the word Kariha or its derivative has occurred. These are the textual basis for Makruh.
Mubah (also termed halal and Jaiz) is a communication of the lawgiver which gives option to the Mukallaf (The Quran
- 5:6; 2:235, 2:173). The Ulama of Usul include "Mubah" under Hukm Shari although including it under al-Hukm al-Taklifi is
on the basis of probability as there is basically no liability.
Al-Hukm al-wadi (declaratory law)
Al-Hukm al-wadi (declaratory law) enacts something as a cause (sabab), a condition
(shart) or a hindrance (Mani') to the defining law.
An explicit example is the hadith which says "there is no "nikah"
without two witnesses. Thus the presence of witnesses has been made a condition of a valid marriage.
is the hadith, "there shall be no bequest to an heir" which enacts a hindrance (ma'ni) to bequest (wasiah).
law is divided into
cause, condition, hindrance, Azimah, and Rukhsha.
Azimah is the law as
the lawgiver had intended in the first place without any softening for any reason (example : all Ibadah in normal circumstances).
A law is a Rukhsah when the law embodies the exception to take care of difficulties (example is granting concession to traveller
to break fast).
Rukhsah may occur:
- in the form of permitting a prohibited thing on the ground of necessity,
- omitting a Wazib when conformity to wazib causes hardship (example is the provision for traveller to shorten salah
or not to observe fast during Ramadan)
- and in the form of validating contracts which would normally be disallowed
(for example, advance sale [salam] and order for the manufacture of goods [Istisnah], though the goods are non-existent).
There is another kind of Shariah values called Sahih (valid), Fasid (irregular) and Batil (void).
is made on the basis of compliance with essential requirements (ahkam) and conditions (shurut) of Ahkam. When all these are
fulfilled, the act is valid or sahih. If these are not fulfilled, the act is void or Batil.
The Ulama are in agreement
that Ibadah can only be sahih or batil. In the matter of transactions also, the majority hold the same view. However, the
Hanafis have validated an intermediate category in transactions called Fasid (irregular, not Batil) when there is some deficiency
in the Shart (condition). If the deficiency is made up, it becomes Sahih.
Taa'rud (conflict of evidences)
Taa'rud (conflict of evidences)
Taa'rud means conflict. In Usul al Fiqh,
Taarud means that two evidence of Shariah are of equal strength and they seem in opposion of each other. A conflict is thus
not expected to occur if the two evidences are of unequal strength, because the stronger evidence will prevail. For this reason,
there will be no conflict between a Qati and Zanni proof.
If, however, the opposite is required by 2 Quranic Ayat or
by a Quranic Ayat and a Mutawatir Hadith (these two are considered equal in authenticity as explained earlier in the discussion)
or by two Ahad Hadith (difference of opinion in this), then, there is a conflict.
Conflict can only arise, if the
rulings of the two evidence can not be reconciled. This means that the subject matter of one can not be distinguished from
the other or the time sequence of them can not be distinguished (that is it can not be ascertained which one is the latter).
A genuine conflict can hardly arise between Qati proofs. All such conflicts are apparent rather then real. Such apparent
conflicts can be resolved by
reconciliation, by specification or by giving preference of one over the other.
A conflict between Nasus (texts of the Quran and the Sunnah) and Ijma is inconceivable as Ijma can not violate Nass.
A Mujtahid must therefore, try to reconcile the apparent conflict in which case both the evidence will be applicable
in different sets of circumstances. If this is not possible, he will try to prefer one over the other, thus at least one evidence
will be kept. If this is not possible, then, he would see the time sequence and apply the principle of abrogation.
this way the later evidence will be retained and the earlier one in time will stand abrogated.
(However such cases
are very few. Please see Naskh discussed earlier).
If this is also not possible, both the evidences will be abandoned.
When two evidence in conflict are Amm (general), one may try to distinguish the subject matter of application (for instance
one may be applicable to adult and the other to the minor or one may be applicable to married people and the other to unmarried
people.) If one evidence is Amm and the other Khass, the solution is Takhsis al Amm (specification of a part of Amm).
regards, cases where both the rulings can not be retained because of apparent conflict, the following rules of preference
should be applied :
Clear texts will be preferred over unclear texts Sarih will be preferred over Kinayah, Haqiqi
over Majaji and so on.
Mutawatir Hadith will be preferred over Mashhur and Mashhur will be preferred over Ahad.
transmitted by Faqih or leading companions are preferred over others.
Another rule of preference is that affirmative
rule takes priority over negative.
Similarly prohibition takes priority over permissibility.
If attempts at
reconciliation or preference fail, then resort should be taken to abrogation (Naskh).
Rules or view points on Naskh
may be seen in earlier discussion.
In the case of conflict of two Qiyas, if the two can not be reconciled, one may
be given preference.
Ijtihad: Ijtihad has been derived from the root word Jahada. Ijtihad literally means
striving or self-exertion. Ijtihad consists of intellectual exertion. Ijtihad is a very broad source of Islamic law and comes
after the Quran and the Sunnah.
The Quran and the Sunnah were completed at the time of death of the Prophet. Ijtihad,
however, continues and this is the source or methodology which gives Islamic law, its adaptability to new situations and capacity
to tackle all new issues and problems. Propriety or justification of Ijtihad is measured by its harmony with the Quran and
The sources of Islamic law other than the Quran and the Sunnah are essentially manifestations of Ijtihad.
When clear rule is available in the text (Nass) of the Quran and the Sunnah, Ijtihad is not applicable. The findings of Ijtihad
are essentially Zanni in character. The subject matter of Ijtihad is the practical rules of Shariah not covered by Nasus.
Ijtihad is a duty of the scholars. If the issue is urgent, Ijtihad is compulsory on each competent scholar. (Fard al Ayn or
Wajib al Ayn). If the issue is not urgent, it is a collective obligation (Fard al Kafai or Wajib al Kafai).
is supposed to avoid Taqlid (blind following of another scholar). Taqlid is permissible only for a layman. Ibn Hazm believes
Taqlid is not permissible for any one.
Ijtihad is validated by the Quran and the Sunnah and the practice of the Sahabas.
The Quran - 59:2; 9:122; 29:69; have been quoted in support of Ijtihad.
These Ayats are Zahir in nature ( i.e. liable to interpretation and as such only give rise to probability).
hadith are quoted in support of Ijtihad. Of them, is the Hadith in which the Prophet (SM) said that the Mujtahid will get
two rewards if he is corrrect and one reward if he commits a mistake (Abu Dawood).
Requirements of Ijtihad have been
laid down by some scholars. Nothing has been mentioned in this regard in the Quran and the Sunnah. Abul Hasan al Basri, laid
down for the first time the qualifications of a Mujtahid in the 5th century Hijra which was later accepted by Gazali and Amidi.
It is true that Ijtihad is the function of the competent schoars. The following are the requirements :
of the Arabic language, to minimise the possibility of misinterpreting Revelation on purely linguistic grounds; (b) a
profound knowledge of the Quran and Sunnah and the circumstances surrounding the revelation of each verse and hadith, together
with a full knowledge of the Quranic and hadith commentaries, and a control of all the interpretative techniques discussed
(c) knowledge of the specialised disciplines of hadith, such as the assessment of narrators and of the matn
(d) knowledge of the views of the Companions, Followers and the great imams, and of the positions and reasoning
expounded in the textbooks of fiqh, combined with the knowledge of cases where a consensus (ijma) has been reached;
knowledge of the science of juridical analogy (qiyas), its types and conditions;
(f) knowledge of ones own society
and of public interest (maslahah);
(g) knowing the general objectives (maqasid) of the Shariah;
(h) a high
degree of intelligence and personal piety, combined with the Islamic virtues of compassion, courtesy, and modesty.
of Ijtihad is that the Mujtahid must first look at the Quran and the Sunnah. Only if solution is not found there, he may resort
to Ijtihad. Rules of Ijtihad by way of Qiyas, Istihsan, Istislah have already been discussed previously.
hold that Ijtihad is liable to error. The minority hold that each of the several verdicts may be regarded as truth on their
merit. (Shawkani, Irshad).
Mujtahids have been classified in various ways by some scholars according to their understanding.
basic classification can be as follows :
1) Mujtahidun fil-Shar' - Mujtahid in issues of Shari'ah is the one who fulfilled
in entirety all of the previously mentioned conditions as is attested to by the people of knowledge of his or her time. Such
an individual is NOT permitted to follow a madh-hab. Examples are: Ibrahim al-Nakha'i, Sufyan ath-Thawri, Al-Awza'i, al-Layth
bin Sa'd, Ibn Rahawayah and others.
2) Mujtahidun fil-Madh-hab - Scholar who is qualified to differ with the opinions
put forward within his madh-hab of study. Examples are Ibn 'Abdul Barr for the Malikis, Nawawi for Shafiis, Ibn Abdin for
Hanafis, and Ibn Qudama for Hanbalis. These scholars are followers of the usul of their Madh-hab but have used their knowledge
and understanding and judgment in deriving new verdicts within the madh-hab.
3) Mujtahidun fil-Masaail - Mujtahid in
Particular issues. They remain within their madh-hab of study but are able to make ijtihad on certain aspects within the madh-hab
that they are knowing of.
Some scholars were against Ijtihad after the first few centuries. This view has now been
rejected. Shawkani said that this view is to be utterly rejected.
Difference of Opinion is of two types:
in the Usool (Roots and Principles of Faith and Belief)
2- Differing in the Furoo' (Subsidiary branches of Jurisprudence)
Disagree in matters of Usool is unacceptable and haram. As such you see the importance of the refutations of those who oppose
the Aqeedah of Ahlis-Sunnah.
To disagree in matters of Furoo' is acceptable and there is no blame upon the scholar.
Disagreeing in matters of interpretation is common and was common even with the Sahaabah due to many reasons...some
of which are:
1- Not knowing the daleel. 2- Not understanding the daleel 3- The daleel can be interpreted in
more than one way 4- Forgetfulness 5- Applying the daleel in an improper context
many many more.
reason I collected the numerous articles and chapters on USOOL of FIQH was to show the methodology employed in deriving rulings.
is important to note that each of the main schools of thought have their own set of principles that govern their extraction
and derivation of rulings from the daleel.
The KEY is knowing that the root principles are extracted all from the
As such the positions are all correct if in accordance to the usool and are extracted from the Quran,
Sunnah, Ijma' and Qiyas.
At times there is a Rajih (most correct) position within a school or outside the school of