Jumat, 31 Desember 2010

USUL AL FIQH

USUL AL FIQH
(Islamic Jurisprudence)

 

By

Shah Abdul Hannan






 

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Preface


This book on Islamic Jurisprudence (Usul Al Fiqh) was prepared as an aid to a
course on this subject conducted through internet in 1999 to an International
Student Population on the request of Witness-Pioneer (an internet based Islamic
International Intellectual Movement). The book has been modelled on classical
'Usul' books, the chapter planning has been done on the lines of  the book "
Principles of Islamic Jurisprudence" by Dr. Hashim Kamali. This book will help in
understanding the essentials of 'Usul'. However, to master the subject and get
the details, the reader has to turn to the old and new 'Usul' works. Names of old
and new Usul Books have been mentioned in the Introduction and in the
Bibliography.

 I am indebted for this work to Witness-Pioneer movement, to Wohidul Islam
(a Harvard Student), who was my Teaching Assistant, Mr. Shafiquer Rahman, a
Pioneer member who helped me in conducting the course and to my students
of the course who helped me to improve the course through their questions.

 Knowledge of 'Usul' is essential to save us from mis-interpretation of the
'Quran' and the 'Sunnah'. I pray to Allah that He may accept this book for the
benefit of "Ummah'.

     
    Shah Abdul Hannan
 

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Contents
              Page
1. Introduction       04   
2. The Quran       05
3. The Sunnah       08
4. Interpretation       11 
5. Command, Prohibition & Naskh    16
6. Ijma (Consensus of Opinion)    18
7. Qiyas (Analogical Deduction)    20
8. Revealed laws Prior To Shariah of Islam 
And Fatwa of Sahaba      23

9. Istihsan and Maslaha      25
10. Urf and Istishab       28
11. Sadd al Dharai and Hukm Sharii    31
12. Taarud        35
13. Ijtihad        36 

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USUL AL FIQH
(Islamic Jurisprudence)

1.  Introduction
 

Usul al Fiqh discusses both the sources (Adillah) of Islamic law and the law (Fiqh).
This view is held by a group of jurists, according to Nurul Anwar written by Sheikh
Ahmad Ibn Abu Sayiid, known as Mullah Jaiun, who was the house tutor of
Aurangzeb, the Mughal emperor.  However, primarily Usul al Fiqh deals with the
sources or roots of Islamic law.

     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. 

     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 Majaji  (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). Details may  please  be seen in the chapter on Interpretation
coming later.
 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 Farz, what
is wazib and what is Mandub        (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 

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wants to be a Usuliuun or a jurisprudent.  However, this is not really a subject
matter of Usul.

     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. He then is likely to avoid
careless utterance and action. Ummah can produce great mujtahid only by
study of Usul in addition to other sciences. The principal objective of Usul is to
regulate Ijtihad and guide the jurist in his effort at deducing the law from the
sources. 

     Imam Shafii is considered to be the father of the science of Usul. This is true in
the sense that the systematic treatment of the principles of Usl al Fiqh was first
made by him. Before him, the jurists of course followed some principles in the
deduction of law but these principles were not integrated and systematized.
After Shafii, many scholars have contributed in the study of Usul, of them, the
most famous are : Abul Hasan al Basri (d. 436), Imam al Haramayn al Juwayni
(d.487), Abu Hamid al Gazali (d.505), Fakhruddin al Razi (d. 606),  Saifuddin Al
Amidi,  Abul Hasan Al Karkhi (d.349), Fakhruddin Al Bazdawi (d. 483), Abu Bakr Al
Jassas (d. 370), Sadr Al Shariah (d. 747), Tajuddin Al Subki (d.771), and Al Shatibi.
There have been many writers on Usul in modern times, particularly in Arab
lands.

     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.


2.  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 Nasafi) 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, such as Haruful Maa'ni (words with meaning), Haruful
Atf (conjunction), Haruful Zar, (a 'Haruf' which gives 'Zar' to the noun when it is 

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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
(based on explicit meaning), Isharatun Nass(based on indicativd meaning), etc. 

     However, in our discussion on Usul under the "Quran" we shall not discuss any
of the aforesaid things. In following some modern Usul scholars we shall take the
discussion on the methods of interpretation and classification of words under
"Methods of Interpretation" We 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. 

     Quran is the book  which Allah revealed in His speech to His Prophet
Muhammad (SM) 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 Zahir)
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 Ahadis of the Prophet fall under this category. 

     Hadis Qudsi, in which the Prophet (SM) 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  Hadis Qudsi.  It should be noted that the Prophet (SM) did not
make any distinction between Hadis Qudsi and other Hadis.(Ref; Abdul Wahab
al Khallaf; .'ILM - Usul al Fiqh', also Dr.Hashim Kamali, Principles of Islamic
Jurisprudence.)

     Only meaning (Maa'ni) or text (Nazm) is not the Quran. The jurisprudents
agree that text and meaning together constitute the Quran. 

     Quran was revealed in stages (Bani Israil, 17:106), and gradually (Al-
Furqan,25:32). Graduality in the revelation afforded opportunity to reflect over it
and memorize it.  The Ulama are in agreement that the entire text of the Quran
is "Mutawatir", i.e. its authenticity is proven by universally accepted testimony. 

     The larger part of the Quran was revealed in Mecca (about 19/30th part) 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 

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which one is Makki or Madani are based on the sayings of the Sahabis 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 Zanni
(speculative). Qati and Zanni concepts have been discussed in terms of text
and in terms of meaning. The whole of the Quranic text in 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 Zanni material. (Principles of Islamic Jurisprudence,
Dr. Hashim Kamali, Islamic Texts Society, Cambridge).
 

     The text of the Quran which has been reported in clear words (Alfaz al
Waziha) which has only one meaning are considered Qati also in terms of
meaning (Dalalah). Any text of Hadith which is similarly clear in meaning is also
considered Qati in terms of meaning. Qati and Zanni have significance in the
matter of belief and in the gradation of Ahkam into Farz, Wazib, Sunnah, Haram,
Makruh, etc. Articles of faith can be determined only by Qati text with Qati
meaning. A person can be declared Kafir if he denies the Qati text of the Quran
or Mutawatir Sunnah. Otherwise not. Similarly Farz is determined only by Qati text
with Qati meaning (Principles of Islamic Jurisprudence, Dr. Hsashim Kamali,
Chapter 17). 

     Most of the text of the Quran are Qati in meaning. Example of Zanni in
meaning are the words "banatukum" in Nisa : 23 and "yanfaw minal ard" in
Maida : 33.

     In the discussion on Qati and Zanni, Quran and Sunnah are integral to one
another. Zanni of one verse can be made Qati by another verse or definitive
Sunnah. Similarly, the Zanni 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.  

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     One issue of concern is whether it is permissible to research the cause (talil) of
Ahkam. Majority of scholars hold that this is permissible, indeed a must for 
development of Islamic law through Ijtihad (primarily Qiyas).

     However, a few hold, talil  is not permissible and as such deny legality of
Qiyas. This view is weak and appears to have been born out of
misunderstanding the purpose of talil. 

     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. Asbab al
Nazul helps to understand the  Quran and its law. .


3.  The Sunnah

     Literal meaning of Sunnah in Arabic  is beaten track or established course of
conduct. Pre-Islamic Arabs used the word for ancient or  continuous
practice.According to Ulama of Hadith, Sunnah refers to all that is narrated from
the Prophet(sm),his acts,his sayings and whatever he tacitly approvedThe
Jurisprudents exclude the features of  the Prophet   (SM) from Sunnah.In the
Hadith literature,there are uses of the word Sunnah in the sense of source of law,
for instance in THE Prophet's farewel Hajj address and at the time of sending
Muadh(R.A.) to Yemen.

     The 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. In the 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 (SM)     The
Sunnah of the Prophet (SM) is a proof (Hujjah). The Quran testifies that Sunnah  is
divinely inspired (53:3).   The Quran enjoins obedience to the Prophet(SM)
[59:7;4:59;  4:80; 33:36]Allah asked the believers to accept the Prophet as judge
(4:65)One classification of Sunnah is Qawli, Faili and Taqriri (verbal, actions and 
tacit approval) 
     
     A very important classification is legal and non-legal Sunnah . Legal Sunnah
(Sunnah tashriyyah)consists of the Prophetic activities and instructions of the
Prophet (sm) as the Head of the State  and as Judge. 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 adat
(habit) of the Prophet in the Nurul Anwar,a text -book of Usul. Certain activities 

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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. .(Khallaf: .'ILM - Usul al Fiqh', Mahmud Shalutat: Al Islam,
Aqidah wa Shariah) 
     
     Certain matters are particular to the Prophet (SM) such as the case of
number of wives, marriage without dower, prohibition of remarriage of the
widows of the prophet (sm).  The Quran has priority over Sunnah, because of
nature of revelation (wahy zahir 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 the Quran was abandoned in
favor of the Sunnah. 

     It may be noted that Sunnah in many instances confirms the Quran. There is
no disagreement on this.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 from 'Usul' books  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 [SM]
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 current
century, Nasiruddin Albani had good work on this subject.  Anybody who knows
Arabic well, can look into Albani's works (see also M.M.Azami, Studies in Hadith
methodology, published by American Trust Publications.                     
Mutawatir Hadith has been 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: (a)
large number of reporters (b) reports must be based on direct knowledge and
through sense perception, (c) reporters must be upright, (d) 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.                                                  
 

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     Mashhur 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.  Aqidah (beliefs) or Hadud (prescribed punishment)
should not be based on Ahad. (Dr. Hashim Kamali, Principles of Islamic
Jurisprudence, Islamic Texts Society, Cambridge).


     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 and Ahad are kinds of Muttasil
hadith.  Mursal, Mudal and Munqati are various types of  Ghair al Muttasil
Hadith. According to 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 in
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 Sabitun (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 Yahim(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.

 

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4. Interpretation of The Quran and Sunnah

     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.

Interpretation 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 (Hakiki) meaning unless departure to alternative is justified. 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 (explanation
found in the Quran and the Sunnah) 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.
 
Clear words are of four types, according to a major classification. They are Zahir,
Nass, Mufassar and Muhkam. Zahir (manifest) is a word which has a clear
meaning and yet open to Tawil, primarily because the  meaning is not in
harmony with the context. Nass 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. The obvious meaning of Zahir and Nass should
be followed unless there is reason to warrant recourse to Tawil. 
Mufassar (unequivocal) and 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 

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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).

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 Tazir (punishment prescribed by the legislative
authority in the present day world, punishment given by judges in the past).
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 (see the conflict in verse 4:79 and 3:154 cited by Dr.
Kamali in his Principles of  Islamic Jurisprudence).

     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 Salat Hajj, Riba and Siam. 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.  Mutashabih (Intricate) is a word
whose meaning is a mystery. Harful Muqattaat (such as Alif Lam Mim) are
Mutashabihat. Nobody knows their meaning (please see various opinions
regarding the use of these words in the text  books on Usul). 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. (Please see the Tafsir
“the Message of the Quran by Muhammad Asad, Appendix).


     From the point of view of scope, 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' (in a conditional speech)
are example of  Amm. When the article Al (the) precedes a noun, the noun
becomes Amm.  The Arabic expressions  Jami (all), Kaffah (all), Kull  (all, entire)
when precede or succeed a word, the word becomes Amm. An indefinite word 

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(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), 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 11:6]
b)  Amm which is meant to imply Khas [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, Bobby, 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 will prevail over  the  Amm. Minority
holds that   Khass specifies the Amm.
 
     According to majority,  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. 4 : 12) or Sifah
(quality, ref. 4 : 23) 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.  

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Mutlaq and Muqayyid

     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 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 verses 5 : 7 and 4 : 43 of the Quran). Early Hanafi scholars
think that if Mutlaq and Muqayyad differ in their causes, one does not qualify
the other.

Haqiqi (literal) and Majazi (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). Divorce is not clearly indicated. 

     A Mushtarak is a word which has more than one meaning. 'Ayn'  in Arabic is a
Mushtarak which may mean eye, water-spring, gold and spy.  Plurality of
meaning of Mushtarak may be because of usage or acquisition of metaphorical 

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meaning over time.  The rule in regard to commands and prohibitions of the
Shariah is that the lawgiver does not intend to hold more than one meaning of
the Mushtarak.   The Mushtarak is in the nature of Mushkil and it is for the expert
(Mujtahid) to determine  the correct meaning in the context (Mujtahids may
differ in this - this happens always with    Ijtihad). 

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 17 : 23, 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 (see Kamali for explanation and examples). They
have also imposed restrictions in regards to  Sifah (attribute),  Shart (condition)
and Ghayah (extent).
 

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     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. 



5. Command, Prohibitions and Naskh

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 command may be conveyed as a promise of reward or punishment
(Quran - 4 : 13-14). An important question is : What is primary in command, is it
obligation, a recommendation or simple permissibility? (as 'command'  may
mean all these). According to the majority, command implies obligation unless
there are clues 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) until determined what is primary. 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 (that obligation unless proved otherwise).

     Command (Amr) may sometimes mean permissibility. For instance when the
Quran says,  "Kulu Washrabu" (eat and drink - ref. 7 : 31), 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 (Farz or Wazib,
depending on whether the text and meaning both are Qati or not.)

     Majority of Ulama hold 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 17:18). 

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     As regard immediate or delayed execution of an Amr, it depends on the text
and its indications. If the command does not itself specify 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;  22 : 30).  Nahy may
convey  Tahrim (total prohibition) or guidance  (irshad) or reprimand  (tadib).
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 Shaffi's and
Fasid  according to Hanafii's.  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).  

     Explicit (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 "Fasawila zikrillah" 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.  Naskh operates
only in law, not in beliefs. Naskh operates only when,  (i) two evidences are of
equal strength, (ii) they are present in 2 separate texts, (iii) there is genuine
conflict which can not be reconciled, and (iv) the two texts are of two
timeframe (one is later to the other). 

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     There are scholars who do not agree that there is abrogation in the Quran
(Ref: Principles of Islamic Jurisprudence by Dr. Hashim Kamali,  Chapter on
Naskh). 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 Tafsir 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 it as the circumstance of history.  (Ref.  Islamic Theory of
International Relations,   a IIIT's publication). Abu Suleman suggests that Naskh's
application should be limited to clear cases only such as change of Qiblah.

     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 - (a) Naskh of Quran by Quran and (b) Naskh of Sunnah by
Sunnah. 

     According to majority there are 4 types of Naskh : (i) Quran by Quran, (ii)
Quran by Sunnah, (iii) Sunnah by Quran, (iv) Sunnah by Sunnah. There is also
another  classification : (i)  Naskh al Hukm, (ii) Naskh al Qiraah, and   (iii) Naskh al
Hukm Wal Tilwah.  Naskh 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. In Naskh al Hukm wal Tilwah, both the text and rulings are
treated as abrogated.  Of the above three, Nakh al Hukm has some basis but
the other two have very weak basis. Sayyid Abul Ala Maududi has explained in
his  "Rasail wa Masail” (Letters and Issues), why  Naskh al Qiraah is not
acceptable?

     There 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 is correct.  On the whole, I think the views of Dr. Abu Suleman
deserves serious consideration. 



6. IJMA (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.  

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     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).

     The 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 (SM). Ijma initially helped unity of the Ummah the 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 Ijma.

     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 (4:59, 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. Abduh does not find any Ijma in these Ayat. Al Amidi says, "these give
rise to probability (Zann), not positive knowledge".(Ref; Dr. Hashim Kamali,
Principles of Islamic Jurisprudence, Islamic Texts Society, Cambridge, U.K).

     About 10 Ahadith are quoted in support of Ijma. Ahmed Hassan observes
that these hadith are inconclusive on Ijma (Ref: Prof. Ahmad Hasan: The
Doctrine of Ijma in Islam). A number of Ulama (including Shafii and Mutazila
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. 

     Abdul Wahab Khallaf is of the view that Ijma of classical definition is no longer
possible in modern times (because of huge number of scholars spread over 

20
continents). Khallaf is right. Old style Ijma is no longer possible. You can have
only local Ijma, which is useful in lawmaking through Parliament but they can not
be (by definition) binding forever. 

     Ijma are of two types - Ijma al Sarih (explicit Ijma) and Ijma al Sukuti (Ijma by
silence). 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). There are 3 views on whether Qiyas can be a basis of Ijma
or not . Some agree, some disagree, some partially agree (Dr. Hashim Kamali,
Principles of Islamic Jurisprudence). 

     Ijma can be transmitted by Ahad or Mutawatir report of scholars. There is no
Mutawatir report of Ijma except those of Ijma of companions. Iqbal gives a
proposal to transfer performance of Ijma to the legislative assembly, which is
only possible form of Ijma in modern times. Iqbal is right. His ideas require
acceptance. However, such Ijma can not be of universal validity nor can it be
considered binding (unless made into a local law - which then remains valid until
revoked). In conclusion we can say that Ijma can be of limited use only in future.
Qiyas, Istihsan, Maslaha are more important in future.


7. QIYAS (Analogical Deduction)

     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 of Qiyas.

     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 

21
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
In toxicating
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.
Modern jurists Abu Zahrah and Muhammad Al Zarka agree. Minority seems to be
right as long as it does not contradict Nusus (clear texts or rulings) of the Quran
and Sunnah.

Conditions pertaining to Hukm (a ruling in the original case) are : 

a)   It must be a practical Sharii ruling (Qiyas does not operate in the area of
belief).
b)  Sharii ruling must not be an abrogated one,
c)  The Hukm must be amenable to understanding through human intellect.
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). Qiyas 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. 
     The effective cause (Illah) must be :

a)  Munasib (proper, according to Mujtahid or scholar of Fiqh)
b)  It must be a constant attribute (mundabit) 
c)  It must be evident 
     According to majority, Illah must be muta'addi (that is transferable to other
cases). Some hold different view with regard to Tadiyah (tranferability).  The 

22
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 : 4:43 , 
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. 5:38,  4:34).
The 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 manat" (extracting Illah - manat
is another word for Illah). 

     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 wine).  

     One classification of Qiyas is (a) Qiyas-al-awla,  (b) Qiyas-al-musawi and  (c) 
Qiyas-al- adna.  Qiyas al-awla (superior Qiyas) means where the effective cause
is nore evident in the new case (far') than the original case (asl).  [Ref. 17:23].  In
Qiyas-al-musawi (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 by Usulian.
     
     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
of Ijtihad (see Dr. Hashim Kamali’s book Principles of Islamic Jurisprudence on 
Proof of Qiyas, see also discussion under "Talil" in the Chapter on Quran).

     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 "Tazir"
penalties (penalties which have been laid down by Parliament/Courts - not by 

23
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 strong evidence. Qiyas will continue to be a major
instrument of Ijtihad in future, along with Istihsan and Maslaha. 



8.  REVEALED LAWS PRIOR TO SHARIAH OF ISLAM & FATWA OF SAHABA

Revealed Laws Prior to Shariah of Islam

     Islam believes that all truly divine laws emanate from Almighty Allah (Ref.
Quran - 42:13) The Quran contains that the Torah was a source of guidance
(Maida 5:44). The question is what it means in terms of source of law after the
revelation of the Quran. The general rule to be stated is that laws revealed
before Islam are not applicable to the Muslims (except as mentioned
hereunder) 

     The Ahkam (laws) of Islam (Shariah) is self-contained. The rules of Shariah
should not be sought in other religion because the rules of other religions do not
constitute binding proof for the Muslims. 

The Quran refers to the previous Shariah in three forms :

(a)  The Quran may refer to the previous Shariah and make it also
obligatory on the Muslims. For instance, fasting was prescribed on
the earlier nations and has also been prescribed for Muslims
(Baqarah - 2:183). Such rulings of the previous Shariah are parts of
Islamic Shariah 
(b)  Secondly, the Quran (or Sunnah) may refer to a ruling of previous
Shariah and may abrogate it. For instance, some restrictions on
food on the Jews have been withdrawn from the Muslims in the
Quran (Ref. 6 : 146) Muslims can not follow previous Shariah in
these respects. 
(c)  Thirdly, the Quran may mention a ruling of the previous Shariah
without mentioning whether it is upheld or abrogated. (for instance
Maida- 5:35,  5:48). Majority of Jurists consider these to be part of
Shariah of Islam which should be followed. Minority does not
accept this position. Majority position is correct in this respect
according to Dr. Hashim Kamali.

 

24
Fatwa of Sahaba (companion of the Prophet, SM)

     Fatwa (opinion or ruling) of Sahaba is indeed a very important and deserves
highest consideration, they being close to the Prophet (SM) and because of
their direct knowledge from the Prophet (SM). There is some disagreement as to
who is a Sahabi. Majority hold that anybody who met the Prophet (SM) while
believing, is a Sahabi. Minority hold that "Suhbat" (continuity of companionship)
is a requirement to call a person a Sahabi of the Prophet (SM) [Imam Shawkani,
Irshad;  also Dr. Hashim Kamali, Principles of Islamic Jurisprudence, Islamic Texts
Society, Cambridge, U.K.]. Both points of view have justifications and can not be
ignored.  The fact of being Sahabi can be established by continuous testimony
(tawatur) or by affirmation of any other companion or even by own claim (if the
person is upright). 

Fatwa of Sahaba means an opinion reached by a Sahaba by way of Ijtihad. As
regards whether fatwa of Sahaba constitute a proof on succeeding
generations, there are three views : First view is that - it is an absolute proof. The
proponents of this view quote the Quranic verses 9:100, 3:109. They also quote
Hadith like "my companions are like stars" or “Honour my companions".  First view
is held by Imam Malik. Imam Shafii and Ahmad Bin Hanbal also have been
quoted in its support.

     Against this view, it has been suggested that these references speak of the
status and dignity of Sahaba. These are not categorical (Qaati) regarding
compulsion to obey their decisions). Second view is - that Ijtihad of a
companion is not a proof and does not bind the succeeding generations.
Hanafi jurist Abul Hasan al Karkhi, Imam Ahmed (according to one view of him)
and Asharite and Mutazilite scholars hold this view. They quote the Quranic Ayat
59 : 2 ("Consider, O You who have vision"). It is argued that the Ayat makes
Ijtihad an obligation of all who are competent and makes no distinction
between Sahabis and others. Imam Gazali and Amidi consider it preferred view.
To me this is the appropriate view. 

     Third view is that of Abu Hanifa himself. He says that ruling of a companion is
a proof if it is in conflict with Qiyas but not when it agrees with Qiyas. The
aforesaid are the main views. There are some other views which may be seen in
the books of Usul.

     It can be concluded that the Fatwa of a companion is a source of guidance
which merits careful consideration (though not binding except in case of their
clear Ijma).  




 

25

9. ISTIHSAN AND MASLAHA



     Istihsan literally means to deem something preferable. In its juristic sense,
Istihsan is a method of exercising personal opinion (ray) 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 law.

     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 Shafii, 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 accord with the Quran (2:185). Kamali says that companions
(Sahabi) and successors (Tabiun) were not merely literalist. On the contrary, their
rulings were often based on their understanding of the spirit and purpose of
Shariah. Dr. Hashim Kamali gives a new example. 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. (Dr. Hashim
Kamali, Principles of Islamic Jurisprudence, Islamic Texts Society, Cambridge,
UK).

     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. 

     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 in support. Istihsan is closely
related to 'ray' (opinion) and Qiyas (analogical deduction). Both in Qiyas and
Istihsan, 'ray' is an important component, more heavily in case of Istihsan. 

26

     Sahabis were careful not to apply 'ray' at the expense of Sunnah. Ahlal
Hadith mostly avoided using 'ray'. Most Fuqaha on the other hand liberally used
'ray' in deducing law and they came to be known as "Ahlur Ray".

     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. There 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). 

     Al-Shafii has criticized Istihsan on the basis of Quranic verses 4:59 and 75:36.
However, these verses are not categorical on the issue of Istihsan.  Al-Ghazali
has criticised Istihsan but stated that Shafii's recognize Istihsan based on 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.  Progress of Islamic law largely depends in the modern
times on this source.


Maslahah  Mursalah

     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. 

     On 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 for legislation. 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
: (a) "No harm shall be inflicted or tolerated in Islam". (b) "The Prophet (SM) only
chose the easier of two alternatives so long as it did not amount to a sin". (c)
"Allah loves to see that His concessions (rukksah) are observed, just as He loves
to see that His strict laws (azaim) 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. 
 

27
    All the Khulafa-I-Rashidun acted in pursuance of Maslahah. Abu Bakr (RA)
compiled the Quran. Umar (RA) held his officials responsible for abuse of public
office. Usman (RA) distributed the authenticated copy of the Quran and
destroyed the copies of variant texts. Ali (RA) 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 - (a) essentials [daruriyyat], (b) the
complementary [hajjiyat]and (c) beautifications [tahsiniyaat] (Ref: Shatibi: Al-
Muwa fiqat).  From the point of view of availability or otherwise of textual
authority, Maslahah has been further sub-divided into the following :  

(a)  Al-Maslahah al-Mutabarah [accredited Maslahah] which has
been upheld in the Shariah such as defending the right of
ownership by penalizing the thief. 
(b)  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. 
(c)  Maslahah Mulgha which has been nullified either explicitly or by
indications in Shariah.

     To validate Maslahah the following conditions have to be met :  a) Maslahah
must be genuine,  (b) Maslahah must be general (Kulliyah) - that is it secures
Maslahah for all.  (c) it must not be in conflict with clear Nass. In his book
"Masalih al Mursalah", Al Tufi  maintains that except for Ibadah (devotional
matters) or specific Shariah injunctions, Masalih (plural of Maslahah) should take
precedence over other proofs. However, this view is not held  by majority.

     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.  A group of scholars have
seriously disagreed with Maslahah. But they are a minority and their arguments
are not very solid. To meet the new situations in the changing world, Maslalah is
a major instrument in the hands of jurists of Islam.(Ref: Islamic Jurisprudence: Dr.
Hashim Kamali, Islamic Texts Society, Cambridge, U.K.)






 

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10. Urf and Istishab 

URF (Custom)

     Urf (custom) is defined in Usul as "recurring practices which are acceptable to
people of sound nature. Urf and its derivative 'Maruf' both occur in the Quran,
mostly in the sense of "good" (as opposed to "bad or evil"), adherence 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).

     The Shariah, 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 (ray) 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 (a major book of codification of law). 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.  For seeing the rules of Qiyas  and Diat,
refer to some Islamic law books. (For instance the Pakistani Act on Qisas and
Diat)

     The following are the conditions of Urf :  

(a)  It must be common and recurrent.
(b)  Urf must be in practice at the time of transaction, i.e. past Urf is no
basis. 
(c)  Custom or Urf must not violate the nass or clear stipulation of the
Quran and the Sunnah. 
(d)  Custom must not contravene the terms of a valid agreement (valid
according to Shariah)
 

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     There is difference between Urf and Ijma. Urf is essentially a local or national
practice whereas Ijma is an agreement of Ulama across places and countries.
There are other differences which are not substantial in character. [See Dr.
Hashim Kamali’s Principles of Islamic Jurisprudence]. Urf  has been sub-divided
into Qawli (verbal) and Fiili (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 practice of the people. 

     Urf Qawli and Urf Fiili are both sub-divided into two further types : 

a)  Al-Urf-al amm or practice of all people everywhere (such Urf is almost
non-existent).
b)  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). 

     Dr. Jamal Badwai has divided Urf into 3(three) types - positive, neutral and
negative. An example of positive Urf is generosity or hospitality. A neutral Urf is
preference for particular diet of a particular place. A negative Urf is a tradition
which goes against Islamic law and teaching. Dr. Jamal mentions that if a local
custom is negative, then it must be rejected. (Ref. : Dr. Jamal Badawi, Islamic
teaching Course, Lecture No. G-23).

     Urf as a source of Islamic law is quite sensitive. In this area, we should depend
on the views of the majority of senior scholars.  Urf has been justified on the basis
of Quranic Ayats 22:78, and 7:199,  but these verses are not Qati in this respect.
Some traditions have also been quoted in support (Ref: Dr. Hashim Kamali,
Principles of Islamic Jurisprudence) but these are also not clear evidence in
support.  Urf is not an independent proof on its right. However, it can play useful
part in interpreting and implementing Islamic law. It is also noted that the rise of
codified statutory legislation in modern states, has to some extent reduced the
need for Urf. 

     As we have noted earlier, rules based on Urf are liable to be changed. In
future also rules based on Urf or Ijtihad will continue to change, where needed.
 
     In conclusion, I will say that Urf is no longer an important proof or source of
Islamic law. However, it may help sometimes in understanding, interpretating,
and implementing Islamic law. A very cautions approach should be taken in this
regard.

 

30
Istishab(Presumption)

    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) of Shariah.

It 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 :

a)  Presumption 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. 
b)  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. 
c)  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. 
d)  Istishab 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 have been founded on Istishab, such as : 

a)  Certainty can not be disproved by doubt (Al-Yaqin la Yazul bil
Shakk)/
b)  Presumption of original freedom from liability (bara'ah al-dhimmah
al-asliyyah).

     Hasan Turabi, the famous jurist in his book "Tajdid Al Fiqh Al-Islami" highlighted
the significance of Istishab. He thinks that it has the potential of incorporating
within its scope the concept of natural Justice and approved customs and
mores of society.


 

31
11. Sadd al Dharai and Hukm Sharii

Sadd al Dharai (Blocking the means)

     Dharai is the plural of Dhariah which signify means. Sadd  means to block. In
Usul, it means blocking the means to evil. Sadd 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 a benefit'. As such means, if they lead to evil, these must
be rejected.  Authority for Sadd al-Dharai is also found in Sunnah. Prophet (SM)
forbade a creditor to take a gift from debtor (as it could lead to taking of
interest). He(SM) also forbade killing of hypocrites (as it could lead to dissention
within community, also lead to wrongful killing on suspicion).

     Despite the aforesaid, the Ulama of Usul are not in agreement over Sadd al-
Dharai. Some accept it - some do not accept it. However, Shatibi is of the
opinion that most Ulama have accepted it in principle, they differ only in
application. Abu Zahra is also of the same opinion. (Ref: Dr. Hashim Kamali;
Principls of Islamic Jurisprudence). 

     Dharai have been divided into the following four types from the point of view
of their probability of leading to evil ends:
a)  Means which definitely lead to evil. Such means are totally forbidden.
b)  Means which are 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. 
c)  Means which frequently lead to evil, but there is no certainty or even
dominant probability.  Ulama differ widely on the illegality of such
means. 
d)  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. 

     Sadd al-Dharai should not be used too much, particularly in the 3rd category
stated above. Such use would render the "mubah" (lawful) and the Mandub
(recommended) unlawful which can not be accepted.  

32

     Ibnul Arabi and Abu Zahra are in favour of moderation in its use. People of
extremist tendencies can use sadd al-Dharai to restrict human freedom granted
by Allah and the Prophet(SM) which is not good for the Ummah.

 
Value of Shariah Rules (Hukm Sharii)

     Hukm Sharii is the communication from the lawgiver (Allah and the
Prophet[SM] on the authority of Allah) concerning the conduct of 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 of a Cause or condition only, it is called al-Hukm al
Wadi (declaratory law) [see explanation below ].

     Al-Hukm al- taklifi (defining law) may  be in the form of Fard, Wajib, Mandub,
Mubah, Makruh and Haram.  According to majority, Fard and wazib are
synonymous.  If there is binding demand from the lawgiver to do something, it is
wazib. However, the Hanafi's consider the demand Fard when both text and the
meaning are definitive (qati) and wazib when either the text or meaning is
speculative (Zanni - because liable to interpretation of meaning or investigation
of authenticity). 

     Difference between Fard and Wazib has important consequence. Denial of
binding nature of a command established by definitive proof (Fard by Qati
evidence) leads to unbelief. However, denial of Wazib (according to Hanafi's) or
2nd category of Fard (according to the majority) lead to transgression (Fisq). 
Wazib (and Fard) has been variously classified into the following :

a)  Wazib ayni (personal obligation of all Mukallaf) and Wazib Kafai
(collective obligation, performance of some of the community would
suffice).
b)  Wazib Muwaqqat (Wazib contingent on time-limit such as Salah and
Siam) and Wazib Mutlaq (absolute wazib which is free from time limit -
such as Hajj).
c)  Wazib Muhaddad (quantified Wazib, such as Zakah and Salah) and
Wazib Ghair Muhaddad (unquantified Wazib such as charity to poor,
paying Mohr to wife). 

A consequence of distinction between quantified wazib and unquantified
wazib is that quantified wazib becomes a liability on the person who has not
paid it in proper time. 
 

33
     Mandub (recommended) denotes a demand not binding on the Mukallaf.
Compliance earns spiritual reward but no punishment is inflicted for failure. This is
the difference between Wazib and Mandub.  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 (a) emphatic sunnah (Sunnah-al
Muakkadah (examples are adhan, attending congregational prayer) and (b)
Supererogatory Sunnah (Sunnah Ghair al-Muakkadah). 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 as 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 Wazib (as explained by the
majority Ulama of Usul).

     The texual evidence for Haram may occur in various forms such as : 
a) It may start with "Hurrimat alaykum" (forbidden to you). [Quran - 5:3].    
b) 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].
c) It may be in the form of a command to avoid (Quran - 5:90,  to
avoid wine-drinking and gambling).
d) It may be stated that it is not permissible (La yahilla lakum,  Quran -
4:19)
e) 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,

     Prohibition 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 : a) Tanzihi and  b) 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.  (Ref: Dr. Hashim 

34
Kamali, Principles of Islamic Jurisprudence, Islamic Texts Society, Cambridge,
U.K.)

     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) 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.  Another
example is the hadith, "there shall be no bequest to an heir" which enacts a
hindrance (ma'ni) to bequest (wasiah).

     Declaratory law is divided into (a) cause, (b) condition, (c) hindrance, (d)
Azimah, and (e) 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 (a) in the form of permitting a prohibited thing on the
ground of necessity, (b)  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 (c) 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). The classification is made on the basis of compliance with
essential requirements (arkam) 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. 

     The pillars of Hukm Shari are  (a) Hakim or lawgiver,  (b) Mahkum Fih  or
subject matter, (c) Mahkum Alayh, i.e. on whom law is applied. The source of all
law in Islam is ultimately Allah (6:57; 5:45).  Mahkum Fih denotes the acts,
obligations of the Mukallaf which may be in the form of Wazib, Mandub or 

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Mubah.  Mahkum Alaih deals with the legal capacity of the individuals who
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. 

     Hukm Shari has also been classified into (a) haqq-al-Allah and (b) 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 (punishments), Kaffarah,
Jihad etc. are within rights of Allah.


12. Taarud 


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 require opposite 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 or by
two Ahad Hadith, then, there is a conflict. 

     Conflict can only arise,  if the rulings of the two evidence can not be
reconciled, that is 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 (a)
reconciliation, (b) by specification or (c) 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 

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sequence and apply the principle of abrogation. In this way the later evidence
will be retained and the earlier one in time will stand abrogated (however such
cases are  very few). 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).

Where preference has to be resorted to, the following rules of preference should
be applied :

a)  Clear texts will be preferred over unclear texts
b)  Sarih will be preferred over Kinayah, Haqiqi over Majaji. 
c)  Ibarah al Nasss will be preferred over Isharah al Nass and so on. 
d)  Mutawatir Hadith will be preferred over Mashhur and Mashhur will be
preferred over Ahad.
e)  Hadith transmitted by Faqih or leading companions over hadith
narrated by others.
f)  Prohibition takes priority over permissibility.

     In the case of conflict of two Qiyas, if the two can not be reconciled, one
may be given preference 


13. 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 (SM). 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 Sunnah.

     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 

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al Ayn). If the issue is not urgent, it is a collective obligation (Fard al Kafai or
Wazib al Kafai). 

     A scholar 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. Shah Wali Ullah says, Taqlid is not permitted for a person who can
investigate even some matters (Ref. : Al-Insaf fi Bayan-al-Asbabil Ikhtilaf, by Shah
Wali Ullah).  

     Ijtihad is validated by the Quran and the Sunnah and the practice of the
Sahabas.  The Quran - 59:2;   9:122;  29:69;   4:59  have been quoted in support of
Ijtihad. These Ayats are Zahir in nature ( i.e. clear texts but liable to
interpretation).

     Several hadith are quoted in support of Ijtihad. Of them, two are very
important. First is the hadith in which Muadh bin Jabal replied to the Prophet
(SM) that he would resort to Ijtihad, if he does not find a solution in the Quran
and the Sunnah and the Prophet (SM) affirmed him (Narrated by Abu Dawood).
Second 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 Hussain 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 :

a)  Good knowledge of Arabic language.
b)  He must be knowledgeable in the Quran and the Sunnah and
related subjects. 
c)  He must be generally knowledgeable of the Ijtihad carried out by
previous scholars. 
d)  He must know the Maqasid of Shariah. 
e)  He must be an upright person and must be capable of distinguishing
between strong and weak evidence.

     It may appear that the qualifications are very tough.  But it is not really so.
These are all attainable in reasonable time by any sincere and competent
person.  The majority of Ulama hold that if a person is capable of making Ijtihad
in one area, he can do Ijtihad in all areas. Procedure 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 been laid doesn by usul scholars. 
 

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     The majority hold that Ijtihad is liable to error. The minority hold that each of
the several verdicts may be regarded as true on their merit. (Shawkani, Irshad). 

     Mujtahids have been classified in various ways by some scholars according to
their understanding.  The basic classification can be as follows :

a) Major Mujtahids, who made their own rules of Ijtihad and did
comprehensive Ijtihad.
b) Other Mujtahids who in most part followed the rules of Ijtihad of other
scholars and who undertook Ijtihad on that basis either fully or partially.

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. Iqbal says
that "closure of gate to Ijtihad is a pure fiction" Progress of Islamic civilization in
future depend on Ijtihad by competent scholars.  In future, more and more
Ijtihad is likely to be collective. (Reference Dr. Hashim Kamali, Principles of
Islamic Jurisprudence; Allamah Iqbal, Reconstruction of Religious Thought in
Islam).



Bibliography: 

1.  Principles of Islamic Jurisprudence by Hashim Kamali, Islamic Texts Society,
Cambridge, U.K.
2.  Subhi Mahmassani - The Philosophy of Jurisprudence in Islam, Leiden, E.J.
Brill
3.  Dr. Taha Jabir Al -Alwani, Ijtihad published by IIIT, USA.
4.  Abu Zahra -- Usul al Fiqh, Cairo, Dar al Fikr al Arabi.
5.  Abdul Wahab Al Khallaf -  Ilm Usul Al Fiqh, Dar al Qalam, Kuwait.
6.  Mohammad Al Khudari    -  Usul al Fiqh, Dar al Fikr, Cairo
7.  Prof. Ahmad Hassan; The doctrine of Ijma in Islam, Islamic Research
Institute, Islamabad.
8.  Dr. Taha Jabir al Alwani: Source Methodology in Islamic Jurisprudence; IIIT,
USA. 
9.  Allama Iqbal: Reconstruction of Religious Thought in Islam.

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