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Principles of Islamic Jurisprudence – Book Sample

About the Book- Principles of Islamic Jurisprudence

Principles of Islamic Jurisprudence, this third edition of the best-selling title has been completely revised and substantially enlarged. In this work, Prof Kamali offers us the first detailed presentation available in English of the theory of Muslim law (usul al-fiqh). Often regarded as the most sophisticated of the traditional Islamic disciplines, Islamic Jurisprudence is concerned with the way in which the rituals and laws of religion are derived from the Qur’an and the Sunnah (prophet traditions). Compiled in form of a university textbook, Principles of Islamic Jurisprudence is distinguished by its clarity and readability; it is an essential reference work not only for students of Islamic law, but also for anyone with interested in issues of comparative Jurisprudence or an in issues of Muslim society

Chapter One: Introduction to Usul al-Fiqh

1. Definition and Scope

Usul al-fiqh, or the roots of Islamic law, expound the indications and methods by which the rules of fiqh are deduced from their sources. These indications are found mainly in the Qur’an and Sunnah, which are the principal sources of the Shari’ah. The rules of fiqh are thus derived from the Qur’an and Sunnah in conformity with a body of principles and methods which are collectively known as usul al-fiqh. Some writers have described usul al-fiqh as the methodology of law, a description which is accurate but incomplete.

Principles of Islamic Jurisprudence

Although the methods of interpretation and deduction are of primary concern to usul al-fiqh, the latter is not exclusively devoted to methodology. To say that usul al-fiqh is the science of the sources and methodology of the law is accurate in the sense that the Qur’an and Sunnah constitute the sources as well as the subject matter to which the methodology of usul al-fiqh is applied.

The Qur’an and Sunnah themselves, however, contain very little by way of methodology, but rather provide the indications from which the rules of Shari’ah can be deduced. The methodology of usul al-fiqh really refers to methods of reasoning such as analogy (qiyas), juristic preference (istihsan), presumption of continuity (istishab) and the rules of interpretation and deduction. These are designed to serve as an aid to the correct understanding of the sources and ijtihad.

main difference between fiqh and usul al-fiqh

To deduce the rules of fiqh from the indications that are provided in the sources is the expressed purpose of usul al-fiqh. Fiqh as such is the end product of usul al-fiqh; and yet the two are separate disciplines. The main difference between fiqh and usul al-fiqh is that the former is concerned with the knowledge of the detailed rules of Islamic law in its various branches, and the latter with the methods that are applied in the deduction of such rules from their sources.

Fiqh, in other words, is the law itself whereas usul al-fiqh is the methodology of the law. The relationship between the two disciplines resembles that of the rules of grammar to a language, or of logic (mantiq) to philosophy. Usul al-fiqh in this sense provides standard criteria for the correct deduction of the rules of fiqh from the sources of Shari’ah. An adequate knowledge of fiqh necessitates close familiarity with its sources. This is borne out in the definition of fiqh, which is ‘knowledge of the practical rules of Shari’ah acquired from the detailed evidence in the sources ((Amidi, Ihkam, I, 6; Shawkani, Irshad, P. 3)).

The knowledge of the rules of fiqh, in other words, must be acquired directly from the sources, a requirement which implies that the faqih must be in contact with the sources of fiqh. Consequently a person who learns the fiqh in isolation from its sources is not a faqih ((Cf. Abu Zahrah, Usul, p. 6)).

What Jurist must know – Principles of Islamic Jurisprudence

The faqih must know not only the rule that misappropriating the property of others is forbidden but also the detailed evidence for it in the source, that is, the Qur’anic ayah (2:188) which provides: ‘Devour not each other’s property in defiance of the law.’ This is the detailed evidence, as opposed to saying merely that ‘theft is forbidden in the Qur’an’.

Knowledge of the rules of interpretation is essential to the proper understanding of a legal text. Unless the text of the Qur’an or the Sunnah is correctly understood, no rules can be deduced from it, especially in cases where the text in question is not self-evident.

Hence rules by which one is to distinguish a speculative text from the definitive, the manifest (zahir) from the explicit (nass), the general (‘aam) from the specific (khaas), the literal (haqiqi) from the metaphorical (majazi) etc., and how to understand the implications (dalalat) of a given text are among the subjects which warrant attention in the study of usul al-fiqh. An adequate grasp of the methodology and rules of interpretation also ensures the proper use of human reasoning in a system of law which originates in divine revelation.

What is Qiyas – Principles of Islamic Jurisprudence

For instance, analogy (qiyas) is an approved method of reasoning for the deduction of new rules from the sources of Shari’ah. How analogy should be constructed, what are its limits, and what authority would it command in conjunction, or in conflict, with the other recognized proofs are questions which are of primary concern to usul al-fiqh. Juristic preference, or istihsan, is another rationalist doctrine and a recognized proof of Islamic law.

It consists essentially of giving preference to one of the many conceivable solutions to a particular problem. The choice of one or the other of these solutions is mainly determined by the jurist in the light of considerations of equity and fairness.

Which of these solutions is to be preferred and why, and what are the limits of personal preference and opinion in a particular case, is largely a question of methodology and interpretation and therefore form part of the subject matter of usul al-fiqh.

The principal objective of usul al-fiqh is to regulate ijtihad and to guide the jurist in his effort at deducing the law from its sources. The need for the methodology of usul al-fiqh became prominent when unqualified persons attempted to carry out ijtihad, and the risk of error and confusion in the development of Shari’ah became a source of anxiety for the ulema.

purpose of usul al-fiqh

The purpose of usul al-fiqh is to help the jurist to obtain an adequate knowledge of the sources of Shari’ah and of the methods of juristic deduction and inference. Usul al-fiqh also regulates the application of qiyas, istihsan, istishab, istislah, etc., whose knowledge helps the jurist to distinguish as to which method of deduction is best suited to obtaining the hukm shar’i of a particular problem.

Furthermore, usul al-fiqh enables the jurist to ascertain and compare strength and weakness in ijtihad and to give preference to that ruling of ijtihad which is in close harmony with the nusus.

It may be added here that knowledge of the rules of interpretation, the ‘Aam, the Khaas, the Mutlaq, the Muqayyad, etc., is equally relevant to modern statutory law. When the jurist and the judge, whether a specialist in the Shari’ah or in secular law, fails to find any guidance in the clear text of the statute on a particular issue, he is likely to resort to judicial construction or to analogy.

The skill, therefore, to interpret a legal text and to render judicial decisions is indispensable for a jurist regardless as to whether he sits in a Shari’ah court or in a court of statutory jurisdiction. A specialist in usul al-fiqh will thus find his skill of considerable assistance to the understanding and interpretation of any legal text ((Cf. Badran, Usul,pp. 37-38)).

III. Proofs of Shari’ah (Al-Adillah Al-Shar’iyyah) – Principles of Islamic Jurisprudence

The adillah Shar’iyyah, and the ahkam, that is, laws or values that regulate the conduct of the mukallaf, are the two principal themes of usul al-fiqh. Of these two, however, the former is by far the more important as, according to some ulema, the ahkam are derived from the adillah and are therefore subsidiary to them.

It is perhaps in view of the central importance of these two topics to usul al-fiqh that al-Amidi defines the latter as the science of the ‘Proofs of fiqh (adillah al-fiqh) and the indications that they provide in regard to the ahkam of the Shari’ah ((Amidi, Ihkam, I, 7; Badran, Usul, P. 36.)).

Literally, dalil means proof, indication or evidence. Technically it is an indication in the sources from which a practical rule of Shari’ah, or a hukm is deduced. The hukm so obtained may be definitive (qat’i’) or it may be speculative (zanni) depending on the nature of the subject, clarity of the text, and the value which it seeks to establish ((Amidi, Ihkam, I. 9; Badran, Usul, P. 46, Hitu, Wajiz, p. 99)).

In the terminology of usul al-fiqh, adillah Shar’iyyah refer to four principal proofs, or sources of the Shari’ah, namely the Qur’an, Sunnah, consensus and analogy. Dalil in this sense is synonymous with asl, hence the four sources of Shari’ah are known both as adillah and usul. There are a number of ayat in the Qur’an which identify the sources of Shari’ah and the order of priority between them. But one passage in which all the principal sources are indicated occurs in Sura al-Nisa’ (4: 58-59) which is as follows: ‘O you believers!Obey God and obey the Messenger and those of you who are in charge of affairs.

If you have a dispute concerning any matter

If you have a dispute concerning any matter, refer it to God and to the Messenger,’ ‘Obey God’ in this ayah refers to the Qur’an, and ‘Obey the Messenger’ refers to the Sunnah. Obedience to ‘those who are in charge of affairs’ is held to be a reference to ijma’, and the last portion of the ayah which requires the referral of disputes to God and to the Messenger authorises qiyas.

For qiyas is essentially an extension of the injunctions of the Qur’an and Sunnah. The rationale or the effective cause of qiyas may be clearly indicated in these sources or it may be identified by way of inference (istinbat). In either case, qiyas essentially consists of the discovery of a hukm which is already indicated in the divine sources ((Cf. Badran, Usul, pp. 51-52)).

Some fuqaha’ have drawn a distinction between dalil and amarah (lit. sign or allusion) and apply dalil to the kind of evidence which leads to a definitive ruling or that which leads to positive knowledge (‘ilm). Amarah on the other hand is reserved for evidence or indication which only leads to a speculative ruling ((Amidi, Ihkam, I, 9)). In this way, the term ‘dalil’ would only apply to the definitive proofs, namely the Qur’an, Sunnah and ijma’, and the remaining proofs which comprise a measure of speculation, such as qiyas and istihsan, etc., would fall under the category of amarat.

Divisions of Sharia Proofs – Principles of Islamic Jurisprudence

The proofs of Shari’ah have been further divided into transmitted proofs (adillah naqliyyah) and rational proofs (adillah ‘aqliyyah). The authority of the transmitted proofs is independent of their conformity or otherwise with the dictates of reason, although as we shall later elaborate, most of the transmitted proofs can also be rationally justified.

However, the authority and the binding force of the Qur’an, Sunnah and ijma’ are independent of any rational justification that might exist in their favour. To these are added two other transmitted proofs, namely the ruling of the Companions, and the laws revealed prior to the advent of Islam (shara’i man qablana) ((Cf. Badran, Usul, PP. 54-55))

The rational proofs are, on the other hand, founded in reason and need to be rationally justified. They can only be accepted by virtue of their rationality. Qiyas, istihsan, istislah and istishab are basically all rationalist doctrines although they are in many ways dependent on the transmitted proofs.

Sharia does not oppose intellect

Rationality alone is not an independent proof in Islam, which is why the rational proofs cannot be totally separated from the transmitted proofs. Qiyas, for example, is a rational proof, but it also partakes in the transmitted proofs to the extent that qiyas in order to be valid must be founded on an established hukm of the Qur’an, Sunnah or ijma’. However the issue to which qiyas is applied (i.e. the far’) must have a ‘illah in common with the original hukm. To establish the commonality of the ‘illah in qiyas is largely a matter of opinion and ijtihad. Qiyas is therefore classified under the category of adillah aqliyyah.

Principles of Islamic Jurisprudence

As noted above, the adillah Shar’iyyah are on the whole in harmony with reason. This will be clear from the fact that the Shari’ah in all of its parts is addressed to the mukallaf, that is, the competent person who is in possession of his faculty of reasoning.

The Shari’ah as a whole does not impose any obligation that would contradict the requirements of ‘aql. Since the criterion of obligation (taklif) is ‘aql, and without it all legal obligations fall to the ground, it would follow that a hukm shar’i which is abhorrent to ‘aql is of no consequence. ((Amidi, Ihkam, III, 180; Badran, Usul, P. 50))

Independent and dependent proofs respectively

The adillah Shar’iyyah have been further classified into mustaqill and muqayyad, that is independent and dependent proofs respectively. The first three sources of the Shari’ah are each an independent asl, or dalil mustaqill, that is, a proof in its own right.

Qiyas on the other hand is an asl or dalil muqayyad in the sense, as indicated above, that its authority is derived from one or the other of the three independent sources. The question may arise as to why ijma’ has been classified as an independent proof despite the fact that it is often in need of a basis (sanad) in the Qur’an or the Sunnah.

The answer to this is that ijma’ is in need of a sanad in the divine sources for its formulation in the first place. However, once the ijma’ is concluded, it is no longer dependent on its sanad and it becomes an independent proof. Unlike qiyas, which continues to be in need of justification in the form of a ‘illah, a conclusive ijma’ is not in need of justification and is therefore an independent asl ((Amidi, Ihkam, I, 260)).

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