STUDIES IN USUL UL FIQH
  • Book Title:
 Studies In Usul Ul Fiqh
  • Book Author:
IYAD HILAL
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11567
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INTRODUCTION – STUDIES IN USUL UL FIQH

“Today have I perfected your Deen, completed my favour upon you, And have chosen for you Islam as your

Deen.” (TMQ Al-Ma’ida: 3)

In this Ayah, as well as many others, Allah (SWT) reminds the Muslim Ummah of the value and regard that He (SWT) has for the message of Islam. This message is unique in comparison to the previous Messages in several ways.

It is the last and final Message for humanity from Allah (SWT). The followers of this Message have the honour of implementing and carrying it to other nations without the presence of their Messenger (Muhammed (SAW)).

In contrast, the Ummahs before the Message of Muhammed (SAW) were led by their respective Prophet or Messenger. This honour manifests itself in Allah’s (SWT) promise that the Muslim Ummah would be the first to enter Paradise. Therefore, the people who have entered this Deen are truly the fortunate ones.

The Muslim Ummah earned this honour by realising the necessity of implementing and maintaining Islam. They were its guardians even when they were under the brutal occupation of Mongols. In fact, during the occupation they were able to dramatically influence the occupiers with the Islamic ideology. This unprecedented event exemplifies the trust and the clear-cut understanding of Islam that Muslims possessed. What other nation was able to influence and change its conquerors, such that they would start carrying the Deen of the conquered?

It is with a feeling of regret and sorrow that today we witness Muslims, either leaving or only partially accepting Islam. Muslims have tried to mix its thoughts and values with that of other ideologies. Its laws are partially implemented along with those of other ideologies. Islam for the most part is generally known by its rituals to its followers and thus they convey it to other nations as such.

However, this Deen is still alive and intact in the Qur’an and Sunnah. It is from these two sources that we will explain the nature of Islam and fundamental elements associated with its foundation of law (Usul al Fiqh), Insha’Allah.

Islam was not revealed all at once, and is not just a set of “do’s” and “don’ts” like any constitution or legal document. In contrast, Islam offered solutions to the day to day problems as they were encountered by the Prophet (SAW) and the Sahabah (RA)

Islam provided a definite and clear vision to the Prophet (SAW) on how to live up to its ideology. Islam did not only provide and explain its values and thoughts; moreover, it provides a comprehensive set of legal laws regarding all facets of human existence. The implementation of these laws brought unheralded tranquillity and justice in the society.

In essence, Islam can be defined as a composition of unique and unparalleled ideas, values, thoughts, guidelines, and laws which Prophet Muhammed (SAW) expressed or applied during his (SAW) life.

The Aqeedah of Islam surpasses the “Aqeedah” of capitalism / democracy, in that it makes the human being subservient to his Creator rather than to his own desires. The simplicity of Islam frees the human being from the slavery to anything other than Allah (SWT). The Aqeedah of Islam orients a person’s thinking to seek the pleasure of Allah (SWT) as opposed to self benefit and material pleasure.

The laws of Islam are of the same nature as its Aqeedah. In that they are both revealed by Allah (SWT). The laws neither favour the working nor the elite class in the society. These are qualities of man-made laws which the Shariah transcends. Consequently, no Muslim, whether rich or poor, would feel any hesitation or regret in implementing the Islamic laws.

However, presently, hesitation and scepticism are prevalent at the Ummah level. We will examine and reflect on one of the major causes of such a decadent attitude, ie the lack of cohesive understanding of issues surrounding Fiqh (Islamic Laws).

It is with this purpose of developing a cohesive understanding of Usul al Fiqh that we have put forward this effort.

CHAPTER 1.0

BASIC TERMS IN ISLAMIC JURISPRUDENCE

1.1 FIQH

Linguistically, Fiqh implies having knowledge in depth. As a juristic term, Fiqh has two meanings:

  1. Having the knowledge of the rulings of Shariah (Islamic Law) which are extracted from the legislative sources. As an example, a Faqih would know the ruling for the issue of abortion; in addition, he would know how and from where this ruling was extracted.
  • All the Islamic laws. This definition is synonymous to the term Shariah.
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1.2 USUL AL FIQH

Usul al Fiqh is the collection of principles pertaining to the methodology for the extraction of Fiqh. The concept of Usul al Fiqh is comparable to adhering to the methodology when conducting a scientific experiment. Similarly, adhering to the methodology in deriving Fiqh (rulings) is referred to as Usul al Fiqh. This methodology provides a way for a person to derive Islamic rulings from the legislative sources in Islam.

The collection of principles related to Usul al Fiqh are many. A few examples of these rules are discussed in the following section.

Legislative Sources

Adopting specific sources to derive laws is a major subject in Usul al Fiqh. The Qur’an, Sunnah, Ijma as Sahabah (consensus of the Companions) and Qiyas (analogical deduction) are four sources in Islam which are accepted by almost all of the scholars. However, there are other additional sources such as Maslaha al Mursalah (benefit) or Ijma al Ummah (consensus of the Ummah) which are not widely accepted.

Arabic Language

Within the Arabic language, there are rules for understanding the structure of an Ayah or Hadith. The rules of grammar in the Arabic language define the meaning of the Ayah or Hadith. Therefore, understanding the rules of grammar and their application, is one use of the Arabic language in Usul al Fiqh.

C. Interpreting the text of Qur’an and Sunnah

Unless the text of the Qur’an and Sunnah is correctly understood, no ruling can be deduced from it. The linguistic structure of the text in Qur’an and Sunnah varies from one style to another. Some examples of these linguistic styles are: Thanniy (speculative text), Qatai (definitive text), Amm (general text), Khass (specific text), Haqiqi (literal text), and Majaazi (metaphorical text). The rules to distinguish and differentiate between these styles is an important subject in Usul al Fiqh.

Another essential aspect involved in interpreting the text of the Qur’an and Sunnah are issues surrounding abrogation of rulings from the Qur’an and Sunnah. The study of abrogation involves issues such as, what constitutes abrogation, how to understand it in relation to other Ayahs or Ahadith, and how to reconcile these differences.

Some Muslims claim there is no need for Usul al Fiqh, thinking one can directly go to the text of the Qur’an and Sunnah and derive laws. Such a claim really illustrates the ignorance in understanding Islam. It is impossible to derive laws without being equipped with the necessary tools. These tools enable us to understand the text of the Qur’an and Sunnah, and without understanding the text, one would not be able to extract laws.

As an example, without being aware of the rules of Arabic grammar for interpreting the text of Qur’an and Sunnah, one would not be able to differentiate whether the command in the Ayah or Hadith for a certain action is Haram (forbidden) or Makruh (undesirable). Therefore, Usul al Fiqh is a definite prerequisite to derive rulings.

Since rulings are derived based on Usul al Fiqh, a variation in Usul al Fiqh may result in different rulings. This is one of the reasons that there might exist more than one ruling one some issues.

The end product of Usul al Fiqh is Shariah (or Fiqh). The difference between Usul al Fiqh and Shariah is that the latter is concerned with the

rulings related to our actions, and Usul al Fiqh is concerned with the methodology applied to deduce such rulings.

SHARIAH

The linguistic meaning of the word Shariah is a non- exhaustive source of water which people satisfy their thirst. Thus, the linguistic significance of Shariah is that the Islamic laws are effectively a source of guidance. As water is the fundamental basis of life, the Islamic laws are an essential source for guiding human life.

Shariah is composed of all the laws derived from the legislative sources of Islam. These laws are not just limited to areas covering marriage or divorce; rather, the Islamic laws cover every action performed by an individual or a society. The term Shariah is also a synonym for Fiqh.

HUKM SHARII

The text of both the Qur’an and Sunnah address many topics such as, stories of previous Ummahs, the Day of Judgment, and others. However, the text which specifically addresses our actions of what to do or what not to do is referred to as Hukm Sharii.

The term Hukm Sharii, in Arabic, means the address of the Legislator related to our actions. Islam addresses all of our actions, whether they are permitted or not. Accordingly, all of our actions have to be guided by the Hukm Sharii. Allah (SWT) says:

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“Whoso rules not according to what Allah has sent down…. they are the disbelievers…. they are

the wrongdoers…… they are the transgressors.” (TMQ Al-Maidah: 44-47)

“It is not for any believing man or woman, when Allah and His Messenger have decided a matter, to have any choice for themselves in their affairs. For whoever rebels against Allah and His Messenger has gone astray into manifest error.” (TMQ Al-Ahzab: 36)

TYPES OF HUKM SHARII

Many Muslims are too quick to conclude that something is either Haram (prohibited) or Fard (compulsory) after a quick reading of an Ayah or a Hadith. Not all commands in the legislative sources are Fard or Haram. the rules which are used to differentiate the types of Hukm Sharii are again related to Usul al Fiqh.

In reality, the Hukm Sharii can be understood in five general ways.

A. FARD (Compulsory)

  • If the request to do an action is decisive (Talab Jazim) then it is a Fard or Wajib; both have the same meaning. A person who complies with a Fard will be rewarded, while one who disobeys will be punished.

Example: Performing and establishing Salat, paying Zakat, participating in the Jihad, being ruled by Islam, Muslim women wearing Hijab etc.

B. HARAM (Prohibited)

  • If the instruction is connected with a decisive command of refraining from an action then it is Haram or Mahthur. If the Haram is committed, then the person will be punished, but if the Haram action is avoided, the person will be rewarded.

Example: dealing with Riba, gambling, promoting nationalism or democracy etc.

C. MANDUB, SUNNAH  OR NAFILAH (Recommended)

  • If the instruction to do an action is not firm, then it is considered Mandub. The one who performs it is praised and rewarded; however, the one who abstains from it is neither blamed nor punished.

Example: Attending to the sick, giving alms to the poor, fasting Mondays and Thursdays.

D. MAKRUH (Disliked)

  • If the instruction of refraining from an action is not firm, then it is considered Makruh. The one who abstains is praised and rewarded while the one who does it is neither punished nor blamed.

Example: performing Salat between Fajr Salat and sunrise, eating garlic before going to the masjid for salat, etc.

E. MUBAH (Permissible)

  • If the choice to do or not to do an action is left up to the person, then the action is called Mubah. One will neither be rewarded nor punished for an action falling under this category.

Example: Eating lamb or chicken, marrying up to four wives, etc.

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Some of the Hukm Sharii such as Fard are divided into sub-categories. For example, Fard is divided into Fard al Ayn and Fard al Kifaya. Fard al Ayn is obligatory on every Muslim, such as praying five times a day; whereas, Fard al Kifaya is obligatory on the whole Ummah until part of the Ummah fulfills the Fard, such as the burial of a deceased Muslim. If a portion of the Ummah fulfilled this task, then this relieves the duty from the rest of the Muslims. Some of the other types of Hukm Sharii are also further sub-divided.

1.5 THE APPLICATION OF SHARIAH

The Shariah is not only limited to areas covering divorce or marriage. It covers the relationship between Man and Allah (SWT), Man and Himself, and Man and Man. In addition, to the method for applying these rules, implementing any rule requires having the knowledge of the situation, the rule and the method.

As an example, there is a general principle in Islam that a thief’s hand should be cut off. However, if the individual steals food while hungry then this general principle is not applied in this particular situation. Consequently, the knowledge of how and when to apply a rule is obligatory.

A misapplication of the Shariah is applying the Islamic laws related to Hudud (punishment) while at the same time implementing an economic system based on capitalism. Islamic laws related to punishment were revealed to protect the society in which Islam is being applied.

How can the Islamic laws related to punishment be applied concurrently with capitalism, which thrives on exploiting the masses? How can anyone justify the Islamic punishment of cutting the hand of a thief while the thief is under the oppression of capitalism?

The punishment of cutting off the hand of the thief is based upon protecting the society where the Islamic system is in application, a system which functions to see to it that the basic needs of every individual in the State are met.

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The Shariah should not be viewed as a burden or an obstacle in our lives; but rather, as a mercy from Allah (SWT). These laws must be understood as part of the Deen (a comprehensive way of life) revealed by the Creator. This Deen, Islam, requires a conviction that Islam is the only solution to our problems, it came from Allah (SWT), Who created us and thus knows what is best for us.

There is no reason for us not to obey any ruling from Allah (SWT). As mentioned earlier, the Islamic laws are Just because they are from Allah (SWT), in

contrast to the oppressive man-made laws. Consequently, we should feel proud, happy, and grateful that Allah (SWT) has shown us the only correct way to obey Him (SWT).

Islam is a complete and thoroughly integrated unit that cannot be implemented partially. The implementation of the Islamic rules related to the economy necessitate the implementation of the rules of Zakah, Nafaqah, and Al-Jizyah, which in turn means the implementation of the economic system.

The execution of the economic system requires the implementation of the Ibadaah, social system, rules related to the People of the Book, Islamic foreign policy, and rules related to the Khaleefah all together. The Islamic system is inter-connected, one part helps the implementation of the other part.

Implementing only parts of Islam and leaving others results in chaos as is evident today. For instance, Allah (SWT) has permitted divorce to solve a problem, but today divorce itself is a problem rather than a solution due to the misapplication of this particular solution and Islam in general.

CHAPTER 2.0 DALEEL

Linguistically, Daleel means a proof, indication, or an evidence. As a term, Daleel means the source or evidence for a thought, concept, or a ruling. Any law or ruling must have a Daleel, which can be from Qur’an, Sunnah, or a source which Qur’an and Sunnah directed us to adopt. These sources will be discussed later in the book. Any ruling from the text of either the Qur’an or Sunnah is considered a Daleel.

For example, the Qur’an states:

“Let there arise out of you a group of people inviting to all that is good (Islam) and enjoining what is right and forbidding what is wrong.” (TMQ Al-Imran: 104)

This Ayah is considered a Daleel for the obligation of establishing a Hizb (party or group) calling for Islam and enjoining what is Maruf (good) and forbidding what is Munkar (bad).

An example of a Daleel from the Sunnah is the prohibition to the call for nationalism. The Prophet (SAW) said about all types of Asabiyah (nationalism, racism, tribalism):

“Leave it, it is rotten” (Bukhari and Muslim)

2.1 STRUCTURE OF DALEEL

As mentioned earlier, a Daleel is an evidence for an opinion, concept, ruling, or a thought from Islam. There are two aspects related to any Daleel, Riwayah (reportage) and Dalalah (meaning).

The Riwayah covers issues related to how the information was relayed to us, which includes the number and the integrity of the reporters.

The Dalalah is related to the meaning of the text in the Daleel. There are also two terms used in

n with Riwayah and Dalalah, Qatai and being conclusive or decisive, osite of Qatai and means

The Qatai in Riwayah implies that the evidence is authentic without any shadow of doubt. This authenticity is established based on the methodology of transmission.

The methodology by which the Qur’an was transmitted to us precludes any possibility of fabrication. The report was transmitted generation by generation in exactly the same manner. It is impossible for an entire generation to fabricate, erase, or add contents to the Qur’an. It is inconceivable to believe that every single individual in that generation assembled together and agreed to add or delete parts of the Qur’an. Everyone in that generation was reciting the same contents of the Qur’an, thus authentifying its contents.

Hadith Mutawatir was not transmitted generation by generation, nut rather by a large number of people. Due to the large number of people reporting the Daleel, and their diversity of residence, their established reliability and conviction, it is inconceivable that this Daleel could be wrong.

Any report of information other than through the Qur’an or Hadith Mutawatir, such as Hadith Ahad, is considered Thanniy (non-definite), meaning that there is a minute possibility that the Daleel could contain an error…

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