Tuesday, August 31, 2004

Principles of Islamic Jurisprudence-Muhammad Hashim Kamali

Introduction to Usul al-Fiqh

I. Definition and Scope
Usul al-fiqh is concerned with the sources of Islamic law, their order of priority, and the methods by which legal rules may be deduced from the source materials of the Shari’ah. It is also concerned with regulating the exercise of ijtihad. The sources of the Shari’ah are of two kinds: revealed and non-revealed. Whereas the former provide the basic evidence and indications from which detailed rules may be derived, the latter provide the methodology and procedural guidelines to ensure correct utilisation of the source evidence. Usul al-fiqh, or the roots of Islamic law, thus expound the indications and methodology by which the rules of fiqh are deduced from their source evidence. The rules of fiqh are thereby 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. Although 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 contain both specific injunctions and general guidelines on law and religion, but it is the broad and general directives which occupy the larger part of the legal content of these sources. The general directives that are found in the Qur’an and Sunnah are concerned not so much with methodology as with substantive law, and they provide indications which can be used as raw material in the development of law. The methodology of usul al-fiqh refers mainly to methods of reasoning such as analogy (qiyas), juristic preference (istihsan), presumption of continuity (istishab) and the rules of interpretation and deduction. These are all designed to serve as an aid to the correct understanding of the sources of Shari’ah and ijtihad. While the clear directives of the Qur’an and the Sunnah command permanent validity, the methodology of usul does not, for it was developed after the revelation of the Qur’an and Sunnah came to an end, and most of it consists of juristic propositions and ijtihad advanced by scholars and ‘ulama’ of different periods. As an instrument of legal construction and ijtihad, the methodology of usul al-fiqh must therefore remain open to further adaptation and refinement in order to respond to the changing needs of society and civilisation.

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 the language. 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’. 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 fiqh in isolation from its sources is not a faqih. 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 states: ‘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’. Fiqh is acquired knowledge which is obtained by study and self-application and is therefore different from inherent knowledge, for example that of God, who is All-Knowing; it is also different from the knowledge of the Prophet, and that of the angel Gabriel, as theirs was given or transmitted to them essentially through revelation.

The word asl has several meanings, including proof, root, origin and source, such as in saying that the asl (proof) of this or that rule is ijma’; or in the expression usul al-fiqh, which means the roots of fiqh or its underlying evidence. It is also used in the sense of the original rule or norm as in the legal maxim that ‘the asl in all things is permissibility’, or when it is said that al-asl bara’ah al-dhimmah, the norm is absence of liability. Asl also means the foundation on which something is constructed. When it is said, for example, that qiyas or analogy must have an asl, this may be the Qur’an or the Sunnah. Asl also means that which is preferable (al-rajih), such as in the saying that al-asl fi’l kalam al-haqiqah (the literal meaning is preferable to the metaphorical one). And lastly, asl and usul denote rules or principles on which a branch of knowledge may be founded, such as in usul al-hadith, which is equivalent to qawa’id al-hadith, that is, the rules governing the science of hadith.

Knowledge of the rules of interpretation is essential to the proper understanding of a legal text. Unless the texts of the Qur’an or the Sunnah are correctly understood, no rules can be deduced from them, especially in cases where the text in question is not self-evident. Hence, the rules by which one is to distinguish a speculative text from a definitive one, the manifest (zahir) from the explicit (nass), the general (amm) from the specific (khass), 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 the attention in 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. 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 its limits are, and what authority it would command in conjunction, or in conflict, with other recognised proofs are questions which are of primary concern to usul al-fiqh. Juristic preference, or istihsan, is another rationalist doctrine and a recognised 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 the limits are of personal preference and opinion in a particular case, is largely a question of methodology and interpretation and therefore forms 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 apparent 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 ‘ulama’. The purpose of usul al-fiqh is to help the jurist 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 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 ‘amm, the khass, 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 of 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 use in the understanding and interpretation of any legal text.

To what extent is it true to say that al-Shafi’i was the founder of usul al-fiqh? One theory has it that usul al-fiqh has existed for as long as fiqh has been known to exist. For fiqh could not have come into being in the absence of its sources, and of methods with which to utilise these source materials. This would, in turn, imply that usul al-fiqh existed long before al-Shafi’i. Numerous examples could be cited to explain how, in early Islam, the Companions deduced the rules of fiqh from their sources. Usul al-fiqh, in other words, had existed well before the period that saw the emergence of the leading Imams of jurisprudence. But it was through the works of these Imams, especially al-Shafi’i, that usul al-fiqh was articulated into a coherent body of knowledge. Even before al-Shafi’i, we know that Abu Hanifah resorted to the use of analogy and istihsan, while Imam Malik is known for his doctrine of the Medinese ijma’, subjects we shall have occasion to return to. When al-Shafi’i came on the scene, he found a wealth of juristic thought and advanced levels of argumentation on methodological issues. But the existing works were not entirely free of discordance and diversity, which had to be sifted through by the standards which al-Shafi’i articulated in his legal theory of the usul. He devoted his Risalah exclusively to this subject, and this is widely acknowledged to be the first work of authority on usul al-fiqh.

It is nevertheless accurate to say that fiqh precedes usul al-fiqh and that it was only during the second Islamic century that important developments took place in the field of usul al-fiqh, since during the first century there was no pressing need for usul al-fiqh. When the Prophet was alive, the necessary guidance and solutions to problems were obtained either through divine revelation, or his direct ruling. Similarly, during the period following the demise of the Prophet, the Companions remained in close contact with the teachings of the Prophet and their decisions were mainly inspired by his precedent. Their proximity to the sources and intimate knowledge of events, provided them with the authority to rule on practical problems without there being a pressing need for methodology. However, with the expansion of the territorial domain of Islam, the Companions were dispersed and direct access to them became increasingly difficult. With this, the possibility of confusion and error in the understanding of the textual sources became more prominent. Disputation and diversity of juristic thought in different quarters accentuated the need for clear guidelines, and the time was ripe for al-Shafi‘i to articulate the methodology of usul al-fiqh. Al-Shafi’i came on the scene when juristic controversy had become prevalent between the jurists of Madinah and Iraq, respectively known as ahl al-hadith and ahl al-ra’y. This was also a time when the ‘ulama’ of hadith had succeeded in their efforts to collect and document the hadith. Once the fuqaha’ were assured of the subject-matter of the Sunnah, they began to elaborate the law, and thus the need for a methodology to regulate ijtihad became increasingly apparent. The consolidation of usul al-fiqh as a Shari’ah discipline was, in other words, a logical conclusion of the compilation of the vast literature of hadith.

Finally, among the factors which prompted al-Shafi’i into refining the legal theory of usul al-fiqh was the extensive influx of non-Arabs into Islamic territories and the disconcerting influence that this brought about on the legal and cultural traditions of Islam. Al-Shafi’i was anxious to preserve the purity of the Shari’ah and of the language of the Qur’an. In his Risalah, al-Shafi’i enacted guidelines for ijtihad and expounded rules governing the khass and the amm, the nasikh and the mansukh, and articulated the principles governing ijma’ and qiyas. He set out the rules for relying a the solitary hadith (khabar al-wahid) and its value in the determination of the ahkam. Al-Shafi’i refuted the validity of istihsan and considered it to be no more than an arbitrary exercise in law-making. Admittedly, al-Shafi’i was not the first to address these matters, but it is widely acknowledged that he brought coherence to usul al-fiqh, which had hitherto remained scattered and unconsolidated.

The Islamic Texts Society