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Ilm Usul al-Fiqh
• Discipline of basic foundation of Islamic Jurisprudence that should be used for deciding laws.
• The problem is we study Fiqh (Jurisprudence), which is the branch without studying Usul al-fiqh, which is the stem.
• There is a way to be followed to codify a law. Prophet did not teach Usul al-fiqh.
• Abu Yusuf, the student of Abu Hanifah wrote the first Usul al-Fiqh. Unfortunately the document is lost.
• Imam Shafi’i’s document on Usul al-fiqh is preserved that was written in the late 2nd century A.H.
• Imam Shatibi also did a good work 200 years after Imam Shafi’i.
What is the purpose of Shariah?
It is to realize the benefit of people by securing the necessities of people, needs and refinements.
Islam is not a square but a cube. It is multi-dimensional and issues are not of the same size and importance.
There are things in life that are necessary otherwise life is miserable. There are needs in life otherwise the life is possible but not miserable. There are refinements in life otherwise the need can be fulfilled but the life will not be beautiful.
Here the shariah addresses at these three levels.
In a community it is achieved by implementing laws.
Without aqeedah, there is no shariah, no rules and the result would be police state, dictator system because of imposing laws.
Origins and Development of Usul al-Fiqh
The source-evidence upon which the whole Umma fully agrees, and on the validity of which there is general consensus, comprises of the two sources that formed the basis of legislation at the time of the Prophet (Pbuh).
1. Qur’an
The first source is the Qur’an, which is the word of God.
2. Hadith
The second source is the sunnah of prophet, the Mutawatir sunnah that coincides with the Qur’an.
3. Ijma - Consensus
If neither of Qur’an or Hadith is available, then the third source is ijma (consensus). Is ijma for everyone or ulema. Who are the ulema? Do they carry certificate? There is a debate about ulema and ijma. There is a debate if ijma of the ulema of one time or ijma of ulema at all times.
Is ijma binding to one generation is applicable to the subsequent generation? Is the ijma that every aalim (pl. ulema) has agreed, is really agreed by all ulema?
Al-Zahiri school of Ibn Hazm says there is no ijma. The modern thinker Dr. Fathi Osman also says that there is no ijma.
4. Al-Qiyas - Deduction by analogy
The laws in Qur’an and sunnah are limited.
• Cocaine is haram - used analogy to reach the same root
• When call for juma prayer comes, leave buying and selling, and attend prayers. (Qur’an 62:9) - doesn’t it mean one can go for biking, hiking; let us apply the qiyas here that anything that pushes away from doing prayer.
For qiyas to happen one should know the ruling, reason of ruling, one should find the same ruling in another situation
• Don’t eat pork. (Qur’an 5:3) - Qur’an did not tell us why. Some people said, we found certain worms in the pig but later on medication was found to take care of the worms. Nowadays people say that they eat healthy pork. Hence we can not do qiyas because the real reason is not found.
Some say, the use of qiyas is haram. Imam Shafii opposed qiyas but Imam Abu Hanifah supported qiyas very strongly.
5. Istihsan - rules make things better
When one buys a land, the contract included easement like water and power. For the lamp post, which is a common property in the land, the technician can come and fix the lamp post without considered to be trespassing.
6. Al-Maslaha - general public interest
Imam Shatibi wrote extensively about al-Maslaha. According to him, if there is something good for the people, it should be considered but it is good for people belonging to certain period of time and it should not be imposed on others.
• A marriage contract that is not documented in writing is fasid (corrupt or broken) no matter if two witnesses were present at the time of marriage, the verbal commitment will not be considered.
Who decides maslaha?
• The people, democratic methodology and not the Big Brother or the ruler.
• The suspension of certain text like Umar did. Umar did suspend the punishment of theft when economy was bad. Umar considered Shariah has higher goal than punishing certain people.
7. Al-Urf - commonly accepted by people Habits; traditions of certain society.
Urf is divided into two types as good urf and bad urf.
Goof urf is the one that does not contradict the Qur’an, sunnah or all the above. It is in complete harmony with the Qur’an.
• e.g. Celebrating Mother’s day without extravaganza is considered good urf.
Bad urf are the bad habits of the society.
• e.g. If a society considers that Muslims must observe a person’s death after 40 days by having a ceremony or of similar sort, then it is considered as bad urf.
Good urf should be respected while bad urf should be corrected.
For e.g. if one swears by God, he will not eat meat, later he ate fish, whether the person should be punished? The urf regards if the society does not consider fish as meat, then the person need not be punished. i.e. going by what is customary in that particular society.
8. Istishab - keep the ruling in one’s company
No law should prohibit something unless it is due to very compelling reason. e.g. Banning of beef when mad cow disease is prevalent at that point of time.
9. Shar’ man qublana - Laws of people before Muslims i.e. Christians and Jews
Shariah of the people before us unless we are ordered to change. It is by God like Jewish, Christian scriptures.
Torah says whoever punished for nafs i.e. human entity or self, gets punished.
• e.g. Tooth for the tooth. But Ulema say the Pre-Qur’anic sacred legislation has not been abrogated and hence consider it is applicable now to Muslims also. i.e. not for the tooth but for human life. Imam Abu Hanifah said, “Nafs is neither Muslim nor non-Muslim. If a Muslim kills a Muslim for no reason then the other Muslim should be killed, if the family did not accept the compensation and if it is a first degree murder”.
• In regards to food item, Jews don’t eat the hind and below part of the slaughtered animal but Islam allows it.
10. Madhad al-Sahabi - the way of Companion
Some consider it compelling as the sahabi is a student of the Prophet (Pbuh) and some do not.
Categories of Actions Wajib - duty; must do
Mandup - better doing; recommended; not a must
Muharram - must not do
Makru - hated; better not do
Mubah - allowed; one may or may not do
Abu Hanifah added sub categories:
Farida - definitely must do otherwise punished
Wajib - Must do but not be punished (legally)
Mandup - better doing; recommended; not a must
Muharram - must not do
Makru - For something to say haram, one need to have a mutawatir source and not form of a single hadith; He said makru tahrimant for single ((or isolated) hadith i.e. not to be done but if someone does, it is not haram; Makru tanzeehan – not up to haram, but not becoming or fitting for a Muslim to do.
(The author is Dr. Maher Hathout, Sr. Advisor, Muslim Public Affairs Council {MPAC})
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