LS1301 Principles of Islamic Jurisprudence I

(Higher National Diploma in Shariah Criminal Justice System & Bachelor of Law
and Bachelor of Shariah Law)

1.0 Introduction

Usul Al-Fiqh is a complex subject required to be mastered by a mujtahid in his ijtihad on

arriving at a valid hukm. To appreciate the value of Usul Al-Fiqh as a subject of study
would necessarily requires the study of among others, the historical aspect of the
formulation of Usul Al-Fiqh as a subject in Islamic Law. Essentials in studying the history
of Usul Al-Fiqh elementarily includes the time when the subject was formally introduced
to the Islamic world of knowledge, how did it develop through the passage of time and
the main approaches of the scholars in studying the Islamic Legal Texts in order to
deduce the hukm.

2.0 Emergence of Usul Al-Fiqh

When did Usul Al-Fiqh first emerged/born?

The Prophet Sallallaahu ‘Alaihi Wa Sallam’s lifetime.

-When the Prophet Sallaallaahu ‘Alaihi Wa Sallam was alive the necessary guidance
and solutions to problems were obtained through divine revelation, or his direct ruling.

-Example One: One of the prominent companions, 'Amr b. al-'As, said that he had had
a wet dream in the night, but owing to extreme cold he did not take a bath but instead
performed the morning Salah with tayammum. He then related this to the Prophet, who
laughed but said nothing, which would imply that the act in question is permissible in
similar circumstances, that is, when extreme cold proves to be hazardous to health.

-Example Two: Two of the Companions went on a journey, and when they failed to find
water for ablution, they both performed the obligatory prayers with tayammum, that is,
wiping the hands, face and feet with clean sand. Later, when they found water, one of
them performed the prayers again whereas the other did not. Upon their return, they
related their experience to the Prophet, who is reported to have approved both courses
of action.

-Example Three: the case of Hind, the wife of Abu Sufyan. This woman complained to
the Prophet that her husband was a tight-fisted man and that despite his affluence, he
refused to give adequate maintenance to her and her child. The Prophet instructed her
to 'take [of her husband's property] what is sufficient for yourself and your child according
to custom.

-Example Four: a Hadith on the reclamation of barren land which reads, 'whoever
reclaims barren land becomes its owner’.
 When did Usul Al-Fiqh first emerged/born?

The time of the Companions to the Prophet Sallaallaahu ‘Alaihi Wa Sallam.

• 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 source and intimate knowledge of the 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 arose.

- Example One: Dowry (mahr) for a woman whose husband died before the marriage
is consummated.

Ibn ‘Abbas: dowry is payable to the woman.

Ibn ‘Umar: no dowry is payable to the woman.

- Example Two: Sayyidina ‘Ali is of the view that the smallest sum of dowry is 10
dirham.

- Example Three: Sayyidina Anas is of the view that the shortest day for menstruation
is 3 days and 10 would be the longest.

- Example Four: Sayyidina Umar’s verdict that there is no cutting off the hands where
theft is committed by a servant on his master’s property.

When did Usul Al-Fiqh first emerged/born?

The time after the Companions to the Prophet Sallallaahu ‘Alaihi Wa Sallam.

• 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 arose.
• The time was ripe for Imam al-Shafi'i to articulate the methodology of Usul Al-Fiqh.
Imam 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 scholars 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 hence the need for
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.

3.0 Development of Usul Al-Fiqh

• Imam al-Shafi’i has refined the legal theory of Usul Al-Fiqh due to the extensive influx
of non-Arabs into Islamic territories and the disconcerting influence that this brought
on the legal and cultural traditions of Islam.
• Imam 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
the rules governing the Khaas and the 'Aam, the nasikh and the mansukh, and
articulated the principles governing ijma' and qiyas.
• He expounded the rules of relying on the solitary Hadith (khabar al-wa’hid) and its
value in the determination of the ahkam. Imam 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 a coherence to Usul Al-Fiqh, which had hitherto
remained scattered and unconsolidated.
• And finally among the factors which prompted Imam 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 on the legal and cultural traditi ons of
Islam.
• Imam 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
the rules governing the Khaas and the 'Aam, the nasikh and the mansukh, and
articulated the principles governing ijma' and qiyas.
• He expounded the rules of relying on the solitary Hadith (khabar al -wa’hid) and its
value in the determination of the ahkam. Imam 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 a coherence to Usul Al-Fiqh, which had hitherto
remained scattered and unconsolidated.
• The basic outline of the four principal sources of the law that Imam al-Shafi’i spelled
out was subsequently accepted by the generality of ulema, although each of the
various schools of jurisprudence has contributed towards its further development.
• The Hanafis, for example, added istihsan, and custom ('urf) to the usul al-fiqh, and the
Malikis reduced the concept of consensus (ijma') to the Madinese consensus only,
while the Hanbali approach to the subject closely resembled that of the Malikis. But
even so, none departed significantly from the basic principles which al -Shafi'i had
articulated.
• Broadly speaking, the so-called closure of the gate of ijtihad at around the fourth
Islamic century did not affect the usul al-fiqh in the same way as it might have affected
the fiqh itself. The era of imitation (taqlid) which followed might even have added to
the strength and prominence of usul al-fiqh in the sense that the imitators observed,
and relied on, the methodology of the usul as a yardstick of validity for their arguments.
Consequently usul al-fiqh gained universal acceptance and was, in a way, utilised as
a means with which to justify taqlid.

It will be noted in this connection that the Shi'i ulema have claimed that their fifth Imam,
Muhammad al-Baqir, and his son and successor, Ja'far al-Sadiq, were the first to write
on the subject of usul. According to Abu Zahrah, who has written extensively on the lives
and works of the early Imams, the Shi’i Imams have written, like many others, on the
subject, but neither of the two Imams have written anything of an equivalent order to that
of the Risalah. Hence al-Shafi'i's position and contribution to usul al-fiqh remains unique,
and he is rightly regarded as the founder of usul at-fiqh.

4.0 Approaches to the Study of Usul Al-Fiqh

Following the establishment of the madhahib the ulema of the various schools adopted
two different approaches to the study of usul al-fiqh, one of which is theoretical and the
other deductive.

The difference between the two approaches resembles the work of a legal draftsman
when it is compared to the work of a judge. The former is mainly concerned with the
exposition of principles whereas the latter tends to develop a synthesis between the
principle and the requirements of a particular case.

The theoretical approach to the study of usul al-fiqh is adopted by the Shafi’i school and
the Mutakallimun, that is the ulema of kalam and the Mu'tazilah. The deductive approach
is, on the other hand, mainly attributed to the Hanafis. The former is known as usul al -
Shafi'iyyah or tariqah al-Mutakallimin, whereas the latter is known as usul al-Hanafiyyah,
or tariqah al-fuqaha'.

Al-Shafi’i was mainly concerned with articulating the theoretical principles of usul al -fiqh
without necessarily attempting to relate these to the fiqh itself. As a methodologist par
excellence, he enacted a set of standard criteria which he expected to be followed in the
detailed formulation of the rules of fiqh. His theoretical exposition of usul al-fiqh, in other
words, did not take into consideration their practical application in the area of the furu’.

The Hanafis have on the other hand attempted to expound the principles of usul al-fiqh
in conjunction with the fiqh itself and tend to be more pragmatic in their approach to the
subject. In short, the theoretical approach tends to envisage usul al -fiqh as an
independent discipline to which the fiqh must conform, whereas the deductive approach
attempts to relate the usul al-fiqh more closely to the detailed issues of the furu al-fiqh.
- Example One: Specification vs. Abrogation

One hadith states “'whatever is watered by the sky is subject to a tithe”. Another hadith
states “there is no charity in less than five awsaq”. (awsaq – plural comes from wasaq
– singular which in measurement is equivalent to about 10 kilos).

Shafi’i Approach: The 1st Hadith is general and thus it is being specified by the 2 nd
Hadith which is more specific. Hence, any crops will only be subject to the giving of
alms (Zakat) if the measurement is less than five awsaq.

Hanafi Approach: The 1st Hadith is abrogated by the 2nd Hadith. Hence, there is no
limit imposed in order for one’s crops to be subject to the giving of alms (Zakat).

- Example Two: ‘Amm. Is it zanni or qat’i? (Zanni = open to other interpretation, Qat’I
= not open to other interpretation)

“Forbidden to you (in marriage) are your mothers, your daughters, your sisters, your
father's sisters and your mother's sisters” An-Nisa, 4:23.

Shafi’i Approach: “Mother” in the above verse includes not only biological mother but
step-mother and grandmother. ‘Amm is thus not definitive and non-speculative. In
other words, “mother” in the above verse is open to further interpretation.

Hanafi Approach: “Mother” in the above verse is only limited to biological mother.
‘Amm is thus qat’i – not open to other interpretation

- Example Three: One word different literal meaning.

“…to be banished from the earth.”

Syafi’i Approach: “Banished” means exile.

Hanafi Approach: “Banished” means imprisonment.

- Example Four: Combine or single selection in meaning.

“… should be killed or crucified or their hands and their feet should be cut off on
opposite sides, or they should be banished from the earth.”

Syafi’i Approach: The offender is to be killed if the he had robbed and killed the victim.
Robbed only will be subject to cutting off the hands.

Hanafi Approach: The offender’s punishment is up to the ruler of the state to decide
which one of the three is to be imposed.
Three of the most important works which adopt the theoretical approach to usul al -fiqh
are AlMu'tamad fi Usul al-Fiqh by the Mu'tazili scholar, Abu al-Husayn al-Basri (d. 436),
Kitab al-Burhan of the Shafi’i scholar, Imam al-Haramayn al-Juwayni (d. 487) and Al-
Mustasfa of Imam Abu Hamid alGhazali (d. 505). These three works were later
summarised by Fakhr al-Din al-Razi (d. 606) in his work entitled Al-Mahsul. Sayf A-Din
al-Amidi's larger work, Al-Ihkam fi usul al-Ahkam is an annotated summary of the three
pioneering works referred to above.

The earliest Hanafi work on usul al-fiqh is Kitab fi al-Usul by Abu al-Hasan al-Karkhi (d.
340) which was followed by Usul al-Jassas of Abu Bakr al-Razi al-Jassas (d. 370). Fakhr
al-Islam al-Bazdawi's (d. 483) well-known work, Usul al-Bazdawi, is also written in
conformity with the Hanafi approach to the study of this discipline. This was followed by
an equally outstanding contribution by Shams al-Din alSarakhsi (d. 490) bearing the title,
Usul al-Sarakhsi. A number of other ulema have contributed to the literature in both
camps. But a difference of format which marked a new stage of development was the
writing of handbooks in the form of mukhtasars with a view to summarise the existing
works for didactic purposes.

The next phase in the development of literature on usul al-fiqh is marked by the attempt
to combine the theoretical and deductive approaches into an integrated whole
which is reflected in the works of both the Shafi’i and Hanafi ulema of later periods. One
such work which attempted to combine al-Bazdawi's Usul and al-Amidi's Al-Ihkam was
completed by Muzaffar al-Din al-Sa'ati (d. 694) whose title Badi' alNizam al-Jami 'Bayn
Usul al-Bazdawi wa al-Ihkam is self-explanatory as to the approach the author has taken
to the writing of this work.

Another equally significant work which combined the two approaches was completed by
Sadr al-Shari'ah, 'Abd Allah b. Mas'ud al-Bukhari (d. 747) bearing the title AlTawdih,
which is, in turn, a summary of Usul al-Bazdawi, Al-Mahsul, and the Mukhtasar al-
Muntaha of the Maliki jurist. Abu Umar Uthman b. al-Hajib (d. 646). Three other well-
known works which have combined the two approaches to usul al-fiqh are Jam' al-
Jawami of the Shafi'i jurist Taj al-Din al-Subki (d. 771), Al-Tahrir of Kamil al-Din b. al-
Humam al-Hanafi (d. 860), and Musallam al-Thubut of the Hanafi jurist Muhibb al-Din b.
'Abd al-Shakur (d. 1119). And finally, this list would be deficient without mentioning Abu
Ishaq Ibrahim al-Shatibi's Al-Muwafaqat, which is comprehensive and perhaps unique
in its attention to the philosophy (hikmah) of tashri' and the objectives that are pursued
by the detailed rulings of the Shari’ah.
5.0 Conclusion

In studying Usul Al-Fiqh it is imperative to know and comprehend its historical

background. Apart from strengthening the understanding of the different areas
discussed in Usul Al-Fiqh (sources, methods etc.) Usul Al-Fiqh is also useful in
combatting attacks inside and out of the Islamic Religion. For instance, attack could be
launched to weaken the faith of the believers in the truth of Islam as the only way true
and sensical way of life. Usul Al-Fiqh would in respond proves that the teachings in
Islam is based on a concrete foundation and not based on fancies or private desires of
irresponsible individuals who aims at gaining the worldly objectives. Studying the
emergence, development and the approaches in studying Usul Al-Fiqh will hence prove
beneficial in upholding Islam as facts are proved by history.