Usul al-fiqh
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Uṣūl al-fiqh (Arabic: أصول الفقه) (literally: legal theory[1]) is the study of the origins, sources, and principles upon which Islamic jurisprudence (or Fiqh) is based. In the narrow sense, it simply refers to the question of what are the sources of Islamic law. In an extended sense, it includes the study of the philosophical rationale of the law and the procedures by which the law applicable to particular cases is derived from the sources.
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[edit] The four major sources
In classical Sunni Islam, there are four major sources of jurisprudence: the Qur'an, the Sunnah, ijma' (consensus), and qiyas (analogy).
There is some dispute amongst the Sunni jurists regarding ijma' and qiyas. The Zahirites in particular reject all forms of qiyas, and the Zahirites, Abu Hanifa and Ahmad bin Hanbal only accepted ijma' al-sahaba (consensus of the companions of Muhammad).
[edit] The contribution of al-Shafi'i
Abu 'Abd Allah al-Shafi'i (767-819) documented a systematized form of usul, developing a cohesive, systematic procedure for legal reasoning(ijtihad). His approach contrasted with the Hanafite methodology that determined the sources from the sayings and rulings of the companions and successors. Furthermore, he raised the Sunnah to a place of prominence and restricted its legal use. According to al-Shafi'i, only practices directly passed down from Muhammad were valid, eliminating the legitimacy of practices of Muhammad's followers. Prior to al-Shafi'i, legal reasoning included personal reasoning thus suffering from inconsistency. al-Shafi'i is probably best known for writing Al-Risala, a prime example of applying logic and order to Islamic jurisprudence.[2]
[edit] Shi'a law
In Shia legal theory qiyas is not recognised as a source of law. There are two interpretations of what this entails.
- According to the Akhbari view, the only sources of law are the Quran and the Hadith, and any case not explicitly covered by one of these must be regarded as not having been provided for.
- According to the majority Usuli view, it is legitimate to seek general principles by induction, in order to provide for cases not expressly provided for. This process is known as ijtihad, and 'Aql (reason) is recognised as a source of law. It differs from the Sunni qiyas in that it does not simply extend existing laws on a test of factual resemblance: it is necessary to formulate a general principle that can be rationally supported.
In doubtful cases the law is often derived not from substantive principles induced from existing rules, but from procedural presumptions (usul 'amaliyyah) concerning factual probability. An example is the presumption of continuity: if one knows that a given state of affairs, such as ritual purity, existed at some point in the past but one has no evidence one way or the other whether it exists now, one can presume that the situation has not changed.[3]
The analysis of probability forms a large part of the Shiite science of usul al-fiqh, and was developed by Muhammad Baqir Behbahani (1706-1792 C.E.) and Shaykh Murtada al-Ansari (d. 1864).
[edit] References
- ^ Hallaq,Wael Sharī'a: Theory, Practice, Transformations, p.73
- ^ "USUL AL FIQH �AFTER AL IMAM AL SHAFI'I". http://www.islambasics.com/view.php?bkID=166&chapter=5. Retrieved 2011-02-15.
- ^ One can compare, in Western legal systems, the presumption of innocence and the presumption in favour of possession. Similarly Catholic moral theology distinguishes between "direct principles" and "reflex principles", the latter being the equivalent of Murtada al-Ansari's usul 'amaliyyah.
The only primary text on Shi'ite usul al-fiqh in English is Muhammad Baqir as-Sadr, Durus fi Ilm al-Usul. This has been translated into English twice: by Roy Mottahedeh as "Lessons in Islamic Jurisprudence" (2005) ISBN 978-1851683932 and anonymously as "The Principles of Islamic Jurisprudence according to Shi'i Law" (2003) ISBN 978-1904063124.
[edit] External links
- Usul al Fiqh: Methodology for Research and Knowledge in Islamic Jurisprudence An online textbook teaching usul al-fiqh from the International Institute of Islamic Thought
- Islamic Fiqh (Law) and the Neglected Empirical Foundation by Dr. Mohammad Omar Farooq
- Methodology of Economics: Secular versus Islamic by Dr. Waleed Addas
