Usul al-fiqh

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Part of a series on Islam
Usul al-fiqh
(The Roots of Jurisprudence)
Fiqh
Ahkam
Scholarly titles
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Uṣūl al-fiqh (Arabic: أصول الفقه‎) (literally: the origins/fundamentals of the law) is the study of the origins, sources, and principles upon which Islamic jurisprudence 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.

Contents

[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 only accept ijma' al-sahaba (consensus of the companions).

[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. 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.

[edit] Shi'a law

In Shia Islam 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 many cases the law in doubtful cases is 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.[1]

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

  1. ^ 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.

[edit] External links

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