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Usul al-fiqh

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This is an old revision of this page, as edited by TX Ciclista (talk | contribs) at 01:35, 6 November 2013 ("legal theory" is not literal translation. Correct idea, but "literally" necessitates... literalness. "Proofs of fiqh" is perhaps preferable, as "fiqh" does not have a direct English corollary, but 'understanding' is an early approximation. ~~~~). The present address (URL) is a permanent link to this revision, which may differ significantly from the current revision.

For other uses, see Usul (disambiguation).
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Legal vocations and titles

Uṣūl al-fiqh (Arabic: أصول الفقه) (lit. proofs of understanding." More loosely, Principles of Jurisprudence) 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.

Principles within Sunni Islam

Islamic law within the Sunni understanding draws from numerous sources. The most basic two sources  – indeed, the defining characteristics of Sunni Islam  – are the Qur'an, believed by Muslims to be the literal word of God, and the prophetic tradition including the statements and actions of the prophet Muhammad passed down through historically verifiable reports. consensus is also accepted by Sunni Muslims, though there is much differing over its exact definition. Analogical reason is typically referred to as a fourth primary source by later and modern Muslim authors, though its exact definition and even validity are not unchallenged.

Beyond the four main sources, other methods such as juristic discretion, public welfare and local custom are often considered, though discussions regarding how these sources are to be applied is ongoing.

The contribution of al-Shafi'i

Al-Shafi'i documented a systematized set of principles, developing a cohesive procedure for legal derivation of verdicts. 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 Shafi'i, only practices directly passed down from Muhammad were valid, eliminating the legitimacy of practices of Muhammad's followers. Prior to Shafi'i, legal reasoning included personal reasoning thus suffering from inconsistency. Shafi'i is probably best known for writing Risala, a prime example of applying logic and order to Islamic jurisprudence.[1] While Risala is considered a seminal work in the field of principles, it has been noted that the term "usul" is neither found in the title of the book nor is it used as such within the text.[2]

Evolution of methods

Between Shafi'i's Risala and the next attested works of usul is a gap of several hundred years. These later works were significantly different from Shafi'is book, likely due to the insertion of Mu'tazilite and Ash'arite theology into works of jurisprudence.[3] The difference between Shafi'i's work and these later works  – in terms of both content and the large chronological gap between which they were all composed  – is so great that modern scholarship has questioned the status of Shafi'i as the founder of Islamic jurisprudence.[4][5][6] Topics which became staples of written work on the principles of jurisprudence, such as reason versus revelation and interfaith debates regarding abrogation after revelation in Islam versus Judaism, were not even discussed by Shafi'i.

Indeed, even the division of the sources of Sunni law into four  – Qur'an, prophetic tradition, consensus and analogical reason  – was not present in Shafi'is books at all, despite Muslim scholarship generally attributing this division to him.[7] According to Qadi al-Nu'man, one of the earliest jurists to write about usul after Shafi'i did - perhaps during Shafi'is lifetime - was Abū 'Ubaid al-Qāsim b. Sallām, who actually considered the sources of law to consist of only three  – the Qur'an, the prophetic tradition, and consensus consisting of either scholarly consensus or consensus of the early generations.[2] This division into four sources is most often attributed to later jurists upon whose work most Sunni jurisprudence has been modeled such as Baqillani and Abd al-Jabbar ibn Ahmad,[8] of the Ash'arite and Mu'tazilite rites respectively. Thus, the four main sources often attributed to Shafi'i evolved into popular usage long after his death.

Additionally, the later scholars of the four mainstream Sunni schools of law all increased beyond four sources; while the four sources are the most widely accepted, other practices such as the Fatwas of the first generation of Muslims and the application of pure reason are not universally accepted.

Application of sources

Even after this evolution, there are still some disputes among Sunni jurists regarding these four sources and their application. Malik ibn Anas, Ahmad ibn Hanbal and in particular Dawud al-Zahiri rejected all forms of analogical reason in authentic narrations from them,[9][10][11] yet the later Malikites and Hanbalites  – and in some cases, even Zahirites  – gravitated toward the acceptance of varying levels of analogical reason already accepted by Shafi'ites and Hanafites.[10] Malik and Abu Hanifa both accepted pure reason as a source of law; Ahmad and Shafi'i did not, and Shafi'i was especially hostile to juristic preference as implemented by Abu Hanifa, yet pure reason later found its way into all Sunni schools of law.

The question of consensus has evolved considerably. Abu Hanifa, Ahmad and Zahiri only accepted the consensus of the first generation of Muslims,[12][13] while Malik was willing to accept the consensus of the first generation in general or the consensus of later generations within the community of Medina.[10][14] Shafi'i insinuated that consensus was not practically possible to confirm.[15] Later scholars of all schools eventually followed the views of Al-Ghazali and Ibn Taymiyyah in expanding the definition of accepted consensus to include scholarly consensus and silent consensus as well.[13][16]

Principles within Shi'ite Islam

In Shi'ite legal theory, analogical reason isn't recognised as a source of law; pure reason is, however.[17] Shi'ites may differ in the exact application of principles depending on whether they follow the Ja'fari, Ismaili or Zaidi subdivisions of Shi'ism.

Ja'fari principles

There are two interpretations of what constitutes sources of law among jurists of the Ja'fari school.

  • 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 the intellect 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.

Javadi Amoli wrote about source of revelation in Shiism:

  1. The most important source in Shiite law is the Quran itself, which interprets itself
  2. The other source is the tradition of the infallibles (the family of the prophet) peace be upon them, according to the successive tradition (Saqalain) passed down by the family of the prophet (peace upon them) as well as according to the Quran itself: to accept one without the other is equivalent to rejecting both of them.
  3. A third source is theoretical wisdom where it is impossible to conceive the contrary, which proves the existence of God and the necessity of his unity, eternity, pre-existence, power, will and other exalted attributes: this cannot be denied with any verse.
  4. Although we cannot impose science upon the Quran, we can use verified scientific, experimental, historical, artistic, logical and other evidence to interpret the subject addressed in a given passage, rather than through another verse.[18]

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.[19]

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) and Shaykh Murtada al-Ansari (died 1864). The only primary text on Shi'ite principles of jurisprudence in English is Muhammad Baqir as-Sadr's Durus fi 'Ilm al-'Usul.[20]

Ismaili principles

Most early Ismaili works within the field of the principles of jurisprudence were actually responses to Sunni works on the topic.[21] Qadi al-Nu'man's Differences Among the Schools of Law is most likely the first of such written responses.

References

  1. ^ [http://www.islambasics.com/view.php?bkID=166&chapter=5 "USUL AL FIQH �AFTER AL IMAM AL SHAFI'I"]. Retrieved 2011-02-15. {{cite web}}: replacement character in |title= at position 14 (help)
  2. ^ a b Stewart, pg. 105.
  3. ^ Devin J. Stewart, "Muhammad b. Dawud al-Zahiri's Manual of Jurisprudence." Taken from Studies in Islamic Law and Society Volume 15: Studies in Islamic Legal Theory. Edited by Bernard G. Weiss. Pg. 102. Leiden: 2002. Brill Publishers.
  4. ^ Wael Hallaq, Was al-Shafi‘i the Master Architect of Islamic Jurisprudence?, International Journal of Middle East Studies, 4 (November 1993), pg. 587-605.
  5. ^ George Makdisi, Juridical Theology, pg. 16.
  6. ^ Stewart, pg. 103.
  7. ^ "Does Shafi'i Have a Theory of 'Four Sources' of Law?, taken from the PhD dissertation of Joseph E. Lowry, The Legal-Theoretical Content of the Risala of Muhammad B. Idris al-Shafi'i, University of Pennsylvania, 1999.
  8. ^ Hallaq, A history of Islamic legal theories : an introduction to Sunnī uṣūl al-fiqh. Pg. 30-35. New York: Cambridge University Press, 1997.
  9. ^ Chiragh Ali, The Proposed Political, Legal and Social Reforms. Taken from Modernist Islam 1840-1940: A Sourcebook, pg. 280. Edited by Charles Kurzman. New York City: Oxford University Press, 2002.
  10. ^ a b c Mansoor Moaddel, Islamic Modernism, Nationalism, and Fundamentalism: Episode and Discourse, pg. 32. Chicago: University of Chicago Press, 2005.
  11. ^ Reuben Levy, Introduction to the Sociology of Islam, pg. 237, 239 and 245. London: Williams and Norgate, 1931-1933.
  12. ^ Muhammad Muslehuddin, "Philosophy of Islamic Law and Orientalists," Kazi Publications, 1985, p. 81
  13. ^ a b Dr. Mohammad Omar Farooq, "The Doctrine of Ijma: Is there a consensus?," June 2006
  14. ^ Muslehuddin, p. 81
  15. ^ Majid Khadduri, Introduction to Al-Shafi'i's al-Risala, pg.33
  16. ^ Khadduri, pg. 38-39.
  17. ^ Moaddel, pg. 33.
  18. ^ Tasnim (tafsir), Vol 1, Page 57
  19. ^ 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.
  20. ^ This has been translated into English twice: by Roy Mottahedeh as "Lessons in Islamic Jurisprudence" (2005) ISBN 978-1-85168-393-2 and anonymously as "The Principles of Islamic Jurisprudence according to Shi'i Law" (2003) ISBN 978-1-904063-12-4.
  21. ^ Stewart, pg. 116.
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