Methodological Issues in Islamic Jurisprudence

Methodological Issues in Islamic Jurisprudence
Author(s): Mohammad Hashim Kamali

Source: Arab Law Quarterly, Vol. 11, No. 1 (1996), pp. 3-33
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METHODOLOGICAL ISSUES IN ISLAMIC
JUR I S PRUD E N CE
Mohammad
HashimKamali*
IN T ROD U CT ION
The methodology of usul al-fiqhembodies the basic approachand frameworkof

thought Mllslim juristshave proposedfor the developmentof Shari'a.Usu-lal-fiqh
is concernedwith de sourcesof law, cheirorderof priority,and methodsby which
legal rules may be deduced from the source materials of Shari'a. It is also
concerned with directing and regulatingthe exercise of iitihAd.The sources of
Shari'aare of two kinds:revealedand rlon-revealed.The revealedsources,namely
the Qu'ranand Sunnah, contain both specific injunchonsand generalguidelmes
on law and religion, but it is the-broad and general directiveswhich occupy the
largerpart of the legal content of the Qu'ranand Sunnah.The generaldirectives
that are found in these sources are concernednot so much wii methodology as
with substantive law and they provide indications which can be used as raw
materialsin the developmentof the law. The mechodologyof usi-lrefersmainly to
rules of interpretationand deduction, and methods of reasoningsuch as analogy
(qiyas),juristic preference(istiksan),presumptionof continuity (istishab),and so
forth, which are all the sub-varietiesof iitihAd.
While the clear injunctions(nusus
pl. of nass)and generalprinciplesof the Qu'ranand Sunnahcommandpennanent
validity,the methodologyof usuldoes not, for it was developedafterthe revelation
of the Qu'ran and Sunnah came to an end, and most of it consists of juristic
propositionsadvancedby scholarsof differentperiodsof historyaddressingissues
which may or may not be reflective of the dominantconcerns of contemporary
Muslims. There is little doubt that some of the doctrinesof usul,such as iima'
(general consensus), and qiyas(analogicalreasoning), were partly designed to
encouragestabilityand curb the influenceof foreigntraditionsinto thejurzscorp2es
of Islam. The doctrinesand methods that were so developedembodiedthe ulema
responses to de growing diversity in the schools of thought, sects and factons,
that was witnessed in de early period of the Abbasid rule around jchefourth
centuryhijrah.Evidence also suggeststhat the developmentof usul was influenced
by the rift over legitimacy between the ulema and rulers. The ulema refused to
acknowledgeto the rulersthe auchorityto legislateand interpretthe Shari'a.The
rulers in turn denied to the ulema a share in political power. This pattern of
relationshipdiscouragedco-operationand harmonybetweenthe governmentand
*Professor (Kulliyyahof Laws), International Islamic Unierersity of Malaysia.
3
4 ARAB LAW QUARTERLY
ulema. We also note a certainchangein the natureof issues. While many of us

todayspeakof the paralysinghold of taqltdandthe need to put a new meaningand
impetusin iFtEhAd, the trend of opinionwas in the oppositedirectionin the early
fourth centurywhen the ulemawere positivelyencouragingtaqltd.The increased
isolation of Shari'afrom the realitiesof law and governmentin contemporary
Muslim societiesaccentuatesthe need for fresheffortsto makethe Shan'aa viable
propositionand a living force in society.Ourproblemsover taqltdare exacerbated
by the developmentof a new dimensionto taqrd as a resultof Westerecolonialism
which has led to indiscriminateimitationof the laws and institutionsof the West.
The prevailinglegal practicein marlyMuslimcountries,and indeedmanyof their
constitutions,aremodelledon a precedentthat doesnot claimits originin the legal
heritageof Islam.
In a 1976conferenceheld by the InternationalInstituteof IslamicThought, the
participantsreachedthe conclusionthat the Muslim world was afflictedwith an
intellectual crisis (al-azmahal-fikriyyah)and any remedies that were to be
attemptedmust thereforebegirl in this context. Questionshave arisen over the
need for correct methodology to ensure proper and disciplined thinking, to
siimulate thought which aimed at establishinga correctbalanceof values, and
thought that related itself to the actualproblernsthe Muslim communitywere
facing.l Among the problems singled out were also a certainpoverty of vision
(ifiqaral-ru'yahal-sahlhah)which was neither goal-orientatednor purposefiul:
intellectualdebateoften conductedfor its own sakeratherthanto find the needed
solutionsto problems.2It was furtherstatedthat the leadingulemaand maftahids
of early Islam, the Companionsand Followers,were right in their vision to see
Islam,not just as a set of rules, commandsand prohibitions,but as a missionand
philosophy of life which required a strong sense of direction. This was to be
achieved,not only by conformityto specificrules but also by followingthe broad
principles,the vision and objectivesof Islamwithoutwhich conformityto specific
rules would be reducedto a mechanicalexercise.Only when Islamicthought lost
its clarityand purpose,and its associationwith life in the community,it beganto
become a force of conservatismafflictedwith dry and literalistconformitywhile
oblivious of the overall philosophy and directionof Islam.3AbuSulaymanhas
spoken of "the crisis of Islamic thought"which he associatedwith an outdated
meochodology of researchthat heavilyreliedon linguisticand textualanalysisand
paid little attentionto empiricalreality.4To remedythis situation,AbuSulayman
proposedthe followingthree-pointscheme:first, the relationshipbetweenreason
and revelationshould be redefined.Second,the meaningof idtihad and the role of
ie faqzh(jurist)in the process of intellectualreformshould also be redefined.
Thirdly, the religious-seculardualism which is a creation of Westerrlscience
1 Al-Ma'hadal-'itlami}i al-Fikral-Islami,Islamiyyahal-Ma'rifah,Herndon,VA, 1981,p. 166 ff.

2 Ibid.,p. 35.
3 Cf. ibid.,p- 62
4 Abdul Hamid AbuSulayman,"Islamizationof Knowledgewith Special Referenceto Political
Science",TheAmerican3tournalof IslamicSocialSciences2 (1985),26S9.
METHODOLOGY IN ISLAMIC JURISPRUDENCE 5
should be ended as it is alien to Islamic iought.5 The auffior,however, did not

elaborateon his proposed redefmiton of the relahonshipbetween revelationand
reason. There were suggestions as to what aspects of the conventional
methodology of usul needed to be revised and redefined but the question as to
how dis should be done was not addressed. This was perhaps partly because
AbuSulayman tended to look beyond the boundariesof the conventionalusu-l,
rather dan working wiiin that framework.In hxs 1991 publicaiion, Azmah al-
'Aql al-Muslim(Crisisof the MuslimMin4, AbuSulaymanXrther elaboratedon
the shortcomings of usul and provided much insight on the relationship of
revelation and reason, but he confilllled his earlier tendency to dismiss the
conventionalusulratherdan workingit fromwithin-andproposingreformsfor the
partsthat were seen to be defective.This also bringsinto questionthe secondpoint
of AbuSulayman'sproposalon the redefiniiionof iFtihad.Is this not uncludedand
subsumedunder the first?Is iJahAdnot *le principalvehicle and methodby which
the conventional usul regulates/defimesthe relationshipbetween revelation and
reason, be it in the form of analogical reasoning (qiyAs),juristic preference
(istiAsan),or oier such methods as are expounded in usul al-fiqh?There is, in
other words, a certam overlap in AbuSulayman'sfirst two proposals. But his
critique of iitihaditself, its weaknesson groundsof empiricism,and its excessive
concernwith linguisticreasoningis sound. I shallin ie followingpages attemptto
elaborateon both of these points and shall also have occasion to refer again to
AbuSulayman'scontributionsto the methodologyof Islamic ochought.
In his discussion of the Islamisation of knowledge, al-CAlwanihas also
accentuatedthe need for "e formulationof an exact and precise definition of
the relationshipbetween revelation (waky) and reason (<aql))for iis will help
Muslims solve many of the problemsarisingfrom the relationshipof knowledgeto
religion and of knowledge to empiricalreality; it will also help us to acquire a
better understandingof iFtihad".6
Another aspect of the conventionalmethodologyof usul which merits attention
is its emphasison literalismand a certainneglect, in some instancesat least, of the
basic objective and rationaleof the law. The early formulationsof usul have not
significantlyaddressedthis issue and it was not lxntilal-Sh dbi (d. 790 AH) who
developed his major cheme on the objectivesand philosophyof Sharita (maqased
al-sharzNah). Al-Shatibi's contributioncame, however, too late to make a visible
impact on the basic scheme and methodologyof usul. Al-Shatibithus emphasised
that the higher objectives of the law such as maslahaharld justice, rather ian
technical accuracyand formal logic, must in the final analysis commandhigher
prioricy in the conduct of iitihad, a theme which had not received adequate
attention in the early works of the uIema of usul. Al-Shatibi's comprehensive
treatmentof the maqasidand his emphasis on the purpose and consequenceof
behaviourand the llnderlying intention of conduct (ma'Aletal-afal) ratherthan
5 Ibid., pp.272-73.
6 Taha JaDir al-'Alwani, ''Taqlld and Ijtihad", The American3tounzalof IslamicSocialSciences8
(1991), 142.
their visible forms and structuresopened a new chapterin the history of Islamic
jurisprudence.7
This artide addressestwo types of issues:generalissueswhichconcernthe legal
theory of 2esulas a whole, and this includes a discussion of the gap that has
developedbetweenlegal theoryand practice,technicalorientationsof usul al-fiqh,
revelationandreason,Ileglectof empiricismandthe roleof the time-spacefactori
conventionalusul al-fiqh. This is followed by a discussion of issues that are
encollntered in particularareas, namely iitihAd,iimaSand qiyas. The article
concludeswith the discussionof a new schemewhichproposesreorganisationand
adjusenentirl the conventionalmethodologyof usul al-fiqh.
THEORETICAL ORIENTATIONS OF USUL
Usul al-fiqh is often describedas a theoretical,ratherthan empirical,discipline

which is studiedmore for its own sakethan as meansby whichto developthe law
in relationshipto new issues. This is one of the problematicsof the legal theoryof
usul which took a turningfor the worsewith the doation of taglzdaroundthe
fourth centuryhijrah.With the so-calledclosureof ie door of iitihAd,the ulema
resortedless and less to the sourcesof SharzXa for finding solutionsto problems.
Insteadof addressingsocial issues and attemptingnew solutionsthe ulema of the
later ages (al-muta'akhkkirun)occupied themseIvesmairlly with elaboration,
annotation,abridgement,summariesand glosses of the worksof their predeces-
sors.At first, iStihAd
was prohibited.Then in the fifth and sixth centuries,scholars
were restrictedto tarjlh, or giving preferenceto the opinion of one imam or
anotheron questions of fiqh. But then tarj1hwas prohibitedand scholarswere
restrictedto choosirlgbetweenrulingswithin a singIemadhhab.In this way "the
door to independent legal thought was shut and then barred".8With the
developmentof a gap between legal theory and practicethere then came a stage
where usul al-fiqhbegan to be used as a means by which to justify taqlzd.The
imitatorsstudied the usul and utilised its methodologyin order to defend their
unquestioningconformityto the establisheddoctrinesof the past. Unwarranted
referencesto generalconsensus,or iimE, of the ulemaof the pastoverone rulingor
another proliferated, and often niinor and relatively obscure opinions were
elevated to the rank of iima'.9The methodologyof usul which was primarily
designedto regulateand encourageiFtihAid was then used for purposeswhich were
allen to ltS ongma mtentlon.
.. . . . . .
A certainlag between the theory and practiceof a disciplineis admittedlynot

unexpected. Theoretical articulationoften follows practicaldevelopment. It is
7 Abu IsbaqIbrihim al-Shibl, Al-Muzvafasat fi Usulal-Ahkam,ed. M. HisanaynMakiluf, Cairo:

Matba'ahal-Salafiyyah,1341AH, II, 197ff.
8 T.ahaJabiral-'Alwani,"The Crisisof Fiqh andde Methodology of Ijti)', TheAmerican 3'ournal
of IslamicSocial Sciences8 (1991), 332.
9 Wizarahal-Awqaf,Al-Manwsu'ah al-Fiqhiyyah,Cairo:Dar al-Kitabal-Misri,n.d., I, 18.
thereforenot surprisingto note that 1 al-fiqhhad a certaindegreeof theoretical

orientationeven during the era of iitihEid.The question has thus arisenand been
debatedin many a reputabletext of usul as to which came into being first,fiqh, or
usul al-fiqh, the law itself or the theory and sources of law?l° One of the tWO
opposinganswersto this questionhas it thatfiqh could not have developedwithout
its sources, and this would mean that usul al-fiqhprecededthe fiqh. But it seems
more likely that fiqh preceded the usul al-fiqh:figh began to develop during the
lifetime of the Prophet,at a time when there was no urgentneed for methodology,
and this situation continued unchnnged during the period of Companions.
Importantdevelopmentsin usul occurredonly during the second and early third
centuries hijrah.ll As one observercommented"usu-lal-fiqh was a retrospective
construct .... Indications are that usul al-fiqh was a mnnner of systematising
positive law that had alreadybeen arrivedat largelyas a result of local and other
needs without necessaryrecourseto the sources''.l2The theoreticalorientationof
usul persisted even after it was articulated and refined. In historical terms,
articulationof the doctrinesof usul took place aroundthe earlythird century,that
is in the last third of the three centuries of iitihEid.Thus the main purpose for
which the theory was supposedto be utilised, that is to regulateiitihAd,was soon
beginning tO decline. Furthermore, many of the doctrines of usul remained
controversial and were increasingly subjected to technicality and stipulations
which tended to erode their effectiveness.The increasedcomplexityof doctrines
such as qiyas and istiksan and conditons such as llnanirnity and universal
consensus as a prerequisiteof iima' were bound to affect the practicalutility of
these doctrines.The legal theory that al-Shafsiarticulatedin his Risalahwas not
burdenedwith techicality and regimentationof the kind that were subsequently
webbed into it by the proponentsof taqlxd.These latent additionswere in turn not
so much motivatedby the ideal of accommodatingsocial changeas by the concern
to preserve the heritage and traditionsof the past. Some of the complexitiesof
Hellenistic thought and logic found their way into usul al-fiqh which moved it
furtheraway from the realitiesof social life.l3
AbuSulaymanhas spoken of the lack of empiricismand systematisationsaying
that the ulema of usul relied on "deductionfrom the Islamic texts as their main
method in acquiringknowledge. . . and not much attentionwas paid to developing
systematicrationalknowledgepertainingto law and social structure".l4He ien
10 Cf. MuhammadAbu Zahrah, Usfil al-Figh, Cairo: Dar al-Fik* al-'Arabi, 1377/1958, p. 8ff;
MohammadHashim Kamali, Pnnczplesof Islarmceunsprudence,Cambridge:The Islaniic Texts
Society, 1991, p. 3ff.
11 Cf. ZafarIshaqAnsari,"The Sigriifiranceof Shafi'i'sCriiicismof the MadineseSchoolof Law",
IslamicStudies30 (1991), 485.
12 Aziz al-Azmah,"IslarnicLegal Theory and de Ayproptiationof Reality",in Aziz al-Azmeh,ed.
IslamicLaw, Social and HistoricalContexts,London:Routledge& KeganPaul, 1988,p. 251.
13 Cf. Hasan Turabi, TaidEl Usul al-Figh al-Islami, JiddSh:Dar al-Su'udiyyahli'l-Nashr wa'l-
Tawzi', 1401/1984,p. 13.
14 Abdul HarxiidAbuSulayman,The Islamic Theoryof International Relations:New Directionsfor
IslamicMethodologyand Thought,Herndon,VA: InternationalInsetute of IslamicThought, 1987, p.
77
8 ARA8 LAW QUARTERLY
stated that in regard to other subjects such as medicine, mathematics,and

geography Muslim scholars relied on text and reason. They were empirical,
experimentaland appliedboth inductionand deduction.l5However,this was not
the case in conventionalusnl which was "developedin responseto the needs of
maintsininEthe classicalsocialsystemof the dynasticperiod".Withthe emergence
of the rapidly changingindustrialsociety " the classicalframe of analysisis no
longer workableor acceptable''.l6
The gap betweentheoryand practicegrew wideras a resultof the fact that usul
al-fiqhwas developed,like the rest of Islamiclaw, by privatejuristswho workedin
isolationfrom government.The ulema were not involved in the practicalitiesof
governmentand their relationswith governmentauthoritieswere often less than
amicable.Juristicdoctrineswere often advancedand elaboratedwithoutinvolving
governmentpolicy. Note, for example,thatnearlyall the instancesof iima'thatare
cited in the textbooksrefer to the consensusof ulemaand privatejurists- there
being hardlya single recordof a governmentsponsoredassemblyof the learnedto
have actedas a vehicleof iima',or even of iima'in whichthe governmentplayeda
visible role. On theirpart, the governmentauthoritiesseem to have condonedand
encouragedtaqltdas this meantthat leadershipand initiativein both politicaland
legal spheresrestedwith the governmentin power.The ulemawere consequently
left to theirown devicesto utilise and even modifythe legaltheoryso as to suit the
requirementsof taqlld.
The ulema denied the increasinglysecularUmayyadrulers the legitimacyto
legislate and to interpretthe law, and the rift became more visible under the
Abbasidswho did not allowthe ulemaa sharein politicalpower.Thus the struggle
over legitimacy had "a serious negative influence in changing the sound
psychologicaland rationalenvironmentcreatedby the Prophet and which had
dominatedearlierperiods''.l7The rulersstroveto enhancethe role and authority
of reasonoverthe text as this wouldgive themfreedomin the sphereof legislation,
but the ulema were keen to deny them that very freedom. It was against this
backgroundthat the ulema articulatedthe methodologyof usul in order to
minimiseabuseof powerby the rulersandtheirlibertywith the Shari'a.Imamal-
Shafi'i'sattempt,for example,to equateiitEhadwith qiyasas two terms with the
same meaning was clearly indicative of a purpose to minimise the role of
independent reasoning in the development of Shari'a. The wider scope of
reasoningwasthus to be reducedto only one fo1r thatis analogicalreasoning.The
result was a certain "distortionof issues, arbitrarinessand spread of spurious
materialswithin the fabric of usul al-fiqh''.l8And then the ulema assertionthat
there was no furtherneed for originaliitEhad,the so-calledclosureof the door of
iXtEhAd, waspromptedby the struggleoverlegitimacyandthis wasa step thatcould
15 Ibid.,p. 83.
16 Ibid.,p.84.
17 Taha IEbir al-'Alwani, Ijtihad,Herndon, VA: International Institute of IslarIiicThought, 1993, p.
10.
18 Ibid.,p. 16.
only have been taken in an atmosphereof despondencyat a time when Islamic

thought and scholarshiphas lost enthusiasmfor originalityand renewal.l9
It seems that the problemover legitimacypersistedand continuedto isolatethe
ulema and political leaders in Muslim societies. The pattern that has prevailed
duringthe eraof nationalismand constitutionalgovernmentis also one of isolation
between the ulemaand government,althoughfor differentreasons.It now appears
that the popularvote, ratherthanthe ulemaapproval,is seen as a legitimisingforce
in politics. The advent of constitutionalismand governmentunder the rule of law
broughtthe hegemonyof statutorylegislationthat has largelydominatedlegal and
judicial practice in Muslim societies. The governmentand its legislative branch
tend to act as the sole repository of legislative power. The ulema have no
recognisedrole in legislation,and the role and relevanceof usul to the appliedlaw
of the land appearsto have become even more uncertainand remote.
THE TIME-SPACE FACTOR
The legal theory of usul falls short of integratingthe time-space factor into the
fabric of its methodology. This is also a taqltd-relatedphenomenon and it is
reflective of an influence that fails to comply with the Qu'ranic teachings on
rationalenquiryand pragmatismin fmding effective solutionsto problems.20The
precedentof the Companionsand leadingimamsof jurisprudenceduringthe eraof
iitihadis also indicativeof versatilityand dynamismin thatthey exercisedinitiative
and responded to situations without feeling the urge to conform to a strict
methodologyand framework.2lThe role of the time-spacefactorbecomesevident
in the earlyhistoryof the Qu'ranwhen we compareits Makkiand Madiniportions
to one another. The Qu'ran contemplatedthe prevailing conditions of Arabian
society, which were reflectednot only in the substantivelaws that it introducedin
each phase, but also in the form and style of its language,the intensityof its appeal
and the psychology of its discourse.22The fact that the Qu'ran was revealed
graduallyover a period of 23 years is itself testimony to its regardfor change of
circumstancesin the life of the nascentcommunity.God Most High revealedHis
message to the people in contemplationof their capacityat receiving it and the
realitieswith which they were surroundedin Makkahand Madinahrespectively.23
The time-space factor is also the principal cause behind the incidence of
abrogation(al-naskh)in the Qu'ranand Sunnah.Naskh is by and largea Madinese
phenomenon which occurred as a result of the changes the Muslim community
l9Ibid.,p.18.
20 Cf., MuhammadIqbal, Reconstnction of Religious Thozaghtt'n Islam, Lahore:Shah MuhaIrunad
Ashraf,repnnt 1982, p. 147.
C>.,Turabi, n. 13 at 12.
22 For furtherinforrnationon the Makki-Madinidivisionof the Qu'ransee Kamali,ffurisprudence,n.
10 at 17ff.
23 Cy,, X-Shaubl, n. 7 at III, 244; nad Arnin,Pair al-Islam, 14th edn. Cairo:Maktabffial-
Nahdahal-Misriyyah,1986, p. 231.
experiencedfollowing the Prophet'smigrationto Madinah. Certairlrules were

introducedat an earlystageof the adventof Islamat a time whenMuslimswere a
minority in a dominantlynon-Muslim environment.Later when they acquired
sovereignauthority,some of the earlierlaws were abrogatedand replacedby new
legislation.24There are also instancesm the precedentof Companionswherethe
rulings of SlJnnshwere changedin orderto reflect the changeof circumstances.
We readin a Hadlth,for example,thatthe Prophethadgrantedwomenthe nght to
attendthe mosquefor congregationalprayer.Due tOthe changeof circumstances,
however,the Prophet'swidow,A'ishah,laterchangedthis ruliIlgas she concluded
"had the Messengerof God observedwhat was happeningto women, he would
haveforbiddenthem fromattendingde mosque".25Accordmgto anotherHadlth,
the Prophet reXsed to validate price control and declined a request by the
Companionsto this effect, but later the Caliph'Umar, and the leadingulema of
Madinah,validatediIltroductionof pricecontrolon groundsof publicinterestand
preventionof harTnto the people.26 Arldden we note Caliph'Umar'sdecisionto
suspendthe sharein zakahrevenuesthat the Qu'ranhad assignedfor mu'allafah
al-qulub.These were people of influence whose supportwas importarltfor the
victoryof Islam. Laterwhen circumstanceshad changed,the Caliphdiscontinued
this and stated, in his widely-quotedphrase,that "God Most High has exalted
Islam and it is no longer in need of their favour".27This shows that the
Compaxlionswere versatile and ieir pragmaiismstood in contrast with the
rigiditythatlaterprevailedduringthe eraof taqlzd.28 The ulemaof usulandalso of
politicalscienceand internationallawhave treatedthe materialsof the Qu'ranand
SllIlnahwith a certaindegreeof dogmaticabsolutionwhich tends to aunountto a
misreadingof the text if it is to be forcibly applied to a totally differentset of
circumstances.The problem here is particularlynoticeablewich regard to the
Sunnah which has often been treated m total isolation from the time-space
influence.29
Amongthe prommentscholarsof Shari'a,ShahWaliAllahDihlawistandsalone
in his overtrecognitionof the roleof iime-spacein the developmentof Shari'a.He
consideredthe Shari'ato be changeableissaccordancewith the changingmaslahah
of the community.In bareoutline,Dihlawiobservedthatthe Prophetestablisheda
24 The numberof dailyprayers,for example,wereirnially fixed at two, but were laterincreasedtO

five, andthe initiallycharitableandllrldefinedcharacterof zakah(legalalms),in the Makkiperiodwas
latergiventhe forceandprecisionof positivelaw. See for moreexamplesal-Shaubl,Muzvafaqat, n. 7 at
III, 63; Abu al-'AynaynBadran,Usiilal-fighal-Islami,Alexandria:Mu'assasahShababal-]ami'ah,
1404/1984,p. 1Jt8.
25 Abu Hinid al-Ghazali,Ihya' 'Ulumal-Nn 2nd edn. Cairo:Dar al-Fikr,140011980, II, 48.
26 The hdlth thus provided:"Godalonedetermines the sustenanceof people.He restrictsandopens
the suppliesand He is the true controllerof prices.I only hope to meet Him whilenone of you has a
grielranceagarnstme over your lives and properiies".Abu BakrAhmadAl-Bayhaqi)Al-Sunanal-
Kubra,Beirut:Dar al-Fikr,n.d., VI, 29.
27 Abd. i-nan Taj, Al-Siyasahal-Shar'iyyahwa'lFiqhal-Islami,Cairo:Matba'ahDaral-Ta'lif,
1373/1953,p. 28.
28 Cf., AbuSulayman, n. 14 at 76.
9 Ibid.,p. 69.
METHODOLOGY IN ISLAMIC JURISPRUDENCE ll
model for conduct which contemplatedhis contemporaryArabiansociety and its

prevailingconditions at the time. To follow the spirit of this model we too should
contemplatethe realitiesof our time and thereby introducethe necessarychange
into the rules of Shari'a.The change that is deemed necessary is envisaged by
Dihlawi to be such ffiat sCwerethe Prophet alive, he would have validated It
himself".30In sum, gradualityin the revelaiionof the Qu'ran,recotion of the
changeof circumstancesin the languageand laws of the Qu'ran,and abrogationof
some of its laws and their replacement by new legislation all point to the
recognitionof the time-space factor in the early developmentof Shari'a,andyet
we Emdthat this has not been duly recognisedin the legal theory of usulalxfigh.
The propensity toward literalism, a "word-for-word and an issue-for-issue
comparison and analogy" has led many a prominent jurist like al-ShaEl'ito
generalisationsiat do not sustain the test of time. In dealing wii non-Muslim
powers, for example, al-ShEl'i advised Muslim rulers to attack the mushrikun
(disbelievers)at least once a year and not to accept a truce for more than 10 years
by analogy to the Sunnah of the Prophet because he was engaged irl battle with
enemy forces at least once a year and did not accepta trucefor more thnn 10 years.
"No statesman could accept this kind of analogy and understanding"under the
existing conditions of today or in ie foreseeablefuture.3lAl-ShEl'i's conclusion
might have been suitableunderche circumstancesof earlyAbbasidrule, but unless
this is clearly stated and the temporaryand circurnstantialnature of his ruling is
specifIed, its validity as a general ruling of e madhhabis bollnd to remain
questionable.As a matterof fact the whole conceptof the division between dar1-
Isbm (abode of Islam) and dar al-harb(abode of war) is anachronistic;it is a
juristic construct of the fuqaha' which has no Qu'ranic origin, and it is
unsustainableunder the prevailingconditionsof Muslun society today.
The failure in classical jurisprudenceto admit the time-space factor into the
fabric of its methodology of interpretationand iitihAdhas added to the problem
over the authenticityof Sunnah.When a certaincircumstantialinstructionof the
Prophet is taken to be the embodimentof a permanentSunnah, it is no longer
enough to verify the basic outline and message of the reported SuImahbut the
precise wording as well; and this is extremelydifficult. Neglect of the time-space
factor in the treatmentof Sunnahhas added to che problemover its authenticity
especially when the Hadlth is read without proper consideraiion and under-
standing of the effect of time-spaceon concretesituaiions.32
Since the Qu'ranis for the most part devoted to establishingthe broad outline
and structure of values, the role of the time-space factor would seem to be
relativelyless prominentwith regardto the Qu'ransvhencomparedto cheSunnah.
The general import of the Qu'ran,the inspirationand guidance dat it provides
tend on ie whole to transcendparecularitiesof te and space. But the Qu'ran
30For detailssee Mi'rajMuhammad,"ShahWaliAllah'sconceptof the Shari'a."in K. Ahrxladand

Z.I. Ansari,eds. IslamicPerspectises,London:The IslamicFoundation,1979,pp. 33543.
31 AbuSulayman,n. 14 at 68.
32 Cf. ibid., p. 34.
too coIltains specific provisions and concrete rulings which "like most of the
Sllnnsh, involves a iime-space element. In these instances,readersought to be
extrernelycareful m deducmg gerleralities".AbuSulaymanhas observed that
simple and direct deductionsfrom specific textual materials"without properly
accountirlgfor changes involving the time-space element of the early Muslim
period is a retogressive step".33We may referfor illustrationto de debateover
the purposeand importof the Qu'ranictext whichprovidesthata smallernumber
of Muslim warriorswould overcome,given their commitment,perseveranceand
sacrifice,over a largenumberof enemy soldiers(see Al-Axlfil,8:66). Commerlta-
tors have focusedatteniioneniirelyon the numbersinvolvedand are preoccupied
with questionsas to whetheror not it is permissibleto flee from the battle if the
enemyforceswereless thandoubleandso on.34The debatehereignoresthe pomt,
althoughmentionedby ImamMilik, that strengthor weaknessis not necessarilya
questionof numbersbut of power,stateof readiness,andequipment.To relatede
purportof this passageto warfarein a differenttime and space,one would surely
need to departfromthe paracularitiesof theXtextand highlightinsteadits general
purpose.
This concernfor literalismat the expenseof empiricismhas led many a devout
Musl to insist on adheringto the letterof the Hadlth,for instance,on the givmg
of foodgrainsin zakat al-fitr (charitygivenon ie occasionof Eid Inarkingthe end
of Ramaslarl). The texchas admittedlynot meniionedthatthe monetaryequivalent
of a staplegrairsmay also be given on iis occasion.The rulingof the Hadlth was
obviously suitable for its OWDtime, bearing in mind the uncertaintyof food
suppliesin the marketplace of Madinah)but that situationhas evidentlychanged
since. In this counection,Al-'Alwanihas writtenof his personalexperience,when
he addresseda gatheringand said chat zakat al-fitr may, under contemporary
conditions,be paid in cash equivalentin accordancewith today'sliving standards.
He ien writes that:"My explanationmadesome peopleext:remelyangryand one
faqxhcsme the next day to ie mosque with quantitiesof barleyand corn and a
measuringcup and startedgiving out to people in an effortto prove that you can
literallyimplementthe Prophet'sinstruciionstoday".35
The beginning of ie fasiing month of Ramadanis signified, as the Qu'ran
provides by the sighting of the new moon. This was of course the most reliabIe
methodthat could be thoughtof in the earlydaysof Islam.But sightg of the new
moon wi the nakedeye wouldseemto be unnecessaryif the beginningand end of
Ramadancould be establishedwith the aid of scientificmethods,and thereforeto
insist on a literal enforcementof the text while turning a blind eye to new
technologicalmeans would not only amount to hardship(harap),under certain
circumstancesat least, but would also defy the essence of Qu'ranicteachingon
raiionalenquiry)and empiricaltuth.
The leading imams of jurisprudenceare all noted for their latitude in
33 Ibid., p. 70.
Ibid., p. 72 ff.
35 Cf. i-'AIwam, Ett p. 26.
recommendingthat their conclusionsshould not be followed in isolationfrom the

source evidence on which they are founded. But what actuallyhappenedwas the
opposite in that the ulema of subsequent generationssubscribed to taqltd md
generallyinsisted on literala&erence. "It is just not possible today"as al-'Alwani
rightly observed" tO imposeproposalsand ideasput forwardin Maclinshby Imam
MaBik and his contemporaries fourteen hlzndred years ago".36 To ignore
subsequent developments in human sciences, modern commerceand economics
is likely to result in poverty and hardship and would therefore contravenethe
generalobjectivesof the Qu'ranand Sllnnah.Ignog the role of time-spacein ffie
understandingof the Qu'ranic has also encourageda certam tendency toward
fragmentationand neglect of the internal structure of its values. To say for
exsmple that the verse of the sword(Q. 9:36: "andwage waron all the idolatersas
they wage war on all of you") has abrogatedthe Qu'ranicaddresswhich validates
peacefulrelationswith non-Muslims sCwhofight you not for (your)faith nor drive
you out of your home" (60:8) is not only neglecfful of the time-spacefactor but
totally unwarranted.The claimdoes not end snth this but goes on tO maintainthat
the verse of the sword has abrogated over 100 verses in the Qu'ran which
advocateda wide range of moralvirtues includingmercy, forgiveness,peace, fair
treatment, and tolerance toward non-Muslims. To invoke naskh in such terms
might have served a purpose at a time when Muslims were ffie dominantmilitary
and political power on earth, but such an approach,questionableas it was, could
hardly be said to be acceptableunder a totally differentset of circumstances.
The conrentional doctrine of naskhhas not been free of distortionand forced
logic, yet the scholastic works of the madhahibtook for granted the conceptual
validity and occurrenceof abrogationin the Qu'ranand Sunnah. The inherent
tension that is visited here has perhapsbeen manifestedin the ulemadisagreement
over the actualincidents of naskhin the Qu'ran,and the distinctionthat is drawn
between naskh, and specification of the general takhszsal-'amm). Some of the
instancesof naskhwere accordinglyseen to be amountingto no more than takAsxs.
The scope of disagreementover the occurrenceof naskhwas initiallyvery wide and
claims of several hundred instances of naskh in ie Qu'ran were gradually
scrutinisedand reduced,by JalElal-Dlm al-Suyuti,for example,to about 30 cases,
and then to only five by Shah Wali Allah Dihlawi. One of the earlyfourth century
commentators of the Qu'ran, Abu Muslim al-Isfahani, even claimed that
abrogationhad no place in the Qu'ran whatsoever,stating that all the alleged
cases of naskhwere in effect instancesof takhsis.The scholasticformulationof the
ulema on naskh have thus turned an essentially time-bound and temporary
phenomenon into a juridical principle of permanentvalidity. In doing so, they
were probablyencouragedby militarystrategistsand rulers whose purposes were
better served by exaggeratedclaims of abrogation.
The basic tension between the classicaltheoryof naskhand ffie timeless validity
of the Qu'ranpromptedImam al-ShiEl'iinto advancingthe view that naskhwas a
36 Al-'Alwani, IjtihAd, p. 26.

folul of explanation(bayan),ratherthananrlulment,of one rulingby another.The

otherpoint on which al-Shafi'ihas differedwith the majorityis thathe considered
naskhto be an internalphenomenonin the Qu'ran.This meantthat the Sunnah
did not abrogatethe Qu'rannor did the Qu'ranabrogatethe Sunnah.V7hatever
instancesof naskhthat were folmd in the Qu'ranwereby the Qu'ranitself, not by
che Sunnah.Al-Shafi'i'stheoryof naskhwasthus inclinedon the one handto make
naskha moreacceptablepropositionandthen to coMlneits scopeto caseson which
ie Qu'ranwas self-evident.Modernreformistopinionis perhapsmore receptive
to this approachas it maintainsthat the applicationof naskhshouldbe mirlimised
and confned to only the clear cases on which the evidence is conclusive. The
methodologicalmaccuracyof naskhis furthervisualisedin its attemptto take a
particularruling of the Qu'ranand Sllnnahout of its originalcontextand instead
of readingit within its relevantset of circumstancesand upholdingit within that
frameworkwould advocatethe idea that the rulirlgin questionshouldbe nullified
and set aside. Abrogation which was originally meant to maintain harmony
between the law and social realitythus began to be used contraryto its original
purpose.The classicaljuriststhus advocatedabrogationas a juridicaldoctrinein
its own right ratherthan seekingit as an aid to the role of the time-spacefactorin
the developmentof law. A revisedmethodologyof naskhniight thus enableus to
cut downon ambiguityand confusionthatwas causedby the classicalformulations
of this doctrine.37
REVELATION AND REASON
Revelationexpoundsthe purposeof the creationof man, the basic frameworkof

his relationshipwith the creatorandthe natureof his role and missionin this life.
Revelationalso spells out the broadoutline of values that human reason should
follow and promote.Withoutthe aid of revelationthe attemptto providea basic
frameworkof valuesis likelyto engagemanin perpetualdoubtas to the purposeof
his own existence and the natureof his relationshipwith God and His creation.
Revelationthus complementsreasonand gives it a sense of assuranceand purpose
which helps preventit from indulgencein boundlessspeculation.Reasonis man's
principaltool for the advancementof knowledgebut the meritand demeritof that
knowledgeis ascertainedwith the aid of revelation.Reasonis the torchlightwhich
illllminatesman's path in the materialworld of-observationand investigation
('alamal-shahadah),whereasrevelationis the sourceof transcendentalknowledge
('alamal-ghayb)of the worldbeyondperception.One is the realmof investigation
and the other of faith and submissionto divineprovidence.
Islam's vision of reality, truth, and its moral values of right and wrong are
initially determinedby revelationand then elaboratedand developedby reason.
But reasonalone, in the methodologyof usul, does not have the final say in the
37 Cf. Karnali,ffurisprudence, n. 10, p. 149 ff.

METHOt)OLOGY IN ISLAMIC JURISPRUDENCE 15
determinatiorlof values. The earlyscholasticpositionof ie Ash'arizryah that good

and evil, rights and duties in Islam were determinedby the divine law (shar')not
by human reason ('aql) was challerlgedby the Mu'tazilah who accepted the
overridingauthorityof revelationbut statedthat right and wrong and ie inherent
beauty or enormity (i.e. h2zsnwa qtlbh)of things could be ascertainedby reason
even in the absence of revelation.The Mu'tazilahthus maintainedthat a person
may be held responsible and punished on grounds of reason alone,,for every
reasonableman can ascertainthe evil of murderand ieft even if there were no law
to declarethem as crimes. The mainstreamof legal thought in Islam has however
upheld the Ash'aritestance althoughmany leading figures, including Imam Abu
Hanifah, have favoured the Maturldi position which took an intermediate
approachby combining elements of the Ash'ariteand Mu'tazilahthought on the
subject. Reason in the Maturldi philosophy is thus capable of ascertainingthe
basic values of good and evil often by referenceto the natmreof things but that law
(hukm)is determined by the authority of revelation and so is the question of
responsibilitywhich is determinedby referenceto Shari'a.
Revelationprovide$basic guidancefor the valid operaiionof reasonthroughits
afElrmation of the relationshipbetweencauseand effect (sababd musabbab, 'illah
and ma'lul). The Qu'ranis afflrmativeon this in numerousplaces where the text
refers to the cause, rationale, benefit, and objective of its rulings. Although
ratiocination (ta'lz[) pervades the whole of the Qu'ran, it is more noticeable
perhapsin the Makkiportionsof the text where referencesare made to the cause,
outcome and rationaleof its premises in order to inspire faith and conviction.38
The merit and demerit of man's conduct is deterrninedby reference to causes
which he attemptsin orderto obtaina certainoutcome.The outcomemay or may
not materialise but unless a rational attempt is made to realise an end by
attempting the means towards it, issues such as man's responsibility,freedom,
punishmentand rewardcould hardlyfind sound ethicalfoundationson which to
operate. Man's faculty of reason thus plays an essential role in receiving and
comprehending the revelation, expounding its premises arld determining its
consequences in a way that reason and revelationare merged and unified into
coherent and purposefulguidelines for thought and conduct.
Revelationand reasonare in unison on the recognitionand validity of scientific
truth and empirical observation. In numerous places the Qu'ran invites
investigationsand enquiryinto the creationof God, and this validatesin principle
the conclusion dat man's apE>roach to the understandingof reality and truth
should be guided by rational and empiricalmethods, just as he should also be
ready to accept the outcome of his enquiry and obsetvation. The lesson must
therefore be that one should be purposeful and effective and be ready to make
necessaryadjustmentsin line with the results of one's observationof reality and
the prevailing conditions of life in society.39 The Qu'ran conveys the message
38 'Imadal-Dln Khalll, Hawl TadahTashSl al-'Aqlal-Mulsum,

Qatar:Kitabal-Urnmaha1403/1984,
p. 50.
3 Ibid-, p. 56ff
neverEeless that God's power and knowledgeare not bound by ochedictates of

ratonality and scientific observaiiorl.Belief in the absolute and unqualified
Imowledge,power,and otherabutes of God is an essentialfeanlreof faii (t),
and any attempt to subjugate them to the Iaws of rationaIityand science is
tarltamountto compromisingthe intety of (zman).Faith cannotbe reducedtOa
logical set of premisesand humanreasonhas little role to play m such mattersas
ie essence and arwibutesof God, resurreciion,free will and predesiination,and
transcentalmaners which are beyond the bounds of smse percepiion and
observation.There are words and letters in the Qu'ran,knommas mutashAbihat
which are unintelligibleto hl1manreasonjust as there are referencesto miracles
especiallyin those of its narrativesconcerningprophetsand messengerswid the
distinct purpose obviously of conveying the message that there are limits to
rationalitym mattersof de faith.Note, for example,the narrativewhereMarywas
given ie tidingthat she will give birthto Jesusthe Messiah,to whichher response
was "My Lord, how can I have a son if no man has touchedme?"The text then
proceedsto declarethat sCwhen God determinesa matterHe only saysto it, Be, arld
it is" (Al-'Imran,3:3646). The text here is explicit on the supremacyof God's
will, the limits that are envisagedto the law of causationand on denialto human
reasonof unlimitedknowledge.Thus in the realmof faith,the exaltedattributesof
God and of ritual submissionto Him (i.e. the fibadat) ffiereis limited scope for
raiionalityand cal3sation.No one may t:hereforeargue to change the mannerin
which ie ritual prayer(sali) is performedor pray in any directionother than
Ka'bah.Humanreasondoes have a role but on a differentlevel, whichis to enable
man to receiveand comprehendthe revelation.This is a receptiverole and it does
not confer upon reason ie authorityto formulateor change the terms of the
Or1gmamessage.
* .
The Qu'ranis also aff1rmativeof empiricaltruth in its referencesto historical

evidence. The passages on the history of bygone nations and narrativesof the
prophets of old generally accentuatethe lessons that can be learned from the
experienceand example.In this thereis affirmationthathistoryis not just a series
of accidentsbut that it is governedby certainlaws, conventionsand customsffiat
providea frameworkfor rationalconclusions.The Qu'ran'sview of historyis thus
an expressionof continuityof the basic laws and standardson which to evaluate
and judgeman's conductin the courseof history,for historicalenquirywould be
of little significanceand would fail to providelessonsfor futuregenerationsunless
it is seen as an arenain whichthe interplayof men andeventsconformedto a set of
basic laws. The Qu'ranoften refersto ese laws as God's practice(sunnatAllah)
whichis predictedon chenotion of man'sfreedomin regardsto, and responsibility
for, the course of conducthe chose at a particularpoint of time.40
The practical legal rulings of jcheQu'ran and Sunnah in respect of such
categoriesof values as che waiib and harsm (obligatoryand forbidden)are not
changeableand human reasonis only expectedto play a supportiverole in their
40 Ibid., p. 52.
enforcement. But the Qu'ran itself provides the authority that these may be
temporarilysuspendedin circumstancesof necessity and in emergencysituations.
It then remains for the ruler and maitahid,or the individualwho is involved, to
evaluatethe circumstances,on rationalgrounds of course, and decide whetheran
emergencysituationhas actuallyarisenand also to decide as to when it should be
lifted and normalorder restored.
The basic structureof the moralvaluesof Islam, althoughof divine provenance,
is entirely consistent and in harmonywith reason. The moral virtues of justice,
realisationof benefit and truth, or the evil of dishonesty and transgression,for
example, have been articulatedin the Qu'ran and Sunnah. These are basically
unchangeableand rationalityis neither expected,nor does it have the authorityto
reverse them into their opposites. It may thus be concludedthat revelationand
reason are generally consistent on the basic structureof moral values and legal
inillnctionsof Shari'a. The definitiveinjunctions,namelythe waiiband haram,are
determinedby the revelationand they are on the whole specificsrldinflexible.We
do expect on the other hand a certaindegree of flexibility in regardsto the other
three categoriesof values, namelythe mandub,makruhand mubah(recommended,
reprehensible,and permissible). The last of these is neutral on bo legal and
moral grounds and is thereforenot expected to be a subject of concernover the
harmonyor othernviseof revelationand reason. The manduband the makrahare
both moral categoriesin the sense that the Shari'a does not envisageany sanctions
for their enforcementin individualcases. Only in the unlikelysituationwhere the
community as a whole abandonsa mandubor adopts a mahwh, the authorities
would be within their rights to act and take measures in order to redress the
balanceof values.The lawfulleadershipof the Muslim communityandthe 'ulu al-
amr may act in pursuit of maslahahand in doing so may elevate a mandu-b into a
zoaiEba makrahinto a haram,or put a ban even on mubahin orderto obstructthe
means to an evil. The authoritiesmay take these measures,whetherin the context
of what is known as saddal-dharEi',or any other varietyof iitihadthat are known
to conventionalusul al-fiqh?in orderto protectand vindicatethe basic structureof
values.
Civil transactions,or mu'amalat,in ie widest sense of the word, generally
remain open, almost without restriction,to rationalconsiderationsand may be
regulated,prescribedor proscribedon that basis. This is also the main areafor the
operationof social custom and maslahahboth of which are inhererltlyutilitarian
and rational.The Shan'a has nevermeantto regulatethe mu'amalatin exhaustive
detail but only to provide certainguidelinesin orderto ensureproprietyand fair
play. Any restriciions that the revealed Shari'a might have imposed here are
rationallycomprehensibleand justified.Reasonis thus authoritativeandyet as one
commentatorobserved "it is not sovereign in the sense that it plays its role in
contemplationof the values that are enshrinedin the nususof the Qu'ran''.4lA1-
4t Cf; 'Abd al-'Al SElimMukarram,Al-Fikr al-Islami Bayn al-'Aql wa'l-WaXy,Beirut: Dar al-
ARAB LAW
QUARTERLY
18
Rissi has pertinently
when he wrote that there highlighted the role that reason
were plays vis-a-vis revelaiion
man's responsibilitytowards three proofs (hajaj)in Islam which
God, rlamelyreasotl, deteed
first enables the scriptureand Messenger.The
knowledge of God, the second
submissionand worshipto Him expounds the necessity of
to be worshipped.But andthe thirdexplainsthe
reason('aql;)is the vehicleof mannerin which God is
onlyknownand the othertwo proofs,
comprehendedthroughthe light of whichare
CoIlventionalusulal-fiqhis, from reasonand not vice versa.42
ofrevelationand reason. bt>-ginninz to end, an essayon the
To regulatethe valid relationship
andiitihadin light of the exerciseof ra'y, rational
rulings of revelationis the judgment
fiqh.To say thatqiyasis a
sourceandproofof Shan'aexpressed purposeof usul al-
is anotherwayof saying
reasonis authoritativeif it is
exercised by way of a that
revealed law is takento its logical rationalanalogywherebythe
thefox-mof analogycan conclusionin regardsto a new
orllyoperatein a issue. Reasonin
otherwise. In order to ensure this, supportivecapacityto revelation
usul al-fiqhlays down a but not
andconditionswhichmust be certainmethodology
is
qiyasor istihsanor istishab observed in the construction
etc., these are all different of analogy.Whetherit
human reasoningand ra'y in the modelsfor the exerciseof
eachproposeare respectively developmentof Shari'a.The methodsthat they
usul
al-fiqh,nsmely to ensurethe designedto securingthe same
valid generalobjectiveof
ofwaky. None of these formulasare exerciseof 'aqlin the light of the guidance
sourceof law independentlyof open to the idea of
establishing
rangefrom a strictly regulated revelation. But the waysin whichthey reasonas a
exercise eachoperate
revelation(such as in qiyasor istishab) of reason under the close guidance of
wherethe relationshipof reason to a fairlyopen-ended
istislah and revelationmay not be and flexibleformula
and istihsan).Whereasthe as
outcomeof an analogyandits visible (such as in
*
*
relevant
textualrulingcan be harmonywith the
to kind of measurement.ascertained,
this
It is
istislahandistiAsanmaynot
be amenable
is pursuedin istislahand normallysufficientto establishthat the
which
benefit
valuesof waky.This is a istEhsan
and does not conflictwith the
*
*
established
6
negative test, whichunlikethe one rules

require
that the resultsthatare in qiyas,does not
reached
rulings of the Qu'ran and must be affirmativelyharmoniouswith the
textual
rationalist Sunnah. It is in view of
contents of istislih, istiksan the dominantly
usul
havedifferedovertheir and saddal-dhara'i'etc.
that
*
.
the ulema of
.
ShaEl'i, validityandhavegone so far,

to refutethe validityof as in the caseof imamal-
of
iFtihad istiksanaltogetherand strictly
to analogicalreasoning to confimethe scope
alone.
Notwithstanding the difficultiesover its
as a
binding source of law next to the feasibilityandproof,iima'was accepted
because
iima' guaranteedits own Qu'ran and Sunnah. This
conformity was mainly
revealed
law, for it was thought to the values and
mconceivable principles of the
the
maftahids could possibly materialise that the unanimousconsensusof all
over something that
contravenedthe
Imam
42
al-Qasim al-Rissl, Ugl
folio
113,
quoted by Mukarram; n.
al-'Adlwa'l-TawAid
41 at 49-50. (unpublished manuscript in a
Giro collection)
Qu'ran or the authentic Slznnsh. There is no textual proof to declareiSma'as a

source of law and yet the legal theoryof usul approvedit as a decisive (qAt'20 proof
presumablybecause iima'involved a process that was significantlydifferentfrom
the other rational proofs in that it did not depend on the opinion of odd
individuals. The absolute unanimity that was required in iima'provided the
assurancethat iimaf'sconformityto the revealedlaw was not in question.The fact
that the legal theory admittediima'as a prommentproof next only to the Qu'ran
and Sunnah also shows a resolute stance on de authorityof reason, for Uma'is
essentially a rationalproof but unlike qiyas does not involve either a close or an
obvious linkagewith the textual rulings of the Qu'ranand Sunnah.Althoughthe
theory of iima'does stipulatethat iJmamust have a basis (sanadO in the divine law,
for it is deemed to be unlikely for unanimity to materialiseover something on
which there is no indicationin the revealedsources,yet there is little emphasison
this point and many of the textbookexpositionsof iima' even omit to refer to the
requirement over the sanad. Whereas the legal theory is specific on the
identiElcationof the 'illah(or hikmah) in ie constructionof qiyssand lays down
elaborateproceduresfor the ideniificationof its effective 'illah,the deory of iima'
has not signiElcantlyemphasised the sanczdof iSma'and has folllliated no
procedure as to how should this be identiEledand tested. Ema' in other words
stands on its own footing. The legal eory of usulis preoccupiedwith preventing
the arbitraryexercise of ray in the desrelopmentof Sharia and proposes in
references to almost every rational proof that these should not be treated as
decisive evidence. Yet the outlook changes dramaticallywith regard to iimE
notwithstaTlding the fact that iima'too is a rationalistdoctrineandin that sense it is
not inherentlydifferentto these other evidences.The legal theoryof 2zsul favoured
iima' as a decisiveproof partlybecauseiima did not proposeany particularmethod
of reasoning.It was rathera vehicle throughwhich any of the other rationalproofs
could be elevatedmto binding law, and this authoritycould only be conferredby
the unanimousapprovalof the learned.More importantlyperhaps, de fact that
the usulal-fiqhproposediima as a decisiveproofis indicativeof the view that there
must be a procedurein the legal theoryof Islamwhich could createbindinglaw on
grounds of rationality side by side with the revealed laws of the Qu'ran and
Sunnah,and iima'was chosen for that purpose.A greatdeal of ffie rulingsof iimG
is said to be founded in maslahahwhich is entirely rational and has strong
utilitarian leanings. When iima serves as a vehicle of maslahahthe law that is
created as a result is rationalin content, which is elevated lnto binding law by
virtue of consensus. This is tantamountto an acknowledgement,although not
openly declaredin the legal theory of usul,that reasonis a sourceof law in Islam.
ISSUES IN IJTIHAD
Throughoutthe history of Islamiclaw, iStihAid

has remainedto be a concernof the
private jurist arld muStahid.No procedure or machinery was attempted to
ARAB LAW QUARTERLY
20
institutonalise iitihAd d id«tify its locus and audority widin ochestate

organisanorl.To define and identify the m?jtahidand the role
play irl the legislative and processes of modern that iitihil might
governmentstill remain to be
among the uaresolved issues of iitihAd.The theory
of iitihAdspecified jche
qualificanonsof muitahidsuch as knowledgeof the sourcesof
of Arabic and familiarityvviththe prevailiDg Shari'a,knowledge
customs of society, as well as ie
abilityto formulateindependentopitiion and judgment.But the realityre2nsined
somewhatillusive and hardlyany muitahid volunteeredopenlyto declasehself
upon attainingthis rank.Identificaisonof maitahids by othershas often occurred
long after the demise of the scholars concemed.
There was no procedure
specificallydesignedfor the ptlrposeotherian a general
andcompetenceof individualscholarsby the ulemaand recogniiionof the abiIity
the conwmunity at large.It
is revealmg to note, in al-ShawkE's
(d.1255/1839) discussion of iitihAd,a
referenceto al-Ghazali (d.505/1111), who is on record to
have stated that de
independent maitahid had become extinct. Al-Shawkani
was obnously not
convincedand tersely posed the question "did al-Ghazalinot
forget himself?"43
Modestybeinga moralvirtueof Isl, and especially
appenlingiIl scholarsof high
calibre, has al-Gha7.atibeerl almost self-effacing?But he
was by no means an
exception As if iitihAdcould offer solutions to all sorts
of problems except
defining/idenufyingits own carrierand agent!Arlotherproblemwe face
is that despitethe doorof iitihS havingbeen declared at present
wide open, we fail to detect
anyeffeciive movementtowardthe regetleratiorl of iitihAd.A greatdeal has been
saidaboutidtihAd for abouta century,dat is ever sincethe daysof
CAbduh, al-Afghaniand
but the repeatedcalls for revivificaiionof iitihAd
have failed to bring
aboutthe desiredresult.Wichregardto the qualificaiions
thatthe tileoryof iitihad
hasdemandedof the mujtahidit is often saidthatiese
areheavyand exactg. But
rhisis, in my opinion,just anothertaqlld-oriented
asseriionby those who wished
tobringiitihadto a close. The qualificationsso stated
werenot excessiveand were
frequentlyfulfilled, as al-Shawkanihas stated, by a long
series of proniinent
scholarsacross the centuries even during the era of
taqltd.44Furthermore,the
uncertainiies surrodirlg iitihAdhave in modere times been
spread of secularismand the fact that the state has become exacerbatedby de
ie sole law-making
authority in itS OWN territorialdomain The muitahidhas no
recognisedstanss.But
asslzming that dere is a certmr adjustmentof atatude as a result
recentdecades of Islaniic resurgence,then it should perhapsof the
be possible to devise a
procedure whichwouldintegrateijtihAdLN de legislaiiveprocessesof
Universities and legalprofessionsin manyMuslimcounties are govemment.
currently
mtrg lawyersand bamsters in modernlaw streams.To iIlstitute engaged
an effeciive
programme of tramingfor prospectivemaitahids,whichwould
bothtraditionaland modern disciplines should not integrate studiesin
be beyond the combmed
capabilitesof these institutions.Ualess the governmenttakesan
activeiIlterestin
43Yahyab. 'Ali ;il-ShawEni,Irshfidal-Fuil ila TahSq
Babi al-Haqqrun 'Ilmal-Usil Cairo:Mustafaal-
al-Halabi,1357/1957,p. 254.
44Ibid. For a sry of i-Siwhi's accountsee my Yunsprudence,n. 10 at 390.
makingiitihAda realityit will remainisolated. 'Abd al-Wahhib

KhallE is right in
suggesting iat de governmentin every Muslim country should
specify certain
conditions for attainmentto the rankof maitahidmd make this
contingentupon
obtaininga recognisedcertificate.This would enableevery
governmentto identify
the maitahidsand to verify their views when de occasionso
requires.45Two other
reform measuresneed to be taken in order to make iitihEida
viable proposition;
firstly that iitihAdin modem times needs to be a colleciive
endeavour50 as to
combine the skill and contribution,not only of the scholars of
Shari'a) but of
experts in various disciplines. This is because acquiring a total
mastery of all
relevant skills that are importantto contemporarysociety is
difficult for any one
individual to attain. We need to combine iitihAdwith the Qu'ranic
principle of
consultation (shurZ and make iitihad a consultative process. Many
includLngMuhammad Iqbal, Sulayman al-Tamawi,Yusuf observers)
al-Qaradawi,among
others, have spoken in support of collective iitihAdaliough none
has suggested
discontinuationof iitihAdby individualscholars.46The privatejuristand
should of coursebe able to exercise1jtihAd maitahid
and no attemptis warrantedto interfere
with deir basic right to do so. But if collectiveiitihadwere to be
institutionalisedit
should naturally carry greater authority and weight. A basic
frameworkfor
collective iitihAdwas indeed proposedby MuhammadIqbal who
suggestedin his
Reconstruction of ReligiousThoughtin Islam,that the powerto carryout iitihad
iimafshould be vested in the Muslim legislativeassembly. The and
substanceof this
proposalhas since been echoedby numerousoder commentatorswho
in support of che instinltionalisationof both iimG arldiitihad have spoken
within the fabric of
moderngovernment.
The second point to be proposedconcerningiitihS is relatedto
de first in that
iitihAdhas in the past been seen as a juristicconceptand it remained
the preserveof
the jurist- muitahid.This might have been due to the fact
ffiat Shari'a in many
waysdominatedrlearlyall other fields of Islamic scholarship,
but iitihad in the
senseof self-exertionis a method of finding solutions to new
issues in light of the
guidanceof waky. It is in tShissense a widerpropositionwhich may be
exercisedby
scholarsof Sharia as well as expertsin other disciplines,provided
that the person
whoattemptsit acquiresmasteryof the relevantdata,especially
in the Qu'ranand
Sunnah,pertainingto his subject.
The non-revealed sources of Shari'a, such as a general
consensus, analogical
reasoning,and juristic preferenceare all sub-varietiesof iitihad. They
serve the
purpose,each in their respecave capacities, to relate the general
pnnciE)leso£
Shari' to new issues. These are nearly all rationalistdoctrines
which enable the
qualifiedscholar to find fair and reasonablesolutions to problems
as they arise.
Thedetailed methods and proceduresdat each of these
dococrines propose are
45 'Abd al-Wahhab KhallZ, 'Ilm Uiiilal-Figh, 12th edn.,
Kuwait: Dar al-Qalam, 139811978, pp. 49-
50.
46 Cf. Khallaf, 'Ilm p. 50; Iqbal,
Reconslruction,
n. 20, p. 174; Sulayman Muhammad adl-Taniawi,
Al-Suliat
al-Thalathfi al-Dasattral-Arabiyyahwa'l-fikral-Siyasi al-Islami,
Fikr
al 'Arabi, 1973, p. 307. 2nd edn., C:airo:Dar al-
follnded on the premisethat the law of Islam was not given and deliveredall at
once. The idea that the law must evolveandmove abreastwith socialrealiy lies at
the root of iitihadand all of its sub-divisions.Someof the doctrinesof usul such as
maslahah,istiAsanhold greatpotentialirldiversifyingthe substanceof idtihAd. Yet
the conventionalusulhas subjectedmost of them to a variey of conditionswhich
tended to suppress their originalityand potential. These can now be utilised
perhapseach as a means of injectingfresh impetusin iitihadin orderto enhance
the adaptabiliy of law to socialreality.One way of doingthis wouldbe an explicit
recognitionof doctrinessuch as maslahahand istiksanand the ways they can be
utilised in contemporarylegislativeand judicialprocesses.We note, for example,
that maslahahrelates more meaningfullyto legislation, while istiksaninvolves
makingnecessaryexceptionsandrefimements in the existinglawandmay therefore
relatebetter to the processof adjudication,althoughthe potentialcontributionof
istiAsanto legislationand reformingcertainaspects of the Shari'a may also be
utilised.47
A fresh approachmay also be takentowardistishab(presumptionof continuity),
as this doctrinehas the potentialof incorporatingwithin its scope the conceptof
naturaljusticeand the approvedmoresand customsof society.Istisha-b derivesits
basic validity from the premise that Islam did not aim at a total breakwith the
mores and traditionsof the past, nor did it aim at nullifyingand replacingall the
laws and customsof Arabiansociety. The Prophetallowedand acceptedthe bulk
of the then existingsocialvaluesand soughtonly to nullify or replacethose which
were repressive and 1lnacceptable. Similarly, when the Qu'ran called for
implementationof justice and beneficence('adl wa ihsan),it referred,inter alia,
to the basic prmciplesof justice which were upheldby the humanityat largeand
appealedto the good conscienceof decent individuals.The Shari'ahas also left
manythingsunregulated,and whenthis is the case,humanactionmay in regardto
them be guidedby good conscienceandgeneralteachingsof Shari'aon equityand
justice. This is the substance of the doctrine of istishab which declares
permissibilityto be the basic norm of Shari'a,and validatesconformitywith the
rulesof naturaljustice,good conscienceof decentindividuals,and socialcustom.48
We may in the meantimediscardsome of the unwarranteddetailin the margins
of the legaltheoryof mul such as the attemptat classifyingscholarsandulemainto
rigid categories of independent maitahid (maitahidmutlaq/mustaqiE), maitahid
within the confinesof a particularschool(mvilahidfial-mudAhab) and mvitahidin
particularissues (muitahidfial-masFil:).The classificationgoes on to divide even
the imitatorsinto those who were conversantin the rulingsof a pariicularschool
and relatedthem to prevailingconditions(asW al-takhrlJ9, thosewho wereableto
make comparisonand attempt preference(ashAbal-tarjih),and then those who
could distinguishthe manifest from t:herare and obscure ruling of a particular
47 For furtherdetail on the uses of istiAsansee my 3rurisprudence,

n. 10 at 263 64. For detailson
maslahahsee ariicle "Havewe neglectede Shari'aLaw Doctrineof Maslahah",IslamicStudies27
(1988),287-305.
48 Turabi,n. 13, at 27-28.
school (ashAbal-tashih).This classificationimplies, accordmgto one commentator

"a gratuitous assumption ffiat the latter maitahids could not show greater
independence of thought",49while another has considered it C'unrealisticand
presumptuous".50People's abilityand performanceshould be judgedby ie merit
of what chey contributeand everyoneshould have the opportunityto do so to the
extent of his or her ability and role.
FEASIBILITY OF IJMA'
As alreadystatediima'is the only non-revealedsourceof Shari'awhich commands

binding authorityand has in it the potentialsof both preservingthe best heritageof
the past and of validatingfuture reformin the fabricof the existing Shari'a. It is
also the only vehicle known to conventionalusul al-fiqhthat ensuresthe propriety
and correctnessof iitihad by individualscholars.A ruling of iitihAdacquiresthe
force of law only when it is supportedby iima'.The potentialbenefitsof iima'and
its contributionto the developmentof a representativegovernmentwas brought
into sharp relief by al-Sanhuri when he terselyposed the question sCwhat is more
democraticthan to affirmthat the will of the nation is ie expressionof de will of
God Himself?"Only the nation can legislate,he underscores,orlthe same basis as
that of modern parliamentaryregimes, with the difference, however, that the
constituents of iima', namely the maitahids,are not elected by the populace.5l
XIasanTurabi has also highlightedthe role iimGcan play in the democratisationof
the political system in Muslim societies. In this effort, a reinterpretationof
consensus is crucial.IJma as Turab;put it "was not the consensusof the learned
elite but the more popularconsensusof the Muslim communityenlightenedby its
more learned members".52It is thus evident in this proposalthat iima' must be
strippedof the difficuItconditionsthat arewebbedinto it by the ulemaof usul and
arl effort should be made to bring back the original iima' as we know from the
precedent of Companions.The theory of iima' is clear on the point that it is a
binding proof. But it seems that the very natureof this high status has demanded
that only an absolute and universalconsensusof all the muitahidswould qualify.
The diffilcultyin obtainingand ascertainingcompleteunanimityis the centralissue
in the feasibilityof iim. Many scholarshavegone on recordto statethatuniversal
consensus is no more than an unfillfilled Utopia, and a purely theoretical
proposition which can hardly relate to the political and legislative concerns of
contemporaryMusl society.53The theory of iima' has in other words been
consistentlyat odds with its practice.Anotherunresolvedissue in the feasibilityof
49 Nicolas Aghnides,Muhammadan Theoriesof Finance,New York Longman,1916, p. 96.

50 Turabi, n. 13 at 32.
51 Enid Hill's translation,in Aziz al-Azmah,n. 12 at 15.
52 Abelwahhabel-Affendi, Turabis revolution: Islamand Pozverin the Sudan,London: Grey Seal,
1991, p. 160.
53 Cf. Abdul Haniid AbuSulayman,Azmat al-'Aql al-Muslim,Herndon,Va: Al-Ma'hadal-'Alami
li'l-Firk al-Islarni,1412/1991,p. 78.
iima'is to defne and identify its participants,namelythe muitahids.Ambiguityin

identifyingocheconstituentsof iima'on the one handandthell uncertaintyover the
natureof their agreementhave meant that iimG has almost invariablyremained
incapableof positiveproof. In actualterms,iimGhas meanta relativeconsensusof
eitherthe majorityof muitahidsor only of those who wereinvolvedin deliberating
a particularissue. Imnm Ahmad ibn Hanbal has gone on record to deny the
feasibilityof universalconsensuson the one hand and to affirmon the other that
iima' in realityhas meant only a ruling on which no disagreementwas known to
exist (-'adamal-'ilm bi'l-makhalif).54 Ijma'was feasibleperhapsonly duringthe
earlydecadesof the adventof Islamwhenthe communitywas fairlysmalland the
views of all the leadingCompanionscouldbe identifiedandobtained.This became
increasinglydifficult with the territorialexpansionof Islam and dispersionof
scholarsto distant localities. 'Abd al-Wshhb KhallEfhas rightly observedthat
even during the period of Companions,iima' consistedof the consensusonly of
those who were involvedin consultationand deliberationof particularissues, and
were present at the time in adin0h.55 It has been furthersuggestedthat iima'
should no longer be the prerogativeof the ulemaand muitahidun,as they do not
necessarilyrepresentthe mainstreamof contemporaryMuslim intellectualsand
public, that iima' in modern times should consist not only of the consensus of
ulemabut of other segmentsof society,andthat the conceptof permanentiima'is
no longer feasiblenor practicalundercontemporawconditions.56
As alreadynoted MllhamnzadIqbalproposedthat iima'(andiitihAd)shouldbe
institutionalisedand integratedinto the worEng of Muslim legislativeassemblies
whose membershipconsisted rlot only of muitahidsbut also of experts in other
fields. This he consideredto be "the only possibleform iima'can take in modern
times".57Commentatorshavealso suggestedthatiima'shouldbe seen as a relative,
rather than universal, concept and its mesning and role should be defined in
relationshipto locality, legislative inction, and prevailing political system.58
Despite somecriticismof Iqbal'sproposalthatitlstitutionalisation mighttum iima'
into an instent of power politics, the substanceof Iqbal'sproposedreformis
sound and has been generallywell-received.The iima'that we need to advocate
todayis a consultaiiveiima'which combinesiitihAdandshuraof the representative
majority of the community and their leaders in various professions and
disciplines.59Mahmud Shaltut has envisaged the main issue concerning the
institutionalisationof iima' to be that the participantsof iima' must enjoy total
freedomof expression.60This is indeedthe essenceof the challengewhichmust be
met if iima' were to be uiilised as a meaningfulpropositionin modernlegislative
54 MahmudShaltut,Al-Islam'Aqldahwa Shan'a, Kuwait:Dar al-Qalam,1966,p. 558.

55 Khallaf,'Ilm, n. 45 at 49-50.
56 Cy.AbuSulayman, n. 14 at 76.
57 Moahamrna(l Iqbal, n. 20 at 17>74.
58 An earlyopinion on ie relaiinty of iit?zaS
was contributedby Shah Wali Allah Dihlawi. For a
summawof Dihlawi'sanalysissee my gurispnxdence, n. 10 at 00.
59 Cf. AbuSulayman, n. 53 at 78.
6° Shaltut,n. 54, pp. 558-59.
processes. The potentialbenefits of iima'as an all-embracingvehicle which could

inject pragmatismirl the entire corpus of usul al-fiqh, and its contributionto the
prospects of a consultatieregovernmentcould hardlybe over-estimated.
PROBLEMATICS OF QIYAS
Some of the constraintsthat ussilal-fiqhhas imposedon qiyas were a symptomof

the conflict over legitimacy between the ulema and rulers.6lThe attempt by al-
Shafi'i, for example, to confne the role of 'aql and iitihAdto analogicalreasoning
alone sowed the seeds of distortionin the meiodology of qiyas.Some ulemahave
consequentlyperceivedqiyasdifferentlyto othersand this can be seen, for instance
in the Shafi'i view of qiyas which tend to be more flexible and broad than the
technical qiyas of the Hanafis. The methodology of qiyas is indicative of an
excessive concern over conformity to the formalism of syllogistical logic. The
emphasisthat the ulema have laid on the conditionsthat the efcfectivecause ('illah,
manat)and other pillars (arkan)of qiyasmust fulfil tends to restrictthe scope of
analogical reasoning to specific incidents. The methodology of qiyas, in other
words, is burdened with techrlicalityso much so that it robs the whole Xdeaof
analogyof its originalintentionand purpose.The textualrulirlgof an uriginalcase
is consequel.lwrextendeut(W) a s1cV=s? case oxilywhen the latteris a ncarreplicaof the
former in which case qiyas would basicallybe redundantand the case would be
most likely to fall within the meaningand interpretationof the given text. It is of
interest to note in this connection that the Hanafis have criticised the Shffil'i
concept of qiyasal-awla (analogyof superior)preciselyon the ground that this is
not qiyasproperand that the process involvedthereinamountsto no more than a
mere applicationof the law of the text. The ShEl'is, Hanbalis, the UsuHiShi'ah
and others who approveqiyasal-awla as the preferredvariety,and sometimesthe
only valid form, of qiyashave done so in orderto minimiserelianceon speculative
reasoning in the identiElcationof 'illah. Notwithstandingthe propriety of their
intention, the proponentsof qiyasal-awla tend to take the adviceof cautionso far
as to defeat the whole logic of qiyasand its potentialfor originalityand growth.62
Qiyas should, as a matter of principle, be attempted only when no ruling
concerninga new issue can be found in the cleartext. Qiyasis thereforeexpectedto
extend the law to new territoriesand serve-asa vehiclefor enhancingand enriching
the existing law. But when the elementof novelty is minimisedto the point that the
new case is new only in name, then qiyaswould have little to offer as a means of
developingthe law. It seems likely that the medievaljuristsof the Abbasidperiod
might have used qiyas as a means partly of validatingthe existing status quo, for
61 'Alwani,Ijtihad,p. 23.
62 In qiyasal-awlathe effectivecauseof analogyis moreevidentin the new casethanthe originalcase.
If wine drinkingis forbiddenbecauseit intoxicates,then heroin in which the cause of intoxicationis
even moreevidentwouldbe prohibitedby wayof qiyaS al-awla. For furtherdetailsee my3furzsprudence,
n. 10, ch. 9 on qiyas.
26
ARAB LAT QUARTERLY
qiy<:is
highlightedde similaritybetweennew situationsmd earlypractices.
in other words,utilised as a meansof projeciingand It was,
imposingthe old valuesover
new situations.63Turabi has observedthat "the
conventionalqtiyas
tagltdz)is a restrictIvefollll of analogywhich is supplementary (al-qiyasal-
to interpretaiion
and sheds light only in clarifyingsome aspectsof the
akkan". In the context of
contemporaryjurisprudence,qiya that hold the promiseof
adds, is the naturalmd originalqiyas(al-qiyasal-fitri al-hurr)enrichment,Turabi
which is free from
the difficult condiiions that were appended to it initially
by the Greeks and
subsequesltlyby Muslim juristsirlorderto ensurestabilityirlthe
developmentof
Sharira.64AbuSulaymanhas observed that qiyas in areas of
social interactions
should be broadand comprehensive."A long loss of time and a
radicalchangeof
place may leave little pracacal room for the method of
partialand case to case
qiyas."We need to departfromthe pedanticismof conventional
qiyas to one which
is "systematic,conceptual,abstractand
comprehensive".65
The muitahidand the judge would naturallyneed to
exercise caution in the
constructionand applicationof qiyas.The juristnormallyascertains
of an existing law which is extendedby analogyto a new the ratiolegis
problem.The process
involvedhere resemblesthatof the commonlaw doctrineof stare
decisis.The judge
distinguishesthe ratio decidendiof an existingjudicialdecisionin
new case and once it is establishedthat the two cases referencesto a
have the same ratio in
common,the rulingof the earlierdecisionis analogicallyextended
to the new case.
Theidea of ratiolegisin the civil law system,andof rarzo
decidendiin commonlaw,
is substantiallythe same as that of the 'illah (and its
broaderequivalent, the
hikmah) in Islamic jurisprudence.66 With regardto the identificationof 'iZlahin
qiyasthe precedentof Companionsand the leadingimamsis
unequivocalon the
pointthat the norm in regardsto ta'lzl(ratiocmation)is
maslahahfromwhich ta'lll
derivedits basic argument.It was only at a later stage when
the jurists of the
Hanaf;and Sha-fi'ischools departedfrom the maslahah-based
ta'ltl, known as
hikmah, towardthe more technicalconceptof 'illah.But even so the 'illah
largelybased on maslahah,only that 'illah stipulatedcertain was still
thatthe maslahahin question should be constant conditions, namely
(munabclt)so that it did not
change with the changeof circumstances.The 'illahwas also to rely
on maslahah
thatwas evident (zahir)and not a hidden factorthat could not
be ascertainedby
thesenses. Al-Ghazali thus noted that it is the maslahah
which determinesthe
hahm but since it could be a hiddenfactor,'illahwas proposedas a
* c
thelatter only relied on the manifest attributesof that substit:ute,for

maslahah.67Al-Shatibi
attempted to equate the two conceptsof 'illah and hikmahby
saying that 'illah
consistedof nothing other than the rationaleand benefit (al-hikam
wa'l-masalih)
63 AbuSulayman,
n. 14, pp. 6546.
64 Turabi TaySd,n. 13 at 24.
65 AbuSuiayman, n. 14 at 69 and 84.
66 Cf. Abu Zahrah,UQUI al-Fiqh, n. 10, at 184.
67Abu Himid al-Ghazali,Al-Mustafa
min 'Ilm al-UmI, Cairo:al-Maktabahal-Tijariyyah)
1937,
II, 310. 1356
which lay at the root of the laws (akkam)of Shari'a. Hence "de 'illah is identical
with the maslahah and it does not merely represent a manifest attribute of
maslahah;we ierefore disregard the notion of it ('illah) being constant and
evident".68It is indeed the hikmahitself in which the 'illah is rooted, such as the
lapse of intellect, which is the hikmahin the prohibitionof wine drinking,and this
is reflectedin intoxication,the latterbeing the 'illah of the sameprohibition.The
MaBikisand Hanbaliswho validatedhikmahas the basisof qiyasdid not requirethe
hikmahto be constantand evident providedthat it consistedof a E>roper auribute
(wasfmunasib)smdwas in harmonywith the objectiveof the Lawgiver.Hikmahis
thus a more open concept than 'illah and is a direct embodimentof the rationale
and objective of a pariicularhukmon which an analogymay validly be founded.
The fact still remains however that the jurists of the post-classical period
(mura'akhkAirun) went a long way in the directionof addingto the technicalitiesof
'illah in qiyas.The result of chiswas that qiyasitself lost its groundingin maslahah)
and its originalvision and purposeof graspingthe maslahahof the people became
subjectto the exerciseof specious reasoning.69We note yet anotherirregularityin
the applicationof qiyas in that the jurists of the post-classicalperiod showed a
tendencyto declaremanythings, includingtransactionsthat servedpopularneeds,
prohibitedon groundsmerely of doubdul qiyas.This somewhatfacile application
of qiyas stood in contrastwith the Qu'ranicprinciple of raf al-haraj(removalof
hardship) and its declaraiion that sCwhatis forbidden to you has been clearly
explainedX'(6:119), and also the legal maximwhich declaredthat "permissibilityis
the normalstate of things"*A carefulobservanceof these guidelineswould surely
suggest that a liberaluse of qiyasin regardto prohibitionswas not advisable.70
It is perhapsfie hikmah(objective)rationale)which is closer to our concept of
naturaland originalqiyas.But we note that in all of this, it is the judgeliuristwhose
attitudeand vision in the applicationof qiyasis the more importantdeterminantof
the contributionthis doctrinecan maketo the enrichmentof Shari'a.ParvizOwsia
has ascertainedthe utility of qiyasin judicialdecision-makingand comparedit to
some of its parallelconcepts in modernlaw. It is dus noted that the searchin the
civil law system for ratio legis and under the common law system for ratio
decidendi,or under an Islamic system for the underlying rationale (hikmahor
manat)of a rule, may all dischargesimilarfimctions,depending,of course, on the
basic approachone is inclined to take They cause)under a restrictivevision, the
rigidity of the law, but conversely iey serve, with a visionary outlook, the
flexibility and adaptabilityof the law.7l The skill and insight of the judge in
determiningthe ratio of a case is once againhighlightedby anotherobserverwho
stated that the ratio is neither found in the reasongiven in the judge'sopinion nor
in the rule of law set fori in that opinion, nor even by a considerationof all
68 Al-Shatlbl,Muwa-faqit,n. 7 at I, 265.
69 Miaad Musofa Siabl, AZ-Fiqhal-IslamiBayn al-MithaZiyyah wa al-Waqi'iyyah,Beirut:
Dar al-Jami'iyyah,1982, pp. 16648.
7°Ibid-p-168
71 ParvizOwsia,"Sourcesof Law Under English,French,Islarnicand IranianLaw" [1991]ALQ 33
atp. 61.
ARAB LAW QlJARTERLY
28
ascertainablefacts. Rater the ratiois to be foundby referenceto

the facts that the
judge has treatedas materialand the decisionthat is
based on those facts.72The
followingthree stages of enquiryare involaredin the
constructionof analogy:
(1) Perceptionof relevantlikenessbetweenthe factual
issues as defined by the
court m a prevlouscase;
*
.
(2) Determinationof che ratiodecidendi of the previouscase;and

(3) The decisionto apply the rulingof the previous
case to the presentcase.
It is then suggestedthat the first of these three steps
is essentiallypsychological
which is not eniirelygovernedby the elementsin the legal
system.73Wisdomand
applicationof "goodsense"rader thana mechanicalor fixed set
of logicalrules,is
recommendedin the determinationof ratiodecidendi. It thus appearsthat the fear
of rigidity and the concernover strict a&erence to
precedentis ever-presentin
constructingan analogy in both Islamic law and Western
concernhere was vividly voiced by Lord Gardenerwho jurisprudence.The
declaredin 1966, while
representingthe Lordsof Appealin Ordinarythat "-cheir
Lordshipsregardthe use
of precedentas an indispensablefoundation... they
recogniseneverthelessthat
tOO riDd aierence to precedentmay lead
to miusticein a paniwlar case md also
undulyrestrictche properdevelopmentof e Iaw".74The
broadpurposeof this
messageis applicableto qiyas,which is the nearestequivalent
in
commonlaw doctrineof judicialprecedent.It is ironicalto Islamiclaw to the
note, however)that
Isla£niclaw does not recognise judicial precedentas a
binding proof precisely
becauseof its restrictiveeffecton UtEhad. The integrityof idtihAd was deemedto be
liableto compromlseif judicialprecedentwere to carry
a bindmg force on the
lowercourts. The rulmg of one judge or maitahid
essentiallycarriesthe same
authoricy as that of another.But the rigidit;yochatthe Muslimjuristtriedto avoidin
this instance was visited by him
through the imposition of burdensome
technicaliiieson qiyas. The correct advice in both instancesis
rigidconformityto precedentat ie expenseof loslng surely to avoid
sight of the broadpurpose
andobjectiveof the law.
A NEW SCHEME FOR USUL AL-FIQH
There
aretwo areaswhereimprovementscanbe madein
conventionalusulal-fiqh.
Wenote on one hand that the methodologyof azsu1has not integratedthe Qu'ranic
principle
of consultationmto its doctrinesand procedures.
The second short-
coming
of usulal-fighwhich is not unrelatedto the first is its
detachmentfromthe
practicalities
of government and its near-total reliance on
private ijtihAdby
72 Judge Goodhart, "Deterniining ffie Raiio Deadendi of case 40",
73 John
YaleLawYournal161 (1930).
Makdisi, "Formal Raiionality in Islamic Law and the
Retnew
34 (1985 86), p. 104. Common Law", ClevelandState Law
74 Quoted in Michael Zander, The
LawMakingProcess,London: Weidenfeld and Nicolson,
104 1989) p.
* v
individualjurists. Here we note once againthat the Qu'ranicdictum of obedience

to those who are in chargeof communityaffairs,the 'ulu al-amr,has not received
due attentionin the conventionallegal theory.Despite the unmistakeablereference
of 'ulu al-amr to governmentthe juristsand commentatorshave tended to ignore
this and have instead consideredthe ulema to be the principalor even the only
frame of reference in the understandingof this term. The ulema of usul were
obviously content with a somewhatone-sided interpretationof the Qu'ranin that
the theory they developed was such that it could, from beginning to end, be
operatedby the ulemawithout the involvementof the governmentin power and in
total isolation from it. This aspect of the legal theory is conspicuous in the
conventionalexpositionsof iima'which is definedas "the unanimousagreementof
the maftahidsof the Muslim communityat any periodof time followingthe demise
of the ProphetMuhammadon any matter".75It is remarkablethatthe definitionof
iima' is oblivious of both of the Qu'ranic concepts of shura and 'ulu al-amr
especially in reference to the government and the role it might reasonablybe
expected to play in consultationand in takirlgcharge of the communityaffairs.
Ijma' was defined such that the ulema could in theory conclude it and make it
binding on the government without either consulting or seeking consent of
governmentauthorities.We are awareon the other hand that iima' representsthe
single most importantconceptin the legal theoryof usulwhich offers the potential
of making the whole of the legal theory pragmatic and viable. Ijma' should
naturallyinvolve consultationamong the broad spectrumof the 'ulu al-amr and
ensure collective decision-makingthroughparticipationand involvementof both
the government and the ulema, and of virtually everyone who can contribute
toward its objectives.
Jamalal-Dln 'Atiyyahhas suggesteda new scheme for conventionalusul al-fiqh
in which he proposedto divide the sourcesof Shari'a into the five main headings
of:
(1) The transmittedproofs which includes the Qu'ran, Sunnah, and revealed
laws precedingthe Shari'a of Islam;
(2) Ordinancesof the 'u-lual-amrwhich includes iima' and iitihad;
(3) The existing conditionsor statusquo,in so far as it bearsharmonywith the
preceding two categories, and this includes custom and presumption of
contlnulty zsttshat);
(4) Rationality('aqi) in areaswhere a full juridicaliitihadmay not be necessary
(the day to day ruling of government-departments,for example,that seek to
ensure good managementof affairsmay be based on rationalityalone);
(5) Original absence of liability (al-bara'ah al-asliyyah) which presumes
permissibilityand freedom from liability as the basic norm of Shan'a in
75 Sayf al-Dln al-Amidi, Al-lAkam fi U=l al-Ahkam, ed. 'Abd al-Razzaq 'Afifi, 2nd edn., Beirut: A1-
Maktab al-Islami, 1402/1982, I, 96; al-Shawani, Irshad, p. 71. For a detailed discussion of the defimition
of iima' see Kamali, ffurisprudence,n. 10 at 169 ff.
respect of thirlgs, acts and transaciionsthat have not been expressly

prohibited.76
The broad outline of the scheme is acceptable, notwithstarldingcertain

reservationswhich I shall presentlyexplain. 'Anyyahhas himself stated ochatthe
schemehe has proposed,especiallym its referenceto the transmittedproofs,relies
almosttotally on conventionalusul al-fiqh.It is the secondheadirlgin 'Atiyyah's
scheme where he proposes a revised structurefor iimaf and iitihAid.These are
undoubtedlyamongthe most importantthemesof the methodologyof usulal-fiqh)
and bringingthem both umderthe umbrellaof the ordinancesof 'ulu al-amroffers
the advantageof litlkrtlgthis classificationdirectlyto the Qu'ranorl the one hand
and takingan affillnaiivestanceon governmentparticipationin the conclusionof
iitihAdand iima'on the other. I shallpresentlyreturnto 'Atiyyah'sviews, but here
I note a relevantobservaiionfrom Hasan Turabi who statedthat the decline of
iitihAdwas partlydue to declinein shuraand then proposedthat the stateand the
(iilu al-amr should take every step to make shura an integralpart of decision-
makingprocesses The public and the media can also play a role in stimulaiing
participation,consultationand debateuntil a consensusemergesand the majority
makesits voice known Turabiaddsthat "decisionswhicharemadethroughshura
and ratifiedby t:he(ulual-amra:rldimplementedas juridicaliima'(iJma'tashri'tO or
the ordirlancesof government(amrhakama)".77
The third heading in 'Atiyyah's proposed scheme consolidatesunder one
categorythe tWOrecognisedproofsof usulal-fiqh,narnelyistishaband customand
tends to attachtO it a degree of promirsencewhich they were not given in their
conventionalexpositions.A meredifferenceof emphasisin the scholasticdoctrines
Ofthe madhiib, such as the Hanafiand ShaEl'iemphasison custom and istishab
respectively,was not enoughto urlderscorethe importanceof socialcustomin the
developmentof Shari'a. 'Atiyyah'streaunentof custom and istishAbconsolidates
these two logically related themes, gives them greaterprominence,and thereby
tries to inject pragmatisminto the rubricof tie legal theory.
I havehithertocommentedon the first threeof 'Aiiyyah'sfive-pointschemeand
I am of the view that the remaining two heaflings in that scheme, namely
raiionality, and original non-liability are superfluousand should therefore be
omitted. This would mean that we would have consolidatedthe entire range of
topics in conventionalmul al-fighunderthe threeheadingsof transmittedproofs,
the ordinancesof 'ulu al-amrand validstatusquo.The secondof these, namelythe
ordinanceof (ulual-amris comprehensive,bearingin mindthatthe broadconcept
of iitEhAd subsumesa whole rangeof topics such as qiyas,istiksan,saddal-dharani',
whichhoweverfeatured,somewhatatomistically,in conventionalusulal-fqh, each
as a separatechapterratherthan an integratedtheme of a unifiedwhole. This list
of iitihad-relatedtopics could, of course,be extendedto istishAb
whichmaybe seen
76 Jamil al-Dln Atiyyih,Al-Nazanyyahal-'Ammah

li'l-SharGa,Cairo:Maba'ahal-Madinah,1407/
1988,p. 189 f£
77 Turabi, Taidad,n. 13 at 30.
METHODOLOGY IN ISLAMIC JURISPRUI)ENCE 31
as anoier sub-variety of iitihAd,and yet it is justified to treat istishAb,or

presumptionof continuity, 1lnderthe "valid statusquo"in the proposed scheme,
for istishAbis groundedin the idea of presumingthe continuedvaliditzrof existing
facts and situations unless there is evidence to suggest otherwise. Even if we
include istishabunder the general concept of iitihAd,it would come only as per
conventional legal theory, at the very end of the list of rationalproofF,as it is
generallyregardedto be the weakestof all proofs, which is why it is knownin the
conventionalusul as the last ground offatwa (akkirmadaral-fatwi). To classify
istishabumdervalid statusquowould thus appearto be acceptableas it is not likely
to feature prominentlyunder the categoryof iitihAidand iimE and it seems more
coherent to classify it under one headingwith custom ('urf).
There is one topic in the conventionalproofs of usul al-fiqhwhich 'Aiiyyahhas
not mentioned, namely the fatwa of Companion. Notwithstanding some
disagreementas to its authorityas a proof, I proposeiat thefatwa of Companion
should be included in the main category of transmitted proofs, for we may
otherwise Elrldno place in the legal theory for the outstandingcontributionsof
Companions like Umar b. aI-KhattaD,Abd Allah b. Mas'ud and many oJchers.
Most of the importantrulingsof the leadingCompanionswere perhapseventually
adoptedunder the broadconceptof iimaf.Yet there remainsa fairlyrich legacy of
rulings on which they have recordeddifferent opinions and interpretationsand
these may be includedunder the broadcategoryof transmittedyet only persuasive
ratherthan binding, proofs of Shari'a.
As I stated earlier,the remainingtwo categoriesin 'Atiyyah'sproposedscheme,
namely rationality ('aq[) and original non-liability (bara'ah al-asliyyah) seem
somewhat unnecessaryand controversial,for they add but little to its preceding
three categories.We note for example,that rationalitycould be subsumedunder
the broad concept of idtihAdn or under any of its sub-varietiessuch as analogy,
juristicpreference,and maslahah.These are all rationalistdoctrinesand if we were
to open a separatecategoryfor rationality,it would be difficultto decide where to
place such other concepts as maslahahand istiAsan,under rationalityor iitihAd.
Furthermore,openinga new categoryof proof in the name of 'aqlis bound to raise
questions as to ie nature of the relationship between revelation and reason.
Opening a new chapter under taql can only be justified if 'Atiyyah had clearly
articulatedche respectiveroles of 'agl and wahWy, which he has not. Since the broad
outline of 'Atiyyah's proposed scheme is in conformitywith de basic order of
prioritiesthat areupheld in conventionalusulal-f qh,openinga new chapterin the
name of rationalitywould not only interfere with other parts of the proposed
scheme but is also inherentlyambiguousand unjustified.
As for che proposedrecognitionof al-bara'ahal-aslEyyahas a sourceor proof of
Shari'a, it will be noted once againthat this is subsumed,in conventionalusul al-
fiqh) under the presumpion of continuity, or istishab, and it is as such, a
presumption, not a proof. Original non-liability presumes in reference, for
example,to accusationof criminalconduct,that the accusedpersonis innocent,or
in reference to civil litigations, that there is no liability, unless che contraryis
provenin eachcase.IstishAb in iis contexuc

* *
presumesthe normalor originalstateof
things, that is non-liability, which should prevail unless there is evidence to
suggest otherwise. Since this is only a presumption,it is a weak grod for
decision-makmgand it does not, m any case, presenta case for it to be recognised
as a source or proof Sharia in its own right. I thereforepropose that this too
should be subsumed under the third heading of Atiyyah's proposed scheme,
narnelythe valid statusqzzo.I have m surnproposeda consolidationof Atiyyah's
five-point scheme iIltOthree and submittedthat the remainingtwo headingsare
somewhatrepetitiveand need not be included.
C ON C L U S I ON
Ever since the onset of indiscriniinateimitation(tAqlt4, ie uul al-fiqhbecame

increasinglydetachedfrom social realityand lost its opennessto the evolutionary
influenceof empiricalobservation.Empiricismnaturallyencouragesopennessto
interactionand receptivenessto developmentsin o^rher disciplines.This is because
knowledge cannot be containedin rigid comparmlentsand importantdelrelop-
ments in humanandin naturalsciences are bound to interactand influenceone
another.It is unlikelyfor exarnplethat a faqlh and muitahidwill be successfulin
the conduct of iitihAdif they confinedthemselvesto the narrowspheresof their
specialisationand remainaloof to developmentsin other disciplines.A faqlh who
turnsa blind eye to changesin the worldaroundhim, to the customof society,and
to progressin science,technologyand civilisaiionhas remannedindifferentto the
empirical input of iitEhAd.The theory of iitihAdis in fact explicit Otl the
requirementof familiaritywith the custom of society and people in which the
maitahidlives The decline of iitihad is in no small measuredue to neglect of
empiricalrealityand rigidityof outlookto accommodateits consequences.A faqlh
whose world view and perceptionof God, man and society is blemishedby rigid
conservatismand indifferenceto the changing nature of the world and newly
developingrelationsin it can hardlybe expectedto reflectthese influencesin his
iitEhAd.His will remain,as it has in fact for a long time, a worldapartfromthe fast
developingworldof civilisationand science.The testzg groundof the abilityand
acumen of such a faqlh is likely to be, not his knowledgeof fiqh, but his other
informationand understandingof the world outsideis sphere.78
The doctrines of usul are essentially resourcefuland provide a diversified
methodologicalframeworkand a rich heritageof guidancefor reconstructionand
iitihad. Arsd yet in the age of statutory legislation where reliance on forrnal
statutorytext has everywhereprevailed,the scope of juridicaliFtihAd has been
78 See for detail the recentbook by Abdol Karim Sorush,labelledas the second Shari'atiof Iran,
bearingthe somewhatunusualtitle, Qabd-OBast-e Theorik-eShan'at (Theoreacalcontractionand
expansionof SharzYa), 2nd ptirlg, Tehran:Mu'assasa-e.
Parhangi-eSirat,1371/1992,pp. 105 6, and
generallyon the themeof how ourpercepiionandunderstanding of IslarnandEheSharGais changeable
with the advancementof knowledgeand developmentsin otherdisciplines.
proportionatelyrestricted.In relationshipto crimesand penalties,for example,we

have provisions in many a modern constitution which require these to be
determined under the terms of a clear text, not by analogy to the text. Strict
conformity to the statute may also impose limits on the judges' ability to depart
from the textual ruling of statute to an alternativeruling of istiAsan.Procedural
rules and time limits for hearingof claimsmay likewiselimit the scope of recourse
to presumptionof continuity,or istishAb. The ubiquitousand exclusiveapplication
of the statutebook has nowherebeen envisagedin conventionalusul al-fiqh,and it
does not have the capabilityto accommodatethis new reality without necessary
adjustments.The rich legacy of usul and its methodology of iitihAdcan only be
utilised, under the present circumstances,if they are given a clearrole in decision-
making processes. Where and when can the legislatureand the courts apply the
respective doctrines of usul, and what general and specific guidelines are they
expected to comply with are some of the questions that need to be addressedif
iFtihadwere to be given a role in the decision-makingprocesses of modern
government.
The main preoccupationof this articlehas been with the question that many of
the rationaldoctrinesof usulhave becomeburdenedwith stultifyingtechnicalityor
unrealisticstipulationswhich often frustratetheir originalpurposeand undermine
their capacityto be used as effectiveformulasfor legal reconstruction.This is the
natureof the issue we face over the conventionalusul al-fiqh.But I take exception
with commentatorswho set off from a premise which is dismissive of the whole
endeavourof usul and proceedon the assumptionas if it was no longer relevantto
the concerns of contemporary Muslims. The problem over technicality and
empiricalweaknessof usul al-fiqhhas been exacerbatedby the fact that prevailing
practice in the area of statutory legislation has departed from some of the
operationalpremisesof the conventionalmethodologyof usul.The new schemefor
usul al-fiqh that I have presented and discussed here contemplates effective
solutions to some of these issues, and given a receptive attitude on the part of
governmentleadersand the 'ulu al-amrit will go a long way in building upon the
existing heritageof usul al-fiqh. The properapproachis surely to utilise the best
potentialsof that methodologybut also to reformit by identifyingthe problemsin
regardto each of its particulardoctrinesand then to fmd ways of resolvingthem.
We may also need to depart from some of the strictures of the conventionaI
methodologyand its unfeasiblepropositions,but we do not proposeto throw, as it
were, the baby out with the bath water.The basic approachmust surely be one of
continuityand imaginativereformwhich might well entail takingbold steps along
the way as well as adding new dimensionsto the existing methodologyof usul al-
fiqh. But a laissez-faire attitude to these issues can only mean continued
dominationof the Western methods of law and governmentin Muslim societies.
The Islamic revivalismand resurgenceof recent decades has brought home the
message that a reformedmethodologyof usul al-fiqhwould appealto the Muslim
masses who are desirousof harmonyand cohesionbetween their culturalheritage
and the applied laws of their lands.

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Methodological Issues in Islamic Jurisprudence

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Methodological Issues in Islamic Jurisprudence

Author(s): Mohammad Hashim Kamali

The methodology of usul al-fiqhembodies the basic approachand frameworkof

*Professor (Kulliyyahof Laws), International Islamic Unierersity of Malaysia.

ulema. We also note a certainchangein the natureof issues. While many of us

1 Al-Ma'hadal-'itlami}i al-Fikral-Islami,Islamiyyahal-Ma'rifah,Herndon,VA, 1981,p. 166 ff.

should be ended as it is alien to Islamic iought.5 The auffior,however, did not

THEORETICAL ORIENTATIONS OF USUL

Usul al-fiqh is often describedas a theoretical,ratherthan empirical,discipline

A certainlag between the theory and practiceof a disciplineis admittedlynot

7 Abu IsbaqIbrihim al-Shibl, Al-Muzvafasat fi Usulal-Ahkam,ed. M. HisanaynMakiluf, Cairo:

thereforenot surprisingto note that 1 al-fiqhhad a certaindegreeof theoretical

stated that in regard to other subjects such as medicine, mathematics,and

only have been taken in an atmosphereof despondencyat a time when Islamic

THE TIME-SPACE FACTOR

experiencedfollowing the Prophet'smigrationto Madinah. Certairlrules were

24 The numberof dailyprayers,for example,wereirnially fixed at two, but were laterincreasedtO

model for conduct which contemplatedhis contemporaryArabiansociety and its

30For detailssee Mi'rajMuhammad,"ShahWaliAllah'sconceptof the Shari'a."in K. Ahrxladand

recommendingthat their conclusionsshould not be followed in isolationfrom the

36 Al-'Alwani, IjtihAd, p. 26.

folul of explanation(bayan),ratherthananrlulment,of one rulingby another.The

REVELATION AND REASON

Revelationexpoundsthe purposeof the creationof man, the basic frameworkof

37 Cf. Karnali,ffurisprudence, n. 10, p. 149 ff.

determinatiorlof values. The earlyscholasticpositionof ie Ash'arizryah that good

38 'Imadal-Dln Khalll, Hawl TadahTashSl al-'Aqlal-Mulsum,

neverEeless that God's power and knowledgeare not bound by ochedictates of

The Qu'ranis also aff1rmativeof empiricaltruth in its referencesto historical

negative test, whichunlikethe one rules

ShaEl'i, validityandhavegone so far,

Qu'ran or the authentic Slznnsh. There is no textual proof to declareiSma'as a

Throughoutthe history of Islamiclaw, iStihAid

institutonalise iitihAd d id«tify its locus and audority widin ochestate

makingiitihAda realityit will remainisolated. 'Abd al-Wahhib

47 For furtherdetail on the uses of istiAsansee my 3rurisprudence,

school (ashAbal-tashih).This classificationimplies, accordmgto one commentator

As alreadystatediima'is the only non-revealedsourceof Shari'awhich commands

49 Nicolas Aghnides,Muhammadan Theoriesof Finance,New York Longman,1916, p. 96.

iima'is to defne and identify its participants,namelythe muitahids.Ambiguityin

54 MahmudShaltut,Al-Islam'Aqldahwa Shan'a, Kuwait:Dar al-Qalam,1966,p. 558.

processes. The potentialbenefits of iima'as an all-embracingvehicle which could

Some of the constraintsthat ussilal-fiqhhas imposedon qiyas were a symptomof

thelatter only relied on the manifest attributesof that substit:ute,for

ascertainablefacts. Rater the ratiois to be foundby referenceto

(2) Determinationof che ratiodecidendi of the previouscase;and

A NEW SCHEME FOR USUL AL-FIQH

METHODOLOGY IN ISLAMIC JURISPRUDENCE 29

individualjurists. Here we note once againthat the Qu'ranicdictum of obedience

respect of thirlgs, acts and transaciionsthat have not been expressly

The broad outline of the scheme is acceptable, notwithstarldingcertain

76 Jamil al-Dln Atiyyih,Al-Nazanyyahal-'Ammah

as anoier sub-variety of iitihAd,and yet it is justified to treat istishAb,or

provenin eachcase.IstishAb in iis contexuc

Ever since the onset of indiscriniinateimitation(tAqlt4, ie uul al-fiqhbecame

proportionatelyrestricted.In relationshipto crimesand penalties,for example,we

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