USUL AL FIQH (Islamic Jurisprudence) By Shah Abdul Hannan 1

Preface This book on Islamic Jurisprudence (Usul Al Fiqh) was prepared as an aid to a co urse on this subject conducted through internet in 1999 to an International Stud ent Population on the request of Witness-Pioneer (an internet based Islamic Inte rnational Intellectual Movement). The book has been modelled on classical 'Usul' books, the chapter planning has been done on the lines of the book " Principles of Islamic Jurisprudence" by Dr. Hashim Kamali. This book will help in understa nding the essentials of 'Usul'. However, to master the subject and get the detai ls, the reader has to turn to the old and new 'Usul' works. Names of old and new Usul Books have been mentioned in the Introduction and in the Bibliography. I a m indebted for this work to Witness-Pioneer movement, to Wohidul Islam (a Harvar d Student), who was my Teaching Assistant, Mr. Shafiquer Rahman, a Pioneer membe r who helped me in conducting the course and to my students of the course who he lped me to improve the course through their questions. Knowledge of 'Usul' is es sential to save us from mis-interpretation of the 'Quran' and the 'Sunnah'. I pr ay to Allah that He may accept this book for the benefit of "Ummah'. Shah Abdul Hannan 2

Contents 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. Introduction The Quran The S unnah Interpretation Command, Prohibition & Naskh Ijma (Consensus of Opinion) Qi yas (Analogical Deduction) Revealed laws Prior To Shariah of Islam And Fatwa of Sahaba Istihsan and Maslaha Urf and Istishab Sadd al Dharai and Hukm Sharii Taar ud Ijtihad ---Page 04 05 08 11 16 18 20 23 25 28 31 35 36 3

Details may please be seen in the chapter on Interpretation coming later. All the secondary sources are either directly or indirectly based on the primary sources of Islamic law. Of course the knowledge of Arabic language and grammar is a must for one who 4 . Istihsan (Juristic preference) and other methods of Ijtihad (reasoning and in vestigation). Introduction Usul al Fiqh discusses both the sources (Adillah) of Islamic law and the law (Fiqh). Usul di scusses the characteristics of the Quran and Sunnah. Methods of deductio ns from the legal verses of the Quran and the legal Ahadis (singular Hadis) are what the Fuqaha (jurists) have called Ibarah al Nass (whereby Ahkam or rules are derived from the obvious words and sentences themselves). according to Nurul Anwar written by Sheikh Ahmad Ibn Abu Sayi id. exp ound the methods by which Fiqh (detail Islamic law) is derived from their source s. what is wazib and what is Mandu b (recommended) and also the methods of removal of conflict (i.e. In this view. grammar of Arabic language is discussed at length. who was the house tutor of Aurangzeb. t hree main elements of Qiyas. what is Maqruh. what is Haram. Usul deals with the primary sources of Islamic law. Usul al Fiqh also discusses other main issues involving Islamic law such as the effect of custom o n law or custom as a source of law. the Quran and the Sunnah. that is Asl (original case). Usul al Fiqh (Usul is plural of Asl) the bases or roots of Islamic Law. Usul discusses v arious kinds of words used in the Quran and the Sunnah in particular and Arabic language in general such as the Amm (general) and the Khass (particular).e. what is Farz. primarily Usul al Fiqh deals with the sources or roots of Islamic law. Hukm (ruling on asl) a nd the Illah (effective cause ) are based on primary sources.USUL AL FIQH (Islamic Jurisprudence) 1. and grades of the Islamic legal provision (i . However. the Mughal empe ror. Qiyas (analogical deduction ). Haqiqi (literal) and the Majaji (Me taphorical). For instance. In doing that. various types of clear words and unclear words. and what are the methods of deduction of law from the Quran and the Sunnah. the Ijma (consensus). Usul al Fiqh also discusses the sec ondary sources of Islamic law. known as Mullah Jaiun. This view is held by a group of jurists. In s ome books of Usul. Usul is the methodology and the Fiqh is the product. Isharah al Nass (wher e Ahkam are inferred from signs and indications inherent in the text) Dalalah al Nass (where Ahkam are derived from the spirit and rationale of a legal text) an d Iqtida al Nass (whereby Ahkam are derived as a requirement of the provision of the text though the text is silent on the issue). Taa'rud). Mutlaq (unconditional) and Muqayyid (conditional). i. the Quran and the Sunnah.e.

349). we come to know the methods of interpretations of the Quran and Sunnah . Fakhruddin al Razi (d. such as Haruful Maa'ni (words with meaning). many scholars have contributed in the study of Usul. Before him. This is tru e in the sense that the systematic treatment of the principles of Usl al Fiqh wa s first made by him. 747). There have been many writers on Usul in modern times. The Quran In some cl assical books of Usul (such as Nurul Anwar by Sheikh Ahmad Ibn Abu Said or Manar by Sheikh Abul Barakat Abdullah Ibn Ahmad Nasafi) most of the discussion of Usu l have been made under the heading "Kitabullah" (that is the Quran). t he most famous are : Abul Hasan al Basri (d.wants to be a Usuliuun or a jurisprudent. this is not really a subject matter of Usul. (a 'Haruf' which gives 'Zar' to the noun when it is 5 . After Shafii.505). Imam Shafii is considered to be the father of the science of Usul.771). Fakhruddin Al Bazdawi (d. the views on Usul of major scholars of the past and present. Sadr Al Shariah (d. the hi story of development of Islamic law and legal theory. O n the other hand primarily the early and later Hanafi scholars looked into the d etails of law given in the Quran and Sunnah and derived legal rules or Usul prin ciples therefrom. All these make anybody who studies Usul cautious in approach to Islamic law. grammatical issues pertinent to interpretation of the Quran and Sunnah . Abu Hamid al Gazali (d. However. The theoretical approach was developed by Imam Shafii who en acted a set of principles which should be followed in the formulation of Fiqh. 2. 436). particularly in Arab lands. However. The principal objective of Usul is to regulate Ijtihad and guide the jurist in his effort at deducing the law from the sources . 483). Harufu l Zar. He then is likely to avoid car eless utterance and action. the theoretical and the deductive. From a study of Usul. the jurists of course followed some principles in the deduction of law but these principles were not integrated and systematize d. Ummah can produce great mujtahid only by study of Us ul in addition to other sciences. He develops respect for the m ethodology of past masters and becomes aware of the need to follow rules in the matters of deduction of new rules of Islamic law. 606). Saifuddin Al A midi. The benefits of the study of Usul al Fiqh are many. of them. and Al Sha tibi.487). Haruful Atf (conjunction). the later scholars combined the two approaches and pr esently the subject essentially follows the some format. Tajuddin Al Subki (d. all the secondary sources of Islamic law. Abu Bakr Al Jassas (d. Such discus sion include discussion on the classification of words in the Quran (or Arabic l anguage). Imam al Haramayn al Juwayni ( d. Abul Hasan Al Karkhi (d. 370). the rules of Qiyas and other methods of Ijtihad. Initially two approaches developed in the study of Usul.

Discussion under Kitabull ah also include the methods of interpretation such as Ibaratun Nass (based on ex plicit meaning). There are 114 su ras of unequal length. Haruful Asmauz Zaruf (Haruf which indicate time. Quran was revealed in stages (Bani Israil. in o ur discussion on Usul under the "Quran" we shall not discuss any of the aforesai d things. The information regarding 6 . The Quran consists of manifest revelation ('Wahy Zahir) which is direct communi cation in the words of Allah. The larger part of the Quran was revealed in Mecca (about 19/30th pa rt) and rest in Madinah. The Ulama are in agreement that the entire text of t he Quran is "Mutawatir". even though it is Hadis Qudsi. In this part we shall discus s some of the characteristics of Quran as its introduction. . place. If the sanad (chain) is weak. economics. etc. in which the Prophet (SM) quotes Alla h in the Hadith. also Dr.Hashim Kamali.Usul al Fiqh'.) and Haruful Shart (haruf which indicates conditions). apa rt from the aforesaid. and gradua lly (AlFurqan. However. Graduality in the revelation afforded opportunity to refle ct over it and memorize it. This is different from Wahy Batin (non-manifest re velation) which consists of inspiration and concepts. The Meccan revelations mostly deal with beliefs. The contents of the Quran are not classified subjectwise. The jurisprudents agree that text and meaning together cons titute the Quran.) Only meaning (Maa'ni) or text (Naz m) is not the Quran.e.25:32). Isharatun Nass(based on indicativd meaning). t he hadith will be treated as weak. 17:106). even if it contains Madinan period Ayats. deal with legal rules regarding family. The sura is considered Meccan if its revelation started in Mec ca. i. Abdul Wahab al Khallaf.used before noun). disput ation with unbelievers and their invitation to Islam.(Ref. etc.'ILM . But the Madinan suras. In fact. It should be n oted that the Prophet (SM) did not make any distinction between Hadis Qudsi and other Hadis. etc. Hadis Qudsi. In following some modern Usul scholars we shall take the discussion on the methods of interpretation and classification of words under "Methods of Int erpretation" We shall not discuss rules of grammar in Usul and ask the readers t o study Arabic language and its grammar separately. is also not equivalent to the Quran. Principles of Islamic Jurisprudence. All the Ahadis of the Prop het fall under this category. its authenticity is proven by universally accepted testimony. politics . Quran is the book wh ich Allah revealed in His speech to His Prophet Muhammad (SM) in Arabic and this has been transmitted to us by continuous testimony or tawatur. this kind of Hadi th is also subject to examination of Isnad (chain of narrators from the Prophet (SM) to the compiler of the Hadith compilation). society.

Hardly there is anything where Quran has given all details. eviden ce. In the discussion on Qati and Zanni. Quran and Sunnah are integral to one another. the Zanni Sunnah can be elevated to Qati by Qati Ayat of the Quran or by othe r corroborative evidence of Qati Sunnah.which one is Makki or Madani are based on the sayings of the Sahabis or the foll owing generation. Qati and Zanni have significance in the matter of b elief and in the gradation of Ahkam into Farz. Example of Zanni in meaning are the words "banatukum" in Nisa : 23 and "yanfaw minal ard" in Maida : 33. fosterag e. usury. A per son can be declared Kafir if he denies the Qati text of the Quran or Mutawatir S unnah. paternity. Haram. Otherwise not. which has been considered Qati is only Mutawatir Sunnah or Hadith (at least in essence). unlimit ed polygamy. Similarl y. Other Hadith and Ijtihad are Zanni material. One of the things that has been discussed is ab out Qati (definitive) and Zanni (speculative). Siam. lease. Any text of Hadith which is similarly clear in meaning is also consider ed Qati in terms of meaning. Articles of faith can be determined only by Qati text with Qati meaning. Sunnah. bequest. mortgage. Cambr idge). Similarly Farz is determined only by Qati text with Qati m eaning (Principles of Islamic Jurisprudence. dower. marriage. divorce. Hajj . By far. Wazib. Dr. 7 . relations between rich and poor. loan. Makruh. consultation. Qati and Zanni concepts have been discussed in terms of text and in terms of meaning. Chapter 17). Only other text. Mo st of the text of the Quran are Qati in meaning. Hsashim Kamali. Zan ni of one verse can be made Qati by another verse or definitive Sunnah. The text of the Quran which has been reported in clear words (Alfaz al Wa ziha) which has only one meaning are considered Qati also in terms of meaning (D alalah). prescribing penalties and core Ibadah like Salat. The legal material of the Quran is contained in about 500 Ayat s. (Prin ciples of Islamic Jurisprudence. justice. These injunctions were revealed with the aim of repealing objectionable customs such as infanticide. rules regarding commercial transaction such as sale. Dr. The whole of the Quranic te xt in Qati (definitive) that is its Riwyah (report) is conclusive and beyond dou bt. Islamic Texts Society. We are dependent on Sunnah and Ijtihad to fill up the gap s or for explanations. etc . the Quran has given instruction in considerable details. war and peace. custody of children. the large part of the Quranic l egislation have been given in broad outlines. according to various estimates. Other legal Ayats deal with charities. Iddah. only in a few area. inheritance. Zakat. gambling. Hashim Kamali. maintenance. oaths. revoca tion of divorced wife (Rijah).

Faili and Taqriri (ver bal. Non-legal Sunnah (Sunnah Ghayr tashriyyah) mainly consist of the natural activ ities of the Prophet (Al-afal-al-jibilliyyah). Majority of scholars hold that this is permissible. The Quran enjoins obedience to the Prophet(SM) [59:7. This view is wea k and appears to have been born out of misunderstanding the purpose of talil.4:59. In the t echnical usage Sunnah and Hadith have become synonymous to mean conduct of the P rophet (SM) The Sunnah of the Prophet (SM) is a proof (Hujjah). 3. 4:80. indeed a must for development of Islamic law through Ijtihad (primarily Qiyas).A.a text -book of Us ul. In the Usul al Fiqh Sunnah means the source of Shariah next to the Quran.But to the Ulama of Fiqh Sunnah primarily refers to a Shariah value which is not obligatory but falls in the category of Mandub or recommended. However. Pre-Islamic Arabs used the word for ancient or continuous practice. talil is not permissible and as such deny legality of Qiyas. a few hol d.there are uses of the word Sunnah in the sense of source of law. dressed and such other activities which do not form a part of Shariah. It may be not ed that in the late 2nd Century Hijra Imam Shafii restricted the term to the Pro phetic Sunnah only.such as the manner in which he ate .In the Hadith literature. The Hukm (law) is not limited to the events or circumstances. Makruh. . Certain activities 8 . actions and tacit approval) A very important classification is legal and no n-legal Sunnah . etc.his say ings and whatever he tacitly approvedThe Jurisprudents exclude the features of t he Prophet (SM) from Sunnah. The Quran testif ies that Sunnah is divinely inspired (53:3). An other issue is Asbab al Nazul or events which are related to revelation of the A yats.According to Ulama of Had ith. Sunnah refers to all that is narrated from the Prophet(sm).his acts. The Sunnah Literal meaning of Sunnah in Arabic is beaten track or established course of conduct. Asbab al Naz ul helps to understand the Quran and its law. 33:36]Allah asked the believers to accept the Prop het as judge (4:65)One classification of Sunnah is Qawli. Sunnah can create obligation (wajib). Legal Sunnah (Sunnah tashriyyah)consists of the Prophetic activ ities and instructions of the Prophet (sm) as the Head of the State and as Judge . This is called adat (habit) of the Prophet in the Nurul Anwar. for instance in THE Prophet's farewel Hajj address and at the time of sending Muadh(R. slept.One issue of concern is whether it is permissible to research the cause (talil) of Ahkam. But as a source. Haram.) to Yemen. The term Sunnah was in troduced in the legal theory towards the end of the first century.

It may be noted that Sunnah in many instances confirms the Quran. the Quran should prevail. Aqid ah wa Shariah) Certain matters are particular to the Prophet (SM) such as the ca se of number of wives. because of natur e of revelation (wahy zahir over wahy Batin).Another part of Sunnah which is called Sunnah al Muassisah or founding Sunnah (such as prohi bition of marrying paternal or maternal aunt or the right of pre-emption in prop erty (shuf') cannot be traced in the Quran and originate in the Sunnah. Zakat. the denial of Mutawatir Hadith or Sunnah is equivalen t to denial of the Quran. 9 . Only competent scholars can distinguish the two in such areas. According to the majo rity of Ulama of Usul.'ILM . . these too are considered to be situational and not a part o f the Shariah. siege or withdrawal.M. timing of attact. the authority of Mutawatir is equivalent to the Quran. Mahmud Shalutat: Al Islam. weak (daif) and forged (Mawdu). Never the Quran was abandoned in favor of the Sunnah .Azami. Mutawatir Hadith has been considered Qati (definitive) i n concept (Mutawatir bil Ma'na) mostly. Nasiruddin Albani h ad good work on this subject. It gives positive knowledge. can look into Alban i's works (see also M. Hajj. it is impossible to concoct a lie in this manner.Sunnah also explains and clarifies the Quran as in the case of Salat. As for the acts and sayi ngs of the Prophet that related to particular circumstances such as the strategy of war. agricul ture is not part of Shariah according to most scholars. Even now re-examina tion of Hadith literature is continuing.(Khallaf: .Usul al Fiqh'. In case of real conflict . It may b e noted from 'Usul' books that the experts in Hadith literature at the stage of collection of Hadith examined all Hadith before recording in their collections ( particularly the claim of transmission from the Prophet [SM] downward) and class ified Hadith into strong (sahih/hasan). Riba and many other matters of transactions.Sunnah which partake of technical knowledge such as medicine. Also note that because of large numbe r of reporters of Mutawatir Hadith. (d) reporte rs are free from sectarian or political bias of that time. prohibition of remarriage of the widows of the prophet (sm). There are only a few hadith which are Mu tawatir bil Lafz (Mutawatir word by word).may fall in between the two. In current century. including such devices that misled the enemy forces. The Quran has priority over Sunnah. There is no disagreement on this. (c) reporters must be upright. It is ea sy for an expert in Hadith to find out the status of Hadith. authenticity and also because Sunn ah is basically and mostly an elaboration of the Quran. diversity of residence of the reporters. Studies in Hadith methodology. Anybody who knows Arabic well. The main conditions of Mutawatir Hadith are: (a) large number of reporters (b) reports must be based on direct kn owledge and through sense perception. published by Ameri can Trust Publications. marriage without dower.

Hasan and Daif. it establishes a rule of law. Majority o f Ulama of Hadith do not accept the Mursal as evidence. then become well known. if it was in conflict with the practice of Mad inah. The Hadith has also been classified into Sahih. even then Mursal h ave to meet certain conditions as mentioned in books on Usul.. The majority of Ulama considered Mashhur as a kind of Ah ad Hadith and it gives speculative knowledge.. Mursal means that a successor (Tabii). 10 . Majority of Ulama do not insist on verbatim transmission (r ewait bil Lafz) of Ahad. Imam Malik did not rely on Ahad. Aqidah (beliefs) or Hadud (prescribed punishment) should not be based on Ahad. if it is reported by Thiqat Sabitun (highly tr ustworthy) or by Thiqat (trustworthy) narrator. The Mudal is a Hadith in which two consecutive links are missi ng. Most Imams considered Ahad to be authoritative in principle if reported by reliable reporters. Majority of Jur ists hold that if Ahad is reported by reliable reporters. Hashim Kamali. Imam Abu Hanifa an d Imam Malik are less stringent in their acceptance of Mursal.the words narrated by more narrators will be accepted. Hadith is ca lled Sahih (that is excellent in terms of quality of narrators . Mudal and Munqati are various types of Ghair al Muttasil Hadith. narrates a hadith without mentioning the name of companions.Mashhur Hadith is a kind of Hadith. Some hold acting upon Ahad is only preferable. Transmission of a part of Hadith is permitted.Sadiq Yahim(truthful but commits error) and Maqbul(accepted that is there is no proof that he is unreliable). Imam Ahmad and Imam Shaf ii do not rely on Mursal unless reported by famous successor. (Dr. which is reported by one or two companions. then it should be looked into whether the hadith was originally uttered in one sitting. If a hadith is narrated by a number of narrators and there is additional words in some of them . if it is not in conflict with the full hadith. Cambridge).not in the sens e of Qati or absolutely correct). A Hadith is considered Hasan if among the narrators are included (apart from the categories of narrators of Sahi h hadith) some persons who are Sadiq(truthful). Ahad Hadit h (in most cases reported by a single companion and which did not become well-kn own in the 2 or 3 generations) does not give positive knowledge.A ha dith is considered Daif if among the reporters are any Majhul person(that is unk nown person in terms of identity or conduct) or if there is any Fasiq(violator o f any important practice) or any liar. Islamic Texts Society. What is the difference between Muttasil ( connected) and Ghair al Muttasil (disconnected) Hadith? Mutawatir. Princi ples of Islamic Jurisprudence. Mursal. According to majority. Mushhur and A had are kinds of Muttasil hadith. not positive knowledge. Munqati refers to a Hadith whose chain of narrator has a single missing link somewhere in the mid dle of the chain. In that case .

This type of Tawil is accepted by all. However. However. Interpretation ( tawil) can be relevant. Interpretation of The Quran and Sunnah An important issue in Usul-al-Fiqh is how to interpret the basic sources of Islam. There is no real distinction between Mufassa r and Muhkam in terms of clarity. there is more difference among jurists on this part of law). However. Zahir (manifest) is a word which has a clear meaning and yet open to Tawil. Z ahiri scholars do not normally accept interpretation. As such a person who wants to interpret the Quran and the Sunnah at any level (in depth or otherwise) would require the knowledge of Arabic languag e .4. which one is liable to 11 . It should be noted that Tawil (interpretation) and Tafsir (exp lanation) is not the same thing. However. Mufassar and Muhkam. the Quran and the Sunnah.e. However. (Here is the difference betwe en these words and Zahir and Nass). Mufassar (unequivocal) and Muhkam (perspicuous) are words whose meaning is absolutely cle ar and there is no need to take recourse to Tawil. this is not considered in tegral part of the law (the status of this part of law is less than the first on e. The distinction between Zahir and Nass is whether the meaning is in harmony with the context or whether the meaning is pri mary or secondary in the text concerned. Tafsir aims at explaining the meaning of the gi ven text and deducing a Hukum (rule) from it within the confines of its sentence s. Nass. interpre tation can be very far-fetched which is not accepted by a majority of scholar. They are Zahir. general (Amm) and liter al (Hakiki) meaning unless departure to alternative is justified. but still open to Tawil. this position is weak and impractical. This woul d require understanding the Quran and the Sunnah i. the jurists have made a distinction b etween Muhkam and Mufassar. The obvious meaning of Zahir and Nass s hould be followed unless there is reason to warrant recourse to Tawil. For this reason Ulama of Usul include the classification of words and unders tanding their meaning in the study of Usul-al-Fiqh. Interpretation is not normal ly attempted if the text itself is self-evident. according to a major classi fication. A ll words are presumed to convey their absolute (Mutlaq). which is often based on speculative reasoning and Ijtihad. Tawil (interpretation) goes beyond the literal meaning of the text and bring out hidden meaning. primarily because the meaning i s not in harmony with the context. if Tafsir or Tawil take the nature of opinion or Ijtihad. Nass is a clear word that is in harmony with the context. Clear words are of four types. the greater part of Fi qh or law is derived through interpretation because most of the legal texts are not self-evident. If the explana tion or Tawil of one part of the Quran and the Sunnah is provided in another par t of the Quran and Sunnah. it is called Tafsir Tashrii (explanation found in the Quran and the Sunnah) that is considered integral part of the law. their text and meaning of their texts.

Mutashabihat do not occur in the legal texts. Kaffah (all). So Ijtihad and Tawil would be required in determing the correct position in the context (there may be difference of opinion in this area). the noun becomes Amm. For instance the words such as Salat Hajj. Mushkil (difficult) is a word which has several meani ngs. Some scholars hold there is no Mutashabihat except Haruful Muqattaat.abrogation and which one is not. This has important implication because if pickpocket is not includ ed (as the majority holds) then. Mujm al denotes a word or text which is inherently unclear and gives no indication as to its precise meaning. Insan (human being) 'whoever' (in a conditional speech) are example of Amm. Kull (all. Riba and Siam. Unclear words (Al Alfaz Ghairal Wadiha) are of four types . Khafi is a word whose meaning is partly un clear. he would not be liable to Hadd (that is. Amm is basically a word which has a single meaning and which applies to many th ings. Nobody knows their meaning ( please see various opinions regarding the use of these words in the text books o n Usul). the word becomes Amm. Appendix). Mushkil (difficult). The Arabic expre ssions Jami (all). From the point of view of scope. However it has been ex plained by the Quran itself and has become clear. whereas Khafi has a clear basic meaning. Mutashabih (Intricate) is a word whose meaning is a mystery. there is not much purpose in the di stinction because nothing can be abrogated now. However. Mujmal turns into Mushkil which is open to Ijtiha d and Tawil. Kamali in his Principles of Islamic Jurisprudence). words are classified into Amm (General) and Khass (specific). not limited in number. They have lost their literal meani ng and taken a technical meaning given by the lawgiver. punishment giv en by judges in the past). W hen the article Al (the) precedes a noun. these words hav e become totally clear or Mufassar due to explanations provided in the Sunnah. and it includes everything to which it is applicabl e.Khafi (obscure). Mushkil is inher ently an ambiguous word. They hold Muhkam is not liable to abrogation an d Mufassar is liable to abrogation. Many scholars hold that passages of the Quran which draw resemblance be tween man and God are Mutashabihat. punish ment prescribed in the Quran or Sunnah) but will be liable to Tazir (punishment prescribed by the legislative authority in the present day world. An indefinite word 12 . entire) when precede or succeed a wo rd. Mujmal (ambiva lent) and Mutashabih (the Intricate). T he word Al-qariah in the verses 101:1-5 is a mujmal word. (Please see the Tafsir â the Message of the Quran by Muhammad Asad. . Harful Muqattaat (such as Alif Lam Mim) are Mutashabihat. It may have several meanings or it may be unfamiliar wo rd or the lawgiver may not have explained the word to clarify it. For instance the word Sariq (thief) is unclear as to whether it includes a pickpocket. A text may bec ome Mushkil in the existence of conflicting text (see the conflict in verse 4:79 and 3:154 cited by Dr. However. If the explanation provided by the lawgiver is insufficient.

Amm is also Qati. Imran. (ref. According to majori ty. priority is given to the latter. Dina. For instance. Khass is Qati (Amm is not). When a command is issued by Amm words. Asbab an Nazul (causes of revelation of verses of the Qu ran) will not limit the application of law based on the verse to the cause only. Amm will be partially specified if Khass is of later origin. Amm will be specified by Khass. an Amm (general) proposition may be specified by a dependent cla use which may occur in the same text (same verse or in another text (another ver se). The Al-Quran . 5 : 6). i. ref. no harm shall be accepted). one Amm and one Khass (in the Quran or the Sunnah).4 : 92. as such it will prevail over Amm. The cause (Sabab) of general ruling can not limit the application of th e ruling. An Amm which has been specified elsewhere [ see Baqarah : 228 and Ahzab : 49 together. Khass will prevai l over the Amm. According to the majority Amm is specula tive as a whole. a Shart (condition. Minority holds that Khass specifies the Amm. 2 : 185). two. 4 : 12) or Sifah (quality. In determining the scope of Amm. Ulama have differed on Amm. a horse. There is general agreement that Khass is Qati (definitive). Amm can be of 3 types â a) b) c) Absolutely gen eral [ref. according to the majority. The words "ma min dabbatin" in Hud 11:6] Amm which is meant to imply Khas [Al Imran : 97]. reference is made not only to the rules of the language but also to the usage of the people. Even after partial specification Amm remains l egal authority for unspecified portion. ref. The effect of Amm is that it r emains in force unless specified. it's meanin g and application are beyond doubt clear. minority holds it to be Qa ti. Jannah. see also usul text books for other examples and exp lanations]. whether it is Qati or Zanni. 4 : 23) or by indic ating extent of application (ghayah. The majority holds it to be Zanni. if the t wo rulings are chronologically parallel.(al-Nakirah) when used to convey the negative becomes Amm. The result of this disagreement becomes clear in the event of conflict betwe en Khass and Amm. it shall be applicable to all it applies. ref. 13 . Kha ss is a word which is applied to a limited number of things but applies to every thing to which it can be applied. According to m inority. Accordi ng to majority. The word "man" (in Arabic meaning he who) is Khass in application but when used in conditional speech it becomes Amm. and in case of confli ct. The words one.2 : 28 2). and as such. In the case of two rulings on the same point. Khass will be abrogated if Amm is of la ter origin. one hundred. For instance the Hadi th 'la darar wa la dirar fil Islam (no harm shall be inflicted. whether before or after Takhsis (limitation) and as such open t o Tawil. a human being are Khass. This may be done by introducing an Istisna (an exception reference .e. Legal rules or commands conveye d in specific terms are definite in application and are not normally open to Taw il. Bobby.

the Quran say s in 40 : 13 that "Allah sends down sustenance from the heavens which in fact me ans rain" (other examples. For instance. If the metaphorical (Majazi) meaning b ecomes dominant. Most of the Q uran is Haqiqi. the use of the word 'Itaaddi' (start counting). if they differ in their ruling and caus e. neither will be qualified. Kinayah (allusi ve) is a form of speech which does not disclose the intention of the speaker. When we say a book'. custo mary and juridical (please see the textbook).Mutlaq and Muqayyid Mutlaq denotes a word which is neither qualified nor limited in its application. When Mutlaq word is qualified by an other word or words. For instan ce. Mutlaq remains absolute in application unless there i s a limitation to qualify it When Mutlaq is qualified into Muqayyad. An example of Mutlaq is "Fa tahriru rakabatin" (freeing a slave) in Sura Al-Maida (5 : 92). Early Hanafi scholars think that if Mutlaq and Muqayyad differ in their causes. 'a red book'. it will prevail over the literal. A Mushtarak is a word which has more than one meaning. one Mutlaq and the other Muqayyad. Haqiqi and Majazi have been subdiv ided into "Sarih" and "Kinayah". see textbook). Mutlaq is unspecified and unqualified. An example of Muqayyad is "freeing of a believing sl ave in Sura Nisa (4 : 92). it becomes Muqayyad. If there are two texts on the i ssue. gold and spy. one does not qualify the other. the latter will get priority (see Quran 5 : 3 and 6 : 145). For instance. Mutlaq and Muqayyad deal with essentia lly qualification (though Mutlaq has resemblance to Amm and Muqayyad has resembl ance to Khass). 'Ayn' in Arabic is a Mushtarak which may mean eye. He says that if the two texts vary in ruling but has the same cause. particularly in law. Sarih (plain) is a word where the meaning is pl ain. the Mutlaq will be qualified by the Muqayyad (see verses 5 : 7 a nd 4 : 43 of the Quran). Imam Shafii differs some what. Plurality of meaning of Mushtarak may be because of usage or acquisition of metaphorical 14 . it applies to any book without restric tion. Divorce is not clearly indic ated. yo u require further explanation from the speaker to know the intention. For instance the literal mean ing of "talaq" (that is release or removal of restriction) has been abandoned fo r metaphorical meaning of divorce. Haqiqi (literal) and Ma jazi (metaphorical) Words are normally used in their Haqiqi (literal) sense. both will operate. Haqiqi has sub-divisions of linguistic. water-spring. This is the majority view. But Majazi also occurs in the Quran. Lit eral will normally prevail over metaphorical. You need not ask the speaker or writer to know the meaning. Whereas Am m and Khass deal with scope of the words.

15 .meaning over time. The Mushtarak is in the nature of Mushkil and it is for the expert (Mujta hid) to determine the correct meaning in the context (Mujtahids may differ in th is . This is a meaning derived from the spirit and rationale of a legal text even if it is not indicate d in the text. Thir d method of deduction is Dalalah Al Nass ( inferred meaning). Forth method of deduction or level of meaning is Iqtida Al Nass (required meaning) that is a me aning on which the text is silent. This is an indicative meaning or alluded meaning pres ent in the text. For instance in verse 4: 22.Dalalah Al Mantuq (pronounced meaning) and Dalala h Al Mafhum (implied meaning). limiting polygamy is a conclusion derived by Iba rah an Nass from the verse 4:3). Shart (condition) and G hayah (extent). Ibarah Al Nass conveys a Hukm Qati (d efinitive ruling) on its own and does not require corroborative evidence. we can not use any abusive language. Shafiis do not accept Mafhum al Mukhtalifa unless th ey fulfil six conditions (see Kamali for explanation and examples). Dalalah Al Mantuq has been divided into Dalalah A l Iqtida (required meaning) and Dalalah as Isharah (alluded meaning). There is not much difference in essence between the two. if there are subsid iary themes also. the first level (Ibarah Al Nass) will take precedence over se cond level (Isharah Al Nass) and so on. Second level is Isharah Al Nass. it must be assumed that prohibition of marria ge of mother or daughter means who are mothers or daughters through marriage. Dalalah Al Mafhum (implied meaning) has been subdivided into Mafhum al Muwafaqah (harmonio us meaning) and Mafhum Al Mukhtalifa (divergent meaning or meaning not in accord with the purpose of text). (For example.this happens always with Ijtihad). The Hanaf i Ulema of Usul have distinguished four levels of meaning . the Hanaf i and Shafii. The Shafiis have classified Texual impli cations into two basic types . It may be noted that in any event marital gift has to be given to wife in terms of verse 4 : 4 of the Quran.First level is Ibara h al Nass (the explicit meaning). For instance from verse 17 : 23. An example of indicative meaning is the verse 2:236 where it is not clearly said that marriage can be contracted without prior fixation of mari tal gift but deeper investigation suggests so. Textual Implications (Al-Dalalah) There are two major analysis regarding levels of meaning of words and texts. Ibarah al Nass is obviously perceptible from t he text and also represents the principal theme of the text. we can infer that not only we ca n not say "Uff" to parents. The rule in regard to commands and prohibitions of the Sharia h is that the lawgiver does not intend to hold more than one meaning of the Mush tarak. They have al so imposed restrictions in regards to Sifah (attribute). Most of the Nasus (legal texts) of Shariah conv ey their rulings by way of Ibarah Al Nass. yet it must be assumed to fulfil proper objec tive. In case of conflict.

Quran 17:18). then it must be complied whenever it (condit ion) occurs (Ref. Quran 5:2 and 62: 10). They do not accept it at all in the case of interpretation of the Quran and the Sunnah. command implies obligation unless there are clues to suggest otherwi se. not obligation (ref. Clearly. use of a simple past tense in Arabic m ay also indicate command to do something [Sura Baqarah : 178]. Command (Amr) may sometimes mean permissibility. Command (also prohibition) may occur in a variety of form. For instance when the Q uran says. Similar examples can be seen in verse 5:2 (wa idh a halaltum Fastadu) and 62:10 (Fantashiru fil Ard). When a command is dependent on a cause or attr ibute. Some have held it implies only obligation or recommendation (Nadb). Baqara : 286). A command in a few cases may indica te threat. 7 : 31). In some cases. it must be fulfilled whenever the cause is present (Ref. The Quran 5:7).4 : 13-14). Some have held that Amr (i. Command. A Quranic injunct ion may occur in a form of moral condemnation (AlBaqara : 189). An imp ortant question is : What is primary in command.Hanafi scholars are more opposed to Mafhum Al Mukhtalifa. the maj ority opinion is more rational and justified (that obligation unless proved othe rwise). i. S ome others have held that Amr means permission to do something. When a comm and is issued in conditional terms. in the absence of indications for repeated compliance. According to th e majority. advise to desist from doing a particular thing (ref. According to majority .ref. a recommendat ion or simple permissibility? (as 'command' may mean all these). Howe ver command (Amr) mostly means obligation (Farz or Wazib. 16 . A command may convey a recom mendation in some cases (Sura Baqara : 282). depending on whether t he text and meaning both are Qati or not. a single instance of compliance of the command is a n obligation.) Majority of Ulama hold a command foll owing a prohibition means permissibility. A command may imply supplication or prayer also (Ref. Prohibitions and Naskh Commands and Prohibitions A command (Amr) is defined as a verbal demand to do something from a position of superiority to an inferior. They do not accept any meaning which is not in accord with the text or its spirit.e. command) is in the nature of Mushtarak or whic h impart all (obligation.e. 5. Quranic command may be conveyed as a promise of reward or punishment (Quran . is it obligation. 24:33 and 1 7:64). Command is mostly in imperative mood. recommendation and permission) until determined what i s primary. the context suggests t hat it is mere permissibility. "Kulu Washrabu" (eat and drink .

it is Batil (void) according to Shaffi's and Fasid according to Hanafii's. As regards whether the command implies the prohibition (Nahy) of the opposite. If the command does not itself specify time limit (such as the t imes of prayers). Naskh ( Abrogation) Naskh literally means obliteration. Nahy which implies reprehen sion may be seen in Quran 5 : 87. the majority thinks so. it will be applic able where the condition is present (Ref. The Fasi d here is equaivalent to Batil. Explicit (Sarih) injunctions (w hether Amr or Nahy) require total compliance. Prohibition (Nahy) i s the opposite of command. If the prohibition is conditional. Naskh has been defined as the su spension or replacement of one Shariah ruling by another. can be understood by scholars and they may differ therein. Nahy which conveys moral guidance may be seen in Quran 5 : 104. (iii) there is genuine confl ict which can not be reconciled. it may be delayed. whenever the prohibition is applicable. (i) two evidences are of equal s trength. (ii) they are present in 2 separate texts. 17 . The position is different about Ibadat (devotional matters). not Fasid i n the area. If the act (other than Ibadat) is not pr ohibited in itself but becomes prohibited because of an extraneous reason. In other words. Quran 60 : 10).As regard immediate or delayed execution of an Amr. The larger portion of Nasus have to be interpreted by Mujtahid or sc holars in the light of the general principles and objectives of Shariah. it conveys Tahrim (illegality). there is only Batil. it can not be corrected (there are many instances where marriage becomes Fasi d according to some scholars and Batil according to other scholars .see a book on marriage or on business in Isl amic Law). 22 : 30).so is the c ase of many business transactions . Prohibition requires immediate and repeated compliance. if there is no other indication to think otherwise. When a prohibition suc ceeds a command. Implicit injunctions. Naskh operates only in law. The means which lead to o bservance of command or prohibition are covered by the same ruling which applies to commands and prohibitions. Naskh operates only when. It is a demand to avoid doing of something. the spirit of the Law sho uld also be kept in view. and (iv) the two texts are of two timeframe (on e is later to the other). Prohibiti on may occur in the form of a statement (ref. it depends on the text and i ts indications. Quran 2 : 221) or in the form of a n order not to do something (62 : 9. not in beliefs. not only letters (as for instance in "Fasawila zikrill ah" in Quran 62 : 9). unless made explicit elsewhere. Nahy may convey Tahrim (total pro hibition) or guidance (irshad) or reprimand (tadib). Batil mean s. Only a small portion of Nasus (texts) gives preci se meaning. However. Majority hold that Nahy primarily implies Tahrim.

Ano ther issue is whether addition (Tazid) amounts to abrogation. In Naskh al Hukm wal Tilwah.There are scholars who do not agree that there is abrogation in the Quran (Ref: Principles of Islamic Jurisprudence by Dr. why Naskh al Qiraah is not acce ined in his "Rasail wa Masailâ ptable? There is difference between Naskh (abrogation) and Takhsis (specificatio n or qualification of a general text). Naskh al Hukm means that ruling ha s been abrogated but the text remains. (iii) Sunnah by Quran. Chapter on Naskh). According to majority. On the whole. Ijma is conside red the third proof of Shariah after the Quran and the Sunnah. (iv) Sunnah b y Sunnah. Abrogation may be explicit (sarih) or implicit (dimni). According to Imam Shafii. Abdul Hamid Abu Suleman feels that it was wrong on the part of earlier Ulama to turn N askh into a doctrine of permanent validity instead of understanding it as the ci rcumstance of history. Nakh al Hukm has some basis but the other two have very weak basis. Hashim Kamali. According to the majority. There is no real conflict in Takhsis. both the text and rulings are treated as abrogated. There is also another classification : (i) Naskh al Hukm. As a proof of Sha riah. Muhammad A sad has also mentioned in his Tafsir that there is no Naskh in the Quran. Islamic Theory of International Relations. Qiyas can not repeal a text of the Quran or the Sunnah. They also say that the 'so-called' conflict in the Quran can all be reconciled. reference of "Ayah" is not to abrogatio n within the Quran but abrogation of earlier scriptures by the Quran. Ijma can not abrogate a ruling of the Quran and the Sunnah. and (iii) Naskh al Hukm Wal Tilwah. there are two types of Naskh . which is correct. The y say that in Ayat 2 : 106 and 16 : 106. IJMA (Consensus Of Opinion) Ijma is the verbal noun of the Arabic word Ajma'a which has two meanings : to determine. (ii) Naskh a l Qiraah. becomes Ijma. Sayyid Abul Ala Maududi has expla (Letters and Issues). Of the above three. The majority answe r is negative. Abu Sule man deserves serious consideration. it is basically a rational proof. Abu Suleman suggests that Naskh's application should be limited t o clear cases only such as change of Qiblah. According to majority there are 4 types of Naskh : (i) Quran by Quran. to agree upon something. there is Naskh in the Quran and the Sunnah. 18 .(a) Naskh of Quran by Quran and (b) Naskh of Sunnah by Sunnah. An Ijtihad or an Interpretation of one o r a few scholars when becomes universal. I think the views of Dr. a IIIT's publication). (Ref. (ii) Quran by Sunnah. 6. Naskh al Qiraah means that the text has b een abolished but the ruling remains.

It is for this reason that Im am Shafii confines the occurrence of Ijma to the obligatory duties only. it must fulfill the conditions stated i n the Ahadith quoted in support of Ijma (which is nothing short of Ijma of all p eople. as long as the school or group itself is not considered ou tside Islam by the Muslims. Dr. For the same reason. Ahmed Hassan observe s that these hadith are inconclusive on Ijma (Ref: Prof. particularly in the case of issues open to Ijtihad or tawil. at least all scholars. Abdul Wahab Khallaf is of the view that Ijma of classical definition is no longer possible in modern times (because of huge number of scholars spread ov er 19 . Abduh does not find any Ijma in these Ayat.The classical definition of Ijma. Ijma initially helped unity of the Ummah the in some matters. Unanimity of Ulama on an issue of a particular time is a requirement of Ijma. The agreement must be expressed by clear opinion of all scholars of the time. As evidence show. 4:115. Imam Gazali says these Ayats are indications. However universal Ijma are indeed very few. Cambr idge. as laid down by Ulama of Usul. "these give rise to probability (Zann). Majority of Ulama of Usul think that Ijma can take place on Sharii and devotional (Ibadah) and dogmatic (Itiqad) matters. About 10 Ahadith are quoted in support of Ijma. Principles of Islamic Jurisprudence. Only such Ijma are considered b inding by early Usuliun (Usul scholars). U.) There is no good ground to exclude any scholar of any school of Islam. Islamic Texts Society. Ahmad Hasan: The Doctri ne of Ijma in Islam).) are not conclusive for Ijma. Al Amidi says. it is extremely difficult to prove Ijma on particular iss ues. 4:83. Ijma also ens ures correct interpretation as broad consensus is unlikely to take place on inco rrect matter. I jma must consist of the agreement of all majtahidun. A number of Ulama (including Shafii and Mutazila scholars) have said that Ijma of classical definition is not feasible because of the huge number of the Ummah or its scholars or distances. etc. not positive knowledge". The Ayats q uoted in support of Ijma (4:59. Though many Ulama consider majority to consist Ijma. There is no au thentication of Ijma through Isnad (chains of narrators). Ijma also enhances the authority of the rule on which there is Ijm a. not clear Nass on Ijma.K). The Ulama have on the whole maintained that the text ual evidence in support of Ijma does not amount to conclusive proof. Suyuti's i nterpretation is the same. For the first time Ijma occurred among the companions of the Prophet ( SM). The only form of Ijma upheld by majority is the Ijma of Sahabis only.(Ref. Hashim Kamali. Zahiris and Imam Ahmad refer by Ijma to the consensus of companion s only. Any agreement of majority can be a proof but can not b e a binding proof because to be binding. is categorical on the point that the universal consensus of the scholars of the Muslim communit y as a whole can be regarded as conclusive Ijma.

Ijma are of two types . Maslaha are more important in future. 7. The emphasis of Qiyas is identification of a common cause between the ori ginal and new case. Old style Ijma is no longer possible.which then remains valid until revoked). There are 3 views on whether Qiyas can be a basis of Ijma or not . Khallaf is right.Ijma al Sarih (e xplicit Ijma) and Ijma al Sukuti (Ijma by silence). Qiyas is a methodology developed by jurists through which rulings in new areas are kept close to the Quran and Sunah because new rulings are based on the Illah (causes) discovered in the legislation of the Quran and Sunnah. However. I n the language of Usul. QIYAS (Analogical Deduction) Literally Qiyas m eans measuring or ascertaining the length. Some agree. According to the majority Ijma must be founded in a Textual authority (Quran and Sunnah). Jurists do not consider law derived through Qiyas as a new l aw. such I jma can not be of universal validity nor can it be considered binding (unless ma de into a local law . Ijma can be tran smitted by Ahad or Mutawatir report of scholars. His ideas require acceptance. Qiyas also means comparison to establish equality or similarity between two things. Istihsan. In conclusion we can say that Ijma can be of limited use only in future. for all practical purposes . some partially agree (Dr. weight or quality of something. but in Qiyas personal opinion (Ra 'y) is kept subservient to divine revelation (in that Illah is discovered from t he text of the Quran and the Sunnah). Hashim Kamali. which is only possible form of Ijm a in modern times. Qiyas is the extention of a Shariah ruling from an origi nal case (Asl) to a new case (Far') because the new case has the same effective cause (Illah) as the original case. Qiyas is a rationalist doctrine (because int ellect is largely used to find out the Illah). Principles of Islamic Jurisprudence). if Qiyas was not applied. There is no Mutawatir report of Ijma except those of Ijma of companions. Qiyas leads to new ruling on a differe nt matter. Iqbal gives a proposal to transfer per formance of Ijma to the legislative assembly. which is useful in lawmaking through Parliament but they can not be (by definition) binding forever. The original case is regulated by a text of the Quran or the Sunnah and Qiyas seeks to extend the original ruling to the new case. However.continents). Ijma Sukuti (which occurs wh en one or a few scholars agree on something and no dissent is known) is not a pr oof according to a majority of scholars. This is a major j ustification for validity of Qiyas. Qiyas 20 . Qiyas. Rulin gs on new areas could diverge a lot. You can hav e only local Ijma. some disagree. Iqbal is right. Qiyas does not change any law of the text (Quran or Sunnah) for expediency.

However. Qiyas does not give rise to certainty. Qiyas is operative or extendable in Hadud (prescribed penalties). according to majority. b) Sharii ruling must not be an abrogated one. Illah (cause of ruling in the original case) and Far' (new c ase on which ruling is to be given). The essential requirement of Qiyas are Asl (original case. According to majority. Hukm (rulin g on the original). such as the prohibiti on of marriage of widows of the Prophet (SM) with others). The effective cause (Ill ah) must be : a) Munasib ( a methodology means that the jurists accept that the rules of Shariah follow certain objectives (Maqasid) which are in harmony with reason. Zahiris (a group of literalist scholars) do not accept Qiyas. New case on which ruling is to be given (Far') must not be covered by Nasus (texts). One condition of Asl (the subject matter of original ruling) is that the Quran a nd Sunnah are the source the Asl (many scholars do not consider Ijma to be basis of Asl). c) The Hukm must be amenabl e to understanding through human intellect. as is the case with almost all Ijtihadi law. Some hold different view with regard to Tadiyah (tranferability). Hukm must not be limited to exceptio nal situations (in that case it can not be basis of Qiyas. one Qiyas can not form Asl of another Qiyas. La w derived through Qiyas can not be of same authority as that of textual ruling ( of Quran or Sunnah). The 21 . Maliki jurist Ibn Rushd thinks a Qiyas can be basis for another Qiyas. Conditions pertaining to Hukm (a ruling in the original case) are : a) It must be a practical Sharii ruling (Qiyas does not operate in the area of bel ief). In the case of prohibition of wine drinking (Maida : 90) if it is to be extended to narcotic drugs. There can be difference of opinion on the law derived throu gh Qiyas. on which a ruling has been given). Qiyas m a'al tariq (analogy with discrepancy) is not permitted. Illah must be muta'addi (that is transferable to other cases). majority is right on this point. Mo dern jurists Abu Zahrah and Muhammad Al Zarka agree. Ho wever. Qiyas is therefore speculative. Minority seems to be right as long as it does not contradict Nusus (clear texts or rulings) of the Quran an d Sunnah. according to Mujtahid or scholar of Fiqh) b) I t must be a constant attribute (mundabit) c) It must be evident According to maj ority. Asl Wine drinking Far' Taking na rcotic drugs Illah In toxicating Effects Hukm Prohibition. The requirement of anal ogy would be fulfilled in the following manner.

Illah has become popular in usage. They also say Quran 49:1 is against Qiyas. Arguments against Qiyas have been put forward by mainly Zahiri school.adna. They contend that Quran 6:89 ('we have neglected nothin g in the Quran') is against Qiyas.not by 22 . 4:34). 2:79 a nd 59:7. In Qiyas-al-musawi (analogy of equals). This is done b y a 2-stage process. [Ref. However. see also discussion under "Talil" in the Chapter on Quran). li ( for). All these are very weak arguments and most of Ummah could not accept them. Hanafis say that Qiyas is applicable to "Tazir" penalties (penalties which have been laid down by Parliame nt/Courts . Qiyas is based on Illah which is based on conjecture. also indicate Illah in many cases (Ref. inna. Arabic expression such as Kay-la (so as not to). I llah is present in Asl and Far' equally (Ref. Majority hold that Qiyas is applicable in Hadud (prescribed penalties). Illah in Far' is present less clearly than the original cas e (Asl). li ajli (because of ).4: 2 ). The word "Sabab" (cause) is also used as a substitute for Illah. One classification of Qiyas is (a) Qiyasal-awla. They also say. When the I llah is not clearly stated in the nass. This process is called tanqih al m anat (isolating the Illah). Sunnah also supports Qiyas in that Ijtihad has been referred to in Sunn ah and Qiyas is the most important method of Ijtihad (see Dr.manat is another word for Illah). Qi yas is accepted by majority including 4(four) Sunni schools and Zaydi Shias. The distinction is not s ubstantive or even clear. some scholars make distinction between the two. The starting point is "Takhrij al manat" (extracting Illah . fa (so). Now Illah for a ruling may appear to be a fe w instead of one. bi (because).effective cause must not run counter to Nasus. it is the duty of the Mujtahid to find o ut the Illah (reason) for the ruling of the text through Ijtihad. (b) Qiyas-al-musawi and (c) Qiyas-al. 17:23]. This Qiyas also is accepted by Usulian. Hashim Kamaliâ s book P rinciples of Islamic Jurisprudence on Proof of Qiyas. H owever. The effective cause may be clearl y stated in the nass (text) but such cases are not many (Ref. (whether analogy can be extended to pick-pocket from thief or whether her bal drink has the same Illah as wine). In Qiyas-al-adna (a nalogy of inferior). Pro ofs of Qiyas are in verse 59:2 of the Quran. 5:38. Tahqiq al manat consists of investigation of the pre sence or otherwise of Illah in the new case (far') where the ruling is to be ext ended. Qiyas al-awla (superior Qiy as) means where the effective cause is nore evident in the new case (far') than the original case (asl). Quran. In that case the Mujtahid proceeds to eliminate the improper I llah and find out the proper (munasib) Illah. anna. 59: 7). indications in verses 4:105. There is another classification of Qiyas into Qiyas jali (obvious analogy) and Qiyas Khafi (hidden analogy). Quran : 4:43 .

Majority position is correct in this respect according to Dr. REVEALED LAWS PRIOR TO SHARIAH OF ISLAM & FATWA OF SAHABA Revealed Laws Prior to Shariah of Islam Islam believes that all truly divine laws emanate from Almi ghty Allah (Ref. F or instance. along with Istihsan and Maslaha. 6 : 146) Muslims can not follow previous Shariah in t hese respects. Qiyas is r edundant where Nass is there. Quran . if Qiyas is supp orted by other strong evidence. according to majority. Su ch rulings of the previous Shariah are parts of Islamic Shariah Secondly. 8. (for instance Maida. For instance. some restrictions on food on the Jews have been withdrawn from the Muslims in the Quran (Ref. fasting was prescribed on th e earlier nations and has also been prescribed for Muslims (Baqarah . Hashim Kamali. Some Ulama hold that Qiyas can take priority over Ahad hadith. The rules of Shari ah should not be sought in other religion because the rules of other religions d o not constitute binding proof for the Muslims. the Qu ran (or Sunnah) may refer to a ruling of previous Shariah and may abrogate it. (b) (c) 23 . Minority does not accept this position. The Quran refers to the previous Shariah in three forms : (a) The Quran may refer to the previous Shariah and ma ke it also obligatory on the Muslims. Majority of Jurists consider these to be part of Shariah of Islam which s hould be followed.Quran and Sunnah specifically) but not to Hadud (punishments prescribed in the Q uran and the Sunnah).2:183). Qiyas will continue to be a major instrument of Ijtihad in future.42:13) The Quran contains that the Torah was a source o f guidance (Maida 5:44). 5:48). The question is what it means in terms of source of law after the revelation of the Quran.5:35. the Quran may mention a ruling of the previous Shariah w ithout mentioning whether it is upheld or abrogated. The general rule to be stated is that laws r evealed before Islam are not applicable to the Muslims (except as mentioned here under) The Ahkam (laws) of Islam (Shariah) is self-contained. Hanafi opinion in this regard is more cautious. Thirdly. Some hold that Qiyas (which is speculative) can specify or qualify speculative of the Quran and the Sunnah.

Both points of vi ew have justifications and can not be ignored. is a Sahabi.]. Cambridge. Principles of I slamic Jurisprudence. Imam Gazali and Amidi consider it prefe rred view. Imam Shafii and Ahm ad Bin Hanbal also have been quoted in its support.K. Irshad. They also quote Hadith like "my companions are like sta rs" or â Honour my companions". Majority hold that anybody who met the Prophet (SM) while believing. Imam Ahmed (accordi ng to one view of him) and Asharite and Mutazilite scholars hold this view. The proponents of this view quote the Qura nic verses 9:100. Third view is that of Abu Hanifa himself. they being clo se to the Prophet (SM) and because of their direct knowledge from the Prophet (S M). also Dr. To me this is the appropriate view. Th ese are not categorical (Qaati) regarding compulsion to obey their decisions). He says that ruling of a companion is a proof if it is in conflict with Qiyas but not when it agrees with Qiyas. There is some disagreement as to who is a Sahabi. Fatwa of Sahaba means an opinion reached by a Sahaba by way of Ijtihad. it has be en suggested that these references speak of the status and dignity of Sahaba. Against this view. It can be conclud ed that the Fatwa of a companion is a source of guidance which merits careful co nsideration (though not binding except in case of their clear Ijma). Islamic Texts Society. The fact of being Sahabi can be e stablished by continuous testimony (tawatur) or by affirmation of any other comp anion or even by own claim (if the person is upright). S econd view is . U. First view is held by Imam Malik. Hanafi jurist Abul Hasan al Karkhi.Fatwa of Sahaba (companion of the Prophet. As regards whether fatwa of Sahab a constitute a proof on succeeding generations. Hashim Kamali. The aforesaid are the main views. They quote the Quranic Ayat 59 : 2 ("Consider.that Ijtihad of a companion is not a proof and does not bind the succeeding generations. there are three views : First vi ew is that . O You who have vision"). Minority hold that "Suhb at" (continuity of companionship) is a requirement to call a person a Sahabi of the Prophet (SM) [Imam Shawkani. It is argued that the Ayat makes Ijtihad an obligation of all who are competent and makes no distinction between Sahabis and others. 24 . SM) Fatwa (opinion or ruling) of Saha ba is indeed a very important and deserves highest consideration. is an absolute proof. Ther e are some other views which may be seen in the books of Usul.

9. Is tihsan is a method of exercising personal opinion (ray) in order to avoid any ri gidity and unfairness that might result from literal application of law. However equity in western law is based on natural law. They validate Istihsan as more or less similar to Istislah or as a part of Istislah. Cambridge. 'ray' is an important component. verses 34:18 and 39:55 of the Quran have been quoted in support. in effect. Hanafi jurist Abul Hasan al Karkhi defines I stihsan as a principle which authorizes departure from an established precedent in favor of a different ruling for a stronger reason. their ruling s were often based on their understanding of the spirit and purpose of Shariah. Hashim Kamali. Isl amic Texts Society. Here positive law of Islam was suspended as an exceptional measure in an exceptional situation. Kamali says that companions (Sahabi) a nd successors (Tabiun) were not merely literalist. Is tihsan is not independent of Shariah. Istihsan has been validated by Hanafi. (Dr. Istihsan i s an important branch of Ijtihad. However. 25 . whereas Istihsan is essentially based on divine law. Principles of Islamic Jurisprudence. Sim ilarly a very famous Hadith : "La darara wa la dirara fil Islam" [no harm shall be inflicted or tolerated in Islam] has been quoted in support. and has played a prominent role in adaptation of Islamic law to the changing needs of society. The Maliki jurists are mor e concerned with Istislah (consideration of public interest) than Istihsan. Hashim Kamali gives a new example. Oral testimony was the standard form of e vidence in Islamic law. A major jurist Al-Sarakhsi considers Istihsan as a method of seeking facility and ease in legal injunctions and is in accord with the Quran (2:185). On the contrary. Imam Shafii. ISTIHSAN AND MASLAHA Istihsan literally means to deem something preferable. However. Both in Qiyas a nd Istihsan. it is integral part of Shariah. Here is a case of Istihsan by which method we can prefer these means of proofs over oral testi mony in many cases. Shii and Zahiri Ulama have reje cted it as a method of deduction. Istihsa n as a concept is close to equity in western law. Istihsan is clos ely related to 'ray' (opinion) and Qiyas (analogical deduction). However. Maliki and Hanbali jurists. more heavily in case of Istihsan. Dr. majority have accepted Ist ihsan. It has been mentioned that decision of Umar Bin Khattab to suspend "hadd" penalty (penalty prescribed by the Quran and Sunnah) of amputation of hand duri ng famine is an example of Istihsan. There is no Qati (definitive) authority for Istihsan in the Quran and the Sunna h. now in some cases photography. UK). sound recording and laboratory analysis have become more reliable means of proof. In its juristic sense.

such as the following : (a) "No harm shall be inflicted or tolerated in Islam". Protection of life. Maslahah Mursalah Maslahah literally means benefit or interest. these verses are not categorical on the issue of Istihsan. (b) "Th e Prophet (SM) only chose the easier of two alternatives so long as it did not a mount to a sin". just as He loves to see that His strict laws (azaim) are observed". approved custom. Al Ghazali thinks Maslahah consists of considerations which secure a benefit or prevent a h arm. On the basis of Maslahah. the companions decided to issue currency. religion. Ahlal Hadith m ostly avoided using 'ray'.Sahabis were careful not to apply 'ray' at the expense of Sunnah. Progress of Islamic law largely depends in the modern times on this source. Many hold that one kind of Istihsan is essentially Qiyas Khafi (Hidden analogy). Al-Shafii has criticiz ed Istihsan on the basis of Quranic verses 4:59 and 75:36. The maj ority of Ulama maintain that Istislah is a proper ground for legislation. There is support for Maslahah in the Quran in Sura Younus (10:7). The Ulama of Usul are in agr eement that Istislah is not a proof in respect of devotional matters (Ibadah) an d in respect of specific Shariah injunctions like shares of inheritance. However. AlShat ibi points out that this is the purpose of Quranic Ayat No. Maslahah Mursalah is synonymous with Istislah which is also called Maslahah Mutlaqah. to establish prisons and impose Kharaj (agricultural land tax). Modern jurists have stated that the essential validity of Istihsan is undeniab le. in Sura Hajj (22:78) and in Su ra Al-Maidah (5:6). (c) "Allah loves to see that His concessions (rukksah) are obse rved. 107 of sura Al Anbiy a that "We have not sent you but as a mercy for all creatures". intellect. 26 . When qualified a s Maslahah Mursalah it refers to unrestricted public interest. Most Fuqaha on the other hand liberally used 'ray' in deducing law and they came to be known as "Ahlur Ray". Al-Amidi ( a Shafii jurist) has stated that Al-Shafii also resorted to Istihsan . They think that Istihsa n is a departure from Qiyas Jali (obvious analogy) to Qiyas Khafi. The Ulama have quoted a number of Hadith in support. darurah (necessity) or Maslaha (public interest). The ab ove would confirm that no unnecessary rigour is recommended in the enforcement o f Ahkam and that the Muslims should avail of the flexibility and concessions of Shariah. Al-Ghazali has criticised Istihsa n but stated that Shafii's recognize Istihsan based on the Quran and the Sunnah. lineage and property is Maslahah. There is anot her form of Istihsan in which exception is made to the general rule for the sake of equity and justice on the basis of some 'nass' (textual evidence).

Islamic Texts Society. Abu Bakr (RA) compile d the Quran.Istihsan and Istislah.All the Khulafa-I-Rashidun acted in pursuance of Maslahah. However. To meet the new situations in the changing world. In his book "Masalih al Mursalah". Usman (RA) distributed the authenticated copy of the Quran and destroyed the c opies of variant texts.(Ref: Islamic Jurisprudence: Dr.) 27 .that is it secures Maslaha h for all. (b) (c) To validate Maslahah the following conditions have to be met : a) Maslahah must be genuine. (b) Maslahah must be general (Kulliyah) .(a ) essentials [daruriyyat]. Maslahah has been further sub-divided i nto the following : (a) Al-Maslahah al-Mutabarah [accredited Maslahah] which has been upheld in the Shariah such as defending the right of ownership by penalizi ng the thief.. Law is expa nded by Qiyas or Istihsan on the basis of Illah of Nasus. Al Tufi maintains that except for Ibadah (devotional matters) or s pecific Shariah injunctions. this view is not held by majority. . Cambridge. Maslahah has been upheld by the majority of Ulama. U. Masalih (plural of Maslahah) should take precedence over other proofs. But when law can not b e made on the basis of Nasus or through Qiyas and Istihsan. strong support for it comes from Imam Malik.K. But they are a minority and their arguments are not very solid. law is made on the b asis of Maslahah or public interest. Ali (RA) held the craftsmen and traders responsible for the loss of goods that were placed in their custody. As regards relat ion among Qiyas. Umar (RA) held his officials responsible for abuse of public office . A group of scholars have seriously disagree d with Maslahah. Ma slahah has been divided into three types by Shatibi and some other scholars . Hashim Kamal may be stated that Qiyas and Istih san are essentially based on Illah in the Nasus (hidden or obvious). Maslahah Mulgha which has been nullified either explicitly or by indications in Shariah. Maslahah Mursalah is that which has neither been upheld nor nullif ied by the Shariah such as provision in law in many Muslim countries for documen tary evidence to prove marriage or ownership of property. Maslalah is a major instrumen t in the hands of jurists of Islam. From the point of view of availab ility or otherwise of textual authority. (c) it must not be in conflict with clear Nass. (b) the complementary [hajjiyat]and (c) beautificatio ns [tahsiniyaat] (Ref: Shatibi: AlMuwa fiqat). However.

2:233 with regard to maintenance of children). Urf of non-Muslim soci eties must be very carefully examined. Custom must not contravene the terms o f a valid agreement (valid according to Shariah) 28 . This was adopted by Turkish K hilafat in AlMajallah (a major book of codification of law). Urf must be in practice at the time of transact ion. 7:199). ha s in principle approved custom in determination of rules regarding 'halal' and ' haram'.3:110. essence and spirit of Shariah. An example of this is payment of Diat (compensation for murd er) to the family of murdered by "Aqilah" (male kinsmen of the murderer .female relations have no obligatory liability in this regard. However. Urf and Istishab URF (Custom) Urf (custom) is defined in Usul as "recurring practices which are acceptable to people of sound nature. Urf and its derivative 'Maruf' both occur in the Quran. where payment of Diat has been agreed upon. A rule propounded by some Fuqaha (Suyuti and Sarakhsi) is that "what is proven by Urf is alike that proven by Shariah". "Urf" has been used in the sense of custom also in some places in the Quran (Ref. adherence to Allah's injunctions (The Quran .e. Fuqaha also adopted Urf in the determination of the Ahkam of Shariah. this rule is applicable in the case of Urf of the Muslim nations and when the Urf is not i n conflict with the rules. past Urf is no basis. therefore. Customs which were prevalent in Arabia in the lifetime of the Prophet (SM) and which were not over-ruled by the Prophet ( SM) are treated to have received his tacit approval and considered as a part of Sunnah taqririyyah. The Shariah. It is therefore permissible t o depart from them if the custom on which they were founded changes in the cours e of time. i. Howe ver. For seeing the rules o f Qiyas and Diat. however pay. they can. mostly in the sense of "good" (as opposed to " bad or evil"). Custom or Urf must not violate the nass or clear stipulation of the Quran and the Sunnah. Th e rules of Fiqh which are based on juristic opinion (ray) or Ijtihad have often been formulated in the light of prevailing custom. refer to some Islamic law books. (For instance the Pakistani A ct on Qisas and Diat) The following are the conditions of Urf : (a) (b) (c) (d) It must be common and recurrent.10. i f they want).

it may help sometimes in understanding. 29 . So me traditions have also been quoted in support (Ref: Dr. has to some extent reduced the ne ed for Urf. Dr. Urf has been sub-divided into Qawli (verbal) and Fiili (actual). The re are other differences which are not substantial in character. As we have noted earlier. Principl es of Islamic Jurisprudence) but these are also not clear evidence in support. Dr . G-23). interpretat ing. A neutral Urf is preference for particular diet of a particular plac e.There is difference between Urf and Ijma. Hashim Kamaliâ s Principles of Islamic Jurisprudence]. Urf as a so urce of Islamic law is quite sensitive. and implementing Islamic law. Urf is essentially a local or national practice whereas Ijma is an agreement of Ulama across places and countries. rules based on Urf are liable to be change d. neutral and negative. then it must be rejected. ( Ref. : Dr. In this area. An example of positive Urf is generosity or h ospitality. As a result the customary meaning becomes dominant meaning and literal meaning is reduced to the status of an exception. Jamal mentions that if a local custom is negative. [See Dr. we should depend on the vi ews of the majority of senior scholars. Urf Qawli and Urf Fiili are both sub-divided into two furthe r types : a) b) Al-Urf-al amm or practice of all people everywhere (such Urf is almost non-existent). However. Urf has also been classified as Urf al Sahih (valid Urf . It is also noted that the rise of co dified statutory legislation in modern states. Lecture No. but these verses are not Qati in this respect. and 7:199. However. Islamic teaching Course. I will say that Urf is no longer an important proof or sou rce of Islamic law. Hashim Kamali. U rf is not an independent proof on its right. Actual Urf is the prac tice of the people. where n eeded.valid according to the Quran and the Sunnah) and Urf-al-Fasid (disapproved Urf. Jamal Badawi. Al-Urf-al Khass is the practice of a particular country or locality or some places. Verbal Urf consists of agreement of people on the m eaning of words. A negative Urf is a tradition which goes against Islamic law and teaching. Urf has been justified on the basis of Q uranic Ayats 22:78. it can play useful part in interpreting and implementing Islamic law. Jamal Badwai has divided Urf into 3(three) types . not valid according to the Quran and the Sunnah). A very cautions approach should be taken in t his regard. In future also rules based on Urf or Ijtihad will continue to change.positive. In conclusion. This is the Urf with which Usul is mostly concerned.

It has been vali dated by a large member of scholars. though not all. the continuation of a fact would not be proved. 30 . However.Istishab(Presumption) Istishab literary means courtship or companionship. if the contract is of temporary nature (for instance. a husband is liable to pay "Mohr" by virtue of existence of a valid marriage. Hasan Turabi. It can be used in the absence of other proofs (dalil) of Shariah. Is tishab is not a strong ground for deduction of the rules of Shariah. clean water will be c ontinued to be treated as clean water). the famous jurist in his book "Tajdid Al Fiqh Al-Islami" highlight ed the significance of Istishab. Istishab means presumption of existence or non-existence of facts. it willl be presumed to continue. Because of its basis in probability. Ijara or lease). For instance. In its positive sense. This means that the presence of that which is indicated by law or reason is taken for granted. Hence when it comes in conflict with another proof (dalil) the latter takes priority. He thinks that it has the potential of incorpor ating within its scope the concept of natural Justice and approved customs and m ores of society. Isti shab presumes continuation of a fact (marriage or a transfer of ownership) till the contrary is proved. The Ulama of Usul are in general agreeme nt on the first three types of Istishab. a) Some important legal maxims have been founded on Istishab. such as : a) b) Certainty can not be disproved by doubt (Al-Yaqin la Yazul bil Shakk)/ Presumpt ion of original freedom from liability (bara'ah al-dhimmah al-asliyyah). In Usu l-al-Fiqh. For instance when there is a ruling in the law (whether prohibitory or permissive). c) Istishab al-hukm which presumes the continuit y of general rules and principles of law. d) Istishab al-wasf (continuity of attribute) means to presume continuity of an attribute until the contrary is established (for instance. b) Presumption of original presence (Istishab al-wujud al-as li). Istis hab is of four types : Presumption of original absence (Istishab al-adam al-asli ) which means that a fact or rule which had not existed in the past is presumed to be non-existent. Istishab also presumes continuation of negative. There is more disagreement on the fourt h.

Prophet (SM) forbade a creditor to take a gift from debtor (as it could lead to taking of interest).some do not accept it. Hashim Kamali.11. (Ref: D r. Sadd al Dharai is often used when a lawful means is expected to produce an unlawful result. 6:108. also lea d to wrongful killing on suspicion). these must be blocked. Principls of Islamic Jurisprudence). Dharai have been divided into the following four types from the point of view of their probability of lea ding to evil ends: Means which definitely lead to evil. In Usul. Despite the aforesaid. The means must con form to the ends (objectives of Shariah) and ends must prevail over the means. Sadd al Dharai and Hukm Sharii Sadd al Dharai (Blocking the means) Dharai is the plural of Dhariah which signify means. Ulama differ widely on the illegality of such means. Sadd means to block. As such means. Sadd al-Dharai should not be used too much. the Ulama of Usul ar e not in agreement over Sadd alDharai. a) Means which are most likely to lead to evil and rarely leads to b) benefit. I f the means violate the purpose of Shariah. There are examples of Sadd al-Dharai in the Quran (for instance. He(SM) also forbade killing of hypocrites (as it could lead to dissention within community. The concept of Sadd al-Dharai is foun ded on the idea of prevention of evil before it materializes. The purpose ( Maqasid) of Shariah are identifiable from the texts. c) Means which frequen tly lead to evil. Means which rarely lead to evil. Examples of this are selling weapons during war time and selling grapes to a wine-maker. Most Ulama have invalidated such means. if they lead to evil. Authority for S add al-Dharai is also found in Sunnah. they differ only in application. it mea ns blocking the means to evil. Such means are totally f orbidden. these must be rejected. 31 . Abu Zahra is also of the same opinion. Such use would render the "mubah" (lawful) and the Mandub (recommended) unlawful which can not be accepted. H owever. but there is no certainty or even dominant probability. A general principle has bee n adopted by jurists that 'preventing harm takes priority over securing a benefi t'. Some accept it . particular ly in the 3rd category stated above. Shatibi is of the opinion that most Ulama have accepted it in principle. Examples are digging well in a place d) which is not likely to cause harm or spe aking a word of truth to a tyrannical ruler. Ulama have ruled in favour of permi ssibility of these means. 2:104).

Denial of b inding nature of a command established by definitive proof (Fard by Qati evidenc e) leads to unbelief. If there is binding demand from the lawgiver to do something. Fard and wazib are syno nymous. If the communication is made in the form of an enactment of a Cause o r condition only. Wazib Muhaddad (quantified Wazib. the Hanafi's consider the demand Fard when both text and the meaning are definitive (qati) and wazib when either the text or meaning is speculative (Zanni . b) c) A consequence of distinction between quantified wazib and unquantified wazib is that quantified wazib becomes a liability on the person who has not paid it in p roper time. perform ance of some of the community would suffice). the Hukm is called "Al-Hukm al-taklifi (defi ning law). 32 . Mubah. Difference between Fard and Wazib has important consequence.because liable to interpretation of meaning or investigation of authent icity). paying Mohr to wife). that is. Makruh and Haram. People of extr emist tendencies can use sadd al-Dharai to restrict human freedom granted by All ah and the Prophet(SM) which is not good for the Ummah. Wajib. it is called al-Hukm al Wadi (declaratory law) [see explanatio n below ]. However. Value of Shariah Rules ( Hukm Sharii) Hukm Sharii is the communication from the lawgiver (Allah and the P rophet[SM] on the authority of Allah) concerning the conduct of Mukallaf (on who m law is applicable. it is wazi b. denial of Wazib (according to Hanafi's) or 2nd ca tegory of Fard (according to the majority) lead to transgression (Fisq). Mandub. Al-Hukm al. Wazib ( and Fard) has been variously classified into the following : a) Wazib ayni (pers onal obligation of all Mukallaf) and Wazib Kafai (collective obligation. a sane and adult person) which may be in the form of a demand or an option or only as an enactment. such as Zak ah and Salah) and Wazib Ghair Muhaddad (unquantified Wazib such as charity to po or.Ibnul Arabi and Abu Zahra are in favour of moderation in its use. When the communication is made in the form of a demand or option. Wazib Muwaqqat (Wazib contingent o n time-limit such as Salah and Siam) and Wazib Mutlaq (absolute wazib which is f ree from time limit such as Hajj).taklifi (defining law) may be in the form of Fard. However. According to majority.

Nafl and Mustahab. marrying a woman only to make her legal fo r another man (tahlil). This is the dif ference between Wazib and Mandub. Haram (also known as Mahzur) is a binding demand of lawgiver to abandon something. c) It may be in the form of a command to avoid (Quran . Examples are Nafl prayers and non-obligatory charity. 24:3. [Quran .5:3 ]. 2:188]. Examples of Mandub in the Quran can be seen in verses 2:28 2. to avoid wine-drinking and gambling). It is preferable to omit it than to commit it. Quran 4:19) e) Proh ibition may be proved by punishment provided for a conduct (Quran . attending congregational prayer) and (b) Supererogatory Sunnah (Sunnah Ghair al-Muakkadah). The texual evidence for Haram may occur in various forms su ch as : a) It may start with "Hurrimat alaykum" (forbidden to you). Hashim 33 . d) It may be stated that it is not permissible (La yahilla lakum. Pro hibition has also been classified into : a) b) Haram li-dhatih (which is forbidd en for its own sake (such as wine. This is the majority view.5:90. These are the textual basis for Makruh. The level of proof required to establish prohibition is the same as Fard (as explained by early Hanafi Ulama) and of Wazib (as explained by the majo rity Ulama of Usul). b) It may be conveyed in negative terms such as "la taqtulu" (do not kill). (Ref: Dr. gambling) and Haram li Ghayrih (which is forb idden for an external reason such as.5:90. Mandub is also c alled Sunnah. [Quran . " la takulu (do not eat or take). Compliance ea rns spiritual reward but no punishment is inflicted for failure. Makruh is opposite of Mandub.verses on ha dd penalties and also verses mentioning punishment of fire in the hereafter. Neglect of sunnah al-Muakkadah is blame worthy but not punishable. According to Hana fis the commitment of Makruh Tahrimi entails moral blame but not punishment. Neglect of Sunnah Gair al-Muakkadah is neither blamew orthy nor punishable. The re are traditions (Hadith) in which the word Kariha or its derivative has occurr ed. Sunnah (Mandub) has been clasified into (a) emp hatic sunnah (Sunnah-al Muakkadah (examples are adhan. Examples of Mandub are creation of charitable endowment (Waqf) giving alms to the poor and attending to sick.Mandub (recommended) denotes a demand not binding on the Mukallaf. Hanafi's divide Makruh into : a) Tanzihi and b) Tahrimi. Com mitting Makruh is not liable to punishment or moral blame.

K. There is another kind of Shariah values called Sahih (valid). it becomes Sahih. on whom law is applie d.e. Azimah is the law as the lawgiver had intended in the first place without any softening for any reason (example : all Ibadah i n normal circumstances). (b) omitting a Wazib when conformity to wazib causes ha rdship (example is the provision for traveller to shorten salah or not to observ e fast during Ramadan and (c) in the form of validating contracts which would no rmally be disallowed (for example.) Mubah (also termed halal and Jaiz) is a communication of the lawgiver which gives option to the Mukallaf (The Quran . Rukhsah may occur (a) in the form of permitting a prohibited thing on the ground of necessity. and (e) Rukhsha. the a ct is valid or sahih. Cambridge. In the matter of transactions also. A law is a Rukhsah when the law embodies the exception to take care of difficulties (example is granting concession to traveller to bre ak fast). 2:173). (c) Mahkum Alayh. The classification is made on the basis of compliance with essential requiremen ts (arkam) and conditions (shurut) of Ahkam. (b) Mahkum Fih or subject matter. (b) condition. a condition (shart) or a hindrance (Mani) to the defining law. Fasid (irregular) and Batil (void). The Ulama are in agreement that Ibadah can only be sahih or batil. obligations of the Mukallaf which may be in the form of Wazib. not Ba til) when there is some deficiency in the Shart (condition). Another example is the hadith. (d) Azimah. If these are not fulfilled. Declaratory law is divided into (a) cause. though the goods are non-existent). The pillars of Hukm Shari are (a) Hakim or lawgiver . " there shall be no bequest to an heir" which enacts a hindrance (ma'ni) to beques t (wasiah).Kamali. (c) hindra nce.5:6. U . the majority hold the same view. Mandub or 34 . i. Thus the presence of witnesses has been made a condition of a valid marriage. Mahkum Fih d enotes the acts. Principles of Islamic Jurisprudence. Al-Hukm al-wa di (declaratory law) enacts something as a cause (sabab). 2:235. the act is void or Batil. When all these are fulfilled. An explicit example is the hadith which says "there is no "nikah" without two witnesses. The source of all law in Islam is ultimately Allah (6:57. The Ulama of Usul include "Mubah" under Hukm Shari although including it under al-Hukm alTaklifi is on the basis of probability as there is basically no liability. the Hanafis have va lidated an intermediate category in transactions called Fasid (irregular. advance sale [salam] and order for the manufa cture of goods [Istisnah]. Islamic Texts Society. However. 5:45). If the deficiency i s made up.

If this is not possible. All such conflicts are apparent rather then real. try to reconcile the apparent conflict in wh ich case both the evidence will be applicable in different sets of circumstances . the opp osite is required by 2 Quranic Ayat or by a Quranic Ayat and a Mutawatir Hadith (these two are considered equal in authenticity or by two Ahad Hadith. Taarud mean s that two evidence of Shariah are of equal strength and they require opposite o f each other. 12. he would see the ti me 35 . Taarud Taa' rud (conflict of evidences) Taa'rud means conflict. Mahkum Alaih deals with the legal capacity of the individuals who bear th e rights and obligations imposed by Shariah. A conflict is thus not expected to occur if the two evidences are of unequal strength. For this reason . If. Worship. Jihad etc. are within rights of Allah.Mubah. that is the subject matter of one can not be distinguished from the other or the time sequence of them can not be distinguished (that is it can not be ascertained which one is the latter). then. he will try to prefer one over the other. then. In Usul al Fiqh. A person acquires active legal capa city when he attains a certain level of intellectual maturity and competence. Kaffarah. If this is not possible. Haqq-al-Allah or the rights of Allah is so called not because Allah benefits from them but because these are beneficial for the co mmunity at large. Hukm Shari has also been classified into (a) haqqal-Allah and (b) Haqq-alIbad. A conflict between Nasus (te xts of the Quran and the Sunnah) and Ijma is inconceivable as Ijma can not viola te Nass. Hadud. thus at lea st one evidence will be kept. the re is a conflict. however. In other words these are public rights. Conflict can only arise. because the stronger evidence will prevail. A genuine conflict can hardly arise between Qati proofs. Suc h apparent conflicts can be resolved by (a) reconciliation. there will be no conflict between a Qati and Zanni proof. Uqubah (punishments). (b) by specification or (c) by giving preference of one over the other. if the rulings of the two evidence ca n not be reconciled. Ac tive legal capacity is only partial in case of a child (because of age) and in c ase of a person in death bed. A Mujtahid must therefore.

Ijtihad is a duty of the scholars. The sources of Isl amic law other than the Quran and the Sunnah are essentially manifestations of I jtihad. Ibarah al Nasss will be preferred over Isha rah al Nass and so on. Ijtihad consists of intel lectual exertion. however. if the two can not be reconciled. The Quran and the Sunnah were completed at the time of death of the Prophet (SM). Prohibition takes priority over permissibility . Hadith transmitted by Faqih or leading companion s over hadith narrated by others. If this is also not possible. When clear rule is available in the text (Nass) of the Quran and the Sun nah. its adaptability to new situations and ca pacity to tackle all new issues and problems. Ijtihad. Ijtihad literally means striving or self-exertion.) If one evidence is Amm and the other Khass.sequence and apply the principle of abrogation. Ijtihad Ijtihad has been derived from the root word Jaha da. Propriety or justification of Ijti had is measured by its harmony with the Quran and the Sunnah. Where preference has t o be resorted to. both the evidences will be aba ndoned. In the case of conflict of two Qiyas. the following rules of preference should be applied : a) b) c) d) e) f) Clear texts will be preferred over unclear texts Sarih will be preferr ed over Kinayah. (Fard al Ayn or Wajib 36 . one may be given preference 13. Ijtihad is not applicable. Ijtihad is a very broad source of Islamic law and comes after the Quran and the Sunnah. one may try to distingu ish the subject matter of application (for instance one may be applicable to adu lt and the other to the minor or one may be applicable to married people and the other to unmarried people. When two evidence in conflict are Amm (general). In this way the later evidence w ill be retained and the earlier one in time will stand abrogated (however such c ases are very few). the sol ution is Takhsis al Amm (specification of a part of Amm). Haqiqi over Majaji. continues and this is the source o r methodology which gives Islamic law. The subject matter of Ijtihad is the practical rules of Shariah not covered by Nasus. The findings of Ijtihad are essentially Zanni in character. If the issue is urgent. Ijt ihad is compulsory on each competent scholar. Mutawatir Hadith will be preferred over Mashhur and Mashh ur will be preferred over Ahad.

He must be knowledgeable in the Quran and the Sunnah and related subjects. Ibn Hazm believes Taq lid is not permissible for any one. He must be g enerally knowledgeable of the Ijtihad carried out by previous scholars. Taqlid is not permitte d for a person who can investigate even some matters (Ref. The following are the requirements : a) b) c) d) e) Good knowledge of Arabic language. 4:59 have been quoted in support of Ijtihad. But it is not really so. He must know the Maqasid of Shariah. 9:122. A scholar is supposed to avoid Taqlid (blind following of another scholar). First is the hadith in which Muadh b in Jabal replied to the Prophet (SM) that he would resort to Ijtihad. : Al-Insaf fi Bayan-a l-Asbabil Ikhtilaf. Requirements of Ijtihad have been laid down by so me scholars. Abul Hussain al Basri. Ijtihad is validated by the Quran and t he Sunnah and the practice of the Sahabas. Only if solution is not found there . laid down for the first time the qualifications of a Mujtahid in the 5th century Hijra which was later accepted by Gazali and Amidi. Several hadith are quoted in support o f Ijtihad.e. it is a collective obligation (Fard al Kafa i or Wazib al Kafai). It may appear that the qualifications are very Ayn). c lear texts but liable to interpretation). It is true that Ijtihad is the function of the competent schoars. by Shah Wali Ullah). he can do Ijtihad in all areas.59:2. The majority of Ulama hold that if a person is capable of making Ijtihad in one area. Nothing has been mentioned in this regard in the Quran and the Sunn ah. if he does not find a solution in the Quran and the Sunnah and the Prophet (SM) affirmed h im (Narrated by Abu Dawood). 29:69. The Quran . Istihsan. If the issue is not urgent. Rules of Ijtihad by way of Qiyas. Shah Wali Ullah says. Of them. These Ayats are Zahir in nature ( i. Istislah have been laid doesn by usul scholars. Taqlid is permissible only for a layman. He must be an upright person and must be capable of distinguishing between strong and weak evidence. two are very important. Second is the Hadith in which the Prophet (SM) said that the Mujtahid will get two rewards if he is corrrect and one reward if he c ommits a mistake (Abu Dawood). Procedure of Ijtihad is that the Mujtahid must first look at the Quran and the Sunnah. T hese are all attainable in reasonable time by any sincere and competent person. he may resort to Ijtihad. 37 .

The minority hold that each o f the several verdicts may be regarded as true on their merit. 38 . Reconstruction of Religious Thought in Islam). more and more Ijtihad i s likely to be collective. (Shawkani. Irshad ). Brill Dr. Taha Jabir Al -Alwani. Iqbal says that "clos ure of gate to Ijtihad is a pure fiction" Progress of Islamic civilization in fu ture depend on Ijtihad by competent scholars. 5. Cambridge.Ilm Usul Al Fiqh. 7. Taha Jabir al Alw ani: Source Methodology in Islamic Jurisprudence. Principles of Islamic J urisprudence. Abdul Wahab Al Khallaf . Subhi Mahmassani .K. Islamabad. The basic classification can be as follows : a) Major Mujta hids. Cairo. 9.Usul al Fiqh. Dar al Qalam. Kuwait.J. 2. Dar al Fikr a l Arabi. Ijtihad published by IIIT. This view has now been rejecte d. 8. 4. Leiden. (Reference Dr.The Phi losophy of Jurisprudence in Islam. Abu Zahra -. Bibliography: 1. Cairo Prof.Usul al Fiqh. Ahmad Hassan. Shawkani said that this view is to be utterly rejected. USA. Hashim Kamali. Islamic Research Institute. USA. 6. Principles of Islamic Jurisprudence by Hashim Kamali. Allamah Iqbal. Allama Iqbal: Recon struction of Religious Thought in Islam. The doctrin e of Ijma in Islam. IIIT. 3. who made their own rules of Ijtihad and did comprehensive Ijtihad. Mohamm ad Al Khudari . In future. b) Othe r Mujtahids who in most part followed the rules of Ijtihad of other scholars and who undertook Ijtihad on that basis either fully or partially. Some scholars we re against Ijtihad after the first few centuries. Islamic Texts Society. Dr. U. Dar al Fikr. E.The majority hold that Ijtihad is liable to error. Mujtahids have been classified in various ways by some scholars according to their understanding.

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